C-394/00

OPINION OF MR RUIZ-JARABO — CASE C-394/00

OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 11 October 2001 1

1. On 25 October 2000 the Commission into force, and to inform the Commission brought an action under Article 226 EC for thereof. The Member States had also to a declaration that Ireland had failed to communicate to the Commission the main transpose into national law Directive provisions of domestic law adopted in the 96/82/EC 2within the period prescribed field governed by the directive. for the Member States to do so.

4. In accordance with Article 25, the direc- I — Directive 96/82 tive was to enter into force on the 20th day following that of its publication in the Official Journal of the European Commu- nities. Given that publication took place on 14 January 1997, Directive 96/82 entered 2. According to Article 1, the directive is into force on 3 February 1997 and the aimed at the prevention of major accidents period prescribed for its transposition into which involve dangerous substances, and national law expired on 3 February 1999. the limitation of their consequences for man and the environment, with a view to ensuring high levels of protection through- out the Community in a consistent and effective manner.

I I— The administrative procedure 3. Article 24 imposed on the Member States the obligation to adopt national measures in order to implement the direc- tive not later than 24 months after its entry

5. In May 1999, seeing that Ireland had not 1 — Original language: Spanish. communicated any measures implementing 2 — Council Directive 96/82/EC of 9 December 1996 on the the directive, the Commission sent it a control of major accident hazards involving dangerous substances (OJ 1997 L 10, p. 13). letter of formal notice giving it two months

10. Ireland acknowledges that, at the end 7. In early January 2000 the Irish auth- of the period prescribed by Directive 96/82 orities informed the Commission that they for its transposition into national law, it regretted the delay and that they would had not fulfilled that obligation. In the soon be sending a draft text. In July of that pleadings which it has lodged in the course year they sent draft regulations entitled of this action before the Court it maintains 'European Communities (Control of Major that, by adopting the European Commu- Accident Hazards Involving Dangerous nities (Control of Major Accident Hazards Substances) Regulations, 2000', giving the Involving Dangerous Substances) Regu- assurance that they would communicate lations, 2000 on 21 December 2000, and the regulations as soon as they were by enacting the law entitled 'Planning and adopted. Development Act, 2000' on 28 August 2000, both of which have been notified to the Commission, the reform of its national law is to all intents and purposes complete. It states that that Act was supplemented by an order made by the Minister for the Environment on 31 October 2000, even III— Procedure before the Court though, when the rejoinder was lodged, there was no evidence of that legislative instrument's having been communicated to the Commission. 8. On 25 October 2000 the Commission, since it had still not received evidence of the Irish legislation's having been adapted, brought this action before the Court. The Government alleged to be at fault lodged its defence on 22 January 2001. To those two 11. According to Article 249 EC, a direc- sets of pleadings were added a reply on tive is binding, as to the result to be 23 February 2001 and a rejoinder on achieved, upon each Member State to 9 April 2001. which it is addressed, but leaves to the

national authorities the choice of form and the transposition of the directive into methods. By virtue of Article 10 EC, the national law were to be adopted in May Member States are to take all appropriate 2001 and that they would be brought into measures, whether general or particular, to force within two to three months. It did not ensure fulfilment of the obligations arising deny the failure to implement Directive out of the Treaty or resulting from action 96/82 laid to its charge, but suggested that taken by the institutions of the Community. it would be expedient to stay the infringe- ment proceedings in order to give the Commission time to examine the Irish legislation and pointed out that the case might be brought to an end by discontinu- ance. 12. The defendant government submits that it has adopted the necessary legislative and administrative measures for the per- formance in its territory of the obligations imposed by the directive. In July 1999 it published a circular addressed to the com- 15. The fact of the matter is that in petent authorities advising them to operate October 2001 the Commission has not as if the Community rules had already been given the slightest hint that it wishes to transposed into national law. discontinue the action. Nor is the sugges- tion of any relevance, since the circum- stances which might justify a decision to stay proceedings by virtue of Article 82a( 1 )(b) of the Rules of Procedure are not found to be present in the present case. 13. However, in its case-law the Court of Justice has held that circulars are alterable at will by the authorities issuing them and therefore do not provide all the guarantees of legal certainty. Mere administrative practices, which by their nature are alter- able at will by the authorities and are not 16. Furthermore, it is well known that the given the appropriate publicity, cannot be object of an action under Article 226 EC is regarded as constituting the proper fulfil- established by the Commission's reasoned ment of the obligations imposed on a opinion, and even when the default has Member State. 3 been remedied after the time-limit pre- scribed by paragraph 2 of the same article has expired, pursuit of the action still has an object. That object may consist in particular in establishing the basis of the liability that a Member State could incur towards those who acquire rights as a result 14. In its rejoinder Ireland claimed that of its default. 4 various regulations which should complete

19. In light of the preceding considerations, I propose that the Court should:

(1) declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 96/82/EC of 9 December 1996 on the control of major accident hazards involving dangerous substances, Ireland has failed to fulfil its obligations under the directive;

(2) order Ireland to pay the costs.

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