JUDGMENT OF THE COURT (Fifth Chamber)

18 June 2009 (*)

(Failure of a Member State to fulfil obligations – Directive 2004/35/EC – Environmental liability with regard to the prevention and remedying of environmental damage – Failure to transpose)

In Case C‐417/08,

ACTION under Article 226 EC for failure to fulfil obligations, brought on 22 September 2008,

**Commission of the European Communities,** represented by A.‐A. Gilly and U. Wölker, 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 (Fifth Chamber),

composed of M. Ilešič, President of the Chamber, E. Levits and J.‐J. Kasel (Rapporteur), 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
the laws, regulations and administrative provisions necessary to comply with Directive 2004/35/EC of the European Parliament
and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental
damage (OJ 2004 L 143, p. 56) 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 Article 19 of that directive.

2        Article 19 of Directive 2004/35 provides that Member States are to bring into force the laws, regulations and administrative
provisions necessary to comply with the directive by 30 April 2007 and that they are forthwith to inform the Commission thereof.

3        Having received no information to enable it to find that the provisions needed to transpose Directive 2004/35 into national
law had been adopted by the United Kingdom, the Commission initiated the infringement procedure provided for in Article 226 EC.
On 1 February 2008, after having given that Member State formal notice to submit its observations, the Commission delivered
a reasoned opinion calling on the Member State to take the measures necessary to comply with the reasoned opinion within two
months of its notification.

4        As the United Kingdom Government’s reply to that reasoned opinion indicated that the provisions needed to transpose Directive
2004/35 had not yet been adopted, the Commission decided to bring the present action.

5        In the defence, the government acknowledges that, on 30 April 2007, Directive 2004/35 had neither been transposed in the United
Kingdom nor Gibraltar and that the legislative procedure seeking to ensure that transposition was still under way.

6        In that connection, it should be borne in mind that the Court has consistently held that 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 that the Court cannot take account of any subsequent changes (see,
inter alia, Case C‐168/03 *Commission* v *Spain* [2004] ECR I‐8227, paragraph 24; judgment of 27 September 2007 in Case C‐354/06 *Commission* v *Luxembourg*, paragraph 7; and judgment of 4 December 2008 in Case C‐41/08 *Commission* v *Czech Republic*, paragraph 9).

7        In the present case, it is not in dispute that, on the date that the period laid down in the reasoned opinion expired, the
United Kingdom had not adopted the measures necessary in order to transpose Directive 2004/35 into national law.

8        It follows that the action brought by the Commission must be considered to be well founded.

9        In those circumstances, it must be declared that, by failing to adopt the laws, regulations and administrative provisions
necessary to comply with Directive 2004/35, the United Kingdom has failed to fulfil its obligations under Article 19 of that
directive.

**Costs**

10      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 applied for costs and the United Kingdom has been
unsuccessful, the United Kingdom must be ordered to pay the costs.

On those grounds, the Court (Fifth Chamber) hereby:

1.      **Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/35/EC
of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and
remedying of environmental damage, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations
under Article 19 of that directive;**

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

[Signatures]

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- Language of the case: English.