Opinion of Mr Advocate General La Pergola delivered on 30 April 1998. - Commission of the European Communities v Portuguese Republic. - Failure of a Member State to fulfil its obligations - Failure to transpose Directive 94/51/EC within the prescribed period. - Case C-285/97.



European Court reports 1998 Page I-04895



Opinion of the Advocate-General

I - Subject-matter of the present proceedings, arguments of the parties and legal analysis

1 The Commission of the European Communities has requested the Court in the present proceedings to declare, pursuant to Article 171 of the EC Treaty, that the Portuguese Republic has failed to fulfil its obligations under the third paragraph of Article 189 of the Treaty and Article 2 of Commission Directive 94/51/EC of 7 November 1994 adapting to technical progress Council Directive 90/219/EEC on the contained use of genetically modified micro-organisms (`the Directive'). (1) Through that directive the Commission - having regard to the experience gained in the field and to technical progress generally in the biotechnology sector - replaced Annex II to Directive 90/219/EEC on the contained use of genetically modified micro-organisms. (2) That annex sets out the criteria for determining the classification of such micro-organisms - having regard to the risks they present - into Group I, one of the two groups set up by the Council at the material time.

2 Under Article 2 of the Directive, the Member States were to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive by 30 April 1995 and inform the Commission thereof forthwith.

Since it had not received any notification concerning the transposition of the Directive and had no other information to justify its finding that Portugal had in fact complied with its obligations, the Commission initiated on 2 August 1995 the infringement procedure under Article 169 of the Treaty by sending the Portuguese Government a letter of formal notice whereby it called upon it to submit its observations within two months. By letter of 27 August 1996 Portugal replied that it had taken steps to implement the Directive by Portaria (Implementing Order) No 602/94 of 13 July 1994, and that that measure had already been notified to the Commission together with the other national implementing measures adopted in July 1994. The Commission's analysis of the abovementioned national measure nevertheless gave the lie to the Portuguese authorities' assertions. It disclosed that, if at all, that measure implemented Directive 90/219/EEC, and specifically Annex II thereto, in its original version, which was subsequently replaced by Directive 94/51/EC. On 27 December 1996, having found continuing failure to comply with the obligation to adopt in good time the measures necessary to comply with the Directive, the Commission sent the Portuguese authorities a reasoned opinion, at the same time calling upon it to adopt such measures within two months from the date of its notification.

3 Since no reply was forthcoming concerning the transposition of the Directive, on 1 August 1997 the Commission brought the present action. Portugal does not deny the infringement it is alleged to have committed, but points out that on 26 March 1998 the Council of Ministers approved a measure which was intended to transpose the Directive and whose publication in the Diário da República, the Portuguese official gazette, was imminent.

4 None the less, should it prove to be the case that the Directive was transposed in the course of the proceedings, this cannot, in my view, have the effect of rendering the present action of the Commission unfounded or devoid of purpose. According to the settled case-law of the Court, `the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation in the Member State as it stood at the end of the period laid down in the reasoned opinion, the Court [not being able] to take account of any subsequent changes'. (3)

The only thing which counts, therefore, is the fact that, upon the expiry of the period laid down by the Commission in its reasoned opinion, the Directive had still not been transposed into Portuguese domestic law.

II - Conclusions

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

- allow the application and declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 94/51/EC of 7 November 1994 adapting to technical progress Council Directive 90/219/EEC on the contained use of genetically modified micro-organisms, the Portuguese Republic has failed to fulfil its obligations under Article 2 of that directive; and

- order the Portuguese Republic to pay the costs.

(1) - OJ 1994 L 297, p. 29.

(2) - OJ 1990 L 117, p. 1.

(3) - See Case C-200/88 Commission v Greece [1990] ECR I-4299, paragraph 13 and, most recently, Case C-361/95 Commission v Spain [1997] ECR I-7351, paragraphs 13 and 14.