C-327/98

COMMISSION V FRANCE

OPINION OF ADVOCATE GENERAL SAGGIO delivered on 30 September 1999 *

1. In an action under Article 169 of the EC consignee a document which includes all Treaty (now Article 226 EC) the Commis- the information referred to in paragraph 7' sion is asking the Court to declare that the (Article 9(5)). French Republic has failed to fulfil its obligations under the EC Treaty and Coun- cil Directive 93/15/EEC of 5 April 1993 on the harmonisation of the provisions relat- ing to the placing on the market and In the absence of particular requirements of supervision of explosives for civil uses public security a Member State may (hereinafter 'the Directive'). 1 approve the transfer of explosives on its territory or part thereof without prior provision of information. In this case the recipient competent authority 'shall then grant an approval for a fixed period' (Article 9(6)).

Legal framework

4. Article 11 of the Directive provides that by way of derogation from Articles 9 and 10 each Member State 'in case of grave threats to, or attacks upon, public security As that date had passed without any through the illicit possession or use of communication from the French Govern- explosives or ammunition ... may take all ment, the Commission sent a letter of necessary measures concerning transfers of formal notice to that government on explosives or ammunition in order to 13 April 1994, charging it with failure to prevent such illicit possession or use.' fulfil the obligation to adopt the provisions for the implementation of the Directive and requesting information in this respect.

In accordance with Article 12 of the Direc- The French Government replied by a letter tive the Member States are to set up dated 4 July 1994, stating that a decree for 'information exchange networks for the transposition concerning explosives for implementation' of the Directive. 2 civil uses would be published in the autumn of 1995.

However, the Commission considered that dered the implementation of the provisions by this decree other provisions of the contained in Article 9 of the Directive. directive were not transposed, mainly those relating to the transfer of explosives and ammunition in the Community (Articles 9, 10 and 11), and those concerning the obligations of information (Articles 12 and 14). On the first point, it argues that the provisions of Article 10 of the Directive concerning the transfer of ammunition were transposed into national law by Title V of Decree 95-589 of 6 May 1995 (mainly by Articles 92, 93 and 94 of On 30 April 1997, the Commission there- Section 2 of Title V), 4 relating to the fore adopted a reasoned opinion under application of the decree of 18 April Article 169 of the EC Treaty and notified 1939, which establishes the system for the French authorities of this opinion, as it war equipment, arms and ammunition. had not been informed by those authorities Article 95 of Decree 95-589 refers the of the transposition of the other provisions. definition of the conditions for the issue of prior authorisations and the related derogations to an implementing regulation.

6. As there was no reply, the Commission brought before the Court the present action for a declaration that, by failing to intro- duce within the prescribed period the In conformity with Article 12 of the Direc- measures necessary to comply with Arti- tive, Article 101 of Decree 95-589 provides cles 9, 10, 11, 12 and 14 of the Directive, that, once the implementing regulation the French Republic has failed to fulfil its referred to above has been adopted, the obligations under the EC Treaty. Minister responsible for Customs is to send the information relating to the application of Articles 9 and 10 of the Directive to each Member State concerned.

The transposition of Article 11 of the The French Government claims that it has Directive, however, was ensured, according not been inactive in the face of the diffi- to the French Government, by Article 80 of culties indicated above. In two meetings of Decree 95-589, which confers upon the the consultative committee set up on the Minister responsible for Customs the basis of Article 13 of the Directive, on power to take all necessary steps in the 6 December 1996 and 23 April 1998 case of grave threats or attacks upon public respectively, the French delegation pro- order through the unlawful possession or posed that a harmonised document for the use of explosives or ammunition. transfer of explosives should be adopted. According to the minutes of the meeting held in April 1998, a draft harmonised document was to be submitted to a vote in the committee and then be the subject of a decision by the Commission. The French Government emphasises that, as yet, nei- ther the vote of the committee nor the decision by the Commission has taken place. 8. With regard to the implementing mea- sures relating to the transfer of explosives, the French Government does not dispute the fact that it has not transposed the provisions of Articles 9 and 11 of the Directive. Instead, it states that it had encountered objective difficulties in trans- According to the French Government, posing the provisions in Article 9. In parti- therefore, the failure to transpose the cular, it emphasises that the transposition Directive with regard to the transfer of of Article 9 is pointless and provisional in explosives is due to the lack of clarity and nature if it is not accompanied by the precision of its provisions. These deficien- adoption of a valid harmonised document cies are largely due to the Commission, such as a transfer authorisation. At present, which has not to date adopted the imple- if explosives are transferred to France, the menting measures referred to in Article 13, authorisation issued by that country may a circumstance which is also clear from the not be recognised as suitable by the autho- minutes of the committee, mentioned rities of another Member State, also above. because the legal form of the document at the moment differs considerably from State to State. The French Government notes that, in the case of a transfer from France to another Member State, and in the absence of transposition by all the States obliged to so do (according to the French Govern- 9. The Commission, however, denies that ment, caused by the aforementioned objec- such an obligation is contained in the tive difficulties), the system laid down by Directive. Article 9 does not in any way the Directive is not at present in a position require the adoption of a harmonised to function; to achieve the aims of the document comprising the transfer licence, Directive, the Commission should adopt a nor does it subject the obligation to imple- decision which makes a harmonised ment the provision in point to such a authorisation document compulsory. condition.

Failure to transpose the provisions relating to the transfer of explosives

13. With regard to the first aspect, I would In short, according to the Commission, it is say at once that the arguments put forward to say the least undeniable that, on the by the French Government to justify the expiry of the period set by the reasoned failure to transpose the provisions of the opinion, France had not yet completed the transposition of the provisions concerning ammunition, and in particular, those stated 5 — A copy of this decree was lodged by the French Government in Articles 10 and 12 of the Directive. with its reply.

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Directive cannot be accepted. adopted where no reference is made to the content of the statement in the wording of the provision in question, and the statement therefore has no legal significance. Accord- ing to the same logic, and with greater reason, the statements appearing in the minutes of a committee set up on the basis of a directive cannot be used for the purpose of interpreting the provisions of that directive. The fact that the Directive may not be sufficiently precise as the Commission had not adopted the relevant implementing measures, amounting essentially to the imposition of a harmonised document for issuing authorisations, cannot affect the obligation to transpose the Directive and to do so within the prescribed period.

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other Member States to transpose the had difficulties of a practical nature in provision. This is so for several reasons. transposing the provisions of Article 9.

This argument has no foundation. It is Firstly, this assertion is not based on any- sufficient to recall that the Court has on thing definite. From the case-file it is the several occasions stated that 'practical contrary that appears to be true. According difficulties which appear at the stage when to the statements by the representative of a Community measure is put into effect the Commission at the hearing, all the cannot permit a Member State unilaterally other Member States have transposed the to opt out of fulfilling its obligations.' 8 Directive into their law, including the provisions of Article 9.

16. Those remarks are especially valid when the Community institutional system In any case, according to the settled case- or the structure created by the regulation in law of the Court, 'a Member State cannot question provides 'the Member State con- justify its failure to fulfil obligations under cerned with the necessary means to ensure the Treaty by pointing to the fact that other that its difficulties be given due considera- Member States have also failed, and con- tion, subject to compliance with the prin- tinue to fail, to fulfil their own obligations. ciples of the common market and the Under the legal order established by the legitimate interests of the other Member Treaty, the implementation of Community States.' 9 law by Member States cannot be made subject to a condition of reciprocity.' 7

18. On this point, it should be noted first of It must also be noted that the fact that all that it was only during the hearing that France had proposed an amendment or the French Government stated that the complement to the aforementioned provi- regulation implementing Decree 95-589 of sion by means of the adoption of a 6 May 1995 12 was adopted on 25 May harmonised document and that the Com- 1999. mission had undertaken to submit a draft cannot, as the Court held in its judgment of 12 February 1987 in Commission v Bel- gium, expunge the failure of that country to fulfil its obligations. 10 19. The fact that this regulation may have completed the course of transposition into national law of the provisions relating to the transfer of ammunition can have no influence on the outcome of the case. It is the period fixed by the reasoned opinion which defines the State's failure to fulfil its It should also be remembered that, accord- obligation, including the temporal aspect of ing to the Court, 'the fact that the Com- munity institutions amend directives is not sufficient to release Member States from 11 — Case C-182/94 Commission v Italy [1995] ECR I-1465, paragraph 6. See also case C-344/96 Commission v Germany [1998] ECR I-1165, paragraph 9. 12 — It should be recalled that the Commission was only aware 10 — Case 306/84 Commission v Belgium [1987] ECR 675, of the text of Decree 95-589 in the first response by the paragraph 7. French Government in this case.

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13 — See Case 283/86 Commission v Belgium [1988] ECR 3271, paragraph 6, and case 291/84 Commission v Netherlands [1987] ECR 3483. The Court also stated that where the 22. Under Article 69(2) of the Rules of default has been remedied after the time-limit, there is still Procedure, the unsuccessful party is to be 'an interest in pursuing the action in order to establish the basis of liability which a Member State may incur as a ordered to pay the costs if applied for. As result of its default as regards other Member States, the Community or private parties' (Case C-287/87 Commis- the Commission has applied for costs, the sion v Greece [1990] ECR I-125. French Republic must be ordered to pay 14 — Also Article 80 of the aforementioned decree, which transposed Article 11 of the Directive, while not appearing them. formally subject to the adoption of an implementing regulation, will assume practical value only when the provisions of Article 10 become operative. 15 — Case C-263/96 Commission v Belgium [1997] ECR 16 — See my Opinion delivered on 1 October 1998 in Case I-7453, paragraph 26. See also case C-131/88 Commission C-409/97 Commission v Luxembourg, not published in the v Germany [1991] ECR I-825. ECR.

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Conclusion

In the light of the foregoing observations I suggest that the Court should:

— declare that, by failing to adopt within the prescribed period the laws, regulations and administrative measures necessary in order to comply with Articles 9, 10, 11 and 12 of Council Directive 93/15/EEC of 5 April 1993 on the harmonisation of the provisions relating to the placing on the market and supervision of explosives for civil uses, the French Republic has failed to fulfil its obligations under the EC Treaty;