# C_2009193EN.01001501.xml

| 15.8.2009 | EN | Official Journal of the European Union | C 193/15 |
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15.8.2009

EN

Official Journal of the European Union

C 193/15

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Action brought on 16 June 2009 — Commission of the European Communities v Republic of Malta

(Case C-220/09)

2009/C 193/20

Language of the case: Maltese

Parties

Parties

Applicant: Commission of the European Communities (represented by: J. Aquilina, W. Wils, Agents)

Applicant:

Defendant: Republic of Malta

Defendant:

The applicant claims that the Court should

The applicant claims that the Court should

| — | declare that, by failing to transpose correctly into national law the Annex mentioned in Article 3(3) and the third sentence of Article 5 of Council Directive 93/13/EEC (1) of 5 April 1993 on unfair terms in consumer contracts, the Republic of Malta has failed to fulfil its obligations under Directive 93/13/CEE; |
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declare that, by failing to transpose correctly into national law the Annex mentioned in Article 3(3) and the third sentence of Article 5 of Council Directive 93/13/EEC (1) of 5 April 1993 on unfair terms in consumer contracts, the Republic of Malta has failed to fulfil its obligations under Directive 93/13/CEE;

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| — | order the Republic of Malta to pay the costs. |
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order the Republic of Malta to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

The Commission of the European Communities maintains that the Republic of Malta has failed to transpose correctly into national law the Annex mentioned in Article 3(3) and the third sentence of Article 5 of Council Directive 93/13/EEC (the ‘Directive’) and has thereby failed to fulfil its obligations under this directive.

The Commission argues that whilst legislative action on the part of each Member State is not necessarily required in order to implement a directive, it is essential for national law to guarantee that the national authorities will effectively apply the directive in full, that the legal position under national law should be sufficiently precise and clear and that individuals are made fully aware of their rights and, where appropriate, may rely on them before the national courts.

With regards, in particular, to the Annex mentioned in Article 3(3) of the Directive, the Commission maintains that the transposition of this annex into Maltese law is both necessary and important. It argues that inasmuch as the list contained in the Annex to the Directive is of indicative and illustrative value, it constitutes a source of information both for the national authorities responsible for applying the implementing measures and for individuals affected by those measures. Member States must therefore, in order to achieve the result sought by the Directive, choose a form and method of implementation that offer a sufficient guarantee that the public can obtain knowledge of it.

The Commission argues that the Republic of Malta has failed to take measures which provide a sufficient guarantee that the public would be informed of the whole list in the Annex to the Directive, in particular of points 1(a), (f), (g), (h) and of point 1(q) in its entirety. Moreover, the Republic of Malta has not indicated that the Annex to the Directive had been reproduced in its entirety in the preparatory work for the law implementing the Directive, preparatory work which constitutes, according to Maltese legal tradition, an important interpretation aid. Besides, no other indication was given that this information was going to be provided to the public in any other way.

With regards to the transposition into Maltese law of the third sentence of Article 5 of the Directive, the Commission argues that the transposition of this sentence into Maltese law is both necessary and important insofar as the proviso in the sentence in question is a binding legislative provision which confers more extensive rights and a greater protection on consumers and assists in determining the result which the Directive seeks to achieve.

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(1)  OJ L 95 p. 29

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