CELEX: 62021CJ0126
Action for failure to fulfil obligations
Judicial cooperation in criminal matters
Mutual recognition of decisions on supervision measures as an alternative to provisional detention
Framework Decision 2009/829/JHA
Failure to adopt the measures necessary to comply with the framework decision
Failure to notify to the European Commission

By its application, the European Commission asks the Court to declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention (OJ 2009 L 294, p. 20), or, in any event, by failing to notify such provisions to the Commission, Ireland has failed to fulfil its obligations under Article 27 of that framework decision.

Legal context
Entitled ‘Subject Matter’, Article 1 of Framework Decision 2009/829 provides that that framework decision ‘lays down rules according to which one Member State recognises a decision on supervision measures issued in another Member State as an alternative to provisional detention, monitors the supervision measures imposed on a natural person and surrenders the person concerned to the issuing State in case of breach of these measures’.
Article 27 of that framework decision, entitled ‘Implementation’, provides:
‘1.      Member States shall take the necessary measures to comply with the provisions of this Framework Decision by 1 December 2012.
2.      By the same date Member States shall transmit to the Council and to the Commission the text of the provisions transposing into their national law the obligations imposed on them under this Framework Decision.’
Under Article 10(1) and (3) of Protocol (No 36) on transitional provisions, the powers of the Commission under Article 258 TFEU became applicable, with respect to acts of the European Union in the field of police cooperation and judicial cooperation in criminal matters adopted before the entry into force of the Treaty of Lisbon, only as from the expiry of a period of five years from the date of entry into force of that treaty.

Pre-litigation procedure
On 17 December 2014, the Commission services sent a letter to all the Member States to inform them of the rules applicable after the expiry of the five-year transitional period provided for in Article 10(3) of Protocol (No 36) on transitional provisions and invited them to notify to it, by 15 March 2015 at the latest, all national measures transposing acts of the Union in the field of police cooperation and judicial cooperation in criminal matters which had been adopted before the entry into force of the Treaty of Lisbon and which were applicable to them. The notification period was subsequently extended to 15 May 2015.
Since the Commission did not receive any notification from Ireland concerning the adoption of the provisions necessary to comply with Framework Decision 2009/829, the Commission sent it a letter of formal notice on 25 January 2019.
By letter of 21 March 2019, Ireland replied to the Commission that the measures transposing Framework Decision 2009/829 were being drawn up.
In the absence of any other notification concerning the transposition of Framework Decision 2009/829, the Commission sent a reasoned opinion to Ireland on 26 July 2019 inviting it to take the measures necessary to comply with the requirements of that framework decision within two months of receipt of that reasoned opinion.
By letter of 24 September 2019, Ireland replied to the Commission that it was making every available effort to enact the legislative measures necessary to transpose Framework Decision 2009/829 in full. In particular, Ireland emphasised that draft legislation had been published to that effect in the Seanad Éireann (Senate of Ireland).
Considering that Ireland had not adopted the measures necessary to transpose Framework Decision 2009/829 or, in any event, notified such measures, the Commission brought the present action.

The action

Arguments of the parties
The Commission submits that, on the expiry of the period laid down in the reasoned opinion, Ireland had not adopted the provisions necessary to comply with Framework Decision 2009/829.
In its defence, Ireland contends that it is the case that it had not adopted the measures necessary to transpose Framework Decision 2009/829 at the expiry of the period laid down in the reasoned opinion. It submits, however, that the Act transposing the provisions of Framework Decision 2009/829, namely the Criminal Justice (Mutual Recognition of Decisions on Supervision Measures) Act 2020 (Number 21 of 2020) (‘the 2020 Act’), was enacted on 26 November 2020 and that the order establishing its entry into force, namely the Criminal Justice (Mutual Recognition of Decisions on Supervision Measures) Act 2020 (Commencement) Order 2021 (‘the 2021 Order’), was signed by the Minister for Justice on 21 January 2021. Ireland adds that the Commission was informed of the enactment of the 2020 Act as early as 30 November 2020 and that both the 2020 Act and the 2021 Order were notified to the Commission on 5 February 2021.
Since the present action was brought on 26 February 2021 on the basis of a pre-litigation procedure concerning a lack of transposition, Ireland concludes therefrom that it has no way of knowing whether the transposition which has taken place in the meantime raises any substantive issues as regards the content of the transposing measures adopted.
In those circumstances, Ireland submits that it has been hampered in the effective presentation of its defence since, first, the transposing measures adopted were not taken into account by the Commission and, second, it could not provide any defence to any complaint that the Commission may have about the notified measures, as no indication of what that might be has been given by the Commission.
Thus, according to Ireland, there is no basis for continuing the proceedings in so far as they concern the failure to notify the provisions transposing Framework Decision 2009/829, and they are devoid of purpose in view of the measures taken by Ireland before the present action was brought.
The Commission acknowledges that, on 5 February 2021, Ireland notified to it the 2020 Act, the 2021 Order and a correlation table, but states that, owing to an administrative error, that notification did not reach its Legal Service before the present action was brought on 26 February 2021. However, it recalls that, according to the case-law of the Court, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion.
In addition, the Commission disputes Ireland’s contention that it was hampered in its defence, since it is clear from the application that the present action for failure to fulfil obligations seeks a declaration that Framework Decision 2009/829 was transposed belatedly and does not raise any issues concerning the quality or conformity of the notified measures.

Findings of the Court
Under Article 27(1) and (2) of Framework Decision 2009/829, Member States had until 1 December 2012 to take the measures necessary to comply with the provisions of that framework decision and to transmit to the Council and to the Commission the text of the provisions transposing into their national law the obligations imposed on them under that framework decision.
Without formally raising an objection of inadmissibility, Ireland nevertheless considers that the Commission’s action is devoid of purpose since the 2020 Act, which transposes Framework Decision 2009/829, and the 2021 Order were adopted and notified to the Commission before the present action was brought. Ireland submits, for similar reasons, that its rights of defence have been infringed.
First, it must be pointed out that an action in respect of an infringement which no longer existed on the date upon which the period laid down in the reasoned opinion expired is, according to the case-law, inadmissible because it is devoid of purpose (judgment of 4 May 2006,
Commission
v
United Kingdom
, C‑508/03, EU:C:2006:287, paragraph 73 and the case-law cited).
The purpose of an action brought under Article 258 TFEU is to obtain a declaration that the State concerned has failed to fulfil its obligations under the Treaty and that it has failed to put an end to that infringement within the time set by the Commission in its reasoned opinion (judgment of 4 May 2006,
Commission
v
United Kingdom
, C‑508/03, EU:C:2006:287, paragraph 74).
In the present case, Ireland does not dispute that, when the period laid down in the reasoned opinion expired, it had not adopted provisions intended to transpose Framework Decision 2009/829 or, a fortiori, notified such provisions.
Furthermore, it is for the Commission to judge at what time it will bring an action for failure to fulfil obligations; the considerations which determine its choice of time cannot affect the admissibility of the action (judgment of 21 January 2010,
Commission
v
Germany
, C‑546/07, EU:C:2010:25, paragraph 21 and the case-law cited).
Secondly, Ireland’s plea that its rights of defence have been infringed cannot be accepted either. The finding that an action for failure to fulfil obligations must be dismissed on account of the Commission’s conduct in the pre-litigation procedure is to be made only where that conduct prevented the Member State concerned from availing itself of its right to defend itself against complaints made by the Commission and thus infringed the rights of the defence (see, by analogy, judgment of 6 October 2020,
Commission
v
Hungary (Higher education)
, C‑66/18, EU:C:2020:792, paragraph 52).
In that regard, the Commission confirmed, in its reply, that it did not intend to make any complaints against Ireland other than the failure to transpose Framework Decision 2009/829 and the failure to notify the transposing measures within the period laid down in the reasoned opinion. In those circumstances, it appears that neither the time which elapsed between the expiry of that period and the date on which the action was brought nor the failure to take account of the transposition in the meantime is capable of making it more difficult for Ireland to refute the Commission’s arguments and of thus infringing its rights of defence (see, by analogy, judgment of 28 October 2010,
Commission
v
Lithuania
, C‑350/08, EU:C:2010:642, paragraph 34).
Accordingly, the action brought by the Commission must be declared admissible.
As to the substance, Ireland reiterates the argument that the action is unfounded since the measures necessary to comply with Framework Decision 2009/829 have been adopted and notified to the Commission and have produced their effects since 5 February 2021.
In that regard, it is clear from the wording of Article 27(1) of Framework Decision 2009/829 that the Member States were to take the measures necessary to comply with the provisions of that framework decision by 1 December 2012. In addition, under Article 27(2) of that framework decision, they were to transmit to the Council and to the Commission the text of the provisions transposing into their national law the obligations imposed on them under that framework decision by the same date.
Lastly, in accordance with the Court’s settled case-law, in an action under Article 258 TFEU, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that Member State at the end of the period laid down in the reasoned opinion, and the Court cannot take account of any subsequent changes (see, to that effect, judgments of 27 November 1990,
Commission
v
Greece
, C‑200/88, EU:C:1990:422, paragraph 13, and of 16 July 2020,
Commission
v
Ireland (Anti-money laundering)
, C‑550/18, EU:C:2020:564, paragraph 30 and the case-law cited).
In the present case, in so far as Ireland states in its defence that the Act transposing Framework Decision 2009/829 was enacted on 26 November 2020 and that it notified the 2020 Act, the 2021 Order and the correlation table on subsequent dates, it is indisputable that it had not yet completed, on expiry of the period laid down in the reasoned opinion, all the necessary steps under Article 27 of Framework Decision 2009/829.
In the light of all the foregoing considerations, it must be held that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Framework Decision 2009/829 and by failing to notify the text of such provisions to the Commission, Ireland has failed to fulfil its obligations under Article 27 of that framework decision.

Costs
Under Article 138(1) of the Rules of Procedure of the Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and Ireland has been unsuccessful, the latter must be ordered to pay the costs.
On those grounds, the Court (Eighth Chamber) hereby:
1.
Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention and by failing to notify the text of such provisions to the European Commission, Ireland has failed to fulfil its obligations under Article 27 of that framework decision;
2.
Orders Ireland to pay the costs.
Jääskinen
Jürimäe
Safjan
Delivered in open court in Luxembourg on 24 March 2022.
A. Calot Escobar

N. Jääskinen
Registrar

President of the Eighth Chamber
*
Language of the case: English.