C-285/97
ECLI:EU:C:1998:190
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O P I N I O N OF MR LA PERGOLA — CASE C-285/97
OPINION OF ADVOCATE GENERAL LA PERGOLA delivered on 30 April 1998 *
I — Subject-matter of the present proceed- sions necessary to comply with the Directive ings, arguments of the parties and legal by 30 April 1995 and inform the Commis- analysis sion thereof forthwith.
1. The Commission of the European Com- Since it had not received any notification munities has requested the Court in the concerning the transposition of the Directive present proceedings to declare, pursuant to and had no other information to justify its Article 171 of the EC Treaty, that the Portu- finding that Portugal had in fact complied guese Republic has failed to fulfil its obliga- with its obligations, the Commission initi- tions under the third paragraph of Article ated on 2 August 1995 the infringement pro- 189 of the Treaty and Article 2 of Commis- cedure under Article 169 of the Treaty by sion Directive 94/51/EC of 7 November sending the Portuguese Government a letter 1994 adapting to technical progress Council of formal notice whereby it called upon it to Directive 90/219/EEC on the contained use submit its observations within two months. of genetically modified micro-organisms By letter of 27 August 1996 Portugal replied ('the Directive'). 1Through that directive the that it had taken steps to implement the Commission — having regard to the experi- Directive by Portarla (Implementing Order) ence gained in the field and to technical N o 602/94 of 13 July 1994, and that that progress generally in the biotechnology sec- measure had already been notified to the tor — replaced Annex II to Directive Commission together with the other national 90/219/EEC on the contained use of geneti- implementing measures adopted in July cally modified micro-organisms. 2 That 1994. The Commission's analysis of the annex sets out the criteria for determining abovementioned national measure neverthe- the classification of such micro-organisms — less gave the lie to the Portuguese authori- having regard to the risks they present — ties' assertions. It disclosed that, if at all, that into Group I, one of the two groups set up measure implemented Directive by the Council at the material time. 90/219/EEC, and specifically Annex II thereto, in its original version, which was subsequently replaced by Directive 94/51/EC. O n 27 December 1996, having 2. Under Article 2 of the Directive, the found continuing failure to comply with the Member States were to bring into force the obligation to adopt in good time the mea- laws, regulations and administrative provi- sures necessary to comply with the Direc- tive, the Commission sent the Portuguese authorities a reasoned opinion, at the same time calling upon it to adopt such measures * Original language: Italian. 1 — OJ 1994 L 297, p. 29. within two months from the date of its noti- 2 — OJ 1990 L 117, p. 1. fication.
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COMMISSION ν PORTUGAL
3. Since no reply was forthcoming concern action of the Commission unfounded or ing the transposition of the Directive, on 1 devoid of purpose. According to the settled August 1997 the Commission brought the case-law of the Court, 'the question whether present action. Portugal does not deny the a Member State has failed to fulfil its obliga- infringement it is alleged to have committed, tions must be determined by reference to the but points out that on 26 March 1998 the situation in the Member State as it stood at Council of Ministers approved a measure the end of the period laid down in the rea- which was intended to transpose the Direc soned opinion, the Court [not being able] to tive and whose publication in the Diário da take account of any subsequent changes'. 3 República, the Portuguese official gazette, was imminent.
The only thing which counts, therefore, is the fact that, upon the expiry of the period 4. None the less, should it prove to be the laid down by the Commission in its rea- case that the Directive was transposed in the soned opinion, the Directive had still not course of the proceedings, this cannot, in my been transposed into Portuguese domestic view, have the effect of rendering the present law.
II — Conclusions
I n the light of the foregoing, I p r o p o s e t h a t t h e C o u r t should:
— allow the application and declare that, b y failing t o a d o p t t h e laws, regulations and administrative provisions necessary t o c o m p l y w i t h C o m m i s s i o n D i r e c - tive 9 4 / 5 1 / E C of 7 N o v e m b e r 1994 adapting t o technical p r o g r e s s C o u n c i l Directive 9 0 / 2 1 9 / E E C o n t h e contained use of genetically modified m i c r o - organisms, the P o r t u g u e s e R e p u b l i c has failed t o fulfil its obligations u n d e r Article 2 of t h a t directive; and
— o r d e r t h e P o r t u g u e s e R e p u b l i c t o p a y t h e costs.
3 — See Case C-200/88 Commission ν Greece [1990] ECR I-4299, paragraph 13 and, most recently, Case C-361/95 Commission ν Spain [1997] ECR I-7351, paragraphs 13 and 14.
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