C-450/00
ECLI:EU:C:2001:322
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COMMISSION v LUXEMBOURG
OPINION OF ADVOCATE GENERAL ALBER delivered on 7 June 2001 1
1. The Commission has brought the pre- Commission therefore sent a reasoned sent action for failure to fulfil Treaty opinion to the Grand Duchy of Luxem- obligations against the Grand Duchy of bourg, prescribing a period of two months. Luxembourg for failing to transpose within By letter of 27 October 1999, the Luxem- the prescribed time-limit Directive 95/46/ bourg Government pointed out that the EC of the European Parliament and of the legislative procedure had commenced, but Council of 24 October 1995 on the protec- that there had been delays because of the tion of individuals with regard to the change of government in the year 1999. processing of personal data and on the free movement of such data. 2
3. By application of 5 December 2000, entered in the Court Register on 7 Decem- ber 2000, the Commission initiated pro- ceedings for failing to transpose Directive 95/46 within the prescribed period.
2. Article 32(1), first subparagraph, of Directive 95/46 provides that the Member 4. Before this Court, the Luxembourg States are to bring into force the laws, Government again submits that the legisla- regulations and administrative provisions tive process is not completed. It states that necessary to comply with this Directive at the delays arise from the new allocation of the latest at the end of a period of three competencies of its ministries, entailed by years from the date of its adoption. On the the change of government in the year 1999. relevant date, 24 October 1998, the Lux- embourg Government had not yet commu- nicated to the Commission any provisions to transpose the Directive. The Commis- sion therefore sent a letter of notice on 5. The Commission claims that the Court 18 December 1998, initiating the proceed- should: ings to establish a failure to fulfil Treaty obligations. There was no reply to the letter. By letter of 26 August 1999, the
(1) declare that, in failing within the 1 — Original language: German. prescribed period to introduce the 2 —OJ 1995 L 281, p. 31. laws, regulations and administrative
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OPINION OF MR ALBER — CASE C-450/00
provisions containing possible sanc- tence of a failure to fulfil Treaty obligations tions, necessary to comply with Arti- is the date on which the period prescribed cle 32 of Directive 95/46/EC of the in the reasoned opinion expires. The date European Parliament and of the Coun- on which the two-month period prescribed cil of 24 October 1995 on the protec- in the reasoned opinion of 26 August 1999 tion of individuals with regard to the commenced was the date of the letter of processing of personal data and on the notification. The period expired without free movement of such data, the Grand the Luxembourg Government complying Duchy of Luxembourg has failed to with the Commission's request. fulfil its obligations under that Direc- tive;
(2) order the Grand Duchy of Luxembourg to bear the costs of the proceedings.
8. Again, according to the settled case-law of the Court, 4practices and circumstances under the legal systems of the Member 6. The Luxembourg Government claims State do not justify failure to fulfil the that the Court should: obligations and observe the time-limits arising from Community directives, includ- ing delay in implementing a directive. Consequently, at the expiry of the period prescribed in the reasoned opinion, Direc- — dismiss the application; tive 95/46 must be regarded as not having been implemented in the law of the Mem- ber State and I therefore propose that the Grand Duchy of Luxembourg be found at fault pursuant to the application. in the alternative
— discontinue the proceedings.
9. The decision on costs is determined by 7. The Court has consistently held 3that Article 69(2) of the Rules of Procedure. the decisive date for determining the exis-
4 —Case C-303/92 Commission v Netherlands [1993] ECR 3 — Case C-384/99 Commission v Belgium [2000] ECR I-4739, paragraph 9; Case C-139/97 Commission v Italy I-10633, paragraph 16. [1998] ECR I-605, paragraph 11.
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COMMISSION v LUXEMBOURG
Conclusion
10. In the light of the foregoing, I propose that the Court should:
(1) declare that, in failing to introduce within the prescribed time-limit the laws, regulations and administrative provisions containing possible sanctions necessary to comply with Article 32 of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that Directive;
(2) order the Grand Duchy of Luxembourg to pay the costs of the proceedings.
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