Opinion of Mr Advocate General Fennelly delivered on 23 October 1997. - Commission of the European Communities v Kingdom of Belgium. - Failure to fulfil obligations - Failure to transpose Directives 93/72/EEC and 93/101/EC. - Case C-190/97.



European Court reports 1997 Page I-07201



Opinion of the Advocate-General

1 The present infringement action concerns Belgium's admitted failure to transpose two Directives adapting to technical progress the basic Community measure on the classification, packaging and labelling of dangerous substances.

I - Pre-litigation proceedings

(a) - Commission Directive 93/72/EEC

2 Article 2(1) of Commission Directive 93/72/EEC of 1 September 1993 adapting to technical progress for the nineteenth time Council Directive 67/548/EEC on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (hereinafter `Directive 93/72/EEC') (1) gave the Member States an implementation deadline of 1 July 1994. Article 2(2) and (3) required them to inform the Commission immediately of their implementation measures, and to include a reference to Directive 93/72/EEC in those measures or in the official publication in which they are announced.

3 In the absence of any indication that Directive 93/72/EEC had been transposed into Belgian law, the Commission opened the pre-litigation stage of the procedure provided by Article 169 of the Treaty establishing the European Community (hereinafter `the Treaty') by sending a letter of formal notice on 20 January 1995. In its reply of 22 March 1995, Belgium informed the Commission that the necessary transposition measures were in preparation. As it had received no further information on the adoption of these measures, the Commission delivered a reasoned opinion on 26 July 1996, to the effect that in failing to adopt, and to communicate to the Commission, the necessary provisions, Belgium was in breach of its obligations under the Directive, and laid down a period of two months for compliance.

4 By letter of 18 September 1996, Belgium drew the Commission's attention to the Royal Decree of 23 June 1995 amending the Royal Decree of 11 January 1993 concerning the classification, packaging and labelling of dangerous preparations (hereinafter `the 1995 Royal Decree'), which, it claimed, transposed Directive 93/72/EEC into Belgian law. In its reply of 29 January 1997, the Commission took the view that, as neither Royal Decree concerned dangerous substances as distinct from dangerous preparations, Directive 93/72/EEC had not been properly transposed, and invited Belgium to comment on the matter. Belgium failed to respond.

(b) - Commission Directive 93/101/EC

5 Article 2 of Commission Directive 93/101/EC of 11 November 1993 adapting to technical progress for the twentieth time Council Directive 67/548/EEC on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (hereinafter `Directive 93/101/EC') (2) gave the Member States an implementation deadline of 1 January 1995. The Member States were also required by this provision to inform the Commission immediately of their implementation measures, and to include a reference to Directive 93/101/EC in those measures or in the official publication in which they are announced.

6 In the absence of any such communication, the Commission sent a letter of formal notice on 2 August 1995. In its reply of 4 October 1995, Belgium maintained that Directive 93/101/EC had been transposed by part 1 of Annex III to the 1995 Royal Decree. In a reasoned opinion delivered on 12 July 1996, the Commission repeated its view that the said Decree did not cover dangerous substances; as the Decree did not constitute a proper transposition of Directive 93/101/EC, the Commission laid down a two-month period for compliance. Belgium did not reply.

II - The proceedings before the Court

7 In its application, registered at the Court on 20 May 1997, the Commission observes that Belgium has not communicated to it any official and final measures to transpose Directive 93/72/EEC, and has not communicated all the provisions necessary to comply with Directive 93/101/EC. It concludes that Belgium has not adopted, and/or not communicated to it, within the time-limits contained in the Directives, the necessary measures to implement them, and requests the Court to hold that Belgium is in breach of its obligations thereunder.

8 Belgium does not contest the breaches alleged. It notes that a draft Royal Decree to implement Directive 93/72/EEC has been signed by the Ministers concerned and will be submitted to the King for signature, and that only the section regarding dangerous substances of Directive 93/101/EC remains to be transposed.

III - Opinion

9 The body of the Commission's application fails to draw a consistent distinction between a failure to transpose the Directives and a failure to communicate to it the necessary implementing measures. In both cases, however, the reasoned opinion clearly concludes that Belgium has failed to adopt the necessary measures to transpose the Directive in question, which corresponds precisely with the form of order sought by the Commission in its application. As Belgium has not contested the alleged failure properly to transpose the Directives, and in the absence of any other contrary indication, I am of the opinion that the Commission should be granted the declaration it requests as regards each of the Directives.

IV - Conclusion

10 In the light of the foregoing, I recommend to the Court that it:

(1) Declare that, by failing within the time-limits provided to adopt the laws, regulations and administrative provisions necessary to comply, first, with Commission Directive 93/72/EEC of 1 September 1993 adapting to technical progress for the nineteenth time Council Directive 67/548/EEC on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances, and, second, with Commission Directive 93/101/EC of 11 November 1993 adapting to technical progress for the twentieth time Council Directive 67/548/EEC, the Kingdom of Belgium has failed to comply with its obligations under the aforesaid Directives;

(2) Order the Kingdom of Belgium to pay the costs.

(1) - OJ 1993 L 258, p. 29.

(2) - OJ 1994 L 13, p. 1.