Opinion of Mr Advocate General Elmer delivered on 21 March 1996. - Commission of the European Communities v Grand Duchy of Luxemburg. - Removal from the register. - Case C-46/95.



European Court reports 1997 Page I-01279



Opinion of the Advocate-General

1 In the present Treaty-infringement proceedings, the Commission is seeking a declaration that, by failing to adopt all the laws, regulations and administrative provisions necessary in order to implement Council Directive 89/618/Euratom of 27 November 1989 on informing the general public about health protection measures to be applied and steps to be taken in the event of a radiological emergency (1) (hereinafter `the directive'), or by failing to inform the Commission of the measures taken by it to comply with that directive, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive and the Euratom Treaty.

2 The directive sets out rules on how the population likely to be affected in the event of a radiological emergency is to be given information about the action which it should take if such an emergency arises (Article 5). The directive also contains rules on informing the population actually affected by a radiological emergency (Article 6) and on the provision of information to persons who might be involved in the organization of emergency assistance in the event of a radiological emergency (Article 7).

3 Member States were required under Article 12 to take the measures necessary to comply with the directive not later than 24 months after its adoption and to inform the Commission thereof. The Grand Duchy of Luxembourg was thus required to implement the directive within its national legal order by no later than 27 November 1991.

4 Approximately two months before the above period expired, the Commission received a report from the Luxembourg Government concerning implementation of the directive. The Government pointed out that a brochure entitled `Que faire en cas d'accident dans une centrale nucléaire' (hereinafter `the brochure') had been distributed to all households and that a disaster plan to deal with nuclear accidents had been drawn up in 1986. The Government also pointed out that those persons who might be involved in the organization of emergency assistance were regularly informed of the associated health risks.

5 In the absence of notification by the Luxembourg Government of any other measures to implement the directive, the Commission, by a letter of 28 June 1993, put that Government on notice to comply with its obligations under the directive. The Commission did not receive any official response to that letter of formal notice. However, in an annex to a letter sent to the Commission on 6 April 1994 by the office of Luxembourg's Permanent Representative to the European Union, the Luxembourg Government stated that it did not consider it appropriate to implement the directive by way of laws, regulations or administrative provisions, but that the information intended for the population was contained in a plan which had been distributed to the entire population. By letter of 4 May 1994, the Commission, referring to its letter of formal notice, informed the Luxembourg Government that the measures notified could not be regarded as sufficient for implementation of the directive.

6 In the absence of any further reply from the Luxembourg Government, the Commission sent a reasoned opinion on 7 June 1994 requesting it to adopt the measures necessary to comply with the directive within two months of notification. No reply to that reasoned opinion was forthcoming.

7 The Commission thereupon brought the present Treaty-infringement proceedings in which it seeks the form of order outlined above.

8 In its defence, the Luxembourg Government submits that the Court should rule in its favour on the ground that it has adopted all the measures necessary for implementation of the directive. In this connection, the Luxembourg Government relies, in regard to Article 5 of the directive, on the distribution of the brochure (in French, German and Portuguese) to all households, as well as on the annual publication since 1986 of practical information in telephone directories. Regarding Article 6 of the directive, the Government further refers to the `Plan particulier d'intervention en cas d'incident ou d'accident à la centrale électronucléaire de Cattenom' (hereinafter `the plan'), which contains a number of draft announcements to be broadcast by radio in the event of a nuclear accident. With regard to Article 7 of the directive, the Government submits that the persons concerned do in practice receive the required information on an ongoing basis. The Luxembourg Government also points out that it is in the process of drafting a Grand-Ducal Decree which reproduces the provisions of the directive. That decree, however, cannot, in the view of the Luxembourg Government, be regarded as constituting a late implementation of the directive.

9 The Commission takes the view that the distribution of a brochure and the publication of practical information in telephone directories do not satisfactorily implement Article 5 of the directive, since there are no provisions requiring the authorities to update information and make it accessible to the public. The same applies in respect of the plan ostensibly giving effect to Article 6 of the directive. Moreover, that plan appears to deal only with one single nuclear power station. Finally, Article 7 has not been correctly implemented inasmuch as the required information is only in practice given to the persons concerned on an ongoing basis.

10 The Court has consistently held that, in order to ensure that directives are fully applied in fact as well as in law, Member States must provide a precise legal framework in the field in question, by adopting rules of law capable of creating a situation which is sufficiently precise, clear and transparent to allow individuals to know their rights and obligations and rely on them before the national courts. This the Court has, inter alia, most recently held in a case brought against the Grand Duchy of Luxembourg (2) concerning the transposition into Luxembourg law of Council Directive 92/44/EEC of 5 June 1992 on the application of open network provision to leased lines. (3)

11 One might ask whether the above case-law of the Court can be regarded as appropriate in a case such as the present, since it is possible at the outset to have some sympathy for the highly practical manner in which the Luxembourg Government has given effect to the directive in this case.

I would, however, stress in this connection that the implementation of Article 5 of the directive in Luxembourg law by way of, inter alia, distribution of the brochure to all households must be regarded as problematic, since, in the first place, the brochure will not have been sent to anyone who moved to Luxembourg at a date subsequent to its distribution, and, second, it is very likely that many of the households to whom the brochure was originally sent will no longer be in possession of it. Finally, there are no rules which guarantee that the Luxembourg Government will in future redistribute the brochure.

In addition, I take the view that implementation of Article 6 of the directive by way of the plan to deal with an accident at the Cattenom nuclear power station is inadequate. In the first place, the plan deals only with this one nuclear power station, and thus no general disaster plan has been drawn up with regard to potential accidents at other nuclear power stations. Nor are there, with regard to Article 6, any rules which guarantee that the Luxembourg Government will maintain the disaster plan, keep it up to date, and so forth.

Finally, in relation to Article 7, the Luxembourg Government has merely pointed out that the necessary information is in practice given to the persons concerned. The assumption is therefore that, for a correct implementation of that article, it suffices that the Luxembourg Government gives its word that the rule is being complied with. That cannot, in my opinion, be regarded as a satisfactory situation for those persons who might be involved in the organization of emergency assistance, since those persons, who may well be ordinary civilians, such as privately-employed ambulance staff, do not thereby have any guarantee that the Government is meeting its obligations.

12 Against that background, I find that, in accordance with the Court's case-law to date, the Grand Duchy of Luxembourg has failed to adopt within the prescribed period the laws, regulations and administrative provisions which must be regarded as necessary, first, to ensure that the authorities comply on an ongoing basis with the requirements set out in the directive regarding the provision of information to the population, and, second, to enable individuals to be fully aware of their rights under the directive and, if necessary, to rely on them before national courts.

13 It ought therefore, in my opinion, to be held that, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with the provisions of the directive, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 12 of the directive and the Euratom Treaty.

14 The Commission has applied for costs to be awarded against the Grand Duchy of Luxembourg. 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.

Conclusion

15 I accordingly propose that the Court rule as follows:

(1) By failing to adopt all the measures necessary in order to implement Council Directive 89/618/Euratom of 27 November 1989 on informing the general public about health protection measures to be applied and steps to be taken in the event of a radiological emergency, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive and the Euratom Treaty.

(2) The Grand Duchy of Luxembourg is ordered to pay the costs of the proceedings.

(1) - OJ 1989 L 357, p. 31.

(2) - Case C-220/94 Commission v Luxembourg [1995] ECR I-1589, paragraph 10.

(3) - OJ 1992 L 165, p. 27.