JUDGMENT OF THE COURT (Eighth Chamber)

26 November 2009 ( )

(Failure of a Member State to fulfil obligations – Directive 2006/24/EC – Electronic communications – Respect for private life – Retention of data generated or processed in connection with the provision of electronic communications services – Failure to transpose within the prescribed period)

In Case C‑202/09,

ACTION under Article 226 EC for failure to fulfil obligations, brought on 5 June 2009,

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

applicant,

v

Ireland, represented by D. O’Hagan, acting as Agent, with an address for service in Luxembourg,

defendant,

THE COURT (Eighth Chamber),

composed of C. Toader, President of the Chamber, P. Kūris (Rapporteur) and L. Bay Larsen, Judges,

Advocate General: Y. Bot,

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 action, 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 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (OJ 2006 L 105, p. 54) or in any event by failing to communicate them to the Commission, Ireland has failed to fulfil its obligations under that directive.

2 According to Article 1 thereof, Directive 2006/24 aims to harmonise Member States’ provisions concerning the obligations of the providers of publicly available electronic communications services or of public communications networks with respect to the retention of certain data which are generated or processed by them, in order to ensure that the data are available for the purpose of the investigation, detection and prosecution of serious crime, as defined by each Member State in its national law.

3 Pursuant to Article 15(1) of Directive 2006/24, the Member States were required to bring into force the laws, regulations and administrative provisions necessary to comply with that directive by no later than 15 September 2007 and forthwith to inform the Commission thereof.

4 On 27 November 2007, having received no information from Ireland as to the measures adopted by it in order to comply with Directive 2006/24, the Commission sent a letter of formal notice to that Member State inviting it, in accordance with Article 226 EC, to submit its observations.

5 In its reply of 4 February 2008, Ireland stated that the measures necessary for the transposition of Directive 2006/24 were in the process of being drawn up but that it was not yet in a position to notify the Commission of those measures.

6 On 18 September 2008, the Commission delivered a reasoned opinion inviting Ireland to take the measures necessary to comply with its obligations under Directive 2006/24 within two months of receipt of that opinion.

7 In response, Ireland stated, on 20 November 2008, that legislative action was required for the transposition of that directive, and that this would not occur until the end of 2008 or the beginning of 2009.

8 Having received no further information from Ireland and having no evidence enabling it to conclude that the measures necessary for the transposition of Directive 2006/24 into national law had been taken, the Commission brought the present action.

9 In the defence, Ireland acknowledges that it has not yet fulfilled its obligation to transpose Directive 2006/24. It claims, however, that the legislative provisions for that transposition were published on 9 July 2009 and should be adopted during the autumn parliamentary session. Furthermore, Ireland requests the Court to suspend, for a period of 8 months from the date that defence was lodged, the infringement proceedings brought against it.

10 In that respect, it should be noted that, according to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see, inter alia, Case C‑194/05 Commission v Italy [2007] ECR I‑11661, paragraph 19 and case-law cited).

11 Furthermore, in accordance with settled case-law, a Member State cannot plead provisions, practices or situations prevailing in its domestic legal order to justify failure to observe obligations and time-limits laid down by a directive (see, inter alia, Case C‑450/00 Commission v Luxembourg [2001] ECR I‑7069, paragraph 8, and judgment of 28 April 2005 in Case C‑375/04 Commission v Luxembourg, paragraph 11).

12 In this case, it is common ground that, at the end of the period laid down in the reasoned opinion, Ireland had not adopted the measures necessary to transpose Directive 2006/24 into its national law.

13 Therefore, the Commission’s action must be regarded as well founded.

14 Accordingly, it must be held that by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2006/24, Ireland has failed to fulfil its obligations under that directive.

Costs

15 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 Ireland has been unsuccessful, the latter must be ordered to pay the costs.

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

1. Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC, Ireland has failed to fulfil its obligations under that directive;

2. Orders Ireland to pay the costs.

[Signatures]