OPINION OF ADVOCATE GENERAL

LA PERGOLA

delivered on 9 November 1995 ( *1 )

1. By an action brought on 18 January 1995, the Commission sought a declaration by the Court that the French Republic has failed to fulfil its obligations under the EC Treaty by failing to adopt within the prescribed period the measures necessary in order to comply with the following directives: — Council Directive 91/67/EEC of 28 January 1991 concerning the animal health conditions governing the placing on the market of aquaculture animals and products; ( 1 ) — Council Directive 91/628/EEC of 19 November 1991 on the protection of animals during transport and amending Directives 90/425/EEC and 91/496/EEC; ( 2 ) — Council Directive 92/35/EEC of 29 April 1992 laying down control rules and measures to combat African horse sickness. ( 3 )

2. In its defence, the French Government indicated that it had in the meantime taken the necessary steps to transpose Directive 91/67/EEC by the adoption of a decree on 26 January 1995. The Commission took formal note of that transposition and, accordingly, informed the Court that it wished to discontinue, pursuant to Article 78 of the Rules of Procedure, the application in so far as it related to Directive 91/67/EEC. ( 4 )

3. In this respect, it is sufficient to note that the French Republic does not deny the infringement alleged against it in respect of the failure to transpose Directives 91/628/EEC and 92/35/EEC. In its observations it merely pointed out that decrees intended to bring national law into line with the aforementioned directives were being adopted, which, according to the case-law of the Court, ( 5 ) does not justify the failure to fulfil obligations.

4. I therefore propose that the Court should uphold the application in so far as it concerns the infringement of Directives 91/628/EEC and 92/35/EEC and order, pursuant to Article 69(2) and (5) of the Rules of Procedure, the defendant State to pay the costs.

( *1 ) Original language: Italian.

( 1 ) OJ 1991 L 46, p. 1.

( 2 ) OJ 1991 L 340, p. 17.

( 3 ) OJ 1992 L 157, p. 19.

( 4 ) The present case involves, more specifically, discontinuance of part of the action, not provided for in Article 78 of the Rules of Procedure, which seems, rather, to provide only for discontinuance of the proceedings as a whole. Discontinuance of the action entails removal of the case from the register. However, the Court has held on previous occasions (see, most recently, Case C-257/94 Commission v Italy [1995] ECR I-3041) that the parties may proceed to such a partial discontinuance. This is justified on the basis of the difference between the formal claim, consisting in the unicity of the request seeking a declaration that the French Republic has failed to fulfil obligations, contained in a single action, albeit in respect of several infringements, and the substantive claim, characterized by the actual coexistence of several parallel actions for failure to fulfil obligations formally brought together in a single application initiating the proceedings, each, however, with a different subject-matter and, therefore, procedurally unrelated.

( 5 ) See, among many others, Case C-147/94 Commission v Spain [1995] ECR I-1015.