Opinion of Mr Advocate General Tesauro delivered on 22 November 1994. - Commission of the European Communities v Kingdom of the Netherlands. - Failure to fulfil obligations - Council Directive 90/667/EEC - Failure to transpose within the prescribed period. - Case C-93/94.



European Court reports 1995 Page I-00077



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1. In the case now before the Court, the Commission seeks a declaration that, by failing to adopt within the prescribed period the measures necessary to comply with Council Directive 90/667/EEC of 27 November 1990 laying down the veterinary rules for the disposal and processing of animal waste, for its placing on the market and for the prevention of pathogens in feedstuffs of animal or fish origin and amending Directive 90/425/EEC, (1) the Kingdom of the Netherlands has failed to fulfil its obligations under the EEC Treaty.

2. Under Article 21(1) of that directive, Member States are required to ensure its transposition into domestic law by 31 December 1991 at the latest.

Since the Netherlands failed to take steps to implement the directive by that date, the Commission initiated infringement proceedings under Article 169 of the Treaty by letter of formal notice of 20 May 1992. Notwithstanding assurances on that point from the Netherlands authorities, the directive still remained to be implemented on the expiry of the two-month period prescribed in the reasoned opinion of 14 April 1993. On 17 March 1994 the Commission therefore brought the present proceedings.

3. At this point it is appropriate to point out that, in both the letter of formal notice and the reasoned opinion, the Commission charged the Government of the Netherlands only with the latter' s failure to fulfil its obligations under the directive itself and under the third paragraph of Article 189 of the Treaty in conjunction with the first paragraph of Article 5 of the Treaty. In contrast, in the application initiating the proceedings, the Commission claimed that, since the failure to transpose the directive by 31 December 1991 is of a nature such as to jeopardize the establishment of the internal market, it also constitutes an infringement of Article 7a of the Treaty, considered in the light of Article 5.

Suffice it to note in that connection that, as the Court has consistently held, (2) the subject-matter of proceedings brought under Article 169 of the Treaty is delimited by the pre-litigation procedure provided for in that article and by the form of order sought in the application to the Court, and that both the reasoned opinion and the application must be based on the same grounds and on the same pleas in law. Consequently, in so far as it refers to Article 7a of the Treaty, the Commission' s application is in any event inadmissible.

4. And so we come to the substance. The Government of the Netherlands does not contest the infringement alleged against it: it confines itself, first, to justifying its failure to transpose the directive within the prescribed period by reference to the complexity of the legislative amendments to be adopted and the delays which have arisen in the course of the relevant parliamentary procedures; and, secondly, to emphasizing that the implementing measures ought now to come into force very soon.

Since it is uncontested that Directive 90/667/EEC was not implemented by the date set in Article 21, the Commission' s claim that in respect of that directive there has been a failure to fulfil obligations must therefore be upheld.

5. However, with respect to the claim that the Netherlands has failed to fulfil its obligations under Articles 5 and 189 of the Treaty, I would remind the Court that, according to the relevant case-law, (3) the fact that a Member State has failed to fulfil specific obligations incumbent upon it under a directive makes it unnecessary to examine whether it has thereby also failed to fulfil its obligations under Article 5 of the Treaty. (4)

Consequently, it is sufficient to declare that the Netherlands has failed to fulfil its obligations under the directive itself and, specifically, under Article 21.

6. In the light of the foregoing I therefore propose that the Court:

° declare that, by failing to adopt within the prescribed period the measures necessary to comply with Council Directive 90/667/EEC, the Kingdom of the Netherlands has failed to fulfil its obligations under that directive;

° order the Kingdom of the Netherlands to pay the costs.

(*) Original language: Italian.

(1) ° OJ 1990 L 363, p. 51.

(2) ° See the judgment in Case C-243/89 Commission v Denmark [1993] ECR I-3353, paragraph 13.

(3) ° See, most recently, the judgment in Case C-65/94 Commission v Belgium [1994] ECR I-0000, paragraph 5.

(4) ° In that connection I ought to point out that the same logic applies in respect of the alleged infringement of Articles 7a and 5 of the Treaty, provided of course that in such cases reference to that legal basis has already been made during the pre-litigation procedure and is not confined, as in the present case, to the application initiating the proceedings.