C-417/97
ECLI:EU:C:1999:39
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OPINION OF MR SAGGIO — CASE C-417/97
OPINION OF ADVOCATE GENERAL SAGGIO delivered on 28 January 1999 *
Facts and procedure 3. In its application, the Commission stated that it had not received notification from the Luxembourg Government of any national measures implementing the Direc- tive and was not in possession of any information from other sources which 1. By a document filed on 9 December would enable it to form the view that such 1997, the Commission of the European measures had been brought into force. That Communities brought an action against the being so, on 27 October 1995, the Com- Grand Duchy of Luxembourg under Arti- mission sent the Grand Duchy of Luxem- cle 169 of the EC Treaty. The Commission bourg a letter putting it on notice to submit sought from the Court a declaration that, its observations. by failing to adopt within the prescribed period all the laws, regulations and admin- istrative provisions, including sanctions, necessary to implement Council Directive 93/22/EEC of 10 May 1993 on investment services in the securities field 1(hereinafter 'the Directive'), the Grand Duchy of Lux- embourg had failed to fulfil its obligations 4. In response, the Luxembourg authorities under that directive and the EC Treaty. informed the Commission by letter of 8 January 1996 that the Chamber of Deputies had undertaken the review of a draft law to implement the Directive and that a second draft law having the same purpose would shortly be presented to the Chamber. On 19 August 1996 the Luxem- 2. Article 31 of the Directive provides that bourg Permanent Representative to the the Member States are to adopt, by no later European Community informed the Com- than 1 July 1995, the provisions necessary mission that the second draft law had been for them to fulfil their obligations under the presented to the Chamber. Subsequently, Directive, that the implementing provisions the Luxembourg authorities notified the must, in turn, come into force by no later Commission that Article 21 of the Direc- than 31 December 1995 and that the tive (concerning information to investors) Member States are to inform the Commis- had been implemented by means of a sion thereof forthwith. Ministerial Regulation dated 27 December 1995. After this, the Luxembourg autho- rities did not notify the Commission of the * Original language: Italian. implementation of any other provision of 1 — OJ 1993 L 141, p. 27. the Directive.
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COMMISSION V LUXEMBOURG
5. In light of those facts, on 24 February first paragraph of Article 5 of the Treaty, 1997 the Commission issued a reasoned the Member States are to take all appro- opinion 2in which it complained that the priate measures, whether general or parti- Grand Duchy of Luxembourg had failed to cular, to ensure fulfilment of the obligations implement the Directive. By letter of arising out of the Treaty or resulting from 22 April 1997, the Luxembourg authorities action taken by the Community institu- put it to the Commission that, with regard tions. As regards more specifically the to numerous aspects of the Directive, there transposition of Directive 93/22 into was no need for any new provisions to be national law, the relevant obligation is adopted to bring the Directive into line expressly stated in Article 31 of that direc- with national law: such provisions already tive, which sets the time-limit for transpo- existed in Luxembourg law. However, the sition at 1 July 1995 and requires the Luxembourg authorities failed to provide Member States to inform the Commission any details concerning the content of those forthwith of the adoption of the necessary provisions. national measures.
7. In its defence filed on 13 March 1998, On the basis of the position adopted by the the Luxembourg Government expressly Luxembourg authorities, the Commission acknowledged that it had not yet imple- formed the opinion that they had failed to mented the Directive in full, and sought to transpose into national law the majority of justify this on the ground that there had the Directive's provisions, and in particular been delays in the legislative procedure. all those provisions to which no reference is Furthermore, at the session of 20 January made in the letter of 22 April 1997, and 1998, the Chamber of Deputies had that the Grand Duchy of Luxembourg had approved a draft law amending the Law therefore failed to fulfil its obligations of 5 April 1993 on the financial sector and under the Directive and under the relevant Article 113 of the Business Code in partial Treaty provisions. implementation of the Directive. Lastly, it stated that a second draft law on the supervision of the markets had been pre- sented to the Chamber of Deputies on 16 July 1996 and that the Chamber would adopt it very shortly. That being so, the Luxembourg Government expressed the The alleged failure to fulfil obligations view that the present proceedings would soon become pointless and, for that reason, asked that the Commission's application be dismissed. 6. Under the third paragraph of Article 189 of the Treaty, a directive is binding upon the Member State to which it is addressed as to the result to be achieved. Under the 8. I cannot accept the Luxembourg Gov- ernment's point of view. The fact that at 2 — Letter no SG (97) D/1378. least some of the obligations laid down by
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OPINION OF MR SAGGIO — CASE C-417/97
the Directive have not been implemented in unless the Commission discontinues them, good time means that the Grand Duchy of which it has not done in the present case. Luxembourg has undoubtedly failed to fulfil its obligations under Article 189 of the Treaty and under the Directive itself. The fact that the Luxembourg Government anticipates that the legislative provisions designed to implement the Directive in full might be adopted during the course of these Costs proceedings has no bearing on the outcome of the case. Indeed, the case-law of the Court (Joined Cases C-232/95 and C-233/95 Commission ν Greece [1998] 9. The Grand Duchy of Luxembourg has ECR I-3343, paragraph 38) shows that it thus been unsuccessful in all its submis is the expiry of the time-limit set in the sions. Under Article 69(2) of the Rules of reasoned opinion which is instrumental in Procedure, the unsuccessful party is to be determining whether a Member State has ordered to pay the costs if they have been failed to fulfil its obligations, so that asked for in the successful party's plead belated implementation, even if it occurs ings. Since the Commission has asked for before an action is brought or during the costs against the Grand Duchy of Luxem proceedings, does not negate the legal bourg, the latter must be ordered to pay the interest in bringing those proceedings, costs.
Conclusion
10. In the light of all the foregoing considerations, I suggest that the Court should:
(1) declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to bring into force Council Directive 93/22/EEC of 10 May 1993 on investment services in the securities field, the Grand Duchy of Luxembourg has failed to fulfil its obligations thereunder;
(2) order the Grand Duchy of Luxembourg to pay the costs.
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