Judgment — ECLI:EU:C:2013:855
Date: 2013-12-19
Language of the case: Polish
Court formation: Fifth Chamber
Subject matter: Environment;Research and technological development
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: Poland

summary form, the legal and factual particulars on which those complaints are based (see, to that effect, Case C‑52/90 Commission v Denmark [1992] ECR I‑2187, paragraph 17; Case C‑508/03 Commission v United Kingdom [2006] ECR I‑3969, paragraph 62; Case C‑487/08 Commission v Spain [2010] ECR I‑4843, paragraph 71; and Case C-543/08 Commission v Portugal, paragraph 21). 54 In the present case, it should be noted that the Commission, in its submissions in the application initiating the proceedings, stated clearly that the complaint directed at the Republic of Poland concerned its failure correctly to transpose the concept of ‘genetically modified micro-organism’, set out in Article 2(b) of Directive 2009/41, as a result of its use, in the Law on GMOs, of the terms ‘genetically modified organism’. 55 It is true that it was only in its application that the Commission raised, for the first time, the argument as to the imprecision of that part of the definition of the term ‘genetically modified organism’ which appears in the Law on GMOs, which refers to an organism ‘in which the genetic material has been altered in a manner not occurring in natural conditions’. According to the Commission, Directive 2009/41, which uses the terms ‘in which the genetic material has been altered in a way that does not occur naturally’, is more precise. 56 It should be noted that the Commission’s claim is always targeted at the same definition, inasmuch as the part of the definition which mentions the terms ‘in which the genetic material has been altered in a manner not occurring in natural conditions’ is part of the definition of the term ‘organism’, of which it is an inseparable component and which is thus the subject of the Commission’s overall claim. Accordingly, in contrast to the Republic of Poland’s submissions, the Commission merely stated its claim that that Member State had incorrectly transposed a concept set out in Directive 2009/41, by referring, in the context of the wording of that claim, to part of that concept, rather by way of further argument intended to illustrate the validity of its claim. 57 It follows that the fact that the Commission set out in detail a complaint which it had already made more generally in the context of the pre-litigation procedure did not alter the subject-matter of the alleged infringement, and has thus had no effect on the scope of the proceedings (see Case C‑185/00 Commission v Finland [2003] ECR I‑14189, paragraphs 84 to 87; Case C‑171/08 Commission v Portugal [2010] ECR I‑6817, paragraph 29; and Case C‑543/08 Commission v Portugal, paragraph 23). 58 In the light of the foregoing considerations, the plea of inadmissibility raised by the Republic of Poland must be rejected. 59 As regards the merits, it should be noted that the Commission does not dispute that the Republic of Poland is entitled to extend the scope of the protection system established by Directive 2009/41 to other fields, namely to ‘organisms’ and to ‘genetically modified organisms’. The Commission none the less submits that it would be useful to secure the possibility of distinguishing sufficiently clearly national provisions implementing that directive from those which do not fall within the scope of that act of the European Union, in order to avoid a lack of legal certainty and all doubts or practical difficulties. Therefore, according to the Commission, it is appropriate to reproduce verbatim, in national implementing acts, the definitions set out in that directive, in order to ensure the uniform application of European Union legislation in all Member States. 60 In that regard, it must be recalled that it is settled law that transposing a directive into national law does not necessarily require its provisions to be reproduced verbatim in a specific, express law or regulation; a general legal context may be sufficient, provided that it does effectively ensure the full application of the directive in a sufficiently clear and precise manner (see Case C‑50/09 Commission v Ireland [2011] ECR I‑873, paragraph 46 and case-law cited). 61 Furthermore, it must be stated that, in the present case, the Commission merely alleged the specific nature of Directive 2009/41, without stating, on the one hand, what that specific nature which requires a literal transposition of the concepts set out by that directive consists of, and, on the other, the exact reasons for which it considers that the method of transposition chosen by the Republic of Poland, which confers upon the terms used in the Law on GMOs a broader scope, creates a risk of not clearly identifying the rules ensuring the implementation of that directive, thus jeopardising the uniform application of European Union law. In particular, the Commission does not refer to any situations in which one of the extended definitions used in the Law on GMOs could be the cause of practical difficulties or confusion, in relation to the application of that legislation both to micro‑organisms and to genetically modified micro-organisms. 62 Furthermore, the Commission has failed to show that the mere use of the term ‘organism’ instead of ‘micro-organism’ could actually jeopardise the objectives of Directive 2009/41. 63 In relation to the argument submitted by the Commission alleging that an incorrect definition of the terms ‘micro-organism’ and ‘genetically modified micro-organism’ has negative repercussions on other concepts set out in that directive, such as ‘accident’ or ‘user’, it must be stated that the Commission has in no way shown that that single circumstance represents a failure to fulfil obligations on the part of the Republic of Poland. 64 In relation to the argument alleging the lack of a reference to animal and plant cells in culture in the term ‘organism’ as it appears in the Law on GMOs, it should be stated that, as correctly noted by the Republic of Poland, that concept, which includes ‘micro-organisms’, necessarily encompasses animal and plant cells in culture. In accordance with Article 3(1) of that legislation, those cultures come under biological entities, cellular or non-cellular, capable of replication or of transferring genetic material. On that point, the requirements of Directive 2009/41 were satisfied, that provision is sufficiently clear and, accordingly, its interpretation leaves no room for doubt. 65 In relation to the argument alleging linguistic differences between part of the definition of the term ‘genetically modified micro-organism’ set out in Directive 2009/41, namely the words ‘in which the genetic material has been altered in a way that does not occur naturally’, and part of the definition of the term ‘organism’ used in the Law on GMOs, namely the terms ‘in which the genetic material has been altered in a manner not occurring in natural conditions’, it should be noted that the Commission is merely alleging that the directive uses more specific wording and that it is appropriate, in order to avoid any ambiguity or uncertainty, to reproduce that wording verbatim. However, the Commission has not shown how the use as a complement of the present participle of a single verb and of the term ‘naturally’ instead of the expression ‘natural conditions’ could be contrary to both the principles applicable to the implementation of directives affirmed by the case-law cited in paragraph 60 of the present judgment and the objectives pursued by Directive 2009/41. 66 It follows that the Commission’s argument cannot be accepted. ‘Accident’ – Arguments of the parties 67 The Commission accuses the Republic of Poland, first, of extending the scope of Directive 2009/41 as regards the concept of an ‘accident’ by not only cases of ‘significant’ release but any incident involving unintended release, whether significant or not. 68 Furthermore, by using the verb ‘could’ in the conditional, the Polish version of the directive also includes cases in which the release presents only a potential risk, whereas the definition appearing in the Law on GMOs, which uses the verb ‘may’ in conjunction with the adjective ‘direct’, refers instead to situations in which the risk is more tangible. 69 The Commission states, in that context, that the different definition of the term ‘accident’ which is set out in the Polish legislation may be the cause of practical difficulties during the implementation of Article 15 of the directive, which provides inter alia for consultations with other Member States on the implementation of emergency plans, the obligation to inform the Commission of the circumstances of any accident, and the obligation, for the Commission, to keep a register of accidents. 70 The Republic of Poland, in submitting that the definition of the term ‘accident’ cannot be the cause of any practical difficulties, disputes all the findings put forward by the Commission in that regard and defends its interpretation of Directive 2009/41, that an unintended release which could constitute a risk for health or the environment, though not significant, constitutes an ‘accident’, within the meaning of that directive. In that regard, it points out that such an interpretation constitutes a more stringent protective measure to which Member States may resort under Article 193 TFEU. – Findings of the Court 71 First, it should be noted that the main objectives of Directive 2009/41 are the protection of human health and the environment. It should also be noted, as acknowledged by the Commission, that nothing precludes the Republic of Poland, in its national legislation, from providing a definition of the term ‘accident’ which is broader than that provided for under Directive 2009/41, which also covers accidents involving genetically modified organisms. In addition, the omission of the term ‘significant’ in Article 3(8) of the Law on GMOs reflects the establishment of more stringent protection in relation to accidents involving such organisms which the Republic of Poland is also entitled to establish. Accordingly, such an omission does not jeopardise the objectives pursued by Directive 2009/41 and therefore does not constitute an incorrect transposition thereof. 72 In the same way, it is important to note that the use, in the Law on GMOs, of the verb ‘may’ instead of the verb ‘could’ which is used in the Polish version of Directive 2009/41 cannot be regarded as running counter to the objectives pursued by that directive, provided that the provision at issue is in no way amended by the use of that verb. The same is true of the use of the term ‘direct’ in that legislation, though the directive uses the term ‘immediate’. Therefore, in those two cases also, the Republic of Poland correctly transposed the directive, ensuring the effective application thereof in accordance with the objectives of protection pursued. 73 Finally, in relation to the possible negative effects of the transposition of the term ‘accident’ by the Law on GMOs in relation to Article 15 of Directive 2009/41, which provides, inter alia, for consultations with other Member States on the implementation of emergency plans, the Commission submits that that legislation does not clearly state at what point such consultation must be carried out. According to the Commission, the relevant provisions of that legislation do not make it possible to determine the situations in which the Commission must be informed of the circumstances of the accident, given that the same legislation is based on a definition of the term ‘accident’ which is different from that appearing in that directive. 74 In that regard, the Commission is merely alleging, first, that the Law on GMOs does not make it possible to determine clearly at which point the consultations at issue must take place, without indicating however the reasons for which the definition of the term ‘accident’ used by the Polish legislature leads, according to it, to such a result. 75 Secondly, the Commission submits that the consequence of the use of the term ‘accident’ in that legislation is that the rules concerning the exchange of information relating to accidents, provided for under Article 15 of Directive 2009/41, apply also to information relating to releases of GMOs which are not significant, but which may nonetheless present a direct or delayed hazard to human health or the environment. However, as has already been stated in paragraph 71 of the present judgment, legislation of which the main characteristic is a high level of precaution in relation to accidents linked to the contained use of genetically modified organisms, cannot be regarded as running counter to the objectives of that directive. 76 It follows that the Commission’s argument cannot be accepted. ‘User’ – Arguments of the parties 77 The Commission alleges that, in the Law on GMOs, the Republic of Poland defined a ‘user’ as ‘a natural or legal person, or an organisational unit without legal personality, which on its own account conducts a contained use of GMOs or an activity consisting in the deliberate release into the environment of GMOs, including the placing on the market of GMO products’. That definition, which is broader than that appearing in Directive 2009/41, leads to uncertainty, in particular in relation to the obligations of users and the monitoring thereof, such that it is appropriate to reproduce verbatim the definition of the term ‘user’ set out in the directive. 78 According to the Commission, the differences between the two definitions at issue are important in practice, as ‘users’ must fulfil several obligations laid down by Directive 2009/41, which are not however the subject of the present proceedings. In addition, Article 16 of that directive provides, according to the Commission, that Member States are required to organise inspections to ensure that users comply with this directive. Accordingly, the variations noted between the definition appearing in the directive and that mentioned in the Law on GMOs could lead to confusion and doubt during the application of that law. 79 The Republic of Poland submits that the Commission does not rely on any tangible arguments and that, consequently, the wording of the plea is not sufficiently clear, precise and consistent for the defending Member State to prepare its defence and the Court of Justice to exercise its power of review. Furthermore, that Member State notes that the present proceedings do not relate to the infringement of the many provisions mentioned in that regard by the Commission. – Findings of the Court 80 It is sufficient to note that the Commission is merely alleging that only a verbatim reproduction of the definition appearing in Directive 2009/41 is capable of ensuring a correct transposition of the provisions thereof, inter alia those which relate to the term ‘user’, such as, inter alia, Articles 4(2), 5(1), 6, 7, 11(1), and 14(1), without however setting out the reasons for which it considers that the approach chosen by the Republic of Poland does not secure for the persons subject to the obligations of that directive the requisite degree of legal clarity and legal certainty. 81 Furthermore, the Republic of Poland correctly asserts that Directive 2009/41 does not include a definition of the terms ‘natural person’ and ‘legal person’; those terms, consequently, fall within the jurisdiction of Member States. Thus, bodies specified by Polish law, which do not have legal personality, but which may enter into civil law relationships in the same way as natural and legal persons, should be included within the term ‘user’. A verbatim reproduction of the definition of the term ‘user’ set out in Directive 2009/41 would have excluded those bodies specified by Polish law from the scope of the obligations laid down by European Union law and deprived those bodies of the possibility of exercising their rights in the same way as the natural and legal persons referred to in the definition appearing in European Union law. 82 The Commission considers that the variations between the definition of the term ‘user’ set out in Directive 2009/41 and that used in the Law on GMOs lead, with respect to the implementation of the inspections mentioned in Article 16 of that directive, to confusion and doubt. The Commission fails, however, to provide any evidence capable of showing what such confusion may consist of. 83 It follows that the charge alleging incorrect transposition of Article 2(a), (b), (d) and (e) of Directive 2009/41 cannot be accepted. 84 Thus, as the first plea put forward by the Commission is unfounded, it must be dismissed in its entirety. The second plea, alleging incomplete transposition of Article 10(3) of Directive 2009/41 Arguments of the parties 85 The Commission alleges that the Republic of Poland failed to transpose in full Article 10(3) of Directive 2009/41. Article 24(4) of the Law on GMOs restricts the possibility of attaching additional conditions to the contained use of GMOs only to those cases in which the need to protect human health or the environment so requires, whereas the relevant provision of the directive provides no such restriction. 86 The Republic of Poland answers that the Commission is relying on a new claim, which was not raised during the pre-litigation procedure, and should be deemed inadmissible. In the alternative, in relation to the merits, the Republic of Poland disputes the arguments put forward by the Commission by asserting that the criticised provision of the Law on GMOs allows for the competent authority to set out additional conditions for the carrying-out of the contained use of genetically modified organisms. Findings of the Court – Admissibility 87 As regards the plea of inadmissibility raised by the Republic of Poland, it should be noted that, in accordance with settled case-law, the subject-matter of an action under Article 258 TFEU for failure to fulfil obligations is determined by the Commission’s reasoned opinion, so that the action must be based on the same grounds and pleas as that opinion (Case C-171/08 Commission v Portugal, paragraph 25 and case-law cited). 88 However, that requirement cannot be carried so far as to mean that in every case the statement of complaints in the operative part of the reasoned opinion and the form of order sought in the application must be exactly the same, where the subject-matter of the proceedings, as defined in the reasoned opinion, has not been extended or altered (Case C-171/08 Commission v Portugal, paragraph 26). In its application the Commission may inter alia clarify its initial complaints provided, however, that it does not alter the subject-matter of the proceedings (Case C‑576/10 Commission v Netherlands [2013] ECR, paragraph 35). 89 In the present case, it should be noted that in the letter of formal notice and in the reasoned opinion, the Commission indicated that it was complaining that the Republic of Poland had not implemented in full Article 10(3) of Directive 2009/41, on the ground that the Law on GMOs did not include any provisions entitling the competent national authority to require the user to amend the conditions of the proposed contained use of genetically modified organisms. 90 The Republic of Poland, during the pre-litigation procedure, relied on several provisions of the Law on GMOs in order to establish that it had correctly implemented Article 10(3), among which was Article 24(4) of the Law on GMOs. 91 The Commission answered that that provision of the Law on GMOs restricts the possibility of attaching additional conditions to the contained use of genetically modified organisms only to those cases in which the need to protect human health or the environment so requires, whereas Article 10(3) of Directive 2009/41 imposes no such restriction. 92 Therefore, in accordance with the case-law cited in paragraph 54 of the present judgment, the fact that the Commission set out in detail a claim which it had already made more generally in the application did not alter the subject-matter of the alleged infringement, and thus had no effect on the scope of the proceedings. 93 Having regard to the foregoing considerations, the Republic of Poland’s plea of inadmissibility must be rejected and the Commission’s second claim declared admissible. – Substance 94 In relation to the consideration of the substance of that claim, it is sufficient to note that the objectives of Directive 2009/41 are the protection of human health and the environment, with which the competent national authorities are required to comply in implementing that directive. The words ‘if necessary’, which appear in Article 10(3) of that directive but whose meaning is not defined therein, must therefore be interpreted as allowing the competent national authority to ask the user to provide the information provided for in Article 10(3), or to lay down certain restrictions or conditions at its own initiative and only where protection of human health and the environment so require. 95 Accordingly, it is sufficient to note in that regard that by expressly stating, in national law, specifically in Article 24(4) of the Law on GMOs, that the objectives of the protection of human health and the environment, which objectives are affirmed in Directive 2009/41, must be taken into consideration during the implementation of that directive by the national authorities, the Republic of Poland has not acted counter to the objectives pursued by the directive, but in accordance with the purpose of that directive. 96 Furthermore, it must be stated that the Commission merely submits that the restriction provided for under Article 24(4) of the Law on GMOs, deprives the competent national authority of a significant part of the rights conferred upon it by Directive 2009/41, without however stating which rights are in issue in the present case and without showing in what way those rights are restricted by the disputed provision. 97 It follows that the plea of incomplete transposition of Article 10(3) of Directive 2009/41, which is unfounded, must be rejected. The third plea, alleging failure to transpose Article 3(3) of Directive 2009/41 Arguments of the parties 98 The Commission claims that the Republic of Poland failed to transpose Article 3(3) of Directive 2009/41 into Polish law. 99 The Republic of Poland concedes that the provision was not the subject of a verbatim transposition. However, that Member State asserts, first, that given that the provision constitutes a rule intended to prevent conflicts of law, it considers it unnecessary to introduce such a rule into Polish law by means of a separate provision, as the existing general rules relating to the prevention of conflicts of law are sufficient to ensure such conflicts are settled in accordance with the rules set out in Directive 2009/41. Accordingly, the legal certainty on which operators subject to the obligations resulting from Article 3(3) of that directive must be able to rely is secured in full. 100 In addition, the Republic of Poland asserts that, in any event, those general rules are applied by the authorities and by the Polish courts in accordance with Directive 2009/41, in order for that directive to attain its objective. Findings of the Court 101 In relation to the Republic of Poland’s argument that, by way of the national legislation at issue, it correctly implemented Directive 2009/41, it is sufficient to note that it is settled case-law that the provisions of directives must be implemented with unquestionable binding force, and the specificity, precision and clarity necessary to satisfy the requirements of legal certainty (see, inter alia, Commission v Ireland, paragraph 46, and judgment of 27 October 2011 in Case C‑362/10 Commission v Poland, paragraph 46 and case-law cited). 102 As stated by the Commission, Article 3(3) of Directive 2009/41 not only constitutes a rule on conflict of laws whose purpose is to determine the applicable rule in a given case, but also sets out the conditions which govern the storage, culture, transport, destruction, disposal or use of genetically modified micro-organisms which have been placed on the market in accordance with Directive 2001/18 or any other European Union legislation which provides for a specific environmental risk assessment similar to that laid down in Directive 2009/41. 103 Accordingly, where European Union legislation is concerned, it is appropriate to establish whether that legislation provides for such an assessment and, irrespective of that condition, it is necessary to show that the contained use at issue complies with the conditions, if any, of the consent for placing on the market. Where those conditions are not met, Directive 2009/41 applies. 104 The Republic of Poland, in response to the Commission’s submissions, has neither explained the general rules on conflict of laws provided for under Polish law nor shown whether they are actually capable of securing the legal certainty which operators subject to the obligations flowing from the national legislation at issue must be able to rely on. 105 In any event, mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of obligations to transpose a directive (see, in particular, Case C‑507/04 Commission v Austria [2007] ECR I-5939, paragraph 162 and case-law cited). In the same way, an interpretation, by national courts, of the provisions of domestic law in accordance with those of a directive cannot in itself achieve the clarity and precision needed to meet the requirement of legal certainty (see Commission v Ireland, paragraph 47 and case-law cited). 106 Consequently, the Commission’s plea alleging failure to correctly implement Article 3(3) of Directive 2009/41 in Polish law is well founded. The fourth plea, alleging failure to transpose Articles 7, 8(2) and (3), and 9(2)(a) of Directive 2009/41 Arguments of the parties 107 The Commission submits that the Republic of Poland has not implemented Articles 7, 8(2) and (3), and 9(2)(a) of Directive 2009/41, which lay down inter alia the rules relating to notification of subsequent class 1 and 2 contained uses following a notification carried out in accordance with Article 6 of that directive, and the period of 45 days within which the competent authority’s decision must be made in the case of a class 3 or higher class in relation to premises which have been the subject of a previous notification. 108 The Republic of Poland disputes the merits of that claim; it asserts that the objective referred to in Directive 2009/41 was attained by means of the Polish notification system. It notes inter alia that Member States enjoy a measure of discretion in the context of the implementation of those provisions, as Article 7 of that directive provides that ‘subsequent class 1 contained use may proceed without further notification’. The verb ‘may’ is also used at Article 8(2) of that directive. According to the Republic of Poland, a Member State is not required to ensure that a subsequent contained use of genetically modified organisms may proceed without further notification. In addition, that Member State submits that, even supposing that the provision of Polish law requiring users of genetically modified organisms to notify the competent authority of a proposed reuse of class 1 and 2 genetically modified organisms does not comply with the provisions of Directive 2009/41, that provision should be considered as constituting a more stringent measure adopted pursuant to Article 193 TFEU. Finally, though Articles 8(3) and 9(2)(a) of that directive were not the subject of a verbatim transposition into Polish law, the attainment of the objectives referred to by that directive is ensured in full. Findings of the Court 109 As a preliminary point, the claim should be divided in two parts, alleging failure to implement, respectively, Articles 7 and 8(2) of Directive 2009/41 and Articles 8(3) and 9(2)(a) thereof. 110 In relation to the first part of that claim, it must be stated that the Republic of Poland’s arguments are based on a misinterpretation of the provisions at issue. It is clearly and unequivocally apparent from Articles 7 and 8(2) of Directive 2009/41 that those articles refer to users upon whom is conferred the possibility of carrying out the activities mentioned in those provisions without it being necessary to otherwise notify the competent authority. That interpretation flows not only from a literal interpretation of those provisions, but is corroborated by a teleological interpretation thereof. 111 In that regard, it is sufficient to note that the purpose of that regulation is to allow users who have already sent notification of a use in accordance with Article 6 of Directive 2009/41 to proceed immediately with a subsequent contained use without waiting for further authorisation from the competent authority. Accordingly, both the second sentence of Article 7 of that directive, which provides that users of genetically modified micro-organisms in class 1 contained uses shall be required to keep a record of each assessment referred to in Article 4(6) of the directive, which shall be made available to the competent authority on request, and Article 8(2) of that directive, which provides that, if the premises have been the subject of a previous notification to carry out class 2 or a higher class of contained uses and any associated consent requirements have been satisfied, the class 2 contained use may proceed immediately following the new notification, are directed at users. 112 In any event, it does not appear that the Member State concerned has transposed those articles of Directive 2009/41. That finding is corroborated by the Commission’s statement to that effect and by the Republic of Poland’s failure to challenge in that regard, and by the latter’s failure to indicate the existence of provisions implementing those same articles. 113 Even Article 31 of the Law on GMOs, which is not challenged by the Commission in the present proceedings, does not constitute a transposition of Article 8(2) of Directive 2009/41. As a result of the reference to risk categories I or II, whereas Article 8(2) of the directive refers to a class 2 or higher class use, the scope of Article 31 is different. 114 Furthermore, in relation to the second paragraph of Article 8(2) of the directive, according to which the applicant may itself request from the competent authority a decision on the grant of a formal authorisation, which must be made within a maximum of 45 days from the notification, it must be noted that the Republic of Poland did not dispute the Commission’s claim in that regard. Article 24 of the Law on GMOs, the only relevant provision in that regard, is not directed at the tangible situation contemplated by that provision of the directive and does not provide for any similar period. 115 Finally, in relation to the Republic of Poland’s argument regarding the application of Article 193 TFEU, it is sufficient to note that, as has been stated at paragraphs 111 and 112 of the present judgment, it does not appear that Articles 7 and 8(2) of Directive 2009/41 have, even in part, been transposed into national law, so that a comparison of the provisions of that directive to those constituting more stringent protection measures may not be carried out. Accordingly, the application of Article 193 TFEU cannot be relied on in the present case. 116 In relation to the second part of the fourth plea, the Republic of Poland concedes that Articles 8(3) and 9(2)(a) of Directive 2009/41 have not been transposed verbatim into national law and merely states that the objective pursued by that directive is attained by the Law on GMOs. 117 It is apparent from the file, and is furthermore not disputed by the Republic of Poland, that no written procedure, such as that provided for under Article 9(2)(a) of Directive 2009/41, appears in the Law on GMOs or in any other implementing act. It should also be noted that neither does the detailed procedure described in Article 8(3) of that directive have any equivalent in Polish law. 118 It follows from the foregoing considerations that the fourth plea must be upheld. The fifth plea, alleging incorrect transposition of Article 10(4) of Directive 2009/41 Arguments of the parties 119 The Commission submits that Article 24(1a) of the Law on GMOs established a maximum period of 30 days for the extension of the time-limit for granting the authorisation relating to the contained use of genetically modified organisms in the event of public participation in a procedure whose purpose is the grant of such an authorisation, though that period is not prescribed by Article 10(4) of Directive 2009/41. Furthermore, the Commission notes that it was never notified of the Law on access to information relating to the environment, to which the Republic of Poland refers in that regard, as a transposition measure of that directive. 120 The Republic of Poland disputes the Commission’s statement that the Commission was never notified of the legislation as part of the notification of measures implementing Directive 2009/41. Furthermore, in relation to the substance, it asserts inter alia that as the directive does not lay down a period for the consultation, Member States may define that period. In the absence of a limitation of the duration of the public consultation, the grant by the competent authority of the authorisation of the contained use of genetically modified organisms could, in breach of the principle of legal certainty, be obstructed. Findings of the Court 121 Even though the Republic of Poland has not put forward a plea that this claim is inadmissible, it should nevertheless be noted at the outset that the Court may of its own motion examine whether the conditions laid down in Article 258 TFEU for bringing an action for failure to fulfil obligations are satisfied (see, inter alia, Case C‑524/10 Commission v Portugal [2012] ECR, paragraph 64, and Case C‑34/11 Commission v Portugal [2012] ECR, paragraph 42). 122 From that point of view, it is appropriate to determine whether the reasoned opinion and the application set out that plea coherently and precisely in order that the Court may appreciate exactly the extent of the alleged infringement of European Union law, a condition which is necessary in order to enable the Court to determine whether there has been a breach of obligations as alleged (see, to that effect, judgment of 24 March 2011 in Case C‑365/10 Commission v Slovenia, paragraph 19, and in Case C-34/11 Commission v Portugal, paragraph 43). 123 Indeed, as is apparent in particular from Article 38(1) of the Rules of Procedure, in the version in force at the date of commencement of the present action, and from the case-law relating to that provision, the application initiating proceedings must state the subject-matter of the dispute and a summary of the pleas in law and that statement must be sufficiently clear and precise as to enable the defendant to prepare its defence and the Court to rule on the application. It is therefore necessary for the essential points of law and fact on which a case is based to be indicated coherently and intelligibly in the application itself and for the form of order sought to be set out unambiguously so that the Court does not rule ultra petita or indeed fail to rule on a claim (see, inter alia, judgment of 26 January 2012 in Case C‑185/11 Commission v Slovenia, paragraph 29; judgment of 19 April 2012 in Case C‑141/10 Commission v Netherlands, paragraph 15; and Case C-34/11 Commission v Portugal, paragraph 44). 124 In the present case, the Commission’s observations relate only to the public inquiry or consultation mentioned in Article 10(4)(b) of Directive 2009/41, without the Commission stating whether its claim alleging incorrect transposition of Article 10(4) also refers to the periods for awaiting further information mentioned in Article 10(4)(a) of that directive. 125 In those circumstances, it must be stated that the present plea, in as much as it alleges an incorrect transposition of Article 10(4)(a) of Directive 2009/41 which does not satisfy the requirements of coherence, clarity and precision and misconstrues the obligations flowing from the case-law cited in paragraphs 122 and 123 of the present judgment, fails to put the Court in a position to rule on the present infringement proceedings (see, to that effect, Case C-34/11 Commission v Portugal, paragraph 48), and must therefore be declared inadmissible. 126 As regards the merits of the plea alleging incorrect transposition of Article 10(4)(b) of Directive 2009/41, it should be noted that the Commission merely alleges that the period established by Article 24(1a) of the Law on GMOs is not prescribed by that directive, without however submitting any arguments in support of its claim that that provision of national law constitutes an incorrect transposition of Article 10(4) of that directive. 127 In that regard, it should be noted that Article 10(4)(b) of Directive 2009/41 provides that, for the calculation of the periods referred to in Articles 8 and 9 of that directive, the periods during which the competent authority carries out a public inquiry or consultation are not to be taken into account. On the other hand, it must be noted that no provision of that directive sets out the duration of that inquiry or consultation. Member States are therefore, in principle, free to determine, in compliance with the law of the European Union, the duration thereof, if they consider it necessary to do so. 128 The Republic of Poland made use of that possibility and adopted a rule limiting the duration of such a consultation to 30 days, such that the period for granting the authorisation may be extended by a maximum of 30 days. That Member State submits that that period was established as a result of considerations whose aim is to ensure that the proper course of the administrative procedure is followed. Furthermore, according to the Republic of Poland, if the maximum duration of such a consultation is not limited, the grant by the competent authority of an authorisation could be obstructed where no such period is set out. It adds that such a period is also necessary for reasons of legal certainty. 129 It should be noted that the objectives set out in the national legislation at issue are not incompatible with those pursued by Directive 2009/41. Indeed, they ensure efficient processing of applications for authorisations whilst upholding the interests and rights of the notifier and the needs of the national authority. 130 In those circumstances, it is appropriate to dismiss the fifth plea raised, which is in part inadmissible and in part unfounded. The sixth plea, alleging failure to transpose Article 18(1), second subparagraph, and Article 18(3) and (4) of Directive 2009/41 Arguments of the parties 131 In the context of this plea, the Commission alleges inter alia that the Republic of Poland failed to provide, as part of the confidential treatment of certain information disclosed by the notifier, for a consultation of the notifier, in accordance with Article 18(1) of Directive 2009/41, or for the deletion of that data from the register of contained uses of genetically modified organisms, in the event of the withdrawal of an application for an authorisation. 132 The Republic of Poland answers that the relevant provisions of European Union law were correctly transposed by the Law on GMOs. Article 14a of that legislation, in listing the information to which the public has access, allows for the determination of the information which must never be disclosed, so that national legislation distinguishes between data which may not remain confidential and that which may not be made public. All the information received in the context of the notification and which must not be disclosed appears in that register. In the event of the withdrawal of an application for an authorisation, those data are deleted from that register. Findings of the Court 133 It should be noted that the Republic of Poland submits that the protection of the information submitted by the notifier in accordance with Article 18(1) of Directive 2009/41 is restricted only to the data for which the notifier may require confidential treatment. According to that Member State that protection is excluded in relation to the information listed in Article 18(2) of that directive, so that the organisation of a consultation with the notifier is unnecessary, in as much as the need to ensure access to that information flows from the legislation. That Member State adds that it is also unnecessary to organise consultations in order to determine the information requiring confidential treatment by the competent authority, where separate provisions already provide for the information at issue not to be disclosed as a result, inter alia, of the need to ensure the protection of personal data or the overriding interest of the State. 134 It should be noted that those arguments are based on a misinterpretation of the relevant provisions of European Union law. 135 It is sufficient to state that Article 18(2) of Directive 2009/41 lists the information which in no case may be kept confidential. It follows that other information may receive confidential treatment at the request of the notifier, who shall enjoy, in that regard, a right of prior consultation under Article 18(1), second subparagraph, of the directive. 136 Accordingly, the interpretation that non-disclosure of information which falls under the scope of Article 18(1) of Directive 2009/41 could be automatic cannot be accepted. 137 In the same way, the argument relied on by the Republic of Poland, alleging that it is also unnecessary to organise consultations to determine what information requires confidential treatment by the competent authority, where separate provisions already provide for the information at issue not to be disclosed as a result, inter alia, of the need to ensure the protection of personal data or the overriding interest of the State, is unfounded. In order to ensure legal certainty and to secure the rights of the notifier, a consultation with the notifier in the context of the procedure laid down by Article 18 of Directive 2009/41 is vital; resorting to rules set out in different national legal texts whose context and interaction may be difficult to understand for the notifier is no substitute for that consultation. 138 Furthermore, no relevance can be attributed to the Republic of Poland’s reference to Article 16(1)(7) of the Law on access to information relating to the environment in as much as that provision relates only to certain commercially sensitive information and does not expressly provide for the notifier’s prior consultation. 139 Finally, the Republic of Poland contends, in its observations, that, if the notifier withdraws its application for an authorisation for the contained use of genetically modified organisms, the data submitted will be withdrawn from the register mentioned at paragraph 131 of the present judgment. However, that Member State does not advance any provision of national law capable of supporting this contention, and merely submits that the minister of the environment, who is responsible, as a government body, for keeping that register, does not fulfil its function if it does not proceed with that withdrawal, as the data set out in that register could mislead interested parties. 140 In that regard, it is sufficient to note that, in accordance with the case-law cited in paragraph 105 of the present judgment, mere administrative practices, which by their nature are alterable at will by the authorities and are not given appropriate publicity, cannot be regarded as constituting proper fulfilment of obligations to transpose a directive. 141 The sixth plea is therefore well founded. 142 It follows from all the above considerations that, in failing to transpose Articles 3(3), 7, 8(2) and (3), 9(2)(a), 18(1), second subparagraph, and 18(3) and (4) of Directive 2009/41, the Republic of Poland has failed to fulfil its obligations under that directive. Costs 143 Under Article 138(1) 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. Pursuant to Article 138(3) of those rules, the parties are to bear their own costs where each party succeeds on some and fails on other heads. 144 In the present case, account should be taken of the fact that the Commission’s claims alleging incorrect transposition of Articles 2(a), (b), (d) and (e), and 10(3) and (4), of Directive 2009/41 have not been upheld. 145 Consequently, the Commission and the Republic of Poland must be ordered to bear their own costs. On those grounds, the Court (Fifth Chamber) hereby: 1. Declares that, in failing to transpose Articles 3(3), 7, 8(2) and (3), 9(2)(a), 18(1), second subparagraph, and 18(3) and (4), of Directive 2009/41/EC of the European Parliament and of the Council of 6 May 2009 on the contained use of genetically modified micro-organisms, the Republic of Poland has failed to fulfil its obligations under that directive; 2. Dismisses the action as to the remainder; 3. Orders the European Commission and the Republic of Poland to bear their own costs. [Signatures] * Language of the case: Polish