C-320/99

* Original language: Italian. There was no reply to this letter. As a 1 — OJ 1998 L 59, p. 1. consequence, the Commission could only

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COMMISSION V FRANCE

note that the French Republic had not on 10 March 1999, being indeed aware of fulfilled the obligations incumbent upon it the need to introduce the provisions neces- under the directive within the time pre- sary to comply with the directive, it had scribed. Accordingly, by letter of adopted an instrument concerning the 17 December 1998, it delivered a reasoned appointment of the administrative and opinion stating that, by not adopting the technical bodies responsible for examining national measures to implement the direc- applications from constructors, carrying tive within the period prescribed, or in any out controls on the levels of pollutant case by not communicating such measures residues and issuing EC type-approvals, as to the Commission, France had failed to provided for in Article 16 of the directive. fulfil its obligations under the directive. In The French Government added that these the same letter, the Commission called two pieces of draft legislation had been upon the French Republic to adopt the approved by all the ministries concerned measures necessary to comply with the and would be sent to the Council of State reasoned opinion, within a period of two for its opinion in November 1999; it would months of notification. This second letter therefore be possible to notify the imple- from the Commission also remained un- menting measures to the Commission dur- answered. ing the first three months of 2000.

(1) declare that, by failing to adopt within 11. In my view, this action is well founded. the prescribed time-limit the laws, There can be no question but that France regulations and administrative mea- has failed to comply with its obligations sures necessary in order to comply under the directive and the EC Treaty. As with Directive 97/68/EC of the Eur- the French Government itself acknowl- opean Parliament and of the Council of edges, the transposition procedure has not 16 December 1997 on the approxima- yet been completed; thus, even now France tion of the laws of the Member States has not yet implemented the directive. The relating to measures against the emis- fact that the procedure for adoption of the sion of gaseous and particulate pollu- national implementing measures necessary tants from internal combustion engines is in hand and that the French authorities to be installed in non-road machinery, are taking action to bring it to completion alternatively by failing in any event to cannot cure the failure to fulfil the obliga- communicate those measures to the tion. It should be recalled that, in accor- Commission, the French Republic had dance with established case-law, 'the ques- failed to fulfil its obligations under that tion whether a Member State has failed to directive; fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion, and subse- quent changes cannot be taken into account'. 3 (2) order the French Republic to pay the costs.

measure concerning the appointment of Costs administrative and technical bodies respon- sible for monitoring the pollution produced by engines cannot remedy the French Government's failure to fulfil its obliga- tions. While those measures are in line with the aims of the directive, they are none the less marginal as regards its material content and the many substantive obligations which it places on the Member States. It 13. Under Article 69(2) of the Rules of should also be added — and this point is Procedure of the Court, the unsuccessful conclusive — that in any case this measure party is to be ordered to pay the costs, if was issued out of time, that is to say, after this has been requested. Since the Commis- the deadlines specified first in the directive sion has applied for costs in this case, I and then in the reasoned opinion for propose that the French Republic — adoption of the national implementing which, in my view, has been unsuccess- measures. ful — be ordered to pay the costs.

Conclusion

14. In the light of all the foregoing considerations, I propose that the Court should rule as follows:

(1) The French Republic, by failing to adopt the laws, regulations and administrative measures necessary in order to comply with Directive 97/68/EC of the European Parliament and of the Council of 16 December 1997 on the approximation of the laws of the Member States relating to measures against the emission of gaseous and particulate pollutants from internal combustion engines to be installed in non-road machinery and, in any event, by failing to communicate those measures and the content thereof to the Commission, has failed to fulfil its obligations under that directive.