Opinion of Mr Advocate General Ruiz-Jarabo Colomer delivered on 29 May 1997. - Commission of the European Communities v Federal Republic of Germany. - Failure of a State to fulfil obligations - Directives 93/48/EEC, 93/49/EEC and 93/61/EEC - Failure to transpose within the period precribed. - Case C-139/96.



European Court reports 1997 Page I-04845



Opinion of the Advocate-General

1 By application lodged at the Registry of the Court of Justice on 26 April 1996, the Commission brought infringement proceedings under Article 169 of the EC Treaty, seeking a declaration that, by failing to adopt within the prescribed period the laws, regulations or administrative provisions necessary to comply with Directives 93/48/EEC, (1) 93/49/EEC (2) and 93/61/EEC, (3) the Federal Republic of Germany had failed to fulfil its obligations under those directives.

2 Article 10 of Directive 93/48, Article 8 of Directive 93/49 and Article 7 of Directive 93/61 provide that Member States are to bring into force the laws, regulations or administrative provisions necessary to comply with those directives not later than 31 December 1993 and to inform the Commission forthwith.

3 Not having received any information concerning amendment of German law to bring it into line with those directives, the Commission, in accordance with Article 169 of the Treaty, sent the German Government a letter of formal notice on 10 February 1994, requesting it to submit its observations on the failure to bring its internal law into line with the directives.

4 By letter dated 21 April 1994 and sent on 28 April 1994, the German Government replied to the Commission but did not explain the reasons which had prevented it from bringing its internal law into line with the directives in question.

5 Not having received communication of any national provision bringing internal law into line with the directives, the Commission sent the German Government a letter on 5 October 1994 containing a reasoned opinion concerning its failure to fulfil its obligations under the three directives and requesting it to take the necessary measures to comply within two months.

6 By letter dated 6 December 1994, sent to the Commission on 14 December 1994, the German Government informed the Commission that adoption of the Law of 25 November 1993 (4) amending the rules applicable to plant protection and seed had established the necessary powers to bring internal law into line with the directives. However, that adaptation was to be effected by administrative regulations, in order to adopt which it was first necessary to determine more precisely the scope of the directives, which was a matter of some disagreement.

7 Not having received any further information from the German Government concerning the amendment of its internal law to bring it into line with the three directives, the Commission decided to bring the present proceedings.

8 By virtue of Articles 5 and 189 of the EC Treaty, and under Article 10 of Directive 93/48, Article 8 of Directive 93/49 and Article 7 of Directive 93/61, the Federal Republic of Germany was obliged to bring its internal law fully into line with those directives within the period prescribed. As the Court of Justice has repeatedly held, a Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with the obligations and time-limits laid down in Community directives.

9 In the present case, Germany does not deny the failure to comply with the three directives of which the Commission complains. However, the German Government suggests that it would be appropriate to suspend the infringement proceedings in view of the difficulties which have arisen in bringing national legal systems into line with the directives in issue.

10 That suggestion is irrelevant in this case, since the circumstances justifying a stay of proceedings under Article 82a(1)(b) of the Rules of Procedure are not present.

11 The Commission has demonstrated, beyond any doubt and without being contradicted by the German Government, that the Federal Republic of Germany has not adopted within the prescribed period the laws, regulations or administrative provisions necessary to comply with Directives 93/48, 93/49 and 93/61. The Commission's application must therefore be granted.

12 Since the Commission's application is well founded and the form of order which it seeks must be granted, the Federal Republic of Germany must be ordered to pay the costs in accordance with Article 69(2) of the Rules of Procedure.

13 In the light of the foregoing considerations, I propose that the Court of Justice should:

(1) declare that, by failing to adopt within the prescribed period the laws, regulations or administrative provisions necessary to comply with

- Commission Directive 93/48/EEC of 23 June 1993 setting out the schedule indicating the conditions to be met by fruit plant propagating material and fruit plants intended for fruit production, pursuant to Council Directive 92/34/EEC,

- Commission Directive 93/49/EEC of 23 June 1993 setting out the schedule indicating the conditions to be met by ornamental plant propagating material and ornamental plants pursuant to Council Directive 91/682/EEC and

- Commission Directive 93/61/EEC of 2 July 1993 setting out the schedules indicating the conditions to be met by vegetable propagating and planting material, other than seed pursuant to Council Directive 92/33/EEC,

the Federal Republic of Germany has failed to comply with its obligations under Article 10 of Directive 93/48, Article 8 of Directive 93/49 and Article 7 of Directive 93/61.

(2) order the Federal Republic of Germany to pay the whole costs of the proceedings.

(1) - Commission Directive 93/48/EEC of 23 June 1993 setting out the schedule indicating the conditions to be met by fruit plant propagating material and fruit plants intended for fruit production, pursuant to Council Directive 92/34/EEC (OJ 1993 L 250, p. 1).

(2) - Commission Directive 93/49/EEC of 23 June 1993 setting out the schedule indicating the conditions to be met by ornamental plant propagating material and ornamental plants pursuant to Council Directive 91/682/EEC (OJ 1993 L 250, p. 9).

(3) - Commission Directive 93/61/EEC of 2 July 1993 setting out the schedules indicating the conditions to be met by vegetable propagating and planting material, other than seed pursuant to Council Directive 92/33/EEC (OJ 1993 L 250, p. 19).

(4) - BGBl. I, p. 1917.