C-91/99

COMMISSION V PORTUGAL

OPINION OF ADVOCATE GENERAL MISCHO delivered on 14 March 2000 *

1. In this action brought under Article (ii) the provisions of Chapter II, Section II 169 of the EC Treaty (now Arti- of Chapter III of Annex A and Chapter cle 226 EC), the Commission of the Eur- II of Annex C by 1 January 1997; opean Communities requests the Court to declare that the Portuguese Republic has failed to transpose Council Directive 96/43/ EC of 26 June 1996 amending and con- solidating Directive 85/73/EEC in order to ensure financing of veterinary inspections and controls on live animals and certain animal products and amending Directives (iii) other amendments by 1 July 1997. 90/675ÆEC and 91/496/EEC (hereinafter 'the directive'). 1

Member States shall have a further period 2. Article 4(1), first and second subpara- which can extend to 1 July 1999 within graphs, of the directive provides: which to comply with the provisions of Section I of Chapter III of Annex A.'

'Member States shall bring into force laws, regulations and administrative provisions necessary to comply with: 3. On 5 November 1997, having received no notification as to the measures adopted to transpose that directive into the Portu- guese legal system, and having in its possession no other information allowing . (i) the provisions of Article 7 and of it to conclude that the Portuguese Republic Chapter I(1)(e) of Annex A by 1 July had complied with its obligation to trans- 1996; pose the directive, the Commission institu- ted the procedure under Article 169 of the Treaty by putting the Portuguese Gov- * Original language: French. ernment on formal notice to submit to it its 1 — OJ 1996 L 162, p. 1. observations.

10. It is clear from the facts of the case that 7. In its statement of defence of 18 May the provisions referred to in the first 1999, the Portuguese Government stated subparagraph of Article 4(1) of the direc- that the draft decree-law had been tive were not implemented within the approved within the Council of Ministers prescribed periods. The fact that the provi- and that the Commission had been notified sions in question have in the meantime to that effect by letter of 18 March 1999. It been transposed has no bearing on the fact explained that this draft decree-law was of failure to fulfil obligations. The Com- submitted to the Commission on 28 April mission's action is accordingly well foun- 1999 with the information that it was ded in regard to that point. shortly to be published in the Diário da República. The Portuguese Government requested the Court to stay the proceedings until 30 June 1999, at which date it would forward to it the implementing decree-law, to rule that adoption of the decree-law has 11. The same cannot be said with regard to remedied the failure to fulfil obligations, the provisions referred to in the second and to order the Commission to pay the subparagraph of Article 4(1). Under that costs. subparagraph, Member States had a further period, 'which can extend to 1 July 1999', within which to transpose those provisions.

8. On 2 July 1999, following the conclu- 2—Judgment in Case C-316/96 Commission v Italy [1997] sion of the written procedure, the Portu- ECR I-7231, paragraph 14.

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COMMISSION V PORTUGAL

12. That period had not yet expired on the provisions referred to in the second sub- date set by the Commission for compliance paragraph of Article 4(1) of the directive. by the Portuguese Republic with the rea- soned opinion.

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