C-26/99

OPINION OF MR FENNELLY — CASE C-26/99

OPINION OF ADVOCATE GENERAL FENNELLY delivered on 28 October 1999 *

1. This action has been brought by the declaration that the defendant be obliged to Commission pursuant to Article 169 of the pay the costs of these proceedings. EC Treaty (now Article 226 EC) against the Grand Duchy of Luxembourg for a declara- tion that, by not adopting the legislative, regulatory or administrative measures necessary to comply with its obligations under Commission Directive 95/30/EC of 30 June 1995 adapting to technical pro- gress Council Directive 90/679/EEC on the protection of workers from risks related to exposure to biological agents at work (seventh individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC), and/or by failing to inform the Commission thereof, Luxembourg has failed to fulfil its obligations under the EC Treaty. 1 The Commission also seeks a 2. Article 2(1) of Directive 95/30 (herein- after 'the Directive') required the Member States to adopt the necessary measures to transpose it into national law by 30 November 1996, at the latest, and to inform the Commission of those measures. Not having been informed by Luxembourg of the measures taken to implement the Directive, the Commission sent a letter of formal notice to Luxembourg on 30 May 1997. In the absence of any official reply to that letter from Luxembourg, the Commis- sion addressed a reasoned opinion to it on 22 December 1997. Luxembourg replied by letters of 25 March 1998 and 19 August 1998, in which it informed the Commis- sion, first, that a draft regulation to imple- ment the Directive was being considered by the Conseil d'État (Council of State) and, secondly, that the Luxembourg Govern- * Original language: English. ment had decided to submit amendments to 1 — ΟJ 1995 L 155, p. 41. that draft. The Commission, having

4. It is clear from the well-established case- law of the Court that a Member State may not seek to rely on internal administrative difficulties, which must include those related to preparing for the hosting of the 3. In its defence of 27 April 1999, Luxem- Presidency of the Council of Ministers of bourg, although not denying that it has the European Union, to justify a failure to failed to fulfil its obligations, submits that fulfil its Community-law obligation to the delay may be attributed to its Presi- transpose in a timely fashion a directive dency of the Council of Ministers of the into national law. 2 The Commission is, European Union in the latter half of 1997 accordingly, entitled to the declaration that and that, since the end of that Presidency, it seeks in so far as it relates to the non- all appropriate measures have been taken transposition of the Directive, it being to ensure the rapid implementation of the unnecessary to consider its alternative Directive. It submits that the Commission's complaint regarding non-communication.3 action will presently be unnecessary and requests the Court to suspend the present application. In its reply of 6 May 1999, the 2 — See, among many others, Case C-214/96 Commission v Spain [1998] ECR 1-7661, paragraph 18 and Case Commission notes the information furn- C-401/98 Commission v Greece [1999] ECR I-5543, para- graph 9. ished by Luxembourg but points out that, 3 — See, in this respect, Case C-362/98 Commission v Italy to date, no such implementing measures [1999] ECR I-6299.

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