Case C-416/05: Action brought on  24 November 2005  by the Commission of the European Communities against the Grand Duchy of Luxembourg
Date: 2006-01-14
Institutions: Court of Justice
Subjects: European Commission, Luxembourg, action for failure to fulfil an obligation, explosive, fine, harmonisation of standards, national implementing measure, preparation for market, safety standard

14.1.2006

EN

Official Journal of the European Union

C 10/17

Action brought on 24 November 2005 by the Commission
of the European Communities against the Grand Duchy of
Luxembourg

the measures necessary to comply with it within a period of
two months.

(Case C-416/05)

(2006/C 10/33)

(Language of the case: French)

An action against
the Grand Duchy of Luxembourg was
brought before the Court of Justice of the European Commu-
nities on 24 November 2005 by the Commission of the Euro-
and
pean Communities,
F.Simonetti, acting as Agents, with an address for service in
Luxembourg.

by C.F. Durand

represented

The Commission of the European Communities claims that the
Court should:

1. declare that, by failing to adopt the measures necessary to
comply with the judgment of the Court of Justice of the
European Communities of 2 October 2003 in Case C-89/03
concerning the failure to transpose Directive 93/15/EEC (1)
into Luxembourg law, the Grand Duchy of Luxembourg has
failed to fulfil
its obligations under Article 228(1) of the
Treaty establishing the European Community;

the European Communities,

2. order the Grand Duchy of Luxembourg to pay to the
Commission of
into the
account ‘European Community own resources’, a penalty
payment of EUR 9 000 for each day of delay in complying
with the judgment in Case C-89/03 from the day on which
judgment is delivered in the present case until the day on
which the judgment in Case C-89/03 is complied with;

3. order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments:

In its judgment of 2 October in Case C-89/03 Commission of the
European Communities v Grand Duchy of Luxembourg, the Court
declared that:
'By failing to bring into force the laws, regulations
and administrative provisions necessary to comply with Council Direc-
tive 93/15/EEC of 5 April 1993 on the harmonisation of the provi-
sions relating to the placing on the market and supervision of explo-
sives for civil uses, the Grand Duchy of Luxembourg has failed to
fulfil its obligations under that directive.'

By letter of 7 November 2003, the Commission drew the atten-
tion of
the Luxembourg authorities to the judgment of 2
October 2003 and requested that the measures adopted in
order to comply with this judgment be communicated to it.

The Luxembourg authorities indicated,
Grand Ducal regulation could be finalised at
November 2004.

in reply, that a draft
the latest by

On 14 December 2004, the Commission delivered a reasoned
opinion calling on the Grand Duchy of Luxembourg to take

In a letter of 19 September 2005, the Luxembourg authorities
referred to the fact that the Conseil d'État (Council of State), in
an opinion of 12 October 2004, considered that the scope of
the draft regulation was, in accordance with the Constitution, a
matter for loi (legislative provision).

According to the information available to the Commission, the
Grand Duchy of Luxembourg has still not transposed the direc-
tive at issue.

In accordance with the second sentence of the second sub-
paragraph of Article 228(2) EC, the Commission is to specify
in its application the amount of the lump sum or penalty
payment to be paid by the Member State concerned which it
considers appropriate in the circumstances.

In this instance, the Commission takes the view that a penalty
payment of EUR 9 000 a day fits the seriousness and duration
of the infringement and takes into consideration the need to
give this penalty payment the required deterrent effect.

(1) Council Directive 93/15/EEC of 5 April 1993 on the harmonisation
of the provisions relating to the placing on the market and supervi-
sion of explosives for civil uses (OJ L 121, 15.5.1993, p. 20).

Appeal brought on 24 November 2005 by the Commission
of the European Communities against the judgment deliv-
ered on 13 September 2005 by the Court of First Instance
of the European Communities (First Chamber) in Case T-
272/03 M.D. Fernández Gómez v Commission of the Euro-
pean Communities

(Case C-417/05 P)

(2006/C 10/34)

(Language of the case: French)

An appeal against the judgment delivered on 13 September
2005 by the Court of First Instance of the European Commu-
nities (First Chamber) in Case T-272/03 M.D. Fernández Gómez
v Commission of the European Communities was brought before
the European Communities on 24
the Court of
November 2005 by the Commission of the European Commu-
nities, represented by D. Martin and L. Lozano Palacios, acting
as Agents.

Justice of