Opinion of Mr Advocate General Ruiz-Jarabo Colomer delivered on 15 April 1997. - Commission of the European Communities v Federal Republic of Germany. - Failure to fulfil obligations - Directive 92/116/EEC - Failure to transpose within the prescribed period. - Case C-138/96.



European Court reports 1997 Page I-03317



Opinion of the Advocate-General

1 By application lodged at the Registry of the Court of Justice on 25 April 1996, the Commission brought an action under Article 169 of the EC Treaty for a declaration that by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with Council Directive 92/116/EEC of 17 December 1992 amending and updating Directive 71/118/EEC on health problems affecting trade in fresh poultrymeat, (1) the Federal Republic of Germany has failed to fulfil its obligations under that directive.

2 Article 3(1) of Directive 92/116, amending the Community rules relating to health problems in trade in fresh poultrymeat in order to adapt them to the introduction of the internal market, provides that Member States are to adopt the laws, regulations and administrative provisions necessary to comply with the directive not later than 1 January 1994 and forthwith to inform the Commission thereof. That time-limit is extended to 1 January 1995 in the case of the new German Länder covered by restructuring plans.

3 Since it had received no information regarding the adaptation of German law to Directive 92/116 within the prescribed time, the Commission, acting in pursuance of Article 169 of the Treaty, sent the German Government a formal letter on 10 February 1994 requesting it to submit its observations on the failure to adapt its domestic law to the directive.

4 By letter of 28 April 1994 the German Government informed the Commission that a draft law on health inspections of poultrymeat intended to implement Directive 92/116 would be laid before Parliament before the end of the first half of 1994.

5 Since no national provision adapting domestic law to the directive in question was communicated, the Commission, by letter of 5 October 1994, delivered a reasoned opinion to the German Government accusing it of failing to fulfil its obligations under the directive and requesting it to adopt the measures necessary to comply with the opinion within two months.

6 By letter of 12 December 1994 the German Government informed the Commission that it had not been possible to adhere to the timetable initially envisaged for implementing Directive 92/116. The draft law had been discussed in the Bundesrat and was to be submitted to the Bundestag at the beginning of 1995 so that it could be adopted in the spring of that year. By letter of 15 August 1995 the German Government informed the Commission that there had been a further delay in adopting the draft law owing to the problems which had arisen in dealing with it in the Bundestag, as a result of which the Federal Government had been asked to request the Commission to amend the directive in order to allow producers marketing fewer than 10 000 animals per annum to sell poultrymeat from their holdings not only to consumers but also to restaurants and communities, provided that the animals were given regular veterinary inspections.

7 Having received no further information from the German Government regarding the adaptation of its domestic law to Directive 92/116, the Commission decided to bring the present action.

8 Pursuant to Articles 5 and 189 of the EC Treaty and Article 3 of Directive 92/116, the Federal Republic of Germany was required fully to adapt its domestic law to the directive within the prescribed time. According to the settled case-law of the Court, 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 this case Germany does not deny the Commission's charge that it failed to fulfil its obligations under Directive 92/116. None the less, the German Government suggests that the infringement proceedings should be stayed because the request that the Community rules be amended caused a major delay in adapting German law to the directive and because the law on health measures applicable to poultrymeat was adopted on 17 July 1996 (2) and the rules for its implementation will be adopted shortly.

The Government's suggestion is irrelevant, since in this case there are no circumstances which would justify a decision to stay proceedings pursuant to Article 82a(1)(b) of the Rules of Procedure.

10 In this case the Commission has demonstrated beyond doubt and without being contradicted by the German Government that the Federal Republic of Germany did not adopt within the prescribed time the laws, regulations and administrative provisions necessary to comply with Directive 92/116. It is therefore appropriate to consider the Commission's action independently of whether or not Germany adapted its domestic law to bring it into line with the directive after the time prescribed therein had expired.

11 Since the Commission's action is well founded and its claims must be upheld, the Federal Republic of Germany should be ordered to pay the costs, pursuant to Article 69(2) of the Rules of Procedure.

Conclusion

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

(1) declare that, by not adopting within the prescribed time the laws, regulations and administrative provisions necessary to comply with Council Directive 92/116/EEC of 17 December 1992 amending and updating Directive 71/118/EEC on health problems affecting trade in fresh poultrymeat, the Federal Republic of Germany has failed to fulfil its obligations under Article 3 of that directive;

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

(1) - OJ 1993 L 62, p. 1.

(2) - Bundesgesetzblatt I, 23 July 1996, p. 991.