Opinion of Mr Advocate General Léger delivered on 7 October 1999. - Commission of the European Communities v Ireland. - Failure to fulfil obligations - Failure to transpose Directive 93/83/EEC. - Case C-212/98.



European Court reports 1999 Page I-08571



Opinion of the Advocate-General

1 By the present application, the Commission of the European Communities requests the Court to declare that, by failing to adopt, within the prescribed period, the provisions necessary to comply with Directive 93/83/EEC on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (1) (`the Directive'), Ireland has failed to fulfil its obligations under that directive.

2 Under Article 14 of the Directive, the Member States were to bring into force the laws, regulations and administrative provisions necessary to comply with it before 1 January 1995. Under the same article, they were required to inform the Commission immediately of the provisions adopted.

3 As it had not received any information relating to the transposition of the Directive into the Irish legal system, the Commission initiated the pre-litigation procedure provided for in Article 169 of the EC Treaty (now Article 226 EC).

4 By letter of 16 May 1995, the Commission gave Ireland formal notice to submit its observations within a period of two months.

5 By letter of 28 July 1995, the Irish Government stated that it had undertaken a comprehensive review of the Copyright Act 1963 and that the provisions of the Directive would be incorporated in the new legislation.

6 On 17 July 1996, the Commission sent a reasoned opinion to Ireland requesting it to comply with the Directive within a period of two months.

7 By letters of 2 and 9 August 1996, the Irish Government communicated its intention to adopt the necessary provisions as soon as possible.

8 The Commission brought the present action on 9 June 1998.

9 In its pleadings, the Irish Government does not deny the complaint made against it. Nevertheless, it makes two sets of observations.

10 First, it describes a number of difficulties connected with the scale of the reform of the Copyright Act and the need to implement the Directive by way of primary legislation rather than regulation.

On this point, we must bear in mind that, according to settled case-law, the Court of Justice considers that a Member State cannot rely on provisions, practices or circumstances existing in its internal legal order in order to justify its failure to comply with the obligations and time-limits laid down by a directive. (2)

11 Second, the Irish Government states that the measure implementing the Directive will be published shortly. It requests the Court to order that proceedings be stayed for a fixed period, in order to enable it to comply with its obligations. (3)

In my opinion, that request cannot be granted. If it agreed to stay proceedings merely on the grounds put forward by the Irish Government, the Court would be condoning Ireland's failure to fulfil its obligations rather than adjudicating on the existence of that failure.

12 Consequently, I propose that the Court should allow the Commission's application.

13 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 Ireland has been unsuccessful, it should be ordered to pay the costs, as requested by the Commission.

Conclusion

14 On the basis of the foregoing, I propose that the Court:

`(1) declare that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission, Ireland has failed to fulfil its obligations under Article 14 of that directive;

(2) order Ireland to pay the costs.'

(1) - Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (OJ 1993 L 248, p. 15).

(2) - See, for example, Case C-238/95 Commission v Italy [1996] ECR I-1451, paragraph 7; and Case C-323/96 Commission v Belgium [1998] ECR I-5063, paragraph 42.

(3) - The Irish Government states that `... [after] a period of six months ... the Commission, ... having examined the Irish legislation will find it possible to discontinue the proceedings so that the Court of Justice will not be troubled further with this case' (point 6 of the Defence).