Opinion of Mr Advocate General Fennelly delivered on 28 October 1999. - Commission of the European Communities v Hellenic Republic. - Failure by a Member State to fulfil its obligations - Failure to transpose Directive 96/43/EC. - Case C-137/99.



European Court reports 1999 Page I-09009



Opinion of the Advocate-General

Legal and factual background

1 The Commission has brought the present action against the Hellenic Republic under Article 169 of the EC Treaty (now Article 226 EC) in respect of its alleged non-transposition of Council Directive 96/43/EC of 26 June 1996 amending and consolidating Directive 85/73/EEC in order to ensure financing of veterinary inspections and controls on live animals and certain animal products and amending Directives 90/675/EEC and 91/496/EEC (1) (hereinafter `the Directive').

2 The provisions of the Directive require the Member States to ensure, in accordance with detailed arrangements specified for different sectors and activities, that a Community fee is collected to cover the costs occasioned by veterinary inspections of and controls on the products concerned. The permissible amount of fees is set out in detail, while Member States are entitled to vary the fees, in accordance with specified methods, provided that they do not exceed the actual cost of inspections. The Directive also provides for exchanges of information between the Member States and the Commission. Article 4(1) of the Directive provides for the timely transposition of the Directive as follows:

`Member States shall bring into force laws, regulations and administrative provisions necessary to comply with:

(i) the provisions of Article 7 and of Chapter I(1)(e) of Annex A by 1 July 1996;

(ii) the provisions of Chapter II, Section II of Chapter III of Annex A and Chapter II of Annex C by 1 January 1997;

(iii) other amendments by 1 July 1997.

Member States shall have a further period which can extend to 1 July 1999 within which to comply with the provisions of Section I of Chapter III of Annex A ... .'

3 Having received no communication regarding measures taken to transpose the Directive, the Commission issued to the Hellenic Republic a letter of formal notice of 5 November 1997, seeking the latter's comments within two months. It seems clear that this letter must be interpreted as referring to the obligations set out in Article 4(1), paragraphs (i), (ii) and (iii) of the Directive and not to those compliance with which was postponed to 1 July 1999. The Commission was dissatisfied with the reply of 8 January 1998 that the necessary measures were being prepared and issued a reasoned opinion on 29 July 1998 to the effect that the Hellenic Republic had failed to fulfil its obligations under the Directive. In the absence of any response, the Commission commenced these proceedings on 19 April 1999. They are based on Article 4 of the Directive, Article 5 of the EC Treaty (now Article 10 EC) and the third paragraph of Article 189 of the EC Treaty (now the third paragraph of Article 249 EC). The Commission requests the Court to declare that the Hellenic Republic is in breach of its obligations under the Treaty and the Directive by virtue of its failure to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive and to require the Hellenic Republic to pay the costs of the action.

4 It is clear from the summary of Article 4(1) of the Directive given at the outset of its application that the Commission does not seek - as it could not - any declaration regarding the obligations which are set out in Section I of Chapter III of Annex A to the Directive, in respect of which the Member States had a period for compliance extending to 1 July 1999. Although the declaration sought is in general terms, it is clear that the latter must be excluded from the subject-matter of these proceedings. (2)

5 In its defence, the Greek Government requests the Court to dismiss the action. It states that a provision has been inserted in a draft law, which has already been signed, permitting the Ministers for Finance and for Agriculture to issue joint decrees, whether or not pursuant to acts of the institutions of the European Union, imposing charges for veterinary inspections and controls, fixing the amount of such charges, identifying the persons subject to pay such charges and the authorities which are to collect them, specifying the use to which such charges are to be put and regulating all other incidental matters.

6 This does not appear to me to constitute an adequate defence to the Commission's action. The Greek Government has not indicated that the provision in question has entered into force, or had done so at the expiry either of any of the various implementation dates specified for different parts of the Directive or of the period fixed in the reasoned opinion. Its description as a provision of a `draft law' clearly implies the contrary.

7 As the Commission has, in my view, successfully proved its case regarding the Hellenic Republic's non-compliance with its obligation to transpose the Directive, with the exception of Section I of Chapter III of Annex A thereof, it should be awarded its costs pursuant to Article 69(2) of the Rules of Procedure of the Court of Justice.

Conclusion

8 In the light of the foregoing, I propose that the Court:

- Declare that, by not adopting the legislative, regulatory and administrative measures necessary to comply with its obligations under Article 4(1), paragraphs (i), (ii) and (iii) of Council Directive 96/43/EC of 26 June 1996 amending and consolidating Directive 85/73/EEC in order to ensure financing of veterinary inspections and controls on live animals and certain animal products and amending Directives 90/675/EEC and 91/496/EEC, the Hellenic Republic has failed to fulfil its obligations under the Treaty;

- Order the Hellenic Republic to pay the costs of these proceedings.

(1) - OJ 1996 L 162, p. 1.

(2) - See Case 31/69 Commission v Italy [1970] ECR 25, paragraphs 11 to 14.