C-135/01

COMMISSION v GERMANY

OPINION OF ADVOCATE GENERAL GEELHOED delivered on 14 November 2002 1

1. In the present case the Commission of 3. Article 2(1) of the Directive provides: the European Union is asking the Court to declare that the Federal Republic of Ger- many has failed to bring into force and notify within the prescribed time-limit the laws, regulations or administrative provi- 'For the purpose of this Directive, the sions necessary to comply with Council following definitions shall apply: Directive 98/56/EC of 20 July 1998 on the marketing of propagating material of orna- mental plants 2 ('the Directive'). In accord- ance with Article 19 of the Directive, the period prescribed for transposition of the (1) "Propagating material": plant material Directive expired on 1 July 1999. intended for

— the propagation of ornamental plants,

or

— the production of ornamental plants; however, in the case of the production from complete plants, 2. The Directive applies to the marketing in this definition applies only to the the Community of propagating material of extent that the resulting ornamen- ornamental plants. It lays down rules relat- tal plant is intended for further ing to the quality and the health of marketing, materials used for the propagation of such plants.

4. As the Commission had received no administrative provisions necessary in information whatsoever on measures taken order to comply with the obligations under by the German Government regarding the the Directive. implementation of the Directive, it sent a letter of formal notice to the Federal Republic of Germany on 16 November 1999. The German Government replied on 18 January 2000. In its reply, the Commis- sion was informed that the Directive was to be implemented by means of an amend- ment to the Law on the trade in seeds ('the Seeds Marketing Law') and to the regu- 7. In its defence, the German Government lation on ornamental plants (the marketing does not contest that the Directive has not of vegetable and fruit plants). The relevant been transposed within the prescribed time- amendments were being prepared. The limit. However, it takes the view that the delay could be traced to the difficulties application is inadmissible on account of a experienced by the German Government in defect in the pre-litigation procedure. In its connection with the interpretation of the response to the letter of formal notice it had definition of 'propagating material'. already drawn attention to the essential concept of 'propagating material', the con- tent of which was unclear. That lack of clarity related to differences in the language versions of the Directive. Nor was that lack of a uniform interpretation resolved after a meeting of the Standing Committee on 5. The Commission responded, on 19 July 25 November 1999, as provided for in 2000, by sending a reasoned opinion in Article 17 of the Directive. The Commis- which it requested the German Govern- sion had at no stage of the pre-litigation ment to adopt within two months from the procedure mentioned these problems of notification thereof the measures necessary interpretation, which entails a lack of in order to comply with that opinion. In a reasoning. In its rejoinder the German response, dated 10 October 2000, to the Government deals in greater detail with reasoned opinion, the German Government the ambiguities found and with the meeting once again referred to the difficulties of of the Standing Committee. It also refers to i n t e r p r e t a t i o n . In a letter d a t e d the judgment in Commission v Germany 3 15 December 2000 that response was in which the Court commented on dif- supplemented and a speedy implementation ficulties of interpretation mentioned by the was indicated. German Government. The Court took no account of those difficulties as they were raised after the expiry of the period pre- scribed for transposing the directive in question. In the present case, in contrast, the Commission had already been informed prior to the expiry of the period prescribed for transposition. 6. In its application the Commission claims that the German Government has still not adopted the required laws, regulations or 3 — Case C-344/96 [1998] ECR I-1165.

8. I cannot see how the difficulties of Mischo and Ruiz-Jarabo Colomer found interpretation mentioned by the German applications of the Commission to be Government could lead to the inadmis- inadmissible as the Commission had failed sibility of the application. to react in the pre-litigation procedure to the arguments which the Irish Government had put forward in its reply to the letter of formal notice. In both cases the Advocates General stressed that the Commission, as guardian of the Treaty, was under a duty to examine thoroughly the arguments put forward by a Member State. I share the 9. First, I should like to recall the purpose view of both the Advocates General con- of the pre-litigation procedure. According cerning the Commission's duty to examine. to settled case-law, that procedure is However, the Commission's non-com- designed to enable the Member State con- pliance with that obligation plays no role cerned to comply with its obligations under in the present case. Community law and to defend itself against the complaints formulated by the Commis- sion. Furthermore, the subject-matter of the contentious proceedings is defined in the pre-litigation procedure. In that connec- tion, a pre-litigation procedure in a case must satisfy two requirements: the Member State must have the opportunity of defend- ing itself, and the subject-matter of the procedure must be clear. For me there can be no doubt that both these requirements are fulfilled in the present. What the 11. Furthermore, I consider it wholly irrel- German Government is complaining of evant for the purposes of the present case vis-à-vis the Commission is not so much that the German Government, as it claims, that it could not defend itself but rather informed the Commission prior to the that the Commission did not find its expiry of the period prescribed for imple- defence to be valid. mentation. At that time the content of the Directive had already been determined. So had the obligation of the Member States to transpose the Directive into national law by 1 July 1999 at the latest. That is not an obligation with respect to the Commission but an obligation arising directly from the EC Treaty. A Member State may therefore 10. In that respect, the present case is also not hide behind the views of the different from two recent cases brought Commission concerning the content of a against Ireland for failure to fulfil Treaty directive or, as in the present case, the obligations 4in which Advocates General Commission's failure to express a view. Views of the Commission can never be such as to lead to the suspension of the obli- 4 — Opinions of Advocate General Mischo of 28 May 2002 in Case C-120/01 Commission v Ireland (removed from the gation of a Member State to transpose a register by order of 9 September 2002) and of Advocate General Ruiz-Jarabo Colomer of 17 September 2002 in directive by the date prescribed for that Case C-362/01 Commission v Ireland [2002] ECR I-11433. purpose.

I - 2842

COMMISSION v GERMANY

Conclusion

18. Itherefore propose that the Court should:

— declare that, by failing to adopt and notify within the prescribed period the laws, regulations or administrative provisions necessary in order to imple- ment in full Council Directive 98/56/EC of 20 July 1998 on the marketing of propagating material of ornamental plants, the Federal Republic of Germany has failed to fulfil its obligations under that directive;

— order the Federal Republic of Germany to pay the costs.