Opinion of Mr Advocate General Saggio delivered on 25 June 1998. - Commission of the European Communities v French Republic. - Failure of a Member State to fulfil its obligations - Directive 93/40/EEC - Failure to transpose within the prescribed period. - Case C-284/97.



European Court reports 1998 Page I-06091



Opinion of the Advocate-General

1. On 1 August 1997, the Commission of the European Communities brought an action under Article 169 of the EC Treaty for a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 93/40/EEC of 14 June 1993 amending Directives 81/851/EEC and 81/852/EEC on the approximation of the laws of the Member States relating to veterinary medicinal products (hereinafter `the Directive'), (1) the French Republic has failed to fulfil its obligations under the EC Treaty and the Directive.

2. Under the first paragraph of Article 3 of the Directive, Member States were to take all appropriate measures to comply with the Directive, with the exception of Article 1(7), before 1 January 1995 and forthwith to inform the Commission thereof.

3. Since it had not received any communication relating to the transposition of the Directive into French law and had no information to show that the French Republic had fulfilled its obligation to comply with the provisions of the Directive, on 2 August 1995, under the procedure provided for by Article 169 of the Treaty, the Commission called on that State to submit its observations within a period of two months.

4. By letter of 25 October 1995 from the French permanent representation to the European Union, the French authorities informed the Commission that to implement the Directive it was necessary to amend the Public Health Code (code de la santé publique) and pointed out that a preliminary draft (avant-projet) law had been prepared and would be incorporated in a future draft law.

5. In the absence of any further information on the adoption of such measures, the Commission, by letter of 26 September 1996, sent a reasoned opinion to the French Republic, expressing the view that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with the Directive it had failed to fulfil its obligations under the Directive. The Commission also called on the French Republic, pursuant to the second paragraph of Article 169, to take the measures necessary to comply with that reasoned opinion within two months of its notification.

6. In its application the Commission points out that since, according to settled case-law, the Member States to whom a directive is addressed are obliged to bring their domestic legislation into line with the provisions of that directive within the period prescribed therein and may not plead provisions, practices or circumstances existing in their internal legal systems in order to justify a failure to comply with the obligations and time-limits laid down in Community directives, the defendant State has failed to fulfil its obligations under the Directive inasmuch as on expiry of the period prescribed by the Directive it had not adopted any measures to implement the provisions thereof.

7. In its defence the French Republic does not dispute that it had failed to adopt the domestic provisions necessary to implement the Directive, merely pointing out that, to transpose the Directive the adoption of a law or decree (décret) amending the Public Health Code was required and that the drafting of the documents required was now almost complete.

8. In the light of the evidence put forward by the parties I consider that the application brought by the Commission is well founded. The French Republic has not implemented the provisions of the Directive within the period prescribed by Article 3 thereof. Moreover, it must be borne in mind that, according to consistent case-law, the fact that the procedure for transposing the Directive was in progress, as argued by the defendant government, does not mean that the application is unfounded or devoid of purpose since `the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion, and subsequent changes cannot be taken into account'. (2)

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

(1) declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 93/40/EEC of 14 June 1993 amending Directives 81/851/EEC and 81/852/EEC on the approximation of the laws of the Member States relating to veterinary medicinal products, the French Republic has failed to fulfil its obligations under that directive;

(2) order the French Republic to pay the costs.

(1) - OJ 1993 L 214, p. 31.

(2) - See, most recently, Joined Cases C-232/95 and C-233/95 Commission v Greece [1998] ECR I-3343.