C-96/95

OPINION OF MR LA PERGOLA — CASE C-96/95

OPINION OF ADVOCATE GENERAL LA PERGOLA delivered on 19 September 1996

1. In these proceedings the Commission to nationals of Member States 'who do not seeks a declaration that the Federal Republic enjoy this right under other provisions of of Germany (Germany) has failed to fulfil its Community law and to members of their obligations by not transposing Council families' (Article 1 of Directive 90/364) and Directives 90/364/EEC 1 and 90/365/EEC 2 'who have pursued an activity as an ('the Directives') into national law. Germany employee or self-employed person and to contests the Commission's findings, con- members of their families' (Article 1 of tending that the Directives have been prop- Directive 90/365). erly implemented.

Secondly, Paragraph 15a(3) (inserted in 1993) of the Aufenthaltsgesetz/EWG 4 (Law on EEC Residence) provides as follows: Article 5 of each Directive provides as fol­ lows:

'(3) The Bundesminister des Innern (Federal Minister for the Interior) may issue a decree, subject to the approval of the 'Member States shall bring into force the Bundesrat (Federal Council), adopting laws, regulations and administrative provi­ such provisions regarding the entry and sions necessary to comply with this Direc­ residence of persons ... as are necessary tive not later than 30 June 1992. They shall for the implementation of the Council forthwith inform the Commission thereof.' directives of the European Community concerning:

5. The national legislation, on the other (1) the right of residence, in accordance hand, basically contains two relevant provi­ with Council Directive 90/364/EEC of sions. 28 June 1990;

(2) the right of residence of employees Paragraph 2(2) of the Ausländergesetz (Law or self-employed persons who have on Aliens) 3 states that it applies to non- ceased their occupational activity, in German nationals who are entitled to free- accordance with Council Directive dom of movement by virtue of Community 90/365/EEC of 28 June 1990 ...'. law 'save where otherwise provided by

4 — Gesetz über Einreise und Aufenthalt von Staatsangehörigen 3 — Gesetz über die Einreise und den Aufenthalt von Ausländern der Mitgliedstaaten der Europäischen Wirtschaftsgemein- im Bundesgebiet as laid down by the Gesetz zur Neurege- schaft of 22 July 1969 (BGBl. I, 927) as laid down by the lung des Ausländerrechts of 9 July 1990 (BGBl. I, 1354, as Bekanntmachung of 31 January 1980 (BGBl. I, 116) (BGBl. amended by the Gesetz zur Änderung des Gesetzes zur III, 26-2). Paragraph 15a(3), the salient provision in this case, Neuregelung des Ausländerrechts of 12 October 1990, was inserted by the EWR-Ausführungsgesetz of 27 April BGBl. I, 2170). 1993 (BGBl. I, 512, 528).

9. O n 22 September 1993 the Commission sent the Federal Republic of Germany a rea- soned opinion in which — inferring from the observations submitted by the German authorities in reply to its earlier letter that the promised transposition of the Directives 7. In its reply dated 17 December 1992 (for- into the German legislation on EEC resi- warded to the Commission by letter of 5 dence had not yet been accomplished — it January 1993), the German Government called on Germany to adopt the necessary explained that the Federal Minister for the measures within two months of the date of Interior had informed the Interior Ministers notification of that opinion. of the Länder by memorandum of 30 June 1992 that a residence permit as prescribed by the German legislation on aliens had to be granted to persons in the categories defined by the two Directives. Thus the Community rules had essentially been transposed into 10. In its observations of 24 November 1993 domestic law. The German Government on the reasoned opinion, the German Gov- added, however, that it intended to incorpo- ernment argued that the Commission's view rate those rules into German law formally by with respect to the alleged failure to fulfil inserting a new subparagraph (subparagraph obligations had already been challenged in 3, cited above) in Paragraph 15a of the Law the communication of 31 March 1993, in on EEC Residence. That supplementary pro- which the German Government had vision would confer on the Federal Minister stated that the general clause inserted in for the Interior specific powers to adopt, subject to the B u n d e s r a t ' sapproval, the regulations necessary to transpose Directives 5 — Council Directive 90/366/EEC of 28 June 1990 on the right 90/364 and 90/365 into German law. of residence for students (OJ 1990 L 180, p. 30).

Paragraph 2(2) of the Ausländergesetz and 12. In its pleadings in defence, Germany expressly affirming the primacy of Community contended that the action should be dis- law over national law rendered the adoption missed and that the Commission should be of ad hoc implementing measures redundant. ordered to pay the costs. Its arguments in The provision adopted had in fact been support of those contentions concern both specifically drafted as an 'open-ended' rule the admissibility and the merits of the Com- enabling the national legislation to be mission's action. I shall consider both aspects adjusted to accommodate future develop- in turn. ments in the Community rules introduced by new directives or as a result of rulings by the Court of Justice. The German Govern- ment repeated that, solely for the sake of consistency, the German legislation on EEC Admissibility residence (which already incorporated Com- munity law on freedom of movement) would be supplemented by means of regulations concerning the Directives at issue when the measures implementing the Agreement on the European Economic Area came to be 13. The German Government contends, adopted. 6 with respect to the first plea in law in the application, that the Commission has intro- duced in its action before the Court legal arguments which were not raised during the pre-litigation procedure. The action should therefore be held inadmissible. 7 More spe- cifically, when the Commission alleged in its reasoned opinion (as it subsequently alleged before the Court) that Germany had failed to fulfil its obligations, it merely pointed out that the implementation measures announced in the letters of 5 January 1993 and 2 June 1993 had neither been adopted nor commu- nicated to it. 11. By application lodged on 24 March 1995, the Commission asked the Court (a) to declare that, by not adopting within the period prescribed the laws, regulations and administrative provisions necessary for the implementation of the Directives, or by not 14. The Commission had not, however, communicating them forthwith to the Com- according to the German Government, mission, Germany has failed to fulfil its obli- answered the argument put forward in its gations under the Treaty and (b) to order official communication of 31 March 1993 to Germany to pay the costs.

the effect that the transposition of the Direc­ to my mind, has a different understanding of tives had been effected through the reference the pre-litigation procedure. In the Commis­ in the German legislation on aliens to the sion's view, that procedure, so far as its pur­ primacy of Community law. That argument pose is concerned, is limited to precisely had been expressly addressed solely in the defining the alleged infringement. According application, where the Commission stated to Germany, however, it must offer an that, in its view, implementation by such opportunity for genuine debate enabling the means did not satisfy the criteria established States concerned not only to submit their by the Court. 8 own observations but also to obtain from the Commission a proper reply to the observa­ tions submitted in response to the letter of formal notice. If the pre-litigation procedure is to serve its purpose of persuading a State to put an end to its infringement of the Treaty, thereby avoiding recourse to judicial 15. The Commission, however, maintains proceedings, there must be a 'debate involv­ that the subject-matter of the action — fail­ ing the Member State's own arguments'. 9 ure to transpose the Directives into domestic law — remained unchanged throughout the procedure and continues to do so. Contrary to Germany's contention, the reasoned opin­ ion did not ignore the arguments put for­ ward in the German Government's commu­ nications of 5 January 1993 and 2 June 1993: quite simply, it did not accept them. Accord­ 17. This case thus raises an issue of consider­ ing to the Commission, there was no need to able practical importance. H o w do the Com­ consider Germany's arguments at length, mission and the Member States stand in rela­ either as regards the merits — since the facts tion to each other during the pre-litigation relied on did not amount to an adequate procedure? There can be no concealing the defence of the infringement complained of fact that the answer to that question is of sig­ — or in the interests of procedural economy nificance in determining both the obligations — since Germany was expected to adopt the on those involved in the prescribed pro­ legislation necessary for the correct transpo­ cedure and how the Commission may effec­ sition of the Directives within the period tively pursue the objectives underlying the prescribed. rules laid down in Article 169 of the Treaty.

the first step is to identify the purpose of the of such a decision a defaulting State may pre-litigation procedure. That purpose is, it even incur liability. As Advocate General seems to me, twofold. In the first place, Gand rightly observed in another case, 'to through the provision of a phase governed censure the course of action of a Member by the audi alteram partem principle, it was State, with the wide margin of error involved sought to delimit the subject-matter of the in appraising a course of action, is a respon­ 15 dispute, to define the legal points and the sibility not lightly to be undertaken'. Aca­ facts at issue, and to give the allegedly demic lawyers agree. 'Given the serious defaulting State an opportunity to prepare an nature of a finding that a Member State has effective defence. 11 The successful attain­ failed to fulfil its obligations', it has been ment of those objectives constitutes, in the observed, 'Member States must be given words of the Court, 'an essential guarantee effective procedural safeguards'. 16 intended by the Treaty, adherence to which is an essential formal requirement of the pro­ cedure under Article 169'. 12

19. Its second function is to encourage — by 21. That then is the conceptual framework harnessing 'the maieutic powers of inter of the pre-litigation procedure. The Com­ partes proceedings' 13 — an amicable settle­ mission's obligations under that procedure ment, thus avoiding recourse to the Court must now be defined. The question to be whilst achieving the primary purpose under­ addressed is therefore whether the Commis­ lying the infringement procedure. 14 sion is under a duty to provide a satisfactory response in its reasoned opinion to the Member State's observations submitted in reply to the Commission's letter of formal notice.

24. In many respects that position was subsequently re-stated in Lütticke. 20 In that judgment the Court states that Article 169 merely empowers the Commission to deliver a reasoned opinion and to initiate proceedings. We are therefore not concerned here with a power, such as that under 23. The Court's first judgment in proceed- Article 90(3), for example, to adopt binding ings under Article 169 provides some useful measures, in view of which the rights of guidelines on this subject. 18 There it was laid defence available to addressees of such mea- down that the reasoned opinion must con- sures have, rightly, been meticulously set tain a coherent statement of the reasons out. 21 In gauging the importance of the which have led the Commission to believe administrative procedure inter partes and the that the Member State in question has failed need for it to be exhaustive, that difference to fulfil its obligations. The Court was must be borne in mind. responding to an objection of inadmissibility raised by the Italian Government which con- tended that the Commission had not exam- ined 'the pertinence of [Italy's] arguments' in defence. That objection was rejected by the

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ments put forward by the defendant. The upon to submit observations. Its purpose is fact remains that, in the present case, the rather to define the Commission's position Commission's reasoned opinion expressly to the extent necessary to enable the State refers to the German Government's commu­ concerned to prepare its defence and the nications in which the appraisal of the Court to give judgment. Admittedly, the alleged infringement was not accepted. The Commission did not provide an express tenor of the reasoned opinion alone shows assessment as to the inadequacy of the unequivocally that, according to the Com­ Directives' implementation until the pro­ mission, the German authorities were under ceedings before the Court. However, that a duty to adopt ad hoc provisions in order to does not mean to say that it disregarded any implement the Directives in question. This procedural requirement or safeguard. Where means that, in the Commission's view, the the reasoned opinion clearly states the legal measures which Germany considered to be grounds and the facts supporting the charge entirely satisfactory for the transposition of of failure to fulfil obligations, the defendant the Directives were insufficient. State cannot rely on any legally protected interest in a full inter partes procedure.

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procedural safeguards which the 'serious the authorities which are competent to nature' of the procedure demands. I con- evaluate the preconditions for the right to clude therefore that the Court should dis- residence on a case by case basis to ensure miss Germany's objection and declare the that the Directives are properly imple- action admissible. mented.

Substance Lastly, according to Germany, the self- executing nature of the rules in question must be taken into account. Individuals can easily gain access to Community legislation 29. Germany contends that it transposed the and are in a position, even though in this Directives in question in accordance with the context the German rules merely indicate criteria laid down by the Court. 25 that Community law should be consulted, to acquire a clear and precise knowledge of their rights.

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32. The transposition measures adopted by obligation on the national legislature to Germany do not appear to me to meet those transpose Community law. Individuals may requirements. The other Community legisla­ indeed, if they wish to know their rights, tion on freedom of movement was trans­ always consult the appropriate sources, but posed ad hoc by being incorporated in the that does not alter the fact that, where trans­ German rules on EEC residence position is necessary, it must be carried out 27 (Aufenthaltsgesetz/EWG). That substanti­ in the appropriate manner and not in some ates the Commission's view concerning the other fashion. 2 8 O n the other hand, as transposition of the Directives in this case. Advocate General Mischo pointed out in For some categories of person the 'general Emmott, 'the publication of directives in the legal context' will consist of rights expressly Official Journal of the European Communi­ transposed into German law. Individuals in ties [...] is fundamentally different from the other categories, however, will have to infer publication [therein] of measures binding on their rights from Community law, to which individuals; that is not publication required reference is made. This two-fold system of by law producing legal effects, as in the case treatment makes it difficult — especially of regulations, but only publication for since the Directives in this case confer rights information'. 2 9 N o r is it an answer to point on individuals — for the persons concerned out that the acts at issue here are self- to know the full scope of their rights or how executing. The fact remains that they are to assert them before the national courts. directives, albeit complex, and both the Treaty and Article 5 of those Directives expressly state that transposition is neces­ sary. Rights conferred by Community law must therefore, as I have said, be sufficiently evident from domestic legislation — and transposition serves to bring this about —

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without there being any need to refer to the authority has not yet made use of its del- Community provisions transposed. egated powers to regulate the position of residents covered by the — hitherto — untransposed Directives. This is evidence that Germany has failed to fulfil its obliga- tions under Article 5 of those Directives — a failure which is arguably partial, but unlaw- ful none the less.

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Conclusion

In conclusion, I propose that the Court should:

(1) declare that the action brought by the Commission for a declaration that, by not transposing Council Directives 90/364/EEC and 90/365/EEC of 28 June 1990, the Federal Republic of Germany has failed to fulfil its obligations is admissible;

(2) declare that, by not adopting within the periods prescribed all measures neces­ sary for the compliance of national legislation with Council Directives 90/364/EEC and 90/365/EEC of 28 June 1990, the Federal Republic of Ger­ many has failed to fulfil its obligations in the matter of transposition;