20th ANNUAL REPORT ON MONITORING THE APPLICATION OF COMMUNITY LAW (2002)

TABLE OF CONTENTS

1. Foreword

2. Situation sector by sector

2.1. ECONOMIC AND FINANCIAL AFFAIRS

2.2. ENTERPRISE

2.2.1. Chemicals

2.2.2. Pharmaceutical products

2.2.3. Cosmetics

2.2.4. Capital goods

2.2.5. Motor vehicles, tractors and motorcycles

2.2.6. Pleasure vessels and cableway installations

2.2.7. Payment delays

2.2.8. Preventive rules provided for by Directive 98/34/EC

2.3. COMPETITION

2.3.1. Telecommunications

2.3.2. Air transport

2.3.3. State aid

2.4. EMPLOYMENT AND SOCIAL AFFAIRS

2.5. AGRICULTURE

2.6. ENERGY AND TRANSPORT

2.6.1. Internal market for electricity and natural gas

2.6.2. Energy efficiency

2.6.3. Road transport

2.6.4. Inland waterways

2.6.5. Safety in the transport of dangerous goods by road and rail

2.6.6. Rail transport

2.6.7. Air transport

2.6.8. Maritime transport

2.7. INFORMATION SOCIETY

2.8. ENVIRONMENT

2.8.1. Introduction

2.8.2. Freedom of access to information

2.8.3. Environmental impact assessment

2.8.4. Air

2.8.5. Water

2.8.6. Nature

2.8.7. Noise

2.8.8. Chemicals and biotechnology

2.8.9. Waste

2.8.10. Environment and industry

2.8.11. Radiation protection

2.9. FISHERIES

2.10. INTERNAL MARKET

2.10.1. Free movement of goods

2.10.2. Free movement of services and right of establishment

2.10.3. The business environment

2.10.4. Regulated professions (qualifications)

2.11. REGIONAL POLICY

2.11.1. Analysis of causes

2.11.2. Effects of infringement situations

2.12. TAXATION AND CUSTOMS UNION

2.12.1. Customs union

2.12.2. Direct taxation

2.12.3. Value added tax

2.12.4. Other indirect taxes

2.12.5. Mutual assistance

2.13. EDUCATION, AUDIOVISUAL MEDIA AND CULTURE

2.13.1. Education

2.13.2. Audiovisual (Directives 97/36/EC of 30 June 1997 and 89/552/EEC of 3 October 1989 (Television without frontiers)

2.14. HEALTH AND CONSUMER PROTECTION

2.14.1. Veterinary legislation

2.14.2. Plant health legislation

2.14.3. Seeds and seedlings legislation

2.14.4. Food legislation

2.14.5. Animal feedingstuffs legislation

2.14.6. Consumer protection

2.14.7. Public health

2.14.8. Notification of technical rules

2.15. JUSTICE AND HOME AFFAIRS

2.15.1. Application of the principle of the prohibition of nationality discrimination as regards the right of residence and traffic offences

2.15.2. Free movement of people

2.15.3. Right to vote at municipal elections

2.16. BUDGET

2.16.1. Developments in proceedings dating from earlier years

2.16.2. New proceedings

2.17. PERSONNEL AND ADMINISTRATION

2.18. ENLARGEMENT

2.19. COMMUNITY STATISTICS

ANNEXES I-VI

Each year the European Commission draws up a report on the monitoring of the application of Community law, in response to requests made by the European Parliament (resolution of 9 February 1983) and the Member States (point 2 of Declaration No 19 annexed to the Treaty signed at Maastricht on 7 February 1992). The report also responds to the requests expressed by the European Council or the Council in relation to specific sectors.

1. Foreword

For twenty years now, [1] in response to a resolution of the European Parliament, [2] the Commission has been reporting annually [3] on the activities undertaken in the exercise of its function as guardian of the Treaties. This periodic information has gradually been expanded with annexes dealing with the application of Community law by the national courts and the execution of judgments given by the Court of Justice, and more detailed statistics.

[1] The first report was for 1982 - COM(83) 181 final, 10.4.1984.

[2] Resolution of 9 February 1983.

[3] Annual reports are accessible on the Commission website at http://europa.eu.int/comm/ secretariat_general/sgb/droit_com/index_en.htm

infringements.

The annual reports on monitoring the application of Community law pursue a twofold objective:

- to allow the European Parliament to fully exercise its political role in relation to the discretionary powers conferred on the Commission by the Treaties;

- to provide the Member States, the general public and economic operators with a stock-taking exercise of the attainment of a Community based on the rule of law.

The interest for this regular publicity is reflected both in the frequent written and oral questions in the European Parliament and in the number of times that citizens contact the Commission, particularly by making complaints. To satisfy these needs between the publication dates of two reports, the Commission has set up a website [4] devoted to decisions on infringement proceedings and progress in notifying Community directives ("hitlist"). More specific data can also be found on the websites on the management of certain Community policies.

[4] http://europa.eu.int/comm/ secretariat_general/sgb/droit_com/index_en.htm

transpositions

The structure of this 20th annual report to the European Parliament on monitoring the application of Community law, like its predecessors, describes the salient features of activity in the main areas of Commission activity in the course of the year, and the foreword offers a few thoughts on the last twenty years' activity.

Main developments

Comparing the information given in twenty annual reports on monitoring the application of Community law could be a hazardous enterprise, in view of extensive changes in the Commission's internal structure, the evolution of common policies and the implementation of specific actions. The completion of the internal market, which celebrated its tenth anniversary in 2002, the development of the policy on health and consumer protection, and public interest, particularly in social and environmental questions, are so many factors to be considered before embarking on any analysis of the raw figures set out in the annual statistical graphs and tables.

But some of the basic data can be used not only to measure the importance of the Commission's activity but also to draw conclusions as to the measures underlying the trends observed.

Complaints

The aggregate volume of complaints addressed to the Commission each year by citizens wishing to contribute to the integration and smooth operation of their Community by denouncing conduct which they perceive as contrary to Community law, whether or not they are directly concerned, has been growing steadily. The average number of complaints registered each year virtually doubled between 1983-89 and 1990-98; the average rose from 536 to 1 047. In 1999-2002, the average number of complaints varied around 1346. This increase alone highlights the public interest in the sound operation of Community mechanisms, but a sector-by-sector analysis then makes it possible to identify the areas most concerned as European integration proceeds.

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In general terms, however, the important point is that complaints are the chief source for detecting infringements. The Commission has accordingly reinforced the instruments and facilities both for registering complaints and for dealing with them more quickly. An electronic form is available on line, [5] and the Commission has given a number of commitments regarding relations with complainants [6] at the instigation of the European Ombudsman. When he receives a direct complaint, the Ombudsman routinely looks into the way in which the Commission investigated the alleged misconduct that is complained of.

[5] http://europa.eu.int/comm/ secretariat_general/sgb/lexcomm/index_en.htm

[6] Commission Communication to the European Parliament and the European Ombudsman on relations with the complainant in respect of infringements of Community law: COM(2002) 141 final.

Transposal of directives

Routine checks regarding failure to notify the Commission of national measures transposing directives within the time allowed are another major source of information on infringements. For some years now the first stage of the procedure of Article 226 (formal notice to act) has been launched on a much more automatic basis and at regular intervals.

The caseload here depends not only on the internal discipline which the Member States impose on themselves to act within time-limits that they themselves accepted in the Council but also on the rising number of directives in force. Regular "scoreboards" [7] or performance tables [8] can give different results as the years go by, either for a given Member State or for an average transposal rate, depending on all these variables. They are also a powerful incentive to improve the transposal rate.

[7] Internal market scoreboard - http://europa.eu.int/comm/internal_market/ en/update/score/index.htm, and environment scoreboard in The annual survey on the implementation and enforcement of Community environmental law - http://europa.eu.int/comm/environment/law/ as01.htm.

[8] Progress in transposing directives, see http://europa.eu.int/comm/ secretariat_general/sgb/droit_com/index_en.htm

transposal on Europa.

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The graphic confirms this interdependence. At the end of 1982, 640 directives were in force with an average transposal rate of 89.58%. Twenty years later, 2240 directives were in force with an average transposal rate of 98.87%. It is true that some progress remains to be made, in particular for certain Member States, and the 98.5% target set at the Stockholm European Council suffices to demonstrate the importance attached to this aspect of Community law, but there is no escaping the fact that volume and complexity can constitute handicaps. The Commission has not been inactive in the face of this problem and has decided to provide more active support in overcoming technical transposal difficulties where national authorities ask for it.

Pattern of contentious procedures

Analysis of the statistics on the various stages of the infringement procedure (formal notice to act, reasoned opinion, referral to the Court of Justice) shows that over the twenty years each of them has evolved within a bracket range. The frequency of letters of formal notice to act depends on the volume of law applicable and the Commission's diligence in monitoring its application, but the frequency of reasoned opinions and referrals to the court evolve in parallel, being slightly out of step only on account of the different timings of the procedures. If the number of notices to act peaks in a given year, there will inevitably be a peak in the number of reasoned opinions the next year and in court referrals the year after that, as the chart below shows.

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The Commission has taken a number of measures, not only to shorten the time elapsing between the various stages of the procedure so as to put matters right more quickly, but also to boost preventive action, in particular by means of complementary or alternative methods to obtain rapid voluntary rectification of the situation. [9]

[9] White Paper on Governance, Operational conclusions: SEC(2003) 1344.

In the context of measures to boost preventive action, the SOLVIT network [10] deserves special attention, and in the longer term it might be found that developing its scope is an effective means of tackling conduct complained of by the general public through closer cooperation between national authorities and the exchange of good practice.

[10] http://europa.eu.int/comm/internal_market/ solvit/index_en.htm.

Execution of judgments given by the Court of Justice

As in the 2001 report, it is interesting to see how the Member States comply with judgments given by the Court of Justice and the action taken by the Commission in such cases under Article 228. There are frequent parliamentary questions on the subject, which is evidence of concern about it. Irrespective of the statistical analysis, the British beef controversy prompted the Commission to consider the possibility of proposing that the Court of Justice should order not only a periodic penalty payment but also a fine, to give Member States an incentive to comply with judgments holding them to be in default.

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Implementation of Governance White Paper

In 2002 the Commission completed its review following the Governance White Paper, [11] with particular reference to improved monitoring of the application of Community law. In its Communication of 20.12.2002, [12] the Commission outlines ways of meeting its governance objectives: closer preventive cooperation with the Member States coupled with better information for the public, and the search for complementary or alternative methods of help to remedy infringements outside the Article 226 procedure while boosting that procedure where it is necessary to apply it.

[11] Commission Communication - European Governance: Better lawmaking: COM(2002)275 fin, 6.6.2002.

[12] Commission communication: Better monitoring of the application of Community law: COM(2002) 725fin, 20.12.2002.

At the same time the Commission adopted a number of operational measures [13] to support this process, such as setting up a website on monitoring the application of Community law, multiplying contacts with the Member States and internal organisation measures and structural changes to improve the monitoring of legislative activity and the consistency of the preventive and remedial action taken. The European Parliament could be offered an initial review in the next annual report on monitoring the application of Community law.

[13] SEC (2002) 1344 final, 12.12.2002

The action to be developed here aims not only to meet the Commission's permanent concern to perform to the full its function as guardian of the Treaties but also to take up the challenge of the forthcoming enlargement and avoid a proportional increase in the number of cases to be handled while continuing to handle them quickly even if they do proliferate.

2. Situation sector by sector

2.1. ECONOMIC AND FINANCIAL AFFAIRS

Free movement of capital

Overall the free movement of capital works satisfactory both within the European Community and in relations with third countries. In 2002, the total number of infringements remained stable. But some of them are significant barriers to the sound operation of the single market.

For some years now the most serious infringements have involved investment restrictions flowing from special rights of control that the authorities of certain Member States claim. On 4 June 2002, the Court of Justice gave judgment in three cases concerning golden shares established at the time of privatisation of firms doing business in areas of general or strategic interest. [14] It confirmed that restrictions on direct investment in the relevant companies, including their management, were compatible with the Treaty only if they met very precise conditions avoiding, among other things, all forms of discretion and discrimination. These judgments again confirm the principles previously set out by the Commission in its Communication on certain legal aspects concerning intra-eu investment, [15] as did an earlier judgment given on 23 May 2000. [16]

[14] C-367/98 Commission v Portugal, C-483/99 Commission v France and C-503/99 Commission v Belgium.

[15] OJ C 220, 19.7.1997; 1997 General Report, point 210.

[16] Case C-58/99 [2000] ECR I-3811.

This valuable clarification of the law relating to investment restrictions should help to speed up the handling of similar cases that came up recently as regards restrictions on various activities commonly acknowledged to be services of general economic interest. As they are subject to an accelerating process of liberalisation in the Community, the objective of protecting the general interest must not be allowed to serve as a pretext for introducing restrictions that make the exercise of the fundamental freedoms conferred by the Treaty less and less attractive.

For some years restrictions on the acquisition of real property have been a regular source of infringements concerning the free movement of capital, affecting individual citizens particularly seriously. On 5 March 2002 the Court of Justice gave a set of judgments confirming the compatibility of a prior notification procedure for the acquisition of building plots. [17] But the prior authorisation procedure was held contrary to Community law. The fact that the Court had already ruled on similar questions once again illustrates the relatively fragmentary nature of the Community real property market and the limits on the exercise of the fundamental freedoms conferred by the Treaties on European economic operators. Beyond the immediate impact of these restrictions on the acquisition of real property, they can also affect the right of establishment of individuals and bodies corporate and, indirectly, freedom of movement of persons and freedom to provide services. A number of restrictions on the acquisition of real property in certain Member States are currently under scrutiny.

[17] Joined Cases C-515/99, C-519/99 to C-524/99 and C-526/99 to C-540/99.

2.2. ENTERPRISE

On 31 December 2002 there were more than 500 directives in force here. Complaints and infringements relating to these directives account for nearly 7.7 % of the total cases handled by the Commission in 2002. This means that the number of decisions dealt with by DG ENTR in 2002 was higher than in 2001.

The main reason for this is the shortfall in transposal regarding chemicals and cableway installations (funicular railways, cable cars).

Delays in transposal are partly due to the length of internal procedures and the complexity of the directives. The directives to be transposed are highly technical and sometimes involve several different government departments, which can lead to delays.

The number of cases of incorrect application or transposal are the same as in 2001. Most of them concerned capital goods and pharmaceuticals.

Infringement proceedings can often be avoided as a result of Directive 98/34/EC, which continues to play its role as the basic instrument for preventing barriers to trade and for mutual information. That directive lays down an information procedure requiring Member States to notify the Commission and the other Member States of their draft technical standards for products and their draft rules for information society services for scrutiny in relation to internal market rules prior to final adoption.

2.2.1. Chemicals

In the chemicals sector there was a major increase over 2001 in the number of cases of failure to transpose. Forty-four new infringement proceedings were commenced, 11 of them being terminated when national transposal measures were notified. The sharp increase in the number of non-transposal cases is related to the number of directives falling due for transposal in 2002, which was up on 2001 (four as against one) and does not therefore mean that there has been a reversal in the trend. As in 2001, the main reason for failure to transpose seems to lie in delays in national transposal procedures rather than other factors, though explosives (Directive 93/15/EEC) are an exception. One case is currently under scrutiny in the context of Article 228 proceedings following a judgment given by the Court of Justice in March 2000 [18] holding that France had failed to transpose Directive 93/15/EEC.

[18] Case C-327/98.

Regarding cases of incorrect transposal or application, no new infringement proceedings were commenced.

2.2.2. Pharmaceutical products

In 2002, the Commission commenced 16 proceedings for failure to notify measures transposing Directives 2000/37/EC and 2000/38/EC on pharmacovigilance of human and veterinary medicinal products. Most of them were terminated, the exceptions being the proceedings against Italy and Germany. The Commission decided to refer the case against Germany to the Court of Justice. In the case against Italy, it issued two reasoned opinions.

Problems remain with the application and interpretation of Directive 89/105/EC relating to the transparency of measures regulating the prices of medicinal products for human use and their inclusion in the scope of national health insurance systems. Some Member States do not comply with the Directive's requirements, particularly as regards the time allowed for the adoption and notification of a decision on the price of a medicine, the requirement that decisions be taken on the basis of objective, verifiable criteria, the provision of redress procedures against decisions and the conditions for constitution of positive list of medicines covered by the national health insurance system.

In proceedings against Member States for failure to comply with Directive 89/105/EEC, the Commission sent Greece an additional letter of formal notice for incorrect transposal. The Greek authorities' reply is now under scrutiny. In the proceedings against Austria for incorrect transposal of Directive 89/105/EEC, the Austrian authorities notified the Commission of measures adopted in response to the judgment given by the Court of Justice on 27 November 2001 (Case C-99/424), finding against Austria for incorrect transposal of the Directive. The Commission is evaluating the new measures for conformity.

Discussions are also in hand with other Member States on the application of the Directive.

Apart from the transparency Directive, there are two other major proceedings under way, against Belgium and Italy. They concern Directive 89/381/EEC concerning medicinal products derived from human blood in Belgium and the conditions for suspending authorisations to market medicines in Italy. In the former case, the Belgian authorities adopted an Order terminating the infringement in 2002, which is now under scrutiny. In the latter case, the Italian authorities' reply to the letter giving formal notice is under scrutiny.

The Commission terminated proceedings against Spain relating to radio-pharmaceutical medicines and proceedings against the Netherlands relating to the registration of homeopathic products.

2.2.3. Cosmetics

No directives fell due for transposal in 2002. Among existing directives, only Directives 97/18/EC and 2000/41/EC postponing the date after which animal tests are prohibited for ingredients or combinations of ingredients of cosmetic products continue to raise transposal problems, as three Member States have still to transpose them. But these infringement cases should be settled in 2003 following the adoption of the Parliament and Council Directive amending Directive 76/768/EEC for the seventh time.

The Commission received no new complaints here in 2002.

2.2.4. Capital goods

Generally speaking, most infringements relating to capital goods (pressure vessels; measuring equipment, medical devices; mechanical and electromechanical equipment) still running on 31 December 2002 concern incorrect application or transposal. Regarding pressure vessels, all the Member States have now transposed Directive 97/23/EC, including Germany, which had been referred to the Court of Justice in 2001. [19]

[19] Case C-2002/135.

Regarding measuring devices and Directive 1999/103/EEC (units of measurement), all the Member States have notified transposal measures, except France, which states that they are in the pipeline.

Regarding in vitro medical devices (Directive 98/79/EC), France is the only country that has not notified full transposal measures, and the infringement proceedings are due to continue.

Progress has been made in the transposal of Directives 2000/70/EC and 2001/104/EC amending Directive 93/42/EC as regards medical devices incorporating stable products derived from human blood or human plasma. The Commission terminated several infringement proceedings for failure to notify it of transposal measures. But France, Belgium, Italy, Austria and Portugal have still to transpose them.

The last outstanding infringement proceeding for failure to transpose the mechanical and electromechanical equipment directives was terminated. This concerned Greece's failure to transpose Directive 1999/5/EC on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity.

In 2002 progress was made with the cases concerning incorrect application or transposal of the directives on medical devices, gas appliances and pressure vessels, and some proceedings were terminated.

Italy, for instance, amended its legislation and came into line with Directive 90/396/EC on gas appliances. In other cases, procedures for amendment of national legislation in line with Community law have been announced.

The Commission was able to terminate four infringement proceedings for incorrect application or transposal of mechanical and electro-mechanical engineering directives through the strict application of the Article 226 procedure.

2.2.5. Motor vehicles, tractors and motorcycles

The rate of transposal of the directives governing the type-approval of motor vehicles, agricultural and forestry tractors and motorcycles was satisfactory. Only six directives were due for transposal in 2002, as against eleven in 2001.

Of these six directives, only three needed letters of formal notice - five of them - to countries that had not transposed them in the time allowed (two to Portugal, one each to Greece, Austria and Sweden).

But Directive 2002/78/CE on the approximation of the laws of the Member States relating to the braking devices of certain categories of motor vehicles and their trailers, which fell due on 30 December 2002, had by then been transposed only by Germany and Sweden.

More generally, the Commission has begun looking into the automatic transposal method used by certain Member States to transpose motor-vehicle directives. Certain infringement cases, particularly those concerning the Netherlands, are still outstanding pending clarification of the extent to which this method gives the general public and economic operators adequate publicity and certainty as to the law.

The complexity of the legislation and the constant evolution of technologies engenders problems of interpretation regarding the type-approval of vehicles, which calls for close and constant cooperation between the Commission and the type-approval authorities.

2.2.6. Pleasure vessels and cableway installations

In 2002, the Commission sent a reasoned opinion to Belgium for incorrect application of Directive 94/25/EC on pleasure vessels.

It also sent reasoned opinions to eight Member States (Germany, Greece, Italy, Ireland, Luxembourg, Netherlands, Austria and the United Kingdom) for failure to notify measures transposing Directive 2000/9/EC relating to cableway installations designed to carry persons.

2.2.7. Payment delays

The period for transposing Directive 2000/35/CE on combating late payment in commercial transactions expired in August 2002. Only eight Member States transposed in time. The Commission accordingly opened infringement proceedings against the other seven. It then received national measures from Italy, Austria and the Netherlands, leaving four Member States still in an infringement situation.

2.2.8. Preventive rules provided for by Directive 98/34/EC

Directive 98/34/EC (as amended by Directive 98/48/EC) lays down an information procedure enabling the Member States and the Commission to exercise prior checks against the internal market rules on draft technical standards relating to products and draft rules relating to information society services.

In 2002, the Commission was notified of 508 draft standards (30 of them relating to information society services). While the aggregate number is much the same as in 2001, the number on which the Commission had to issue a reasoned opinion stating that the proposed measure needed amending to remove potential unwarranted barriers to freedom of movement of goods or information society services was up slightly. Apart from the infringements of the EC Treaty, many of the Commission's reasoned opinions, as in previous years, warned the addressees that their drafts were liable to infringe Community directives on the free movement of goods or of information society services.

In ten or so cases the directive facilitated Community harmonisation procedures by precluding the adoption of national measures that would have frozen the position of certain Member States at a time when common solutions were being sought. Most cases concerned chemicals, agriculture and foodstuffs.

Where it observes an infringement of the directive, either through the adoption of legislation containing technical rules that have not been notified as required by the directive or through failure to comply with the status quo periods provided for by it, the Commission engages in dialogue with the Member States to have the situation remedied (for example through notification of a fresh draft and its subsequent adoption) or commences infringement proceedings. At the end of 2002, 18 infringement proceedings were under scrutiny. The small increase over 2001 is due to the growing number of infringements in information society services. The explanation is that it this a new complex area in which the Member States encounter difficulties with the proper application of the procedure. The instruments criticised concern electronic signatures, e-commerce and electronic communication.

To remedy the situation, briefing sessions on the operation of the notification procedure have been held for certain Member States, highlighting the information society services aspect.

In 2002, the Court of Justice gave an important judgment [20] according to which the exception allowed by Directive 83/189/EEC (as consolidated by Directive 98/34/EC), whereby a Member State does not need to notify draft rules that bring it into line with mandatory Community provisions adopting technical specifications (e.g. transposal of a directive), must be interpreted strictly.

[20] Case C-390/99 Canal Satellite (judgment given on 22.1.2002).

To improve dialogue with firms, a website detailing notified drafts has been opened at http://europa.eu.int/comm/enterprise/tris/ index_en.htm.

2.3. COMPETITION

In 2002, the Commission took decisions in 37 competition cases. [21] Twenty-six of them were terminated, but the Commission referred four to the Court of Justice. It is difficult to draw overall conclusions from these figures, but it is clear that the Member States have a general tendency to take the measures needed to come into line with Community competition law. Competition cases account for only a small proportion of suspected infringements of Community law currently under scrutiny at the Commission. Most of the complaints filed with the Commission turn out to be unfounded or undeserving of priority for lack of a Community dimension or can be rejected as having been handled properly by the relevant Member State when they were under scrutiny. Many infringement cases concerned the directives on competition in telecommunications or transparency in financial relations between the Member States and their public enterprises.

[21] This Report does not consider the Commission's scrutiny of suspected infringements of the Community rules on state aids on the basis of Article 88 of the EC Treaty.

2.3.1. Telecommunications

At the end of 2001, the Commission had received a complaint from the French association of multi-service network operators (AFORM), representing the majority of French cable operators. The complaint chiefly concerned alleged discrimination between cable operators in procedures for licensing the establishment and operation of telecommunications services and awarding and charging for rights of way over public land. The French legislation is alleged to be less favourable to cable operators than to other telecoms operators, which could be a serious handicap when cable operators attempt to load telephone and Internet access services on their networks. La Commission considers at this stage that the French rules do not appear to be compatible with Directive 95/51/EC, which abolished restrictions on the use of cable television networks, or the provisions of Directive 96/19/EC relating to rights of way. A letter giving formal notice to act was sent to the French authorities on 25 October 2002.

The Commission also opened an infringement procedure against Portugal concerning the application of the non-discriminatory principle to the allocation of rights of way in the context of Directive 1990/388/EEC.

2.3.2. Air transport

On 16 October 2002 the Commission terminated the infringement proceedings against Portugal for failure to comply with Commission Decision 1999/199/EC of 10 February 1999.

This decision, relating to the system of discounts on landing charges and the variations depending on the origin of the flight, operated at the Portuguese airports of Lisbon, Porto and Faro (Case IV/35.703 - Portuguese airports), established that the system was incompatible with Article 86(1), read with Article 82 (discriminatory pricing imposed by ANA-EP, public enterprise managing the relevant airports).

Portugal appealed to the Court of Justice of the European Communities on 4 May 1999. By judgment given on 29 March 2001 [22] the Court dismissed the appeal and the Portuguese authorities took measures (Decree-Act of 26 December 2001, implementation decree of 3 July 2002) bringing the landing charges at the Portuguese airports of Lisbon, Porto and Faro into line with the decision of 10 February 1999.

[22] Case C-163/99.

2.3.3. State aid

Several Member States have still not implemented amendments to the so-called Transparency Directive [23], according to which undertakings entrusted with public service missions have to keep separate accounts for their public missions on the one hand and competitive services on the other hand. Using public funds to distort competition breaches the key principle according to which companies that receive State funding for services of general interest cannot use these resources to subsidise activities open to competition. This is especially true for newly liberalised sectors where emerging competition is still vulnerable. As special or exclusive rights or the public funding may thus not unduly favour the public undertakings' competitive activities, financial transparency in the relations between the State and public service undertakings is indispensable. Member States had until the end of July 2001 to implement the Transparency Directive into their national laws. On 19 October 2001 the Commission sent a reminder to some Member States which had not implemented the Transparency Directive. On 26 June 2002 the Commission sent a reasoned opinion under Article 226 of the EC-Treaty to Finland, France, Ireland, Italy, Portugal and Sweden. As none of these Member States had transposed the Transparency Directive into national law, the Commission requested that they comply with their obligation to do so within two months. In those cases where the Member States have failed to inform the Commission of the provisions adopted to comply with the new requirements, the Commission, has brought the matter before the European Court of Justice. In a related development, the Commission opened new proceedings against Belgium and Luxembourg.

[23] Commission Directive of 26 July 2000 amending Directive 80/723/CEE on the transparency of financial relations between the Member States and public undertakings.

In the Maribel case the Court of Justice gave judgment against Belgium in July 2001 for failure to obtain reimbursement of aid given in the form of tax relief. The Commission considered that Belgium had not fully executed the Court's judgment and put it on formal notice in the procedure of Article 228(2) of the EC Treaty in April 2002, following this with a reasoned opinion in July 2002.

2.4. EMPLOYMENT AND SOCIAL AFFAIRS

This covers different aspects of social policy (free movement of workers, equal treatment for women and men, working conditions and health and safety at the workplace) and a variety of legal instruments (EC Treaty, regulations and many directives).

In cases concerning the free movement of workers, the Commission has to tackle problems of incorrect application of certain provisions of the EC Treaty and the Regulations that apply here, which it learns about through individual complaints from citizens, whereas in other areas (equal treatment for women and men, working conditions and health and safety at the workplace), the main problems concern incorrect transposal measures, or failure to notify such measures.

Free movement of people

In the field of the free movement of persons, problems remain owing to incorrect application of the relevant provisions of the Treaty (articles 39 and 42 EC) and Regulations Nos 1408/71 and 1612/68 [24]. A large number of proceedings already opened were continued. One example concerns the difficulty of obtaining recognition in the public service in several Member States of work experience acquired in another Member State. The cases against Belgium, France, Spain, Italy, Portugal, Austria and Ireland still continue despite the fact that some progress in achieving conformity with Community law has been made. The Commission also decided to refer the case against Belgium concerning a family benefit ("allocation d'interruption de carrière") to the Court of Justice, as the payment of this benefit is conditional upon a person residing in Belgium. In relation to a similar residence condition which needs to be fulfilled in order to qualify for the benefit in case of pre-retirement, a reasoned opinion was sent to Belgium.

[24] See in this respect also the recently adopted Communication from the Commission 'Free movement of workers - achieving the full benefits and potential', 11 December 2002, COM (2002) 694 final.

The proceedings against Italy for having failed to communicate national measures taken in order to comply effectively with the Court's ruling [25] condamning it for non-recognition of the acquired rights of former foreign-language assistants by certain Italian universities ('Lettori'), continue and the Commission decided to send a reasoned opinion under Article 228 of the Treaty.

[25] Judgment ECJ of 26 June 2001 in Case C-212/99.

On the other hand, infringement proceedings against France concerning the deduction of the "contribution sociale généralisée" and the "contribution pour le remboursement de la dette sociale" from the income of frontier workers which continued under Article 228 of the Treaty could be closed, following the adoption of the necessary measures to comply with the judgment delivered by the Court [26].

[26] Judgments of 15 February 2000 in Cases C-169/98 and C-34/98.

The deadline for notifying national measures transposing Directive 98/49/EC [27] was 25 January 2002, [28] and infringement proceedings were begun against Member States that had not notified them by then.

[27] Council Directive 98/49/EC of 29 June 1998 on safeguarding the supplementary pension rights of employed and self-employed persons moving within the Community: OJ L 209, 25.7.1998, p. 46.

[28] For progress in transposal, see Annex IV, Part 2 of this report

Equal treatment of men and women

As regards cases of failure to notify national transposal measures, a reasoned opinion was sent to Greece for failure to transpose Directive 97/80/EC (burden of proof). But the proceedings against Greece for failure to transpose Directive 96/97/EC, [29] in which the Court of Justice had given judgment against Greece [30] and which were continuing under Article 228 of the Treaty, were terminated when Greece adopted the requisite measures.

[29] Council Directive 86/378/EEC on the implementation of the principle of equal treatment for men and women in occupational social security schemes.

[30] Case C-457/98 (judgment given on 14 December 2000).

A reasoned opinion was served on the Luxembourg Government for incorrect transposal of Directive 96/34/EC (parental leave), but the case against the United Kingdom was terminated on the adoption of measures transposing the Directive properly.

The proceedings concerning incorrect application of Directives 75/117 and 79/7 in Greece (failure to abolish, with retroactive effect, provisions of collective agreements subjecting the grant of family and marriage allowances to female workers to conditions not imposed on married male workers), [31] which were continuing under Article 228 of the Treaty, were terminated.

[31] Case C-187/98 (judgment given on 28 October 1999).

As regards Directive 76/207/EEC, the Commission decided to refer to the Court of Justice its case against Germany, where national legislation precludes part-time workers in the public sector from serving on committees representing staff. The Commission considers that in reality this has a greater effect on female workers and therefore constitutes indirect sex discrimination contrary to Directive 76/207/EEC, and in particular Articles 1 and 2. A reasoned opinion was served on the Austrian authorities as regards the prohibition on women working in high-pressure environments and atmospheres and in underground mines. The Commission regarded this as contrary to Article 3 of Directive 76/207/EEC.

Working conditions

As regards working time, the Article 228 proceedings against Italy for failure to notify measures to comply with the judgment given against it by the Court of Justice [32] for failure to notify national measures transposing Directive 93/104/CE [33] are still running. As Italy has still taken no measures to comply, the Commission has decided to bring fresh proceedings in the Court of Justice, [34] asking the Italy be ordered to pay a penalty payment of EUR238 950 per day of delay.

[32] Case C-386/98 (judgment given on 9.3.2000).

[33] Council Directive of 23 November 1993 concerning certain aspects of the organisation of working time: OJ L 307, 13.12.1993, p. 18.

[34] Case C-2003/057.

On 8 May 2002, following a reasoned opinion (on the ground that Directive 93/104/EC had been transposed in Denmark by collective agreements that did not apply to all workers), Denmark adopted legislation completing transposal. The proceedings for failure to cover certain workers in collective agreements transposing the Directive will be terminated shortly.

Following the adoption of the report on progress in transposing the directive, [35] the Commission also commenced proceedings in a number of other cases of incorrect national transposal measures.

[35] Commission report on progress in transposing Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time: OJ L 307, 13.12.1993, p. 18.

As regards the working time of seafarers, the time allowed for transposing Directive 1999/63/EC [36] expired on 30 June 2002. [37] Infringement proceedings have been commenced against Member States that had not notified national transposal measures in time.

[36] Council Directive 1999/63/EC of 21 June 1999 concerning the Agreement on the organisation of working time of seafarers concluded by the European Community Shipowners' Association (ECSA) and the Federation of Transport Workers' Unions in the European Union (FST) - Annex: European Agreement on the organisation of working time of seafarers: OJ L 167, 2.7.1999, p. 33.

[37] For progress in transposal, see Annex IV, Part 2 of this report

Problems remain with the non-conformity of measures transposing Directive 77/187 concerning the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of businesses in Italy (where it does not apply in certain crisis situations such as a court-ordered preventive composition with creditors or a special administration procedure). The case is still ongoing in the Court of Justice. [38] The deadline for notifying national measures transposing Directive 98/50/EC [39] was 17 July 2001, [40] and infringement proceedings were begun against Member States that had not notified them by then. A reasoned opinion was sent to Portugal, and the case against Ireland was referred to the Court of Justice. [41]

[38] Case C-145/01 Commission v Italy.

[39] Council Directive 98/50/EC of 29 June 1998 amending Directive 77/187/EEC on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of businesses: OJ L 201, 17.7.1998, p. 88.

[40] For progress in transposal, see Annex IV, Part 2 of this report .

[41] Case C-2003/075.

Turning to the fixed-term work directive, [42] a reasoned opinion was sent to the Netherlands for failure to notify national transposal measures in due time. Proceedings against Ireland for failure to transpose in good time continued, and it has been decided to refer to the Court of Justice.

[42] Directive 99/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP: OJ L 175, 13.7.99, p. 43.

As regards Directive 98/59/EC on collective redundancies, [43] the infringement proceedings against Italy and Portugal for incorrect transposal are still in motion in the Court of Justice. [44] The same applies to the action against Germany [45] for incorrect transposal of the posting of workers directive, [46] where the Court will have the opportunity to rule on the interpretation of the concept of "minimum rates of pay".

[43] Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies: OJ L 225, 12.8.1998, p. 16.

[44] Cases C-32/02 and C-55/02 respectively.

[45] Case C-341/02.

[46] Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services: OJ L 18, 21.1.1997, p. 2.

Health and safety at work

Proceedings against Member States that have not yet notified measures transposing Directives 98/24/EC [47] and 2000/39/EC [48] for the protection of health and safety at the workplace continued, and the decision has been taken to refer France (Directive 98/24/EC) and France and Italy (Directive 2000/39/EC) to the Court of justice.

[47] Council Directive on the protection of the health and safety of workers from the risks related to chemical agents at work.

[48] Commission Directive establishing a first list of indicative occupational exposure limit values in implementation of Council Directive 98/24/EC on the protection of the health and safety of workers from the risks related to chemical agents at work.

Following the judgment given by the Court of Justice against Austria for failure to notify full measures transposing Directives 95/30 [49], 97/59 [50] and 97/65 [51] (risks of exposure to biological agents at work), Article 228 proceedings are in motion as regards the first two directives. But the proceedings concerning Directive 97/65 were terminated.

[49] Case C-473/99 (judgment given on 14.6.2001).

[50] Case C-110/00 (judgment given on 11.10.2001).

[51] Case C-111/00 (judgment given on 11.10. 2001).

Several infringement proceedings have been commenced or continued regarding problems of incorrect transposal of the framework Directive 89/391/EEC [52] and its specific directives. Reasoned opinions, for example, were sent to Austria, France and Spain regarding transposal of Directive 89/391/CEE. Proceedings are also still in motion against Ireland, Sweden and the United Kingdom, and the cases against the Netherlands and Luxembourg have reached the Court of Justice. [53] On 7 February 2002 judgment was given against Germany [54] for incorrect transposal of the obligation imposed by the directive for a health and safety risk evaluation to be available in documentary form at all times. Article 228 proceedings against Italy following the judgment given by the Court of Justice [55] are under examination.

[52] Council Directive on the introduction of measures to encourage improvements in the safety and health of workers at work.

[53] Cases C-441/01 and C-335/02 respectively.

[54] Case C-5/00.

[55] Case C-49/00 (judgment given on 15 November 2001).

Regarding the specific directives, Spain has been referred to the Court of Justice for incorrect transposal of Directive 89/655/EEC (work equipment), and judgment was given against Italy on 24 October 2002 [56] for incorrect transposal of Directive 90/270/EEC (display screen equipment).

[56] Case C-455/00.

2.5. AGRICULTURE

Monitoring the application of Community law in agriculture proceeds along two axes - removing barriers to the free movement of agricultural produce and ensuring that the more specific mechanisms of the agricultural regulations are applied effectively and correctly.

The general tendency for traditional barriers to the free movement of agricultural produce, such as routine import checks and demands for certification, to come down continued. The Member States sometimes took action to reserve the use of labels quality for national or regional produce, and the Commission had to intervene.

While it supports initiatives to promote the quality of agricultural produce and foodstuffs, which can help create new market outlets, improvements in farmers' incomes and wider choice for consumers, the Commission has always sought to ensure that quality labels are not reserved de jure or de facto for national or regional products where they have no specific quality features recognised as such.

This approach, the purpose of which is to avoid such labels generating arbitrary discrimination against producers and operators in other Member States and unwarranted barriers to the free movement of goods (cf. Case C-13/78 Eggers (12.10.1978) and Case C-321/94 Montagne (7.5.1997)), was recently upheld by the Court of Justice. In Case C-325/00 the Court gave judgment for the Commission in its action against the German CMA label. [57] The label, which states "Markenqualität aus deutschen Landen" (quality label for produce made in Germany), requires at least part of the process of producing agricultural produce and foodstuffs to have taken place in Germany. The Court held that "Such a scheme, set up in order to promote the distribution of agricultural and food products made in Germany and for which the advertising message underlines the German origin of the relevant products, may encourage consumers to buy the products with the CMA label to the exclusion of imported products" and gave judgment against Germany. In the same context, an action was brought in the Court on ten French regional labels; [58] Mr Advocate-General Mischo presented his conclusions on 5.12.2002, supporting the Commission. The Commission then decided to bring actions in the Court on two Italian regional quality labels [59] and two Belgian regional labels. [60]

[57] Judgment given on 5.11.2002 [2000] ECR 0000.

[58] In the case of France the infringement proceedings concern the following regional quality labels: "Normandie", "Nord-Pas-de-Calais", "Ardennes de France", "Limousin", "Languedoc-Roussillon", "Lorraine", "Savoie", "Franche-Comté", "Corse", "Midi-Pyrénées" and "Salaisons d'Auvergne".

[59] In Italy the infringement proceedings concerned the "Regione Siciliana-Marchio Qualità" and "Abruzzo Qualità" regional quality labels.

[60] In Belgium the infringement proceedings concerned the "Label de qualité wallon" and the Blanc bleu fermier" label.

Regarding the repeated acts of violence by individuals in France against fruit and vegetable imports from other Member States, in particular from Spain, and the authorities' failure to take measures to prevent such acts, it is worth recalling the judgment given by the Court of Justice on 9 November 1997 in Case C-265/95, [61] where it held that "by failing to adopt all necessary and proportionate measures in order to prevent the free movement of fruit and vegetables from being obstructed by actions by private individuals, the French Republic has failed to fulfil its obligations under Article 30 of the EC Treaty (now Article 28 EC), in conjunction with Article 5 of that Treaty (now Article 10), and under the common organisations of the markets in agricultural products." The fact that the marketing of fruit and vegetables from Spain has been untrammelled since that judgment was given suggests that the measures taken by the French Government to give effect to it have worked better than those taken in previous years. But in 2002 there was a campaign to threaten violence and force supermarkets in certain regions to give pride of place to French or regional fruit and vegetables.

[61] [1997] ECR I-6959 (judgment given on 9.11.1997).

In monitoring the application of specific common agricultural policy rules, the Commission has continued to pay regular attention to the application of instruments for controlling production, such as the milk quotas scheme, and the integrated management and control of Community assistance.

A case was brought in the Court of Justice as regards the delays in implementing the integrated management and control system for certain Community aid schemes under Regulation (EEC) No 3508/92 in Greece. [62] That regulation harmonises and rationalises management and control measures for Community aid schemes, particularly for arable farming and production of beef and veal, sheepmeat and goatmeat in order to boost efficiency and profitability, through a policy of prevention and enforcement regarding potential irregularities in EAGGF financial operations.

[62] Case C-2002/328.

Although there is an obligation to establish the practical measures for the integrated control system by 1 January 1997, the Greek authorities have not fully met the requirements of Article 2 of Regulation (EEC) No 3508/92, designed to ensure that payments by Community bodies are in accordance with the law and regulations applicable to them.

In addition to these proceedings, the Commission acted to enforce the rules protecting biological agriculture, to prevent charges being levied on amounts due from the Structural Funds and to enforce compliance with the third-country banana import rules.

It decided to refer to the Court of Justice a new set of Spanish rules allowing the word "Bio" to be used for products not produced by biological agriculture techniques within the meaning of Council Regulation (EEC) No 2092/1991 of 24 June 1991, as amended by Regulation (EC) No 1999/1804 on organic production of agricultural products and indications referring thereto on agricultural products and foodstuffs. It issued a reasoned opinion against the charging of an administrative levy by IFADAP, the Portuguese public body responsible for Community and national agriculture and fisheries support and assistance schemes, on amounts paid to recipients of assistance co-financed by the Structural Funds, contrary to Regulations (EEC) Nos 4253/88 and 2082/93. And it continued its infringement proceedings against France by issuing a reasoned opinion on the ground that France determined reference quantities for the issue of import licences for bananas that were well in excess of the quantities determined by Regulation (EC) No 896/2001.

Directive 98/34/EC requires the Member States and the EFTA countries to notify, prior to adoption, all draft rules containing technical standards that could raise barriers to intra-Community trade in agricultural produce, and once again 2002 saw a proliferation of drafts notified to the Commission. A total of 119 drafts notified by the Member States and the EFTA countries in agricultural matters under Article 28 of the EC Treaty and secondary legislation were examined in 2002.

2.6. ENERGY AND TRANSPORT

In 2002, 231 infringement cases were scrutinised, including 119 cases of failure to notify measures transposing directives and 112 cases of incorrect transposal of directives or incorrect application of Community law. The reason for this stability in the number of infringement cases despite the large number of cases closed during the report period (111, including 79 cases of failure to notify) is the faster transposal of transport directives, even though the Member States very often fail to abide by the transposal deadlines. 100 new infringement cases were opened (59 of them for failure to notify), and 28 complaints were examined during the same period. The Court of Justice gave 15 judgments for failure to fulfil obligations.

Energy

2.6.1. Internal market for electricity and natural gas

Parliament and Council Directive 96/92/EC of 19 December 1996 concerning common rules for the internal market in electricity has been transposed by all the Member States except Belgium, which has still to issue a number of implementation Orders, for which the Commission has referred it to the Court of Justice. [63]

[63] Case C-2002/126.

Parliament and Council Directive 98/30/EC concerning common rules for the internal market in natural gas was to be transposed by 10 August 2000. France has still not transposed it, and the Court of Justice gave judgment against it on 28 November 2002. [64] Germany has transposed only part of the directive, and the Commission has decided to refer the case to the Court of Justice.

[64] Case C-2001/259 Commission v France [2002] ECR I-11093 (judgment given on 28.11.2002).

2.6.2. Energy efficiency

Parliament and Council Directive 2000/55/EC of 18 September 2000 on energy efficiency requirements for ballasts for fluorescent lighting fell due for transposal on 20 November 2001 and has been transposed in all Member States except Germany, where transposal measures should be adopted in 2003.

Since no reports on the application of Council Directive 93/76/EEC of 13 September 1993 to limit carbon dioxide emissions by improving energy efficiency (SAVE) have been transmitted, infringement proceedings are in motion against Ireland and Luxembourg, and the Commission has decided to refer the latter Member State to the Court of Justice. [65]

[65] Case C-2002/461.

There have been delays in notifying measures transposing Commission Directive 2002/31/EC of 22 March 2002 implementing Council Directive 92/75/EEC with regard to energy labelling of household air-conditioners and Commission Directive 2002/40/EC of 8 May 2002 implementing Council Directive 92/75/EEC with regard to energy labelling of household electric ovens. When these two Directives fell due for transposal (31 December 2002), only one Member State had fulfilled its obligations.

Council Directive 98/93/EC of 14 December 1998 amending Directive 68/414/EEC imposing an obligation on Member States of the EEC to maintain minimum stocks of crude oil and/or petroleum products, due to be transposed by 31 December 1999, has been transposed by all the Member States. But proceedings are still in motion against Greece for incorrect application of the Directive, and a reasoned opinion was issued on 23 October 2002.

Transport

In 2002, eight new transport directives fell due for transposal. The rate of transposal of transport directives, which had risen sharply to 98% in May, has fallen back to its 2001 level of 94.7% as Member States were behind schedule in notifying measures for the three directives due to be transposed in December 2002. The number of complaints (23) was double the previous year's. But the number of infringement proceedings that the Commission decided to refer to the Court of Justice was down by over a half (11, as against 24 in 2001). The number of judgments given against Member States for failure to act was stable (14, as against 15 in 2001), the specific case of bilateral air navigation agreements with the United States accounting for eight of them.

2.6.3. Road transport

On 6 June 2002 judgment was given against Belgium for failure to transpose Council Directive 98/76/EC amending Directive 96/26/EC on admission to the occupation of road haulage operator and road passenger transport operator and mutual recognition of diplomas, certificates and other evidence of formal qualifications intended to facilitate for these operators the right to freedom of establishment in national and international transport. [66] The proceedings against France, Luxembourg and Sweden were terminated. The Belgian authorities notified the Commission of a Royal Decree of 7 May 2002 on the transport of goods by road, and proceedings will be terminated as soon as the Decree relating to passenger transport is notified.

[66] Case C-2001/274 Commission v Belgium [2000] ECR I-5151 (judgment given on 6.6.2002).

Ireland is the only Member State that has not yet transposed Directive 2001/9/EC of 12 February 2001 adapting to technical progress Council Directive 96/96/EC on the approximation of the laws of the Member States relating to roadworthiness tests for motor vehicles and their trailers. The Commission issued a reasoned opinion on 19 December 2002. Six Member States are behind schedule in transposing Parliament and Council Directive 2000/30/CE on the technical roadside inspection of the roadworthiness of commercial vehicles circulating in the Community, which was due for transposal on 9 August 2002.

Regarding driving licences, there is still serious concern about the proper transposal of Directive 91/439/CEE in certain Member State, in particular France, Spain and the Netherlands. The problems that recur in citizens' complaints cover national provisions relating to the minimum age for a vehicle category, renewal of licences for EU citizens no longer residing in the Member States of issue, the criteria for vehicles used for tests, the duration of the practical test, and minimum requirements in terms of aptitude.

2.6.4. Inland waterways

All the Commission's infringement proceedings against Finland for failure to transpose the inland waterways directives [67] have been terminated, as transposal measures have now been notified. France has complied with the judgment given by the Court of Justice on 20 September 2001 [68] by notifying the Decree of 29 August 2002 on the crewing and control of inland waterway vessels.

[67] Directive 96/50/EC; Directive 91/672/EEC; Directive 87/540/EEC; Directive 82/714/EEC; and Directive 76/135/EEC.

[68] Case C-2000/468 Commission v France [2001] ECR I-6337 (judgment given on 20.9.2001).

2.6.5. Safety in the transport of dangerous goods by road and rail

In recent years there were serious delays in the transposal of directives [69] relating to safety in the transport of dangerous goods by road and rail. Several proceedings were opened, and the Court has given judgment against Italy and Ireland. There was spectacular progress in 2002, since only one proceeding is still in motion, against Luxembourg, for failure to transpose Directive 2001/26/CE. [70] But the Commission has still not received all the national measures transposing Directives 2001/6/EC and 2001/7/EC, which were due for transposal by 31 December 2002. Council Directives 1999/36/EC of 29 April 1999 and 2001/2/CE on transportable pressure equipment were due for transposal on 1 July 2001, and on 19 December 2002 the Commission decided to refer its case against Ireland for failure to transpose to the Court of Justice.

[69] Directive 94/55/EC; Directive 95/50/EC; Directive 96/49/EC; Directive 96/86/EC; Directive 96/87/EC; Directive 99/47/EC; Directive 99/48/EC; and Directive 2001/26/EC.

[70] Reasoned opinion sent on 27.6..2002.

2.6.6. Rail transport

The situation regarding Directive 96/48/EC of 23 July 1996 on the interoperability of the trans-European high-speed rail system, the aim of which is to promote interconnection and interoperability of national high-speed rail systems at the various stages of design, construction and entry into service and also of operation and network access, was fully put right in 2002, since all the Member States have now notified the Commission of transposal measures, the Court of Justice having found against the United Kingdom on 30 May 2002. [71]

[71] Case C-2000/441 Commission v United Kingdom [2002] ECR I-4699 (judgment given on 30.5.2002).

2.6.7. Air transport

All the air transport directives have been transposed by the Member States, except that Ireland has still to transpose Directives 98/20/EC and 1999/28/EC limiting the use of certain types of civilian subsonic jet aircraft. On 15 October 2002 the Court of Justice gave judgment finding that Ireland had failed to fulfil its obligations in relation to these two directives. [72]

[72] Cases C-2001/327 and C-2001/328 Commission v Ireland [2002] ECR I-8817 (judgment given on 15.10.2002).

The Commission referred to the Court of Justice its cases against Germany and Italy concerning the application of Directive 96/67/EC on access to the groundhandling market at Community airports. The infringements noted in connection with airport taxes also continued. The imposition of varying rates of tax by Member States depending on passenger destinations (internal flights/intra-Community and/or international routes) is incompatible with the principle of freedom to provide services stipulated in the field of air transport by Regulation (EEC) No 2408/92 and with EU citizens' freedom of movement under Article 18 of the Treaty. Proceedings against the Netherlands and Portugal continue, but the case against Italy has been terminated.

On 5 November 2002 the Court of Justice gave judgment in the cases relating to the bilateral "open-skies" agreements between eight Member States (Belgium, Denmark, Germany, Finland, Luxembourg, Austria, Sweden and United Kingdom) and the United States. [73] It held that these agreements were not in conformity with Community law and violated the Community's exclusive powers of external action.

[73] Case C-1998/466 Commission v United Kingdom [2002] ECR I-0000 (judgment given on 5.11.2002).Case C-1998/467 Commission v Denmark [2002] ECR I-0000 (judgment given on 5.11.2002).Case C-1998/468 Commission v Sweden [2002] ECR I-0000 (judgment given on 5.11.2002).Case C-1998/469 Commission v Finland [2002] ECR I-0000 (judgment given on 5.11.2002).Case C-1998/471 Commission v Belgium [2002] ECR I-0000 (judgment given on 5.11.2002).Case C-1998/472 Commission v Luxembourg [2002] ECR I-0000 (judgment given on 5.11.2002).Case C-1998/475 Commission v Austria [2002] ECR I-0000 (judgment given on 5.11.2002).Case C-1998/476 Commission v Germany [2002] ECR I-0000 (judgment given on 5.11.2002).

2.6.8. Maritime transport

The Commission observes an improvement in the rate of transposal of maritime safety directives, as all those due for transposal on 30 June 2002 have been transposed in all the Member States. All the proceedings for failure to notify measures transposing the directives on a system of mandatory surveys for the safe operation of regular ro-ro ferry and high-speed passenger craft services, [74] port State control [75] and safety rules and standards for passenger ships [76] have accordingly been terminated.

[74] Directive 99/35/EC.

[75] Directive 99/97/EC.

[76] Directive 98/18/EC and Directive 98/41/EC.

Unfortunately the delays persist with regard to the four directives falling due in the second half of 2002. [77]

[77] Directive 2001/53/EC; Directive 99/95/EC; Directive 2002/25/EC; and Directive 2000/59/EC.

Regarding the application of Directive 95/21/EC (port State control), which harmonises the enforcement of international standards for ship safety, conditions for immobilisation and/or refusal to allow access to Community ports, the Commission decided to refer proceedings against France and Ireland to the Court of Justice [78] for incorrect application of the directive in the form of failure to comply with the obligation to inspect at least 25% of vessels flying foreign flags that land at their ports or navigate in waters under their jurisdiction.

[78] Cases C-2002/439 and C-2002/436.

Compliance with Community legislation on registration of ships and the grant of flag rights continues to pose difficulties in the Netherlands, where the conditions for entry of vessels in the shipping register and the grant of national flag rights remain discriminatory. Infringement proceedings are in motion in the Court of Justice. [79]

[79] Case C-2002/299.

Regarding the right of establishment, the Commission withdrew the action against Italy [80] for failure of its national legislation laying down the conditions in which shipping companies established in another Member State can enjoy the same treatment as Italian companies for admission to the Italian liner conference quota to comply with Articles 43 and 48 of the Treaty, following amendment of the Italian legislation as required by the Commission.

[80] Case C-2002/337.

As for the principle of freedom to provide services, secured by Regulation (EEC) No 4055/86 as regards cargo sharing agreements between Member States and third countries, the proceedings against Portugal were terminated following its denunciation of the Protocol with Yugoslavia, as were the proceedings concerning the agreements between Belgium and Zaïre, Côte d'Ivoire, Senegal and Mali. The proceedings concerning the cargo sharing agreements between Belgium and Togo and between Italy and China continued.

The Commission was also attentive to the application of Regulation (EEC) No 4055/86 as regards possible nationality discrimination between operators or types of transport used and the resultant potential barriers. Following amendments to national legislation, one of the infringement proceedings concerning discriminatory dock dues (which vary according to a vessel's port of destination, with lower amounts for transport between two ports in the same country than for international transport) was closed (Greece), and another on the same subject may also be on the way to settlement (Italy).

As regards maritime cabotage, proceedings have been taken against several Member States (Spain, Denmark, Portugal and Germany) for maintaining or adopting national regulations in contravention of Regulation (EEC) No 3577/92, which provides for maritime cabotage to be opened up to Community shipowners operating ships registered in and flying the flag of a Member State.

And the Commission opened infringement proceedings against Member States that signed a statement of principle with the United States in the context of the Container Security Initiative. These agreements provide for a pilot stage during which the proposed project will operate only in certain clearly identified ports in these Member States. This discretionary selection of a few ports raises a real problem of competitiveness between European ports. It could cause deflection of traffic towards the selected ports consequently engender serious forms of disequilibrium, incompatible with the common transport policy.

2.7. INFORMATION SOCIETY

Following liberalisation in 1998, competition in European telecommunications markets has driven growth and innovation and the widespread availability of services to the public.

As mentioned in the last report, the Lisbon European Council was a landmark for the converging European electronic communications sector. The Heads of State and of Government stamped their authority on the shift to a digital, knowledge-based economy for Europe, subsequently embodied in the eEurope Action Plan [81].

[81] For further information see: http://europa.eu.int/information_society/ eeurope/index_en.htm.

The Parliament and Council adopted in March 2002 the new package of sector specific regulation designed for more competitive markets and converging electronic communications technologies [82]. The new framework links the imposition of regulatory obligations to the absence of effective competition. The new regulatory environment will enable regulators to focus their powers to promote competition, protect the citizen and consolidate the single market, while taking account of the need for innovation and the long-term sustainability of the sector.

[82] These are Directive 2002/21/EC (Framework Directive); Directive 2002/20/EC (Authorisation Directive); Directive 2002/19/EC (Access Directive); and Directive 2002/22/EC (Universal Service Directive). Directive 2002/58/EC on privacy and electronic communications has been adopted in July 2002. The Radio Spectrum Decision (676/2002/EC) does not require transposition by Member States. See also: http://europa.eu.int/information_society/ topics/telecoms/regulatory/new_rf/index_en.htm.

The Commission believes as a general principle that a successful transition to the new framework depends on the full implementation of the current framework, including universal service and consumer protection measures.

As regards transposition of this framework, consisting of thirteen Directives, one Regulation and four Decisions, the Eighth Report on the Implementation of the Telecommunications Regulatory Package [83] states that after four and a half years of liberalisation of telecoms services, the regulation put in place at national level is very substantially compliant with the EU framework. Licensing and interconnection regimes have permitted large-scale market entry, complemented by carrier pre-selection and number portability; delivery times for leased lines have continued to fall; and progress has been made in developing appropriate costing methodologies for the enforcement of EU tariff principles. The work done in this regard represents a substantial achievement by national regulatory authorities.

[83] COM(2002) 695 of 3 December 2002, electronically available at http://europa.eu.int/information_society/ topics/telecoms/implementation/annual_report/8threport/index_en.htm .

In particular, all Member States have now effectively implemented the UMTS Decision [84], since 3G licences have been awarded in all Member States, assigning frequencies allocated to 3G in accordance with the relevant ERC Decisions [85], which in turn were adopted as a result of mandates given to the CEPT under the UMTS Decision [86].

[84] Decision 128/1999/EC of the European Parliament and of the Council of 14 December 1998 on the co-ordinated introduction of a third-generation mobile and wireless communications system (UMTS) in the Community (OJ L 17, 22.1.1999, p. 1).

[85] ERC Decisions ERC(97) 07 (UMTS frequency bands); ERC(00) 01 (extending UMTS bands); and ERC(99) 25 (harmonised use).

[86] A more detailed report on the implementation of the UMTS Decision in the Member States can be found in Annex 2 to the Eighth Implementation Report: http://europa.eu.int/information_society/ topics/telecoms/implementation/annual_report/8threport/finalreport/annex2.pdf. See also the Commission Communications on "The Introduction of Third Generation Mobile Communications in the European Union: State of Play and the Way Forward, COM(2001) 141 of 20 March 2001; and "Towards the full Roll-out of Third Generation Mobile Communications", COM(2002) 301 of 11 June 2002.

The largely positive balance is confirmed by reference to the infringement proceedings currently open, which indicate only two areas, cost accounting and universal directory services, where full compliance needs to be ensured in more than a few Member States. For the rest, the cases still pending represent clarification of points of relative detail.

Accordingly, a significant number of closures of cases (38) or withdrawal of Court proceedings (two) was decided in 2002 as a result of improvements in implementation in the Member States. The most notable relates to the implementation of Regulation 2887/2000 on unbundled access to the local loop [87] in eight Member States, following action taken by the Commission [88]. One case concerns the implementation of Decision 710/97 [89]. Fifteen closures concern incorrect application issues, including four complaints. Seven non-conformity cases were closed and one withdrawn after action was taken before the Court (C-70/02). With regard to non-communication cases, three proceedings, concerning Directive 95/47/EC (TV Signals) and Directive 97/66/EC (Data Protection in Telecommunications), were closed following notification of transposition measures in order to comply with the Court's judgment for failure of transposition (C-319/99, C-151/00 and C-254/00); one further proceeding concerning Directive 97/66/EC was withdrawn after action was taken before the Court (C-267/02). Finally, three non-communication cases were closed following notification of transposition measures for Directive 1999/93/EC (Electronic Signature) by Ireland, Italy and United Kingdom.

[87] OJ L 336, 30/12/2000, p. 4

[88] See IP/02/445.

[89] Decision No 710/97/EC of the European Parliament and of the Council of 24 March 1997 on a coordinated authorization approach in the field of satellite personal-communication services in the Community (S-PCS), OJ L 105, 23/04/1997, p. 4.

On the other hand, the Commission referred five cases to the Court in 2002. These concerned lack of transposition of Directive 97/66/EC in Luxembourg (two proceedings joined under C-211/02) and incomplete transposition of the same Directive in the Netherlands (C-350/02), failure to implement itemised billing in conformity with Directive 98/10/EC (Voice Telephony) in Austria (C-411/02) and failure to ensure the provision of local carrier pre-selection in compliance with Directive 98/61 (Numbering) in Germany (C-401/02).

During the reporting period, the Court gave further judgments in two cases concerning non-transposition of Directive 98/10/EC in France (C-286/01) and non-conformity of the national legislation with Directive 97/33/EC (Interconnection) in Belgium (C-221/01), the latter providing for substantive clarifications with regard to various provisions of this Directive. Due to the increasing importance of judgments in this sector, DG INFSO has recently updated the "Guide to the Case Law of the European Court of Justice in the field of Telecommunications" published on its website [90].

[90] http://europa.eu.int/information_society/ topics/telecoms/implementation/infringement/doc/guidecaselaw.pdf

At the end of 2002 there were 62 ongoing infringement proceedings. Twenty of these were complaints under examination at that time, which means an increase of 66% compared to last year; three proceedings concerned the lack of implementation of a Regulation. The number of proceedings for non-communication of transposition measures for a Directive halved, with seven cases pending, while the importance of non-conformity cases (11) and proceedings concerning incorrect application of transposition measures (21) still remains high, although the number of cases has also decreased significantly compared to last year (more than 33% each).

In five infringement proceedings (three for failure to notify, one for non-conformity, one for incorrect application), the Commission's decision to refer the case to the Court of Justice was still awaiting execution at the end of the reporting year, while a significant number of 14 cases (a more than 50% increase compared to 2001) has reached the reasoned opinion stage (10 of which for incorrect application and four for non-conformity); in 11 pending cases a letter of formal notice was sent in 2002.

The directives making up the main elements of the new regulatory framework for electronic communications networks and services are required to be transposed into national law not later than 24 July 2003. The new framework also provides that Member States shall apply those national transposition measures from 25 July 2003 [91], whereupon the Community instruments forming part of the existing regulatory framework which are to be superseded by those elements of the new framework will be repealed [92].

[91] See for example Article 28 Framework Directive. Member States have until 31 October 2003 to transpose the requirements of Directive 2002/58/EC on privacy and electronic communications into national law.

[92] See Article 26 Framework Directive.

As stated above, the Commission now regards it as a priority to encourage timely transition to the new framework. In addition to providing the legal predictability and regulatory flexibility necessary for continued investment in the sector, this will complement the eEurope objective of achieving competitive local access for internet services over broadband networks as cheaply as possible on a sustainable basis.

2.8. ENVIRONMENT

2.8.1. Introduction

The last five years have seen a growing difficulty in the timely and correct implementation as well as proper practical application of EC environmental legislation. This is reflected in the growing number of complaints received and infringement cases opened by the Commission every year. As in the earlier years, in 2002 the environment sector covered over one third of all infringement cases investigated by the Commission. The Commission brought 65 cases against Member States before the Court of Justice and issued 137 reasoned opinions on the basis of Article 226 of the EC Treaty.

The number of new complaints, which mainly refer to presumed instances of bad application of EC environmental law, remains at the high level experienced after 1996 when the Commission adopted the Communication "Implementing EC environmental law" [93]. In 2002, 555 new complaints alleging breach of Community environmental law were lodged with the Commission. A considerable number of these complaints give also rise to written questions and petitions in the European Parliament.

[93] COM(96)500 final, 22.10.1996.

The Article 228 procedure, which may lead to a pecuniary sanction, has continued to serve as a last resort to force Member States to comply with the judgments delivered by the European Court of Justice. The Commission annually issues several (17 in 2002) letters of formal notice and reasoned opinions (8 in 2002) under Article 228 to Member States. No new cases under Article 228 were brought to the Court during 2002. More details are given in Annex V to this report.

It is essential that the implementation of environmental legislation by Member States be improved. However, seeking improved implementation by taking Member States to the European Court of Justice is not the only, nor often the most efficient way to resolve the current problem. A substantial improvement will require efforts by the Commission to develop new working methods with Member States at all stages of the implementation life cycle. This is particularly relevant in the build up to enlargement to ensure that new Member States transpose and implement correctly the "acquis communautaire" within the agreed timeframes.

In line with the Communication on better monitoring of application of Community law [94], the Commission is already taking a number of practical steps to assist Member States in the implementation of EC environmental legislation:

[94] COM(2002)725 final, 13.12.2002.

1. The Commission strives to anticipate implementation problems when it is designing Community environmental legislation which has to be drafted in a way to make it "enforcement friendly". When the legislation has been adopted, the use of guidelines and interpretative texts agreed by the Commission and the Member States can be helpful. For example, the Commission publishes reference documents on best available techniques under Council Directive 96/61 on the integrated pollution and prevention control. These documents are prepared with active involvement of authorities, industries concerned and other stakeholders. Another example is the Water Framework Directive [95] 2000/60/EC, where the Commission in partnership with the Member States has started a support process for the implementation immediately after the adoption of the Directive. Such a common implementation strategy is one example on how good governance can work in practice.

[95] OJ L 327, 22.12.2000, p.1

2. In order to increase efficiency and enhance effectiveness of implementation of environmental legislation, there is a need to apply pro-active measures by bilateral contacts and meetings between the Commission and Member States. Several seminars were held in 2002 at some Member States where the Commission's views on the correct implementation of particularly complex environmental directives was explained to the competent authorities with a view to prevent, rather than correct, instances of bad application. This approach has been confirmed by the Commission in its above mentioned Communication on better monitoring of application of Community law.

3. Information exchange between implementing authorities is a key to improving implementation. The informal EU network for the Implementation of Environmental Law (IMPEL) consisting of the Commission and the Member States has been since its inception in 1992, a key instrument to discuss the stage of practical application of existing legislation. In order to improve the environmental standards of inspection, the Commission follows up closely the implementation of the Recommendation of the European Parliament and the Council on Minimum Criteria for Environmental Inspections (2001/331/EC).

In addition, the following measures are expected to give incentives to Member States to the better implementation of EC environmental legislation:

4. Programmes and projects can only be funded if they comply with Community policies and instruments including those for environment and sustainable development. In this way Structural Funds can be a lever for implementation of EC environmental legislation.

5. There is a need to improve transparency and awareness on the state of implementation of EC environmental legislation. The Third Annual Survey on the implementation and enforcement of Community environmental law [96] includes a Scoreboard, which details the implementation record of each Member State in each sector of the environment. The Commission has organised "Name, Shame and Fame" events during 2000-2002 to provide information on the implementation performance of Member States.

[96] Commission staff working paper, SEC(2002) 1041, 1.10.2002.

6. Effective reporting from Member States on implementation of environmental is key to monitoring the implementation process. The Commission is presently reviewing the current system of environmental reporting. One of the objectives is to ensure more coherent and effective reporting on implementation of environmental legislation.

7. The relatively high number of complaints received by the Commission reflects the non-existence and/or the relative lack of efficiency of complaint mechanisms in Member States. The Commission is preparing measures on the Community level concerning the possibility of creating cheaper and more efficient access to justice at Member State level in line with the Århus Convention [97], as well as the establishment of reliable national/regional complaint mechanisms and arbitration schemes to solve problems of practical application on the ground.

[97] UN/ECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters.

8. The Commission adopted a proposal for a Directive on environmental liability with regard to the prevention and remedying of environmental damage. The proposed Directive should contribute to the better implementation of EC environmental legislation, acting as a disincentive to pollution.

9. Non-observance of environmental law shows that the sanctions currently established by the Member States are not sufficient to achieve full compliance with Community law. The Commission has proposed a Directive that requires the Member States to provide for criminal sanctions because only this type of measure seems adequate and dissuasive enough to achieve proper implementation of environmental law [98].

[98] Amended proposal for a Directive of the European Parliament and of the Council on the Protection of the Environment through Criminal Law, OJ C 20 E, 28.1.2003, p.284. See also Council Framework Decision 2003/80/JHA of 27 January 2003 on the protection of the environment through criminal law OJ L 029 , 5.2.2003, p.55.

2.8.2. Freedom of access to information

As regards Directive 90/313/EEC on freedom of access to information on the environment, the Commission dealt with two non-conformity cases during 2002. The Commission continued court proceedings against France (Case C-233/00), since the French measures did not ensure formal, explicit and correct transposition of several aspects of the Directive, including the obligation to provide a formal explanation of refusal of access to the information. On the other hand, court proceedings against Austria (Case C-86/01) were withdrawn after that Member State had communicated the necessary transposition measures for the Land Styria.

Among the most common subjects of complaint brought to the Commission's notice relating to this Directive are: refusal by national authorities to provide the information requested, slowness of response, excessively broad interpretation by national government departments of the exceptions to the principle of disclosure, and unreasonably high charges. Directive 90/313/EEC contains a requirement for Member States to put in place national remedies against the improper rejection or ignoring of requests for access to information or an unsatisfactory response by the authorities to such requests. When the Commission receives complaints about such cases, it normally advises the aggrieved parties to use the national channels of appeal established to allow the Directive's aims to be achieved in practice.

On 16 and 18 November 2002, Parliament and Council adopted a new directive on public access to environmental information. This Directive will replace the Directive 90/313/EEC, correct the perceived shortcomings in its application in practice and bring it into line with developments in information and communications technology. It will in particular include information on genetically modified organisms as far as they are relevant for the contamination of the food chain. This issue was addressed in a preliminary reference to the Court of Justice where Advocate-General Tizzano has advised the Court that such information should not be considered environmental information under Directive 90/313/EEC (Opinion of 5 December 2002 in case C-316/01).

2.8.3. Environmental impact assessment

Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 97/11/EC, is one of the prime legal instruments for general environmental matters. The Directive requires environmental issues to be taken into account in many decisions which have a general impact.

The deadline for transposition of Directive 97/11/EC which amends Directive 85/337/EEC was 14 March 1999. During 2002, the Court condemned the remaining three Member States who still have not brought into force, within the prescribed period, the legislation necessary to comply with Directive 97/11/EC (Case C-366/00 concerning Luxembourg, Case C-319/01 concerning Belgium and Case C-348/01 concerning France). The non-communication case against Greece (Case C-374/00) could be withdrawn from the Court after that Member State had communicated the necessary legislation.

Problems with the conformity of national measures with Directive 85/337/EEC have persisted. Most notably, the Commission decided to bring Ireland to the Court under Article 228 of the Treaty for not complying with the prior judgment as regards proper transposition of Article 4(2) relating to projects falling within points 1(d) and 2(a) of Annex II to Directive 85/337/EEC, and only partly transposing Article 2(3), (5) and (7) (Case C-392/96). The Court condemned Spain for failing to adopt legislation to comply with Articles 2(1) and 4(2), in conjunction with Annex II, of the Directive (Case C-474/99). An overview of the stage reached in other non-conformity cases is given in Annex IV, Part 3.

As already mentioned in previous Reports on Monitoring of the Application of Community Law, many complaints received by the Commission as well as oral and written questions tabled by the European Parliament and a large number of petitions presented to Parliament relate, at least incidentally, to alleged instances of incorrect application by Member States' authorities of Directive 85/337/EEC, in particular in cases concerning projects of the types listed in Annex II to the Directive (see Annex IV, Part 4). These complaints often require the examination of whether Member States have exceeded their margin of discretion in deciding whether or not such projects should be subject to an environmental impact assessment. As regards complaints about the quality of impact assessments and the lack of weight given to them, it is extremely difficult for the Commission to assess these cases. The basically formal nature of the Directive provides only a limited basis for contesting the merits of such assessments and the choice taken by the national authorities if they have complied with the procedure laid down by the Directive. Most of the cases brought to Commission's attention concerning incorrect application of this Directive revolve around points of fact where the most effective evaluation should rather be ensured at a decentralised level, particularly through the competent national administrative and judicial bodies.

Directive 2001/42/EC of the European Parliament and of the Council was adopted on 27 June 2001 [99]. Member States must bring into force the national rules necessary to comply with this Directive before 21 July 2004. Where Directive 85/337/EEC, which is a new "strategic environmental assessment" Directive of a procedural nature, applies to projects, the aim is to ensure that an environmental assessment is carried out for certain plans and programmes which are likely to have significant effects on the environment.

[99] OJ L 197, 21.7.2001, p. 30.

2.8.4. Air

Council Directive 96/62/EC on ambient air quality assessment and management forms the basis for a series of Community instruments to set new limit values for atmospheric pollutants, starting with those already covered by existing directives, lay down information and alert thresholds, harmonise air quality assessment methods and improve air quality management in order to protect human health and ecosystems.

Apart from its Article 3, the Directive had to be transposed by 19 July 2001. During 2002, the Commission was able to close all infringement procedures opened for non-communication of national implementing measures for those articles.

A relatively big amount legislation has been adopted in the air sector recently. Nine Directives [100] were to be transposed by Member States during 2001 and 2002. Infringement cases concerning non-communication of national implementing measures under these directives are listed in Annex IV, Part 2.

[100] Directive 1998/70/EC of the European Parliament and of the Council of 13 October 1998 relating to the quality of petrol and diesel fuels and amending Council Directive 93/12/EEC, Council Directive 1999/13/EC of 11 March 1999 on the limitation of emissions of volatile organic compounds due to the use of organic solvents in certain activities and installations, Council Directive 1999/30/EC of 22 April 1999 relating to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter and lead in ambient air, Council Directive 1999/32/EC of 26 April 1999 relating to a reduction in the sulphur content of certain liquid fuels and amending Directive 93/12/EEC, Directive 1999/94/EC of the European Parliament and of the Council of 13 December 1999 relating to the availability of consumer information on fuel economy and CO2 emissions in respect of the marketing of new passenger cars, Directive 2000/69/EC of the European Parliament and of the Council of 16 November 2000 relating to limit values for benzene and carbon monoxide in ambient air, Commission Directive 2001/63/EC of 17 August 2001 adapting to technical progress Directive 97/68/EC of the European Parliament and of the Council on the approximation of the laws of the Member States relating to measures against the emission of gaseous and particulate pollutants from internal combustion engines to be installed in non-road mobile machinery, Directive 2001/80/EC of the European Parliament and of the Council of 23 October 2001 on the limitation of emissions of certain pollutants into the air from large combustion plants, Directive 2001/81/EC of the European Parliament and of the Council of 23 October 2001 on national emission ceilings for certain atmospheric pollutants.

During 2002, the Commission also opened a number of horizontal infringement proceedings for failure to report information on progress made in controlling substances that damage the ozone layer [101].

[101] Regulation (EC) No 2037/2000 of the European Parliament and of the Council of 29 June 2000 on substances that deplete the ozone layer, OJ L 244 , 29.9.2000, p. 1.

Infringement action was taken due to problems of non-conformity in the air sector in a small number of cases (see Annex IV, Part 3).

2.8.5. Water

Monitoring implementation of Community legislation on water quality remains an important part of the Commission's work. This is due to the quantitative and qualitative importance of the responsibilities imposed on the Member States by Community law and by growing public concern about water quality.

In 2002, France replied to the letter of formal notice submitted on the basis of Article 228 of the EC Treaty for non-compliance with the judgment of 8 March 2001 (Case C-266/99). In that judgment, the Court of Justice declared that, by failing to take the necessary measures to ensure that the quality of surface water intended for the abstraction of drinking water conforms to the values laid down pursuant to Article 3 of Directive 75/440/EEC, France has failed to fulfil its obligations under Article 4 of that directive.

With regard to Directive 76/160/EEC concerning the quality of bathing water, monitoring of bathing areas is becoming increasingly common and water quality is improving. Despite this progress, however, proceedings concerning bad application are still under way against many Member States since implementation still falls far short of the Directive's requirements. An overview of the stage reached in infringement proceedings in these cases is given in Annex IV, Part 4. Most notably, by judgment of 19 March 2002, the Court condemned the Netherlands (Case C-268/00) for failing to fulfil its obligations as regards the quality of bathing water and the frequency of sampling thereof within the periods prescribed by the Directive. During 2002, the Commission also took several decisions under Article 228 for non-compliance with recent judgments of the Court concerning the bathing water quality (cases concerning Germany, Belgium and Sweden).

More information concerning the compliance with the parameters of water quality and sampling frequency of Directive 76/160/EEC is also provided by the annual reports on the quality of bathing water (see www.europa.eu.int/water/water-bathing/report).

The Commission has continued proceedings under Article 228 against a number Member States for not complying with earlier judgments of the Court over their bad application of Directive 76/464/EEC on dangerous substances discharged into the aquatic environment and of the directives setting levels for individual substances, particularly concerning adoption of programmes under Article 7 of the Directive. However, some cases could also be closed during 2002 since some Member States complied with the earlier judgments of the Court. An overview of the stage reached in on-going infringement proceedings