JUDGMENT OF THE COURT (Eighth Chamber)

3 September 2009 ( )

(Failure of a Member State to fulfil obligations – Directive 2005/65/EC – Transport policy – Port facility security – Failure to transpose within the prescribed period)

In Case C‑527/08,

ACTION under Article 226 EC for failure to fulfil obligations, brought on 28 November 2008,

Commission of the European Communities, represented by K. Simonsson and A.A. Gilly, acting as Agents, with an address for service in Luxembourg,

applicant,

v

United Kingdom of Great Britain and Northern Ireland, represented by S. Ossowski, acting as Agent,

defendant,

THE COURT (Eighth Chamber),

composed of T. von Danwitz, President of the Chamber, R. Silva de Lapuerta and G. Arestis (Rapporteur), Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

Registrar: R. Grass,

having regard to the written procedure,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 By its application, the Commission of the European Communities requests the Court to declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2005/65/EC of the European Parliament and of the Council of 26 October 2005 on enhancing port security (OJ 2005 L 310, p. 28, ‘the Directive’), or in any event by failing to notify those provisions to the Commission, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under Article 18 of that directive.

2 Article 18 of the Directive provides that Member States are to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive by 15 June 2007 and to inform the Commission forthwith.

Pre-litigation procedure

3 Since it had not been informed of the provisions adopted by the United Kingdom in order to ensure full transposition of the Directive into its domestic law within the period prescribed therein, the Commission initiated the infringement procedure provided for by Article 226 EC. On 1 August 2007, the Commission sent a letter of formal notice calling on the United Kingdom to submit its observations within a period of two months.

4 By letter of 27 September 2007, the United Kingdom replied to the Commission stating, first, that the draft legislation relating to ports transposing the Directive was being finalised and, second, that the overall objective of the Directive was already largely achieved through the existing national maritime security regime.

5 Taking the view that the United Kingdom’s response was not satisfactory, on 28 November 2007 the Commission issued a reasoned opinion calling upon the United Kingdom to take the measures necessary to comply with the Directive within a period of two months from receipt of that opinion.

6 In a letter of 30 January 2008, the United Kingdom explained that the delay in transposing the Directive had been caused by practical difficulties in relation to existing national legislation and that the delay would have only negligible consequences given the national maritime security framework. It also informed the Commission that the measures for transposing the Directive were in the process of being drawn up and that they would be adopted during spring 2008.

7 In the absence of any other information enabling it to conclude that the measures necessary for the transposition of the Directive had been adopted by the United Kingdom, the Commission decided to bring this action.

The action

8 In its defence, the United Kingdom acknowledges the failure to fulfil its obligations complained of. It states only that since the national legislation transposing the Directive into its domestic law has been prepared it should come into effect by May 2009.

9 It should be pointed out in this regard that it is settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation obtaining in the Member State at the end of the period laid down in the reasoned opinion and the Court cannot take account of any subsequent changes (see, in particular, Case C‑23/05 Commission v Luxembourg [2005] ECR I‑9535, paragraph 9, and judgment of 27 September in Case C‑115/07 Commission v Czech Republic, paragraph 9).

10 In this case, it is common ground that, at the end of the period prescribed in the reasoned opinion, the United Kingdom had not adopted the measures necessary to transpose the Directive into its domestic law.

11 In those circumstances, the action brought by the Commission must be regarded as well founded.

12 It must accordingly be declared that, by failing to adopt within the period prescribed the laws, regulations and administrative provisions necessary to comply with the Directive, the United Kingdom has failed to fulfil its obligations under Article 18 of that directive.

Costs

13 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and the United Kingdom has been unsuccessful, the United Kingdom must be ordered to pay the costs.

On those grounds, the Court (Eighth Chamber) hereby:

1. Declares that, by failing to adopt, within the period prescribed the laws, regulations and administrative provisions necessary to comply with Directive 2005/65/EC of the European Parliament and of the Council of 26 October 2005 on enhancing port security, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under Article 18 of that directive;

2. Orders the United Kingdom of Great Britain and Northern Ireland to pay the costs.

[Signatures]