C-364/00
ECLI:EU:C:2002:53
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OPINION OF MR ALBER — CASE C-364/00
OPINION OF ADVOCATE GENERAL ALBER delivered on 24 January 2002
1. The Commission has applied for a ...' declaration that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Council Directive 97/70/EC of 11 December 1997 setting up a harmonised safety regime for fishing vessels of 24 metres in length and over, 2the Kingdom 3. Since the Commission had still not of the Netherlands has failed to fulfil its received any notification regarding the obligations under the Treaty. transposition of the directive, it wrote to the Netherlands Government on 12 March 1999. It gave the Netherlands Government the opportunity to submit its observations on the Treaty infringement within two months.
2. Article 12 of the directive provides: 4. The Netherlands Government replied by letter of 21 May 1999, stating that meas ures transposing the directive were cur rently being prepared. The remaining dif ficulties were due to the fact that the Torremolinos Protocol, 3 to which the directive refers, was not yet available in Dutch.
'1 . Member States shall bring into force the laws, regulations and administrative provi sions necessary to comply with this Direc 5. On 10 August 1999, the Commission tive before 1 January 1999. They shall sent the Netherlands Government a rea- forthwith inform the Commission thereof.
3 — The Torremolinos Protocol of 2 April 1993, adopted within 1 — Original language: German. the framework of the International Maritime Organisation, supplements and replaces the 1977 International Conven 2 — OJ 1998 L 34, p. 1. tion for the Safety of Fishing Vessels.
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COMMISSION v NETHERLANDS
soned opinion in which it stated that the version of the regulation on fishing vessels provisions of Directive 97/70 had not been has now been submitted to the Netherlands transposed into Netherlands law within the Council of Ministers and it is anticipated prescribed period. It set the Netherlands a that the regulation will be adopted in time-limit of two months in which to October 2001. remedy the Treaty infringement.
8. It is settled case-law that the merits of an 6. On 3 October 2000, after the Nether action are not affected by the fact that the lands Government had informed it by letter default concerned may have been remedied of 6 October 1999 that the measures after the expiry of the period prescribed in necessary to transpose the directive were 4 the reasoned opinion. Therefore, even if still being prepared, the Commission the provisions in question had, in the brought this action. It claims that, by meantime, been adopted, that would not failing to transpose into national law the militate against a declaration that the measures required under the directive by Member State in question had failed to 1 January 1999, the Netherlands has fulfil its obligations under the Treaty. Since infringed Article 249 EC and Article 10 the Netherlands Government does not dis EC. pute the Commission's allegation, the Commission's application must, accord ingly, be granted.
7. The Netherlands Government does not dispute that claim. As an explanation for the delay it submits that the directive makes reference to the Torremolinos Protocol 9. The Commission has also sought an despite the fact that that protocol has not order requiring the Kingdom of the Nether been published in all the official languages lands to pay the costs. Under Article 69(2) in the Official Journal of the European of the Rules of Procedure, the unsuccessful Communities. In addition, the national party is to be ordered to pay the costs if provisions which must be amended in order they have been applied for in the successful to transpose the directive also apply in the party's pleadings. territories of the Netherlands Antilles and Aruba. It was therefore first necessary to obtain the approval of the governments of 4 —Case C-365/97 Commission v Italy (1999] ECR I-7773, paragraph 45, and Case C-361/88 Commission v Germany those territories. The draft of the new [1991] ECR I-2567, paragraph 31.
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OPINION OF MR ALBER — CASE C-364/00
Conclusion
10. For the reasons set out above, I propose that the Court should:
(1) declare that, by failing to adopt the laws, regulations and administrative provisions necessary to transpose Council Directive 97/70/EC of 11 De cember 1997 setting up a harmonised safety regime for fishing vessels of 24 metres in length and over, the Kingdom of the Netherlands has failed to fulfil its obligations under the Treaty and that directive;
(2) order the Kingdom of the Netherlands to pay the costs.
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