# C_2006010EN.01001701.xml

| 14.1.2006 | EN | Official Journal of the European Union | C 10/17 |
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14.1.2006

EN

Official Journal of the European Union

C 10/17

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Action brought on 24 November 2005 by the Commission of the European Communities against the Grand Duchy of Luxembourg

(Case C-416/05)

(2006/C 10/33)

Language of the case: French

An action against the Grand Duchy of Luxembourg was brought before the Court of Justice of the European Communities on 24 November 2005 by the Commission of the European Communities, represented by C.F. Durand and F.Simonetti, acting as Agents, with an address for service in Luxembourg.

The Commission of the European Communities claims that the Court should:

| 1. | declare that, by failing to adopt the measures necessary to comply with the judgment of the Court of Justice of the European Communities of 2 October 2003 in Case C-89/03 concerning the failure to transpose Directive 93/15/EEC (1) into Luxembourg law, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 228(1) of the Treaty establishing the European Community; |
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1.

declare that, by failing to adopt the measures necessary to comply with the judgment of the Court of Justice of the European Communities of 2 October 2003 in Case C-89/03 concerning the failure to transpose Directive 93/15/EEC (1) into Luxembourg law, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 228(1) of the Treaty establishing the European Community;

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| 2. | order the Grand Duchy of Luxembourg to pay to the Commission of the European Communities, into the account ‘European Community own resources’, a penalty payment of EUR 9 000 for each day of delay in complying with the judgment in Case C-89/03 from the day on which judgment is delivered in the present case until the day on which the judgment in Case C-89/03 is complied with; |
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2.

order the Grand Duchy of Luxembourg to pay to the Commission of the European Communities, into the account ‘European Community own resources’, a penalty payment of EUR 9 000 for each day of delay in complying with the judgment in Case C-89/03 from the day on which judgment is delivered in the present case until the day on which the judgment in Case C-89/03 is complied with;

| 3. | order the Grand Duchy of Luxembourg to pay the costs. |
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3.

order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments:

In its judgment of 2 October in Case C-89/03 Commission of the European Communities v Grand Duchy of Luxembourg, the Court declared that: 'By failing to bring into force the laws, regulations and administrative provisions necessary to comply with Council Directive 93/15/EEC of 5 April 1993 on the harmonisation of the provisions relating to the placing on the market and supervision of explosives for civil uses, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive.'

Commission of the European Communities

Grand Duchy of Luxembourg

By failing to bring into force the laws, regulations and administrative provisions necessary to comply with Council Directive 93/15/EEC of 5 April 1993 on the harmonisation of the provisions relating to the placing on the market and supervision of explosives for civil uses, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive.

By letter of 7 November 2003, the Commission drew the attention of the Luxembourg authorities to the judgment of 2 October 2003 and requested that the measures adopted in order to comply with this judgment be communicated to it.

The Luxembourg authorities indicated, in reply, that a draft Grand Ducal regulation could be finalised at the latest by November 2004.

On 14 December 2004, the Commission delivered a reasoned opinion calling on the Grand Duchy of Luxembourg to take the measures necessary to comply with it within a period of two months.

In a letter of 19 September 2005, the Luxembourg authorities referred to the fact that the Conseil d'État (Council of State), in an opinion of 12 October 2004, considered that the scope of the draft regulation was, in accordance with the Constitution, a matter for loi (legislative provision).

loi

According to the information available to the Commission, the Grand Duchy of Luxembourg has still not transposed the directive at issue.

In accordance with the second sentence of the second subparagraph of Article 228(2) EC, the Commission is to specify in its application the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances.

In this instance, the Commission takes the view that a penalty payment of EUR 9 000 a day fits the seriousness and duration of the infringement and takes into consideration the need to give this penalty payment the required deterrent effect.

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(1)  Council Directive 93/15/EEC of 5 April 1993 on the harmonisation of the provisions relating to the placing on the market and supervision of explosives for civil uses (OJ L 121, 15.5.1993, p. 20).

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