C-93/94
ECLI:EU:C:1994:392
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OPINION OF MR TESAURO - CASE C-93/94
OPINION OF ADVOCATE GENERAL TESAURO delivered on 22 November 1994 *
Mr President, Since the Netherlands failed to take steps to Members of the Court, implement the directive by that date, the Commission initiated infringement proceed ings under Article 169 of the Treaty by letter of formal notice of 20 May 1992. Notwith standing assurances on that point from the Netherlands authorities, the directive still remained to be implemented on the expiry of the two-month period prescribed in the rea soned opinion of 14 April 1993. On 17 March 1994 the Commission therefore brought the present proceedings. 1. In the case now before the Court, the Commission seeks a declaration that, by fail ing to adopt within the prescribed period the measures necessary to comply with Council Directive 90/667/EEC of 27 November 1990 laying down the veterinary rules for the disposal and processing of animal waste, for 3. At this point it is appropriate to point out its placing on the market and for the preven that, in both the letter of formal notice and tion of pathogens in feedstuffs of animal or the reasoned opinion, the Commission fish origin and amending Directive charged the Government of the Netherlands 1 90/425/EEC, the Kingdom of the Nether only with the latter's failure to fulfil its obli lands has failed to fulfil its obligations under gations under the directive itself and under the EEC Treaty. the third paragraph of Article 189 of the Treaty in conjunction with the first para graph of Article 5 of the Treaty. In contrast, in the application initiating the proceedings, the Commission claimed that, since the fail ure to transpose the directive by 31 Decem ber 1991 is of a nature such as to jeopardize the establishment of the internal market, it also constitutes an infringement of Article 7a of the Treaty, considered in the light of Arti cle 5. 2. Under Article 21(1) of that directive, Member States are required to ensure its transposition into domestic law by 31 December 1991 at the latest.
Suffice it to note in that connection * Original language: Italian. 1 — OJ 1990 L 363, p. 51. that, as the Court has consistently
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COMMISSION v NETHERLANDS
held, the subject-matter of proceedings I would remind the Court that, according to brought under Article 169 of the Treaty is 3 the relevant case-law, the fact that a Mem delimited by the pre-litigation procedure ber State has failed to fulfil specific obliga provided for in that article and by the form tions incumbent upon it under a directive of order sought in the application to the makes it unnecessary to examine whether it Court, and that both the reasoned opinion has thereby also failed to fulfil its obligations 4 and the application must be based on the under Article 5 of the Treaty. same grounds and on the same pleas in law. Consequently, in so far as it refers to Article 7a of the Treaty, the Commission's applica tion is in any event inadmissible.
Consequently, it is sufficient to declare that the Netherlands has failed to fulfil its obliga tions under the directive itself and, specifi 4. And so we come to the substance. The cally, under Article 21. Government of the Netherlands does not contest the infringement alleged against it: it confines itself, first, to justifying its failure to transpose the directive within the prescribed period by reference to the complexity of the legislative amendments to be adopted and the delays which have arisen in the course of 6. In the light of the foregoing I therefore the relevant parliamentary procedures; and, propose that the Court: secondly, to emphasizing that the imple menting measures ought now to come into force very soon.
— declare that, by failing to adopt within the prescribed period the measures neces sary to comply with Council Directive Since it is uncontested that Directive 90/667/EEC, the Kingdom of the Neth 90/667/EEC was not implemented by the erlands has failed to fulfil its obligations date set in Article 21, the Commission's under that directive; claim that in respect of that directive there has been a failure to fulfil obligations must therefore be upheld.
— order the Kingdom of the Netherlands to pay the costs.
5. However, with respect to the claim that the Netherlands has failed to fulfil its obliga tions under Articles 5 and 189 of the Treaty, 3 — Sec, most recently, the judgment in Case C-65/94 Commis- sion v Belgium [1994] ECR 1-4627, paragraph 5. 4 — In that connection I ought to point out that the same logic applies in respect of the alleged infringement of Anieles 7a and 5 of the Treaty, provided of course that in such cases ref erence to that legal basis has already been made during the 2 — Sec the judgment in Case C-243/89 Commission v Denmark pre-litigation procedure and is not confined, as in the present [1993] ECR 1-3353, paragraph 13. case, to the application initiating the proceedings.
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