C-297/00
ECLI:EU:C:2001:269
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OPINION OF MRS STIX-HACKL — CASE C-297/00
OPINION OF ADVOCATE GENERAL STIX-HACKL delivered on 10 May 2001 1
I — Facts, relevant legislation and pre- for its transposition expired on 25 May litigation procedure 1999.
3. Having received no communication 1. By its application under Article 226 EC from the Luxembourg Government by that for a declaration of failure to fulfil obliga- date concerning the measures taken to tions under the Treaty, lodged at the Court transpose the Directive into national law, on 3 August 2000, the European Commis- and since, furthermore, it had no informa- sion complains that the Grand-Duchy of tion on the matter, the Commission Luxembourg has failed to adopt within the requested the defendant by letter of prescribed period the laws, regulations and 20 August 1999 to state its position within administrative provisions necessary to two months. transpose Council Directive 98/35/EC of 25 May 1998 amending Directive 94/58/ EC on the minimum level of training of seafarers into national law (hereinafter 'the Directive'). 4. As that letter remained unanswered, the Commission sent a reasoned opinion within the meaning of Article 226 EC to the Grand-Duchy of Luxembourg on 24 January 2000 in which it demanded that the necessary measures be taken within a period of two months. 2. In accordance with Article 2(1) of the Directive, Member States are obliged to bring into force the laws, regulations and administrative provisions necessary to com- ply with the Directive, at the latest by 5. The Luxembourg Government, under 1 July 1999 or within one year of the cover of its letter in response of 13 April adoption of the Directive, whichever is the 2000, enclosed the text of a law dated earlier. The Directive was adopted on 9 November 1990 on the setting up of a 25 May 1998, so that the period prescribed public sea register as well as two Grand- Ducal decrees of 29 January 1997 and 13 September 1999, from which it emerges 1 — Original language: German. that the international Convention on Stan-
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dards of Training, Certification and Watch- — order the Grand-Duchy of Luxem- keeping for Seafarers (STCW Convention), bourg to pay the costs of the proceed- the STCW Code and the technical annexes ings. were transposed into Luxembourg law, and as a result of this the substantive provisions of the Directive were already largely com- plied with.
8. The Grand-Duchy of Luxembourg con- tends that the Court should:
6. As that legislation did not fulfil the — stay proceedings until such time as the requirements of the Directive in the opinion Commission withdraws its application of the Commission and as the Luxembourg Government did not communicate any further measures, the Commission brought an action before the Court.
or
7. The Commission claims that the Court — dismiss the application. of Justice should:
II — Infringement of Treaty — declare that, by failing to adopt the laws, regulations and administrative provisions necessary to transpose the Directive within the period prescribed for that purpose, the Grand-Duchy of Luxembourg has failed to fulfil its Submission of the parties obligations under Council Directive 98/35/EC of 25 May 1998 amending Directive 94/58/EC on the minimum level of training for seafarers, as well as 9. The Commission's essential submission Article 249 EC; is that the Grand-Duchy of Luxembourg
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has failed to fulfil its obligation under the requests the Commission not to proceed third paragraph of Article 249 EC, Arti- with the case. cle 10 EC and Article 2 of the Directive to adopt within the period prescribed all necessary measures to transpose the Direc- tive into national law and to communicate those measures immediately to the Com- mission. In regard to the Luxembourg Government's argument it concedes that, although, a directive may also be trans- posed into national law by the incorpora- Assessment tion of an international treaty, such as the STCW Convention, it is of the opinion that the Community-law requirements of unam- biguity and certainty in the legal situation are not complied with in the present case. The fact that the Luxembourg Government 11. Whilst the Luxembourg Government is working on the transposition of the does not dispute that a specific transposi- Directive is itself evidence of this. tion of the Directive is required through the enactment of corresponding legislation is still necessary, it also does not ultimately dispute that the obligations under the Directive were not completed in good time.
12. Whether and to what extent a 'parallel 10. The Grand-Duchy of Luxembourg transposition' of the Directive has taken claims that the obligations under the place through the transposition of the Directive have already been largely fulfilled STCW Convention does not in that respect by the transposition of the STCW Conven- require further discussion. tion, the STCW Codes and the technical annexes and points out that the legislative procedure for the required complete trans- position of the Directive is in progress. With reference to the draft, attached as an annex to the rejoinder, of a 'Grand-Ducal regulation for the transposition of Council 13. In so far as the Luxembourg Govern- Directive 94/58/EC of 22 November 1994 ment refers to the draft prepared in the on the minimum level of training for meantime for the transposition of the seafarers, as amended by Council Directive directive at issue and the promise of its 98/35/EC of 25 May 1998', the Luxem- early adoption in accordance with national bourg Government refers, finally, to the procedure, it must be observed that, fact that this draft will shortly be approved according to actual case-law of the Court, in accordance with national procedure and first, the existence of an infringement of the
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Treaty is to be determined 2solely on the ings to be stayed until the case is with- basis of the situation at the time of expiry drawn by the Commission, it is to be noted of the period prescribed in the reasoned that although the Commission has signalled opinion and second a Member State may its willingness in its letter to the Court of not plead on any provisions, practices or 21 December 2000 in respect to the above- circumstances of its internal legislation to mentioned request in the rejoinder, to justify the non-observance of obligations withdraw the action as soon as the draft and time-limits laid down in a directive. 3 in question has been finally adopted and published, however, this has clearly not yet happened.
14. Furthermore an action based on Arti- cle 226 EC is directed solely to obtaining an objective finding of infringement of the 16. It is therefore to be found that the treaty and requires no proof of continuing Grand-Duchy of Luxembourg has not failure to act or of an adverse attitude on adopted the laws, regulations and admin- the part of the Member State concerned. 4 istrative provisions within the prescribed Submissions like the reference to progress time-limit in order to fulfil its obligations in the legislative procedure concerned by under the Directive. There is therefore an means of which the Luxembourg Govern- infringement of the Treaty and the Com- ment is attempting to demonstrate genuine mission's application is well founded. and continuous endeavours in the present case to transpose the Directive are therefore of no consequence, where a Treaty infringe- ment objectively exists at the procedurally relevant time, for the purposes of the outcome of the proceeding for infringement of the Treaty.
Ill — Costs
15. As regards the application by the Luxembourg Government for the proceed- 17. Under Article 69(2) of the Rules of Procedure of the Court, the unsuccessful 2 — See Case C-147/00 Commission v France [2001] ECU party is to be ordered to pay the costs if I-2387, paragraph 26. and Case C-384/99 Commission v they have been applied for by the successful Belgium [2000] ECR I-10633, paragraph 16. 3 — See Case C-374/98 Commission v France [2000] ECR party. As the Commission has applied for I-10799, paragraph 13, and C-166/97 Commission v France costs and the Grand-Duchy of Luxembourg [1999] ECR I-1719, paragraph 13. 4 — Case 301/81 Commission v Belgium [1983] ECR 467, has been unsuccessful, the latter must pay paragraph 8. the costs.
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IV — Conclusion
18. In the light of those considerations, it is proposed that the Court should:
— declare that by not adopting within the prescribed period the necessary laws, regulations and administrative provisions in order to transpose Council Directive 98/35/EC of 25 May 1998 amending Directive 94/58/EC on the minimum level of training for seafarers the Grand-Duchy of Luxembourg has failed to fulfil its obligations under that directive and Article 249 EC;
— order the Grand-Duchy of Luxembourg to pay the costs.
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