C-313/93
ECLI:EU:C:1994:93
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OPINION OF MR VAN GERVEN — CASE C-313/93
OPINION OF MR ADVOCATE GENERAL VAN GERVEN delivered on 9 March 1994 *
Mr President, measures necessary to comply with the Members of the Court, directive within three years of its notification and communicate to the Commission the provisions of national law which they adopt in the field covered by the directive.
1. In this action against a Member State for failure to fulfil its obligations, brought before the Court by application lodged at the Court Registry on 10 June 1993, the Commission asks the Court to:
The directive was notified to the Member States on 3 July 1985. The period allowed for transposition therefore expired on 3 July (i) declare that by failing to adopt and/or 1988. communicate to the Commission within the prescribed period all the measures necessary to comply with Council Direc tive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environ 1 ment, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Since the Luxembourg Government commu the directive, in particular Article 12 nicated no information concerning the trans thereof, as well as under Articles 5 position of the directive, the Commission and 189 of the EEC Treaty; gave the Grand Duchy of Luxembourg for mal notice by letter of 9 March 1990 to sub mit its observations in that connection. By letter of 19 July 1990, the Permanent Repre sentative of the Grand Duchy of Luxem (ii) order the Grand Duchy of Luxembourg bourg replied to the Commission that legis to pay the costs. lation to transpose the directive was in the process of being adopted. As it had still received no information, on 8 April 1991 the Commission sent the reasoned opinion pro vided for by the first paragraph of Art 2. Article 12 of the directive in question pro icle 169 of the EEC Treaty to the Grand vides that the Member States are to take the Duchy of Luxembourg. By letter of 3 May 1991, the Permanent Representative of the Grand Duchy of Luxembourg again replied to the Commission that implement * Original language: French. 1 — OJ 1985 L 175, p. 40. ing legislation was being adopted.
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COMMISSION v LUXEMBOURG
3. In its defence, the Grand Duchy of Lux obligations imposed under Article 189 of the embourg considers that the Court would not Treaty on the Member States to which direc be justified in ruling against it since the main tives are addressed. provisions of the directive have already been transposed into national law by the Law of 9 May 1990 concerning premises that are dangerous or insanitary or used for carrying 2 on noisy or noxious trades and by the im plementing Grand-Ducal Regulation of 18 At the hearing, the representative of the Lux May 1990 fixing the list and classification of embourg Government announced that the premises that are dangerous or insanitary or draft Grand-Ducal regulation would be used for carrying on noisy or noxious approved two days later by the Government, trades. 3The provisions which have not been and then published in the Luxembourg offi transposed are of a technical kind, and even cial journal, 'Le Mémorial'. The failure by of an ancillary nature, and their formal trans Luxembourg to fulfil its obligations would position would in no way alter the practice thus be remedied before the judgment. of the public authorities, which consists of systematically requiring assessments of envi ronmental effects in accordance with the directive and taking account of environmen tal interests. In its rejoinder, however, the Grand Duchy of Luxembourg impliedly acknowledges that legal certainty will be It should be noted, however, that the actual ensured only when a draft law and draft position of the Luxembourg authorities has Grand-Ducal implementing regulation trans no bearing on the question whether Luxem posing the directive in full have been bourg is in default. The Court has consist adopted. ently held that a Member State may not rely on provisions, practices or situations in its internal legal system in order to justify non compliance with the obligations and time- 5 limits prescribed by Community directives.
4. It is apparent from the information in the documents before the Court that, in reality, the existing Luxembourg legislation does not transpose all the provisions of Direc tive 85/337/EEC. Moreover, the Court has 4 consistently held that mere administrative Moreover, the fact that Directive practices, which by their nature are alterable 85/337/EEC is to be transposed forthwith at will by the authorities and are not given into Luxembourg law in no way lessens the the appropriate publicity, cannot be regarded value of holding that there has been a failure as constituting the proper fulfilment of the to do so. The Court has also consistently held that even when a default has been rem edied after the expiry of the time-limit 2 — Mémorial A 1990. p. 310. 3 — Mémorial A 1990, p. 316. 4 — Judgment in Case 102/79 Commission v Belgium [1980] ECR 1473, and more recently the judgment in Case 5 — Consistent case-law and, most recently, the judgment in Case C-381/92 Commission v Ireland [1994] ECR I-215. at para C-303/92 Commission v Netherlands [1993] ECR I-4793, at graph 7. paragraph 9.
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OPINION OF MR VAN GERVEN — CASE C-313/93
fixed by the Commission's reasoned opin ity which a Member State may incur as a ion, there is still an interest in pursuing the result of its default towards other Member action in order to establish the basis of liabil States, the Community or private parties.
5. For those reasons, I propose that the Court grant the Commission's application and uphold its claims.
6 — Consistent case-law and, most recently, the judgment in Case C-280/89 Commission v Ireland [1992] ECR I-6185, at para graph 7.
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