CELEX: 62001CJ0135
Failure of a Member State to fulfil obligations
Directive 98/56/EC
Marketing of propagating material of ornamental plants
Failure to transpose within the prescribed period
Difficulties of interpretation

By application lodged at the Court Registry on 22 March 2001, the Commission of the European Communities brought an action
under Article 226 EC for a declaration that, by failing within the prescribed period to adopt all the laws, regulations and
administrative measures necessary to transpose into national law Council Directive 98/56/EC of 20 July 1998 on the marketing
of propagating material of ornamental plants (OJ 1998 L 226, p. 16,
the directive), the Federal Republic of Germany has failed to fulfil its obligations under the EC Treaty and that directive.
The law
The purpose of the directive is,
inter alia
, to harmonise the conditions of the quality and health of material used for propagating ornamental plants.
Article 2(1) of the directive is worded as follows: Propagating material: plant material intended for:
─
the propagation of ornamental plants, or
─
the production of ornamental plants; however, in the case of production from complete plants, this definition applies only
to the extent that the resulting ornamental plant is intended for further marketing.
Propagation: reproduction by vegetative or other means.
Article 19(1) of the directive provides that the Member States are to bring into force the laws, regulations or administrative
provisions necessary to comply with the directive on 1 July 1999 and are forthwith to inform the Commission thereof.
The pre-litigation procedure
As it had not received any notification of the transposition of the directive into German law, the Commission, by letter of
16 November 1999, initiated the procedure under Article 226 EC, putting the Federal Republic of Germany on formal notice to
submit its observations within a period of two months.
The Federal Republic of Germany replied to the letter of formal notice on 18 January 2000. It stated, essentially, that the
measures transposing the directive were being prepared and, as justification for the delay in that process, it referred to
difficulties arising from the definition of the term
propagating material.
The Commission issued a reasoned opinion on 19 July 2000 in which it stated that the Federal Republic of Germany had not adopted
the measures necessary to transpose the directive by 1 July 1999. It requested that Member State to adopt within two months
from the notification thereof the measures necessary to comply with that opinion.
In its response to the reasoned opinion, sent to the Commission by letter of 10 October 2000, the Federal Republic of Germany
again referred to the difficulties of transposition arising, in its view, from the definition of
propagating material, and, at the same time, pointing out that the procedure to amend the national law was in train.
In a letter to the Commission dated 15 December 2000, the Federal Republic of Germany announced that the directive would be
transposed shortly.
The Commission received no further information from the German Government enabling it to conclude that the Federal Republic
of Germany had complied in full with its obligation to transpose the directive.
In those circumstances, the Commission brought the present action.
Admissibility
Arguments of the parties
In its defence, the Federal Republic of Germany contends that the action is inadmissible on account of the irregular nature
of the pre-litigation procedure.
In particular, in its response to the letter of formal notice, the German Government stated that the difficulties in transposing
the directive arose from the term
propagating material, which defined the scope of application of the directive but which not all the Member States had interpreted in the same
way. The Federal Republic of Germany states, first, that it is not clear whether the definition in Article 2(1) of the directive
relates to the production of complete plants or to production from complete plants. The German language version of that provision
supports the first hypothesis by its use of the word
von and the English language version the second by its use of the word
from. Second, the directive does not specify what is meant by
complete plants nor the extent to which, in light of the definition of
propagating material in the directive, the various stages of marketing the categories of products (for example, flower bulbs, herbaceous plants,
trees and ornamental shrubs) are covered by the scheme in question. The lack of a uniform Community interpretation of the
term
propagating material persisted even after the meeting of the Standing Committee for Propagating Material of Ornamental Plants, established under
Article 17 of the directive, which took place on 25 November 1999 (
the meeting of 25 November 1999).
However, at no stage of the pre-litigation procedure did the Commission mention those difficulties of interpretation, even
though it was required to respond to the objections raised by the Federal Republic of Germany. The Federal Republic of Germany
claims that that failure and the fact that the Commission has not defined the Community term
propagating material constitute a failure to state reasons which vitiates the pre-litigation procedure in that, by not sufficiently clarifying
the content of the obligations to be transposed, the Commission did not give the Federal Republic of Germany the opportunity
to comply with its obligations under Community law. Therefore, the action is inadmissible.
In its reply, the Commission states that, contrary to the contention of the Federal Republic of Germany, the term
propagating material does not give rise to any doubt in the other Member States such as to prevent the directive from being transposed, at least
since the meeting of 25 November 1999 at which consensus was reached as to the term
complete plant and the definition of
propagating material.
Indeed, the English (
production from complete plants) and French (
productions effectuées à partir de plantes complètes) language versions of Article 2(1) of the directive leave no doubt as to the meaning to be attached to the, admittedly ambiguous,
wording (
bei Erzeugung von vollständigen (fertigen) Pflanzen) of the German version.
The difficulties which allegedly continue to prevent transposition of the directive into German law apparently concern not
so much the meaning to be ascribed to a definition which is now clear but rather the interpretation of the scope of the German
measure which does not substantively match that definition and the consensus reached by the Member States. In not entering
into that internal debate any more than was necessary, the Commission did not err in the pre-litigation procedure.
In its rejoinder, the Federal Republic of Germany persisted in its plea of inadmissibility raised in its defence and challenges
the Commission's assertions as to the outcome of the meeting of 25 November 1999.
Findings of the Court
It is to be observed that the purpose of the pre-litigation procedure laid down in Article 226 EC is to give the Member State
the opportunity to comply with its obligations under Community law or to avail itself of its right to defend itself against
the complaints made by the Commission (Case 293/85
Commission
v
Belgium
[1988] ECR 305, paragraph 13; order in Case C-266/94
Commission
v
Spain
[1995] ECR I-1975, paragraph 16, and Case C-1/00
Commission
v
France
[2001] ECR I-9989, paragraph 53).
The proper conduct of the pre-litigation procedure constitutes an essential guarantee required by the Treaty not only in order
to protect the rights of the Member State concerned, but also so as to ensure that any contentious procedure will have a clearly
defined dispute as its subject-matter (
Commission
v
France
, cited above at paragraph 19, paragraph 53).
Thus, the pre-litigation procedure pursues the following three objectives: to allow the Member State to put an end to any
infringement, to enable it to exercise its rights of defence and to define the subject-matter of the dispute with a view to
bringing an action before the Court (Case C-362/01
Commission
v
Ireland
[2002] ECR I-0000, paragraph 18).
In light of the foregoing, it is, in principle, for the Commission to set out, in its reasoned opinion, its assessment of
the Member State's observations set out in its response to the letter of formal notice (see
Commission
v
Ireland
, cited above at paragraph 21, paragraph 19).
However, in the present case, in failing to adopt a position on the alleged difficulties surrounding the term
propagating material and, in any event, failing to define that term in the course of the pre-litigation procedure, contrary to the Federal Republic
of Germany's allegation, the Commission did not engender any uncertainty in that Member State as to the extent of its obligations
and therefore did not prevent it from putting an end to the alleged infringement.
First, the Commission is not empowered to determine conclusively, by reasoned opinions formulated pursuant to Article 226
EC or other statements of its position in the course of such proceedings, the rights and duties of a Member State or to afford
that State guarantees concerning the compatibility of a given line of conduct with Community law (see, to that effect, Joined
Cases 142/80 and 143/80
Essevi and Salengo
[1981] ECR 1413, paragraph 16).
Second, a Member State cannot rely on difficulties in interpreting a directive in order to delay transposing it until after
the prescribed period has expired (Case C-316/99
Commission
v
Germany
[2001] ECR I-2037, paragraph 9).
Nor does it appear that, by its stance during the pre-litigation procedure, the Commission infringed the rights of defence
of the Federal Republic of Germany or that the dispute brought before the Court at the end of that procedure was deprived
of any clearly defined purpose.
It follows that the plea of inadmissibility raised by the Federal Republic of Germany must be rejected.
Failure to fulfil obligations
Arguments of the parties
The Commission submits that the Federal Republic of Germany has failed to fulfil its obligations under Community law by not
adopting within the prescribed period the measures necessary to comply with the directive. It points out that that Member
State does not dispute the need to adopt national measures in order to transpose that directive in full.
The Federal Republic of Germany acknowledges that it has not transposed the directive within the prescribed period. It submits,
however, that the difficulties and delays which arose in the transposition are attributable in part to the Commission in that
it failed to provide a definition of
propagating material enabling a uniform application of Community law. That constitutes an infringement of the principle of sincere cooperation
under Article 10 EC. In light of that infringement the action is unfounded.
Findings of the Court
As is apparent from paragraphs 23 to 26 of the present judgment, the Commission has not failed to fulfil its obligations under
Community law in not defining, in the pre-litigation procedure, the term
propagating material in Article 2(1) of the directive. Therefore, its conduct cannot be regarded as contrary to the principle of sincere cooperation.
In those circumstances, and given that the directive was not transposed within the prescribed period, the Commission's action
is well founded.
Therefore, by failing within the prescribed period to adopt all the laws, regulations and administrative measures necessary
in order to transpose into national law the directive, the Federal Republic of Germany has failed to fulfil its obligations
under that directive.
Costs
Under Article 69(2) of the Rules of Procedure, 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 asked for costs against the Federal Republic of
Germany, which has failed in its submissions, the latter must be ordered to pay the costs.
On those grounds,
THE COURT (Sixth Chamber)
hereby:
1.
Declares that, by failing within the prescribed period to adopt all the laws, regulations and administrative measures necessary
to transpose into national law 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;
2.
Orders the Federal Republic of Germany to pay the costs.
Puissochet
Gulmann
Skouris
Macken
Cunha Rodrigues
Delivered in open court in Luxembourg on 20 March 2003.
R. Grass
J.-P. Puissochet
Registrar
President of the Sixth Chamber
–
Language of the case: German.