Opinion of Mr Advocate General La Pergola delivered on 17 September 1998. - Commission of the European Communities v Ireland. - Failure to fulfil obligations - Failure to transpose Directive 93/103/EC. - Case C-364/97.



European Court reports 1998 Page I-06593



Opinion of the Advocate-General

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

1 In the present proceedings, the Commission of the European Communities has asked the Court to declare that, within the meaning and for the purposes of Article 171 of the EC Treaty (hereinafter `the Treaty'), Ireland has failed to fulfil its obligations under Article 189, third paragraph, of the Treaty and Article 13(1) of Council Directive 93/103/EC of 23 November 1993 concerning the minimum safety and health requirements for work on board fishing vessels (thirteenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (hereinafter `the Directive'). (1)

2 Pursuant to Article 13 of the Directive, Member States were required to bring into force the laws, regulations and administrative provisions necessary to comply with that Directive by 23 November 1995, and to inform the Commission thereof immediately. The Commission did not receive any communication from Ireland regarding transposition of the Directive and had no information enabling it to confirm whether or not Ireland had in fact fulfilled its obligations. Accordingly, on 27 February 1996 the Commission initiated the procedure laid down in Article 169 of the Treaty, sending the Irish Government a letter of formal notice, inviting it to submit its observations within two months. In the absence of any official reply to that letter, the Commission delivered a reasoned opinion to the Irish authorities on 23 December 1996, calling upon them to adopt the measures necessary to comply with the Directive within two months.

3 Since the Irish Government maintained its silence, the Commission brought the present proceedings on 22 October 1997. Ireland does not contest the allegation that it has failed to fulfil its obligations; however, the Irish Government requested that the present proceedings be stayed for a period of three months, since ministerial regulations for the transposition of the Directive were shortly to be adopted.

4 However, even if the facts show that the Directive in question has been transposed into national law, this cannot, to my mind, be accorded the effect of rendering the present proceedings brought by the Commission unfounded or devoid of purpose. It is settled law `that the question whether there has been a failure to fulfil obligations must be examined on the basis of the position in which the Member State found itself at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes'. (2) What matters, therefore, is solely the fact that, on expiry of the period set by the Commission in its reasoned opinion, the Directive had not yet been transposed into the Irish legal system.

II - Conclusion

In the light of the foregoing observations, I therefore propose that the Court:

- uphold the application, declaring that Ireland has failed to fulfil its obligations under Article 13(1) of Council Directive 93/103/EC of 23 November 1993 concerning the minimum safety and health requirements for work on board fishing vessels (thirteenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC), by not adopting within the prescribed period the laws, regulations and administrative provisions necessary to comply with that Directive; and

- order Ireland to pay the costs.

(1) - OJ 1993 L 307, p. 1. As stated in the seventh recital in the preamble to the Directive, the rules laid down by Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (OJ 1989 L 183, p. 1) are fully applicable to work on board fishing vessels, `without prejudice to more stringent and/or specific provisions' contained in the Directive at issue which, as its title indicates, has the status of an `individual Directive'.

(2) - See Case C-200/88 Commission v Greece [1990] ECR I-4299, paragraph 13, Case C-361/95 Commission v Spain [1997] ECR I-7351, paragraphs 13 and 14, and the most recent case, Case C-285/97 Commission v Portugal [1998] ECR I-4895, paragraph 8).