C-316/99

OPINION OF MR TIZZANO — CASE C-316/99

OPINION OF ADVOCATE GENERAL TIZZANO delivered on 18 January 2001 1

A — Introduction ments to Directives 90/675 and 91/496. Article 4 of the Directive required the Member States to bring into force the laws, regulations and administrative provisions necessary in order to comply with the Directive (paragraph 1) and to communi- cate to the Commission the text of the main provisions of national law which they 1. By application registered on 24 August adopt in the field governed by the Directive 1999 in the Registry of the Court of Justice, (paragraph 2). Under (i) in the first sub- the European Commission brought an paragraph of Article 4(1), the date for action under the second paragraph of adoption of these provisions of national Article 226 EC for a declaration that, by failing to adopt within the prescribed law was set at 1 July 1996 for the provi- period the measures necessary to transpose sions of Article 7 and of Chapter 1(1 )(e) of into its own law Council Directive 96/43/ Annex A to Directive 85/73, and at 1 Jan- EC of 26 June 1996 amending and con- uary 1997 for the provisions of Chapter II, solidating Directive 85/73/EC in order to Section II (see Article 4.1, first subpara- ensure financing of veterinary inspections graph under (iii)) of Chapter III of and controls on live animals and certain Annex A and Chapter II of Annex C to animal products and amending Directives Directive 85/73 and at 1 July 1997 for the 9 0 / 6 7 5 / E E C and 91/496/EEC other amendments (see Article 4.1, first (OJ 1996 L 162, p. 1; hereinafter 'the subparagraph under (ii)). However, the Directive'), the Federal Republic of Ger- second subparagraph of that article gave many has failed to fulfil its obligations Member States a further period, which under the EC Treaty and that directive. could extend to 1 January 1999, to comply

B — Pre-litigation procedure 5. No further information was supplied by the German Government after that and, on 24 August 1999, since the period specified in the reasoned opinion had long expired, 3. Having received no communication the Commission brought the present pro- from the German Government regarding ceedings. the measures to transpose the Directive, on 5 November 1997 the Commission requested that Government under Arti- cle 169 of the EC Treaty (now Article 226 EC) to submit its observations within two months. In its communication of 11 Feb- ruary 1998, sent under cover of a letter of 17 February 1998 from the Permanent C — The defence of the German Govern- Representation, the German Government's ment response to the Commission was essentially that the part of the transposition falling within the competence of the Federal 6. In its defence, the German Government Government was complete, whereas that states that, with respect to the situation part within the competence of the Länder described by the Commission in its origi- was still in progress, although not much nating application, further progress has was required for completion. been made in transposing the Directive although transposition is still not yet com- plete. It therefore does not deny that the Directive had not been fully transposed into its law upon the expiry of the period 4. Therefore, noting that transposition of specified in the Commission's reasoned the Directive was not yet complete and, opinion. It argues, however, that the delay indeed, no further communication on the does not constitute an infringement which matter had been received from the German can be attributed to itself. The reasons for Government after that exchange of corre- this are summarised below. spondence, on 7 August 1998 the Commis- sion issued a reasoned opinion in which it complained that the Government was in breach of the obligations set out in the Directive and requested it to adopt the 7. Firstly, the Federal Republic of Germany necessary measures within two months. argues that a number of aspects of the The following November, the Federal Directive are unclear or contradictory and Republic of Germany responded to the at all events such as to make the task of the

federal authorities or Länder governments ruling. For all three reasons, therefore, the engaged in properly transposing the Direc- defendant Government asks that the appli- tive a difficult one. In this connection, the cation be dismissed. German Government also refers to a series of meetings which the federal and Länder authorities had had with the Commission's departments specifically for the purpose of clarification and consultation on transpos- ing the Directive. Those meetings took place on 2 July and 2 December 1997 and D — Legal analysis on 24 November 1998, but they did not lead to tangible results or produced contra- dictory results.

9. Lastly, the German Government cites in its defence the judgment of 9 September 1999 in Case C-374/97 Feyrer [1999] 2 — See point 15 of the Commission's application. ECR I-5153 in which the Court interpreted 3 — See, among many others, the judgment in Case C-327/98 certain provisions of Directive 85/73 (as Commission v France [2000] ECR I-1851, paragraph 28. amended by Council Directive 93/118/EC 4 — I see that the Commission has already made a similar error regarding the directive now under consideration.

This is transposing the Directive, of which the because in these instances the two-month period stated in Commission complains, were also justified the Commission's reasoned opinion expired at the end of September and the end of October, respectively, of 1998 (see by the need to await that preliminary paragraphs 6 and 8 of those judgements).

13. However, for the sake of completeness, I shall also examine the merits of the arguments raised by the German Govern- ment. I shall begin by noting that it is not 12. Firstly, and I believe that this is a entirely clear from the documents before decisive point, I must point out that if a the Court which are the difficulties of directive is not fully and correctly trans- interpretation to which the federal autho- posed within the period prescribed for the rities and/or the Lander refer. On this point purpose, a declaration of failure to fulfil an the submissions of the Federal Republic of obligation is justified.s In this instance, the Germany seem too general to enable one to delay in transposition is not denied. Nor understand precisely in what sense and to has the German Government pleaded force what extent those difficulties could have majeure or claimed that transposition is hindered transposition of the Directive — absolutely impossible, that is to say, one of particularly since it is not shown that other the rare justifications which the Court, as a Member States have involved difficulties of matter of principle, considers acceptable a similar kind or at least so serious as to where a Member State delays implementa- prevent transposition of the Directive.7 If, tion of a Community act. 6 As has been therefore, those difficulties related to parti-

5 — Sec the judgments in Case C-268/93 Commission v Spain 7 — The difficulties referred to in the text were not raised in any 11994] ECR I-947, paragraph 6, and in Case C-137/99, of the cases brought before the Court for failure to paragraph 9. implement this directive: see the judgments in Joined Cases C-91/99 and C-137/99, cited above, and also the judgment 6 — See the judgments in Case 101/84 Commission v Italy in Case C-190/99 Commission v Ireland 2000] 119851 ECR 2629, paragraph 16, in Case C-217/88 Com- ECR 1-4403, and the Opinion delivered by Advocate mission v Germany 11990) ECR I-2879, paragraph 33, and General Mischo in Case C-168/99 Commission v Spam, in Case C-50/94 Greece v Commission |1996| ECR 1-3331, where the Commission subsequently withdrew its applica- paragraph 39, in which there are further references. tion.

8 — See, among many others, the judgment in Case C-42/89 Commission v Belgium [1990] ECR 1-2821, paragraph 24, in Case C-217/88 Commission v Germany [1990] ECR 1-2879, paragraph 26, in Case C-71/97 Commission v Spain 10'—See judgments in Case 301/81, paragraphe, in Case [1998] ECR 1-5991, paragraph 17, in Case C-166/97 C-73/92 Commission v Spain [1993] ECR 1-5997, para- Commission v France [1999] ECR 1-1719, paragraph 13, graph 19 (where there are further references), and in Case in which there are further references, and in Case C-387/97 C-71/97, paragraph 14. Commission v Greece [2000] 1-5047, paragraph 70. 11 — I note that, in Case C-71/97, the Court stated that 'as in the 9 — See judgment in Case 301/81 Commission v Belgium [1983] present case [finding objectively that a Member State has ECR 467, paragraphs 10 to 12. In the sense that I indicate failed to observe the obligations imposed on it by in the text, see the Opinion of Advocate General Léger in Community law], it is irrelevant whether the failure to Case C-344/96 Commission v Germany [1998] ECR fulfil obligations is the result of intention or negligence on 1-1165: he considered, in my opinion correctly, that if one the part of the Member State responsible, or of technical were to allow any other approach this would allow 'a difficulties encountered by if (paragraph 15). Member State ... [to] avoid its obligation to transpose a 12 — In this connection, see the judgment in Case C-337/89 directive within the prescribed time-limit by raising doubts, Commission v United Kingdom [1992] ECR 1-6103, alleged or real, on the interpretation of that directive* paragraph 27, where the Court stated that when it is seen (paragraph 12). It should also be added that, as the Court to be necessary, a request for a longer period for complying has observed, 'the governments of the Member States with specified provisions of a directive must be made participate in the preparatory work for directives and must within the period laid down for its transposition and that therefore be in a position to prepare within the period the Commission may not entertain a late request to the prescribed the legislative provisions necessary for their same effect; see the judgments in Case C-42/89, para- implementation' (see Case 301/81, paragraph 11). graph 23, and in Case C-344/96, paragraph 9.

18. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to pay the costs, if applied for by the successful party. Since the Commission has applied for costs and the Federal Republic of Germany has, in my opinion, been unsuc- cessful as regards the main part of its 16. Lastly, as regards the German Govern- application, I propose that the defendant be ment's reference to the Feyrer judgment (see ordered to pay costs.

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OPINION OF MR TIZZANO — CASE C-316/99

Conclusion

19. In the light of the foregoing considerations, I therefore propose that the Court should declare that:

(1) By failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with the provisions specified in the first subparagraph of Article 4(1) of Council Directive 96/43/EC of 26 June 1996 amending and consolidating Directive 85/73/EC in order to ensure financing of veterinary inspections and controls on live animals and certain animal products and amending Directives 90/675/EEC and 91/496/ EEC, the Federal Republic of Germany has failed to fulfil its obligations under the third paragraph of Article 249 EC and under the first subparagraph of Article 4(1) of Directive 96/43;