JUDGMENT OF THE COURT (Fifth Chamber)

9 July 2009 ([\*](#Footnote*))

(Failure of a Member State to fulfil obligations – Directive 2005/35/EC – Ship-source pollution and introduction of penalties for infringements – Failure to transpose)

In Case C‐557/08,

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

**Commission of the European Communities,** represented by L. Lozano Palacios and A.‐A. Gilly, acting as Agents, with an address for service in Luxembourg,

applicant,

v

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

defendant,

THE COURT (Fifth Chamber),

composed of M. Ilešič, President of the Chamber, A. Tizzano and J.‐J. Kasel (Rapporteur), Judges,

Advocate General: J. Mazák,

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 seeks a declaration from the Court that, by failing to adopt
all the laws, regulations and administrative provisions necessary to comply with Directive 2005/35/EC of the European Parliament
and of the Council of 7 September 2005 on ship-source pollution and on the introduction of penalties for infringements (OJ
2005 L 255, p. 11, ‘the directive’) or, at least, 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        The first paragraph of Article 16 of the directive provides that Member States are to bring into force the laws, regulations
and administrative provisions necessary to comply with that directive by 1 March 2007 and forthwith inform the Commission
thereof.

3        Since it was not informed of the provisions taken to transpose the directive into the national legal system within the period
prescribed, the Commission initiated the infringement procedure provided for in Article 226 EC. After sending a letter of
formal notice to the United Kingdom asking it to submit its observations, the Commission, on 28 November 2007, issued a reasoned
opinion calling on that Member State to take the measures necessary to comply therewith within a period of two months of its
receipt.

4        As the United Kingdom Government’s reply to that reasoned opinion showed that the provisions necessary to transpose the directive
had not yet been adopted, the Commission decided to bring the present action.

5        In its defence, the United Kingdom Government accepts that, on 1 April 2007, the directive had still to be transposed both
in the United Kingdom and in the territory of Gibraltar and the legislative process to ensure such transposition was still
in progress at that date. In addition, it explains that the delay is, inter alia, due to difficulties in incorporating the
provisions transposing that directive into the existing legislation and, in the case of Gibraltar, to the lack of a legal
framework enabling the directive to be transposed.

6        It must be recalled in that connection that, according to the Court’s settled case-law, 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 and the Court cannot take account of any subsequent changes (see, inter
alia, Case C-23/05 *Commission* v *Luxembourg* [2005] ECR I-9535, paragraph 9, and Case C-152/05 *Commission* v *Germany* [2008] ECR I-39, paragraph 15).

7        In the present case, it is common ground that, on the expiry of the time-limit imposed in the reasoned opinion, the measures
intended to transpose the directive into the United Kingdom’s legal system had not been adopted.

8        Moreover, the Court has repeatedly held that a Member State cannot plead provisions, practices or situations prevailing in
its domestic legal order to justify failure to observe obligations and time-limits laid down by a directive (see, inter alia,
Case C-423/00 *Commission* v *Belgium* [2002] ECR I-593, paragraph 16, and Case C-235/04 *Commission* v *Spain* [2007] ECR I-5415, paragraph 55).

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

10      Consequently, it must be declared that, by failing to adopt the necessary laws, regulations and administrative provisions
necessary to comply with the directive, the United Kingdom has failed to fulfil its obligations under that directive.

**Costs**

11      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 latter 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
2005/35/EC of the European Parliament and of the Council of 7 September 2005 on ship-source pollution and on the introduction
of penalties for infringements, 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.