C-190/97
ECLI:EU:C:1997:515
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- 61997CC0190
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OPINION OF MR FENNELLY — CASE C-190/97
OPINION OF ADVOCATE GENERAL FENNELLY delivered on 23 October 1997 *
1. The present infringement action concerns the Commission immediately of their imple- Belgium's admitted failure to transpose two mentation measures, and to include a refer- Directives adapting to technical progress the ence to Directive 93/72/EEC in those mea- basic Community measure on the classifica- sures or in the official publication in which tion, packaging and labelling of dangerous they are announced. substances.
I — Pre-litigation proceedings 3. In the absence of any indication that Directive 93/72/EEC had been transposed into Belgian law, the Commission opened the pre-litigation stage of the procedure pro- vided by Article 169 of the Treaty establish- ing the European Community (hereinafter 'the Treaty') by sending a letter of formal notice on 20 January 1995. In its reply of (a) Commission Directive 93/72/'EEC 22 March 1995, Belgium informed the Com- mission that the necessary transposition measures were in preparation. As it had received no further information on the adop- tion of these measures, the Commission delivered a reasoned opinion on 26 July 1996, to the effect that in fading to 2. Article 2(1) of Commission Directive adopt, and to communicate to the Commis- 93/72/EEC of 1 September 1993 adapting to sion, the necessary provisions, Belgium was technical progress for the nineteenth time in breach of its obligations under the Direc- Council Directive 67/548/EEC on the tive, and laid down a period of two months approximation of laws, regulations and for compliance. administrative provisions relating to the clas- sification, packaging and labelling of danger- ous substances (hereinafter 'Directive 93/72/EEC') 1 gave the Member States an implementation deadline of 1 July 1994. Article 2(2) and (3) required them to inform 4. By letter of 18 September 1996, Belgium drew the Commission's attention to the * Original language: English. Royal Decree of 23 June 1995 amending the 1 — OJ 1993 L 258, p. 29. Royal Decree of 11 January 1993 concerning
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COMMISSION v BELGIUM
the classification, packaging and labelling of 4 October 1995, Belgium maintained that dangerous preparations (hereinafter 'the 1995 Directive 93/101/EC had been transposed by Royal Decree'), which, it claimed, transposed part 1 of Annex III to the 1995 Royal Directive 93/72/EEC into Belgian law. In its Decree. In a reasoned opinion delivered on reply of 29 January 1997, the Commission 12 July 1996, the Commission repeated its took the view that, as neither Royal Decree view that the said Decree did not cover dan- concerned dangerous substances as distinct gerous substances; as the Decree did not from dangerous preparations, Directive constitute a proper transposition of 93/72/EEC had not been properly trans- Directive 93/101/EC, the Commission laid posed, and invited Belgium to comment on down a two-month period for compliance. the matter. Belgium failed to respond. Belgium did not reply.
(b) Commission Directive 93/101/EC II — The proceedings before the Court
5. Article 2 of Commission Directive 93/101/EC of 11 November 1993 adapting to technical progress for the twentieth time Council Directive 67/548/EEC on the approximation of laws, regulations and 7. In its application, registered at the Court administrative provisions relating to the clas- on 20 May 1997, the Commission observes sification, packaging and labelling of danger- that Belgium has not communicated to it any ous substances (hereinafter 'Directive official and final measures to transpose 93/101/EC') 2 gave the Member States an Directive 93/72/EEC, and has not communi- implementation deadline of 1 January 1995. cated all the provisions necessary to c o m p l y The Member States were also required by with Directive 93/101/EC. It concludes that this provision to inform the Commission Belgium has not adopted, and/or not com- immediately of their implementation mea- municated to it, within the time-limits con- sures, and to include a reference to Directive tained in the Directives, the necessary mea- 93/101/EC in those measures or in the offi- sures to implement them, and requests the cial publication in which they are Court to hold that Belgium is in breach of its announced. obligations thereunder.
6. In the absence of any such communi- cation, the Commission sent a letter of for- mal notice on 2 August 1995. In its reply of 8. Belgium does not contest the breaches alleged. It notes that a draft Royal Decree to 2 — OJ 1994 L 13, p. 1. implement Directive 93/72/EEC has been
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signed by the Ministers concerned and will between a failure to transpose the Directives be submitted to the King for signature, and and a failure to communicate to it the neces- that only the section regarding dangerous sary implementing measures. In both cases, substances of Directive 93/101 /EC remains however, the reasoned opinion clearly con- to be transposed. cludes that Belgium has failed to adopt the necessary measures to transpose the Direc- tive in question, which corresponds precisely with the form of order sought by the Com- Ill — Opinion mission in its application. As Belgium has not contested the alleged failure properly to transpose the Directives, and in the absence of any other contrary indication, I am of the opinion that the Commission should be 9. The body of the Commission's applica- granted the declaration it requests as regards tion fails to draw a consistent distinction each of the Directives.
IV — Conclusion
10. In the light of the foregoing, I recommend to the Court that it:
(1) Declare that, by failing within the time-limits provided to adopt the laws, regulations and administrative provisions necessary to comply, first, with Commission Directive 93/72/EEC of 1 September 1993 adapting to technical progress for the nineteenth time Council Directive 67/548/EEC on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances, and, sec- ond, with Commission Directive 93/101/EC of 11 November 1993 adapting to technical progress for the twentieth time Council Directive 67/548/EEC, the Kingdom of Belgium has failed to comply with its obligations under the afore- said Directives;
(2) Order the Kingdom of Belgium to pay the costs.
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