Opinion of Mr Advocate General Léger delivered on 17 November 1994. - Commission of the European Communities v Kingdom of Spain. - Failure by a Member State to fulfil its obligations - Directive 90/167/EEC - Conditions governing the preparation, placing on the market and use of medicated feedingstuffs in the Community. - Case C-94/94.



European Court reports 1994 Page I-05777



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1. By an application lodged at the Court Registry on 18 March 1994 the Commission of the European Communities requests the Court pursuant to Article 169 of the EC Treaty:

° to declare that the Kingdom of Spain has failed to fulfil its obligations under Articles 5 and 189 of the Treaty establishing the European Communities by failing to adopt and bring into effect within the prescribed period the laws, regulations and administrative measures necessary to implement Council Directive 90/167/EEC (1) (with the exception of the obligations laid down in Article 11(2));

° to order the defendant to pay the costs.

2. Article 15 of the abovementioned directive provides that the Member States must adopt the laws, regulations and administrative measures necessary to comply with the directive by 1 October 1991 at the latest and inform the Commission immediately thereof, save as regards the requirements laid down in Article 11(2) (the final date for transposition into national law in that regard is fixed as 31 December 1992), which is not relevant to this action.

3. The application was preceded by a formal letter of notice dated 20 May 1992, followed by a reasoned opinion dated 3 May 1993.

4. In the most recent document it submitted to the Court, the Kingdom of Spain challenged the well-foundedness of the action, relying on the "imminent" publication of a royal decree by the Council of Ministers, the draft version of which is at a "very advanced" stage.

5. However, even if the breach is about to be terminated it is not denied that the legislation was not in force on the expiry of the time-limit laid down in the Commission' s reasoned opinion, which is the relevant date. (2) In any event, the Court has consistently held that a Member State cannot rely on provisions, practices or circumstances in its internal legal order in order to justify failure to comply with Community law obligations. (3)

6. It follows that the failure on the part of the Kingdom of Spain to fulfil its obligations, alleged by the Commission, has been established.

7. I therefore suggest that the Court:

° declare that the Kingdom of Spain has failed to fulfil its obligations under Articles 5 and 189 of the EC Treaty and Article 15(1), second indent, of Council Directive 90/167/EEC of 26 March 1990 laying down the conditions governing the preparation, placing on the market and use of medicated feedingstuffs in the Community by failing to transpose that directive (with the exception of Article 11(2)) into national law;

° order the defendant State to pay the costs.

(*) Original language: French.

(1) ° Directive of 26 March 1990 laying down the conditions governing the preparation, placing on the market and use of medicated feedingstuffs in the Community (OJ 1990 L 92, p. 42).

(2) ° See Case C-313/93 Commission v Luxembourg [1994] ECR I-1279, paragraph 10.

(3) ° See, most recently, Case C-65/94 Commission v Belgium [1994] ECR II-0000 .