JUDGMENT OF THE COURT (Fifth Chamber)

4 February 2010 ( )

(Management of waste from extractive industries – Failure to transpose or to communicate national transposition measures)

In Case C‑259/09,

ACTION under Article 226 EC for failure to fulfil obligations, brought on 10 July 2009,

European Commission, represented by A. Marghelis and P. Van den Wyngaert, acting as Agents, with an address for service in Luxembourg,

applicant,

v

United Kingdom of Great Britain and Northern Ireland, represented by S. Ossowski, acting as Agent,

defendant,

THE COURT (Fifth Chamber),

composed of E. Levits, President of the Chamber, M. Ilešič (Rapporteur) and J.‑J. Kasel, Judges,

Advocate General: J. Mazák,

Registrar: R. Grass,

having regard to the written procedure,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 By its application, the Commission of the European Communities requests the Court to declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2006/21/EC of the European Parliament and of the Council of 15 March 2006 on the management of waste from extractive industries and amending Directive 2004/35/EC (OJ 2006 L 102, p. 15) or, in any event, by failing to communicate them to the Commission, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that directive.

2 Pursuant to Article 25(1) of Directive 2006/21, Member States were required to bring into force the laws, regulations and administrative provisions necessary to comply with the directive before 1 May 2008 and to inform the Commission forthwith thereof. In addition, when Member States adopt these measures, they must contain a reference to the directive or be accompanied by such a reference on their official publication, the methods of making such reference being laid down by the Member States.

3 Since the United Kingdom did not inform the Commission of the measures adopted by it to transpose Directive 2006/21 in all of its territory, the Commission, as it presumed that the directive had not been transposed into national law within the prescribed period, initiated the infringement procedure laid down in the first paragraph of Article 226 EC.

4 By letter dated 23 May 2008, the Commission gave the United Kingdom formal notice to submit its observations within two months of its receipt of that letter. On 22 July 2008, that Member State replied that legislation to transpose Directive 2006/21 in England, Wales and Scotland had reached an advanced stage and would come into effect at the end of 2008, whereas in Northern Ireland it would be adopted by the end of 2009. With regard to Gibraltar, the United Kingdom authorities indicated that that directive could not apply to it, since there were no mines and quarries there to which the directive could apply and it was extremely unlikely that any would open.

5 The Commission issued a reasoned opinion on 1 December 2008 in which it called on the United Kingdom to take the measures necessary for compliance with that opinion within two months of its receipt. The information communicated to the Commission by the United Kingdom following notification of that opinion, stating that it had not yet been possible to bring forward all the legislation necessary to comply with Directive 2006/21 in England, Wales, Scotland, Northern Ireland and Gibraltar, did not enable the Commission to conclude that the measures necessary to transpose the directive fully had been adopted. Consequently, the Commission decided to institute these proceedings.

6 The United Kingdom essentially acknowledges the failure to fulfil its obligations. However, it has indicated that in England and Wales the measures necessary to transpose Directive 2006/21 were adopted and implemented by 12 August 2009, whereas in Scotland and Northern Ireland that directive would be transposed shortly. Concerning Gibraltar, even though in the United Kingdom’s submission the directive is not applicable there, that Member State indicated that it was expected that the regulations transposing the directive in Gibraltar would enter into force by 31 October 2009.

7 In that regard, it must be recalled that, according to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation obtaining in the Member State at the end of the period laid down in the reasoned opinion and the Court cannot take account of any subsequent changes (see, inter alia, Case C-161/02 Commission v France [2003] ECR I-6567, paragraph 9, and Case C‑135/05 Commission v Italy [2007] ECR I‑3475, paragraph 36).

8 In the present case, it is common ground that the measures to ensure full transposition of Directive 2006/21 into United Kingdom law had not been adopted when the period laid down in the reasoned opinion expired.

9 In those circumstances, the action brought by the Commission is well founded.

10 Consequently, it must be held that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2006/21, the United Kingdom has failed to fulfil its obligations under that directive.

Costs

11 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 the Commission has applied for costs and the United Kingdom has been unsuccessful, the latter must be ordered to pay the costs.

On those grounds, the Court (Fifth Chamber) hereby:

1. Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2006/21/EC of the European Parliament and of the Council of 15 March 2006 on the management of waste from extractive industries and amending Directive 2004/35/EC, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that directive;

2. Orders the United Kingdom of Great Britain and Northern Ireland to pay the costs.

[Signatures]