CELEX: 62002CJ0114
Failure of a Member State to fulfil its obligations
Directive 98/8/EC
Failure to transpose within the prescribed period

By application lodged at the Court Registry on 27 March 2002, the Commission of the European Communities brought an action
under Article 226 EC for a declaration that, by failing to adopt all the laws, regulations and administrative provisions necessary
to comply with Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing
of biocidal products on the market (OJ 1998 L 123, p. 1), the French Republic has failed to fulfil its obligations under that
directive.
Under Article 34(1) of Directive 98/8, Member States were to bring into force the laws, regulations and administrative provisions
necessary to comply with it not later than 24 months after its entry into force, that is to say 14 May 2000, and forthwith
to inform the Commission thereof.
Having received no information from the French authorities concerning the implementation of Directive 98/8, the Commission
initiated the infringement procedure.  Having given the French Republic formal notice to submit its observations and having
received no reply, the Commission, on 2 February 2001, sent a reasoned opinion to that Member State requesting it to adopt
the measures necessary to comply with the directive within a period of two months from the date of the notification of that
opinion.
By letter of 15 March 2001, the French authorities informed the Commission of the existence of a draft executive order for
the transposition, in particular, of Directive 98/8, pursuant to Loi n
o
2001-1, du 3 janvier 2001, portant habilitation du gouvernement à transposer, par ordonnances, des directives communautaires
et à mettre en oeuvre certaines dispositions du droit communautaire (Law No 2000-1 of 3 January 2001 authorising the Government
to transpose, by executive orders, Community directives and to implement certain provisions of Community law) (JORF of 4 January
2001, p. 93).  A draft implementing decree relating to biocidal products had also been prepared and was to be published as
soon as possible.
By letter of 26 April 2001, the French authorities forwarded to the Commission a copy of Ordonnance n
o
2001-321, du 11 avril 2001, relative à la transposition de directives communautaires et à la mise en oeuvre de certaines
dispositions du droit communautaire dans le domaine de l'environnement (Executive Order No 2001-321 of 11 April 2001 on the
transposition of Community directives and the implementation of certain provisions of Community law concerning the environment)
(JORF of 14 April 2001, p. 5820).
Taking the view that the transposition of Directive 98/8 was still incomplete, the Commission brought the present action.
In support of its action, the Commission argues that the executive order of 11 April 2001 transposed Directive 98/8 only very
partially.  Thus, implementing measures were not adopted or, in any event, were not communicated to it in respect of Articles
3(4), (5) and (7), 4, 8, 11, 12, 14, 17, 18, 19, 20, 21, 22, 23, 25 and 26 of the directive.
The French Government accepts that it has not ensured a complete transposition of Directive 98/8.  That delay was mainly due
to the need to organise optimally the procedure for assessing the files, which requires the involvement of several bodies.  However,
it contends that various texts, still at the draft stage, will serve to complete the transposition into national law of all
the provisions of the directive.
It is important to note in this regard that it is settled case-law that 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 (see, in particular, Case C-147/00
Commission
v
France
[2001] ECR I-2387, paragraph 26, and Case C-173/01
Commission
v
Greece
[2002] ECR I-6129, paragraph 7).
In the present case, it is not disputed that the French Republic has not adopted the measures necessary to ensure the complete
transposition of Directive 98/8 within the period prescribed for that purpose.
It must be added that, according to equally settled case-law, a Member State may not seek to rely on provisions, practices
or circumstances in its internal legal order in order to justify failure to comply with the obligations and time-limits laid
down in a directive (see, in particular, Case C-276/98
Commission
v
Portugal
[2001] ECR I-1699, paragraph 20, and Case C-351/01
Commission
v
France
[2002] ECR I-8101, paragraph 9).
The action brought by the Commission must therefore be considered to be well founded.
Consequently, it must be held that, by failing to adopt, within the prescribed period, all the laws, regulations and administrative
measures necessary to comply with Directive 98/8, the French Republic 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 sought an order for costs against the French Republic
and the latter has been unsuccessful, the French Republic must be ordered to pay the costs.
On those grounds,
THE COURT (First Chamber)
hereby:
1.
Declares that,
by failing to adopt, within the prescribed period, all the laws, regulations and administrative measures necessary to comply
with Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal
products on the market, the French Republic has failed to fulfil its obligations under that directive;
2.
Orders the French Republic to pay the costs.
Wathelet
Jann
Rosas
Delivered in open court in Luxembourg on 10 April 2003.
R. Grass
M. Wathelet
Registrar
President of the First Chamber
–
Language of the case: French.