C-46/95

OPINION OF MR ELMER — CASE C-46/95

OPINION OF ADVOCATE GENERAL ELMER delivered on 21 March 1996 *

I - 1280

COMMISSION ν LUXEMBOURG

to that letter of formal notice. However, in tion of the directive. In this connection, the an annex to a letter sent to the Commission Luxembourg Government relies, in regard to on 6 April 1994 by the office of Luxem­ Article 5 of the directive, on the distribution bourg's Permanent Representative to the of the brochure (in French, German and Por­ European Union, the Luxembourg Govern­ tuguese) to all households, as well as on the ment stated that it did not consider it appro­ annual publication since 1986 of practical priate to implement the directive by way of information in telephone directories. Regard­ laws, regulations or administrative provi­ ing Article 6 of the directive, the Govern­ sions, but that the information intended for ment further refers to the 'Plan particulier the population was contained in a plan d'intervention en cas d'incident ou d'accident which had been distributed to the entire à la centrale électronucléaire de Cattenom' population. By letter of 4 May 1994, the (hereinafter 'the plan'), which contains a Commission, referring to its letter of formal number of draft announcements to be broad- notice, informed the Luxembourg Govern­ cast by radio in the event of a nuclear acci- ment that the measures notified could not be dent, "with regard to Article 7 of the direc- regarded as sufficient for implementation of tive, the Government submits that the the directive. persons concerned do in practice receive the required information on an ongoing basis. The Luxembourg Government also points out that it is in the process of drafting a Grand-Ducal Decree which reproduces the provisions of the directive. That decree, however, cannot, in the view of the Luxem- 6. In the absence of any further reply from bourg Government, be regarded as constitut- the Luxembourg Government, the Commis­ ing a late implementation of the directive. sion sent a reasoned opinion on 7 June 1994 requesting it to adopt the measures necessary to comply with the directive within two months of notification. N o reply to that rea­ soned opinion was forthcoming.

10. The Court has consistently held that, in have been sent to anyone who moved to order to ensure that directives are fully Luxembourg at a date subsequent to its dis­ applied in fact as well as in law, Member tribution, and, second, it is very likely that States must provide a precise legal frame­ many of the households to whom the bro­ work in the field in question, by adopting chure was originally sent will no longer be in rules of law capable of creating a situation possession of it. Finally, there are no rules which is sufficiently precise, clear and trans­ which guarantee that the Luxembourg Gov­ parent to allow individuals to know their ernment will in future redistribute the bro­ rights and obligations and rely on them chure. before the national courts. This the Court has, inter alia, most recently held in a case brought against the Grand Duchy of Luxem­ bourg 2 concerning the transposition into Luxembourg law of Council Directive 92/44/EEC of 5 June 1992 on the application of open network provision to leased Unes. 3 In addition, I take the view that implementa­ tion of Article 6 of the directive by way of the plan to deal with an accident at the Cat- tenom nuclear power station is inadequate. In the first place, the plan deals only with this one nuclear power station, and thus no general disaster plan has been drawn up with regard to potential accidents at other nuclear 11. One might ask whether the above case- power stations. N o r are there, with regard to law of the Court can be regarded as appro­ Article 6, any rules which guarantee that the priate in a case such as the present, since it is Luxembourg Government will maintain the possible at the outset to have some sympathy disaster plan, keep it up to date, and so forth. for the highly practical manner in which the Luxembourg Government has given effect to the directive in this case.

thereby have any guarantee that the Govern­ 13. It ought therefore, in my opinion, to be ment is meeting its obligations. held that, by failing to adopt within the pre­ scribed period the laws, regulations and administrative provisions necessary to com­ ply with the provisions of the directive, the Grand Duchy of Luxembourg has failed to 12. Against that background, I find that, in fulfil its obligations under Article 12 of the accordance with the Court's case-law to directive and the Euratom Treaty. date, the Grand Duchy of Luxembourg has failed to adopt within the prescribed period the laws, regulations and administrative pro­ visions which must be regarded as necessary, first, to ensure that the authorities comply on an ongoing basis with the requirements 14. The Commission has applied for costs to set out in the directive regarding the provi­ be awarded against the Grand Duchy of sion of information to the population, and, Luxembourg. Under Article 69(2) of the second, to enable individuals to be fully Rules of Procedure, the unsuccessful party is aware of their rights under the directive and, to be ordered to pay the costs if they have if necessary, to rely on them before national been applied for in the successful party's courts. pleadings.

Conclusion

15. I accordingly p r o p o s e t h a t the C o u r t rule as follows:

(1) B y failing t o a d o p t all t h e m e a s u r e s necessary in o r d e r t o i m p l e m e n t C o u n c i l Directive 89/618/Euratom of 27 N o v e m b e r 1989 o n i n f o r m i n g t h e general p u b l i c a b o u t health p r o t e c t i o n measures t o be applied a n d steps t o be t a k e n in t h e event of a radiological emergency, t h e G r a n d D u c h y of L u x e m b o u r g has failed t o fulfil its obligations u n d e r t h a t directive a n d t h e E u r a t o m Treaty.