C-344/96

O P I N I O N OF MR LÉGER — CASE C-344/96

O P I N I O N OF ADVOCATE GENERAL LÉGER delivered o n 16 D e c e m b e r 1997*

1. By application lodged at the Court Regis- mental plant propagating material and try on 17 October 1996, the Commission of ornamental plants; 2 the European Communities brought an action under Article 169 of the EC Treaty seeking a declaration that, by failing to bring into force within the prescribed period all the laws, regulations and administrative pro- visions necessary to transpose into its — Commission Directive 93/64/EEC of domestic law: 5 July 1993 setting out the implementing measures concerning the supervision and monitoring of suppliers and establish- ments pursuant to Council Directive 92/34/EEC on the marketing of fruit plant propagating material and fruit plants intended for fruit production; 3

— Commission Directive 93/62/EEC of 5 July 1993 setting out the implementing measures concerning the supervision and monitoring of suppliers and establish- ments pursuant to Council Directive — Commission Directive 93/78/EEC of 92/33/EEC on the marketing of vegetable 21 September 1993 setting out additional propagating and planting material, other implementing provisions for lists of vari- than seed; 1 eties of ornamental plant propagating material and ornamental plants, as kept by suppliers under Council Directive 91/682/EEC; 4

— Commission Directive 93/63/EEC of 5 July 1993 setting out the implementing — Commission Directive 93/79/EEC of measures concerning the supervision and 21 September 1993 setting out additional monitoring of suppliers and establish- implementing provisions for lists of vari- ments pursuant to Council Directive eties of fruit plant propagating material 91/682/EEC on the marketing of orna-

2. In accordance with Articles 6(1) of Direc- tives 93/62, 93/63 and 93/64, 3(1) of Direc- tives 93/78 and 93/79 and 7(1) of Directive 94/3, Member States were to bring into force the laws, regulations or administrative provi- sions necessary to comply with these direc- tives and to inform the Commission forth- 5. Having received no communication from with. Under those same articles, the period the German Government of any provision prescribed for adopting these provisions adapting domestic law to the directives, the expired on 30 June 1994 in the case of Direc- Commission sent a reasoned opinion to the tives 93/62, 93/63, 93/64, 93/78 and 93/79 German Government on 25 September 1995 and 5 May 1994 in the case of Directive 94/3. requesting it to take the necessary measures within two months.

5 — Ibid., p. 25. 6 — OJ 1994 L 32, p. 37. 7 — BGBl. I , p. 1917.

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O P I N I O N OF MR LÉGER — CASE C-344/96

7. N o t having received any further infor- mation from the German Government from which it could be concluded that the Federal Republic of Germany had, in the meantime, complied with its obligations under the 10. O n 10 February 1997, in accordance directives, the Commission decided to bring with Article 78 of the Rules of Procedure, the present action. the Commission informed the Court that it was discontinuing the proceedings with respect to Directive 94/3 and, pursuant to Article 69(5) of the said Rules of Procedure, asked the Court to order the Federal Repub- lic of Germany to pay the costs. However, it has not abandoned the complaints concern- 8. In its defence, the German Government ing the other directives. points out that Directive 94/3 has been transposed by Paragraph 38a of the Law of 15 September 1986 on plant protection, re-enacted in Paragraph 1(14) of the Law of 8 — of 23 June 1993, setting out the schedule indicating the con- ditions to be met by fruit plant propagating material and 25 November 1993, and provides the Com- fruit plants intended for fruit production, pursuant to mission with all the information required to Article 4 of Council Directive 92/34/EEC (OJ 1993 L 250, p. 1). verify this. 9 — of 23 June 1993, setting out the schedule indicating the con- ditions to be met by ornamental plant propagating material and ornamental plants pursuant to Article 4 of Council Direcrive 91/682/EEC (ibid., p. 9). 10 — of 2 July 1993, setting out the schedules indicating the con- ditions to be met by vegetable propagating and planting material, other than seed, pursuant to Council Directive 92/33/EEC (ibid., p. 19). 11 — giving rise to the judgment of 16 September 1997, (Commis- sion v Germany [1997] ECR I-4845. 9. Moreover, the German Government does 12 — Sec points 2 and 3 of its defence. not deny that Directives 93/62, 93/63, 93/64, 13 — Ibid., point 8.

12. So far as Directives 93/62, 93/63, 93/64, 14. It should also be pointed out that the 93/78 and 93/79 are concerned, it must be Federal Republic of Germany does not deny noted, as regards the argument that these that the measures necessary to transpose directives could not be transposed because of Directives 93/62, 93/63, 93/64, 93/78 and difficulties in interpreting their scope, that 93/79 into domestic law have not yet been the German Government did not mention adopted within the period prescribed in these difficulties until after the period pre- those directives. scribed for transposing the directives had expired, 14 in other words at a time when they •were already in force. In circumstances such as these — directives already adopted and in force — I consider that requests made by a Member State to the Commission for assistance in interpreting a Community con- 15. Consequently, the Commission's appli- cept which is the subject of dispute can in no cation should be allowed and it should be way defer, suspend or justify in law the fail- held that, by failing to adopt within the pre- ure to fulfil obligations under the Treaty scribed period the measures necessary to constituted by non-transposition, since oth- comply with the directives in issue, the Fed- erwise a Member State could easily avoid its eral Republic of Germany has failed to fulfil obligation to transpose a directive within the its obligations under Articles 6(1) of Direc- prescribed time-limit by raising doubts, tives 93/62, 93/63 and 93/64 and 3(1) of alleged or real, on the interpretation of that Directives 93/78 and 93/79. 17 Under Article directive. 15 69(2) of the Rules of Procedure of the Court, the Federal Republic of Germany should also be ordered to pay the costs. Further- more, in view of the conduct of that State, which only belatedly communicated the 13. Moreover, the German Government national measure transposing Directive 94/3, seems to admit that the transposition mea- it must bear the costs relating to the Com- sures can be adopted as they stand as it states mission's partial discontinuance of the pro- ceedings, under Article 69(5) of those same Rules of Procedure. 14 — Letter of 10 October 1994 tinder cover of which the Ger- man Government sent the Commission a memorandum on the deregulation of EC directives concerning protection measures and the entry into free circulation of plants and propagating material (Annex 2 to the defence of the Federal 16 — See point 8 of its defence and point 7 of its rejoinder. Republic of Germany in the aforementioned Case 17 — See, inter alia, the judgment in Commission v Germany, C-139/96). cited above, and the judgment of 13 November 1997 in 15 — See, to this effect, the Commission's application (point 19, Commission v Germany (C-236/96 [1997] ECR I-6397, paragraph 2). paragraphs 10 and II).

(2) order the Federal Republic of Germany to pay the costs of these proceedings and the costs consequent upon the Commission's partial discontinuance of the proceedings.

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