JUDGMENT OF THE COURT (Eighth Chamber)

30 April 2009 ([\*](#Footnote*))

(Failure of a Member State to fulfil obligations – Directive 2004/83/EC – Minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons
who need international protection – Failure to transpose the directive within the prescribed period)

In Case C‐256/08,

ACTION under Article 226 EC for failure to fulfil obligations, brought on 16 June 2008,

**Commission of the European Communities,** represented by C. O’Reilly and M. Condou-Durande, acting as Agents, with an address for service in Luxembourg,

applicant,

v

**United Kingdom of Great Britain and Northern Ireland,** represented by S. Ossowski, acting as Agent,

defendant,

THE COURT (Eighth Chamber),

composed of T. von Danwitz, President of Chamber, R. Silva de Lapuerta (Rapporteur) and G. Arestis, Judges,

Advocate General: Y. Bot,

Registrar: R. Grass,

having regard to the written procedure,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

**Judgment**

1        By its application, the Commission of the European Communities claims that the Court should declare that, by failing to adopt
all the laws, regulations and administrative provisions necessary to comply with Council Directive 2004/83/EC of 29 April
2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or
as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304, p. 12; ‘the
Directive’) or, in any event, by failing to notify those provisions to the Commission, the United Kingdom of Great Britain
and Northern Ireland has failed to fulfil its obligations under that directive.

2        Under the first subparagraph of Article 38(1) of the Directive, the Member States were required to bring into force the laws,
regulations and administrative provisions necessary to comply with the Directive before 10 October 2006 and forthwith to inform
the Commission thereof.

**Pre-litigation procedure**

3        Not having been informed by the United Kingdom of the adoption of all the measures necessary in order to transpose the Directive
into its national law and not being in possession of any other evidence that would enable it to conclude that the United Kingdom
had fulfilled its obligation to comply in full with the Directive, the Commission, in accordance with the procedure under
Article 226 EC, gave the United Kingdom formal notice by letter of 23 November 2006 to submit its observations within two
months of the notification of that letter.

4        By letter of 25 January 2007, the United Kingdom informed the Commission that the national authorities were preparing the
measures necessary to ensure full compliance with the directive, and outlined the timetable for this.

5        On the view that the measures of which it had been informed did not ensure full transposition of the Directive, the Commission
sent a reasoned opinion by letter of 27 June 2007, stating that the United Kingdom had failed to fulfil its obligations under
Article 38 of the Directive and calling upon the United Kingdom to take the measures necessary to comply with the reasoned
opinion within two months of its notification.

6        In their response of 31 August 2007 to the reasoned opinion, the United Kingdom authorities once more stated that they were
preparing the measures necessary for full compliance with the Directive, and again outlined the timetable for implementation
of the Directive.

7        On receiving no other information to show that the United Kingdom had fulfilled its obligations under the Directive, the Commission
decided to bring the present action.

**The action**

8        The United Kingdom admits that the Directive was not fully transposed into national law before the deadline laid down in the
first subparagraph of Article 38(1) of the Directive. However, the United Kingdom submits in this respect that the transposition
involved legislation that was complex and that measures intended to transpose the Directive had either already been adopted
at the date on which it had lodged its defence, or were to be adopted and come into force in the near future.

9        In that regard, it is sufficient to recall, first, that a Member State cannot plead provisions, practices or situations prevailing
in its domestic legal order to justify the failure to observe obligations and deadlines laid down in a directive (see, inter
alia, C-70/06 *Commission* v *Portugal* [2008] ECR I-1, paragraph 22, and judgment of 11 December 2008 in Case C‐330/08 *Commission* v *France*, paragraph 16).

10      Secondly, according to settled 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 obtaining in the 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, inter alia, judgment of 27 September 2007 in Case
C-9/07 *Commission* v *France*, paragraph 8, and Case C‐152/05 *Commission* v *Germany* [2008] ECR I‐39, paragraph 15).

11      As it is, in the present case, it is common ground that, at the end of the period laid down in the reasoned opinion, the United
Kingdom had not adopted all the measures necessary for the full transposition of the Directive into the domestic legal order.

12      In those circumstances, the action brought by the Commission must be considered to be well founded.

13      Consequently, it must be held that, by failing to adopt, within the period prescribed, all the laws, regulations and administrative
provisions necessary to comply with the Directive, the United Kingdom has failed to fulfil its obligations under that directive.

**Costs**

14      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 and the United Kingdom has failed
in its submissions, it 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, all the laws, regulations and administrative provisions
necessary to comply with Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status
of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and
the content of the protection granted, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations
under that directive;**

2.      **Orders the United Kingdom of Great Britain and Northern Ireland to pay the costs.**

[Signatures]

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[\*](#Footref*) Language of the case: English.