JUDGMENT OF THE COURT (Fifth Chamber)

9 July 2009 ( )

(Failure of a Member State to fulfil obligations – Directive 2005/36/EC – Recognition of professional qualifications – Failure to transpose within the period prescribed)

In Case C‑556/08,

ACTION under Article 226 EC for failure to fulfil obligations, brought on 16 December 2008,

Commission of the European Communities, represented by H. Støvlbæk 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 H. Walker, acting as Agent,

defendant,

THE COURT (Fifth Chamber),

composed of M. Ilešič, President of the Chamber (Rapporteur), A. Tizzano and J.-J. Kasel, Judges,

Advocate General: J. Kokott,

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 asks the Court to declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ 2005 L 255, p. 22) (‘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 63 of that directive.

2 Article 63 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 20 October 2007 at the latest and are forthwith to inform the Commission thereof.

3 Since it received no information to enable it to conclude that the provisions needed to transpose the Directive into national law had been adopted by the United Kingdom, the Commission initiated the infringement procedure provided for in Article 226 EC. On 6 June 2008, after giving that Member State formal notice to submit its observations, the Commission issued a reasoned opinion calling on the Member State to take the measures necessary to comply with the reasoned opinion within two months of receiving it.

4 In its reply to that reasoned opinion the United Kingdom Government stated that the legislation transposing the Directive had either already been brought into force or would be in force by the end of October 2008. On 19 and 20 November 2008 that government notified to the Commission most of the previous texts, amended by the measures adopted by the United Kingdom to transpose the Directive, which remained in force and therefore contributed to the full transposition of the Directive. However, that government admitted that by 1 December 2008 the legislation transposing the Directive in Gibraltar had not yet been notified to the Commission.

5 In the defence, the United Kingdom Government acknowledged that, on 20 October 2007, the Directive had not been fully transposed as required by Article 63 of the Directive, in particular in respect of Gibraltar. The delay was due to the complexity of the legislative measures and amendments to existing legislation required to give effect to the Directive’s requirements. That government stated none the less that in Gibraltar the legislative measures transposing the Directive were in the process of being adopted and that the relevant procedure was due to be completed by 29 May 2009.

6 In that connection, it should be borne in mind that the Court has consistently held that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that Member State at the end of the period laid down in the reasoned opinion, and the Court cannot take any subsequent changes into account by (see, inter alia, Case C‑135/03 Commission v Spain [2005] ECR I‑6909, paragraph 31, and judgment of 21 February 2008 in Case C‑328/07 Commission v Luxembourg, paragraph 9).

7 In the present case, it is not in dispute that, on the date that the period laid down expired, the United Kingdom had not adopted the measures necessary in order to transpose the Directive into national law.

8 It follows that the action brought by the Commission must be considered to be well founded.

9 In those circumstances, it must be declared that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with the Directive, the United Kingdom has failed to fulfil its obligations under Article 63 of that directive.

Costs

10 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 (Fifth Chamber) hereby:

1. Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under Article 63 of that directive;

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

[Signatures]