Opinion of the Advocate General — ECLI:EU:C:2001:202
Date: 2001-04-05
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Approximation of laws
Procedure: Action for failure to fulfil obligations - successful
Origin: Ireland

Summary of the Judgment 
1. Acts of the institutions — Directives — Implementation by the Member States — 
Directive intended to confer rights on individuals — Requirements of clarity and legal 
certainty — Whether such directives may be transposed into national law without 
legislative action — Not permissible — Implementation by administrative prac­
tices — Insufficient 
(EC Treaty, Art. 189 (now Art. 249 EC)) 
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SUMMARY — CASE C-354/99 
2. Actions for failure to fulfil obligations — Examination of the merits by the Court — 
Alleged failure to fulfil obligations having no adverse consequences — Irrelevant 
(EC Treaty, Art. 169 (now Art. 226 EC)) 
3. Actions for failure to fulfil obligations — Examination of the merits by the Court — 
Situation to be taken into account — Situation at the end of the period laid down in 
the reasoned opinion 
(EC Treaty, Art. 169 (now Art. 226 EC)) 
4. Member States — Obligations — Obligation to penalise infringements of Commu­
nity law — Scope 
(EC Treaty, Art. 5 (now Art. 10 EC)) 
1. Each Member State is bound to imple­
ment the provisions of directives in a 
manner that fully meets the require­
ments of clarity and certainty in legal 
situations imposed by the Community 
legislature, in the interests of the per­
sons concerned established in the 
Member States. To that end, the provi­
sions of a directive must be implemen­
ted with unquestionable legal certainty 
and with the requisite specificity, pre­
cision and clarity. 
Thus, mere administrative practices, 
which by their nature can be changed 
as and when the authorities please and 
which are not publicised widely 
enough cannot be regarded as a proper 
fulfilment of the obligation imposed on 
Member States to which the directives 
are addressed. 
(see paras 27-28) 
2. Since failure to comply with an obliga­
tion imposed by a rule of Community 
law is itself sufficient to constitute a 
breach, the fact that such a failure had 
no adverse effects is irrelevant. 
(see para. 34) 
3. In an action under Article 169 of the 
Treaty (now Article 226 EC), the ques­
tion whether a Member State has failed 
to fulfil its obligations must be deter­
mined 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 para. 45) 
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COMMISSION I IRELAND 
4. Where a Community regulation does 
not specifically provide for any penalty 
for an infringement or refers for that 
purpose to national laws, regulations 
and administrative provisions, Arti­
cle 5 of the Treaty (now Article 10 
EC) requires the Member States to take 
all measures necessary to guarantee the 
application and effectiveness of Com­
munity law. For that purpose, while the 
choice of penalties remains within their 
discretion, they must ensure in parti­
cular that infringements of Community 
law are penalised under conditions, 
both procedural and substantive, 
which are analogous to those applic­
able to infringements of national law of 
a similar nature and importance and 
which, in any event, make the penalty 
effective, proportionate and dissuasive. 
(see para. 46) 
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