Source: EURLEX
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28 . 9 . 92 Official Journal of the European Communities No C 250 / 1

I

( Information )

COMMISSION

NINTH ANNUAL REPORT

to the European Parliament

on Commission monitoring of the application of Community law

— 1991 —

( 92 / C 250 / 01 )

COM(92 ) 136 final

28 . 9 . 92 Official Journal of the European Communities No C 250 / 3

CONTENTS

Page

I. INTRODUCTION 6

II . SECTOR-BY-SECTOR ANALYSIS 8

A. A Europe without frontiers 8

1 . Removal of physical barriers 10

( a ) Customs Union 10

( b ) Free movement of agricultural products 11

2 . Removal of technical barriers 13

( a ) Free movement of goods 13

( b ) Market in services and capital 17

( 1 ) The market for services 17

( 2 ) Capital movements 18

( c ) Freedom to provide financial services, direct taxation and company law 19

3 . Removal of tax barriers 20

4 . Free movement of persons 22

( a ) Ban on discrimination 22

( b ) Entry and residence 23

( c ) Equal treatment — trade union rights 23

( d ) Access to employment in the public service 23

( e ) Recognition of qualifications 23

( f ) Independent commercial agents 26

5 . Consumer policy and product safety 26

B. Employment and social policy 27

1 . Equal treatment 27

2 . The anti-cancer campaign 28

3 . Social security for migrant workers 28

4 . Working conditions 28

C. Common agricultural and fisheries policies 29

1 . Common agricultural policy 29

2 . Common fisheries policy 33

D. Competition 35

1 . Public undertakings 35

2 . Monopolies 35

E. Transport 36

1 . Road transport 36

2 . Inland waterways 37

No C 250 / 4 Official Journal of the European Communities 28 . 9 . 92

Page

F. Environment 38

1 . Protection of wild fauna and flora 38

2 . Water 38

3 . Air 38

4 . Noise 39

5 . Waste ; chemical and biochemical substances 39

G. Energy 39

1 . Petroleum products 39

2 . Transit of electricity 39

3 . Transparency of prices 40

4 . Coal 40

H. External dimension 40

1 . External relations 40

2 . Development cooperation 40

I. Statistical, administrative and budgetary matters 40

1 . Statistics 40

2 . Community staff 41

3 . Budgetary matters 42

III . TABLES, CHARTS AND SUMMARIES 42

No 1 Infringement proceedings initiated since 1987, classified by stage of proceedings and
Member State 43

No 2 Number of letters of formal notice, 1986 to 1991, classified by sector 44

No 3 Number of reasoned opinions, 1986 to 1991, classified by sector 45

No 4 Number of references to the Court of Justice, 1986 to 1991, classified by sector 46

No 5 Infringement proceedings initiated since 1984, classified by stage of proceedings and
sector 47

No 6 Infringement proceedings initiated since 1984, classified by sector and legal basis 48

No 7 Number of infringement proceedings initiated since 1984, classified by legal basis and
stage of proceedings 49

No 8 Number of infringement proceedings initiated since 1988, classified by Member State,
legal basis and stage of proceedings 50

28 . 9 . 92 Official Journal of the European Communities No C 250 / 5

Page

No 9 References to Court and judgments since 1987 51

No 10 Court of Justice judgments delivered up to 31 December 1991, not complied with 55

No 11 Application of Community law by national courts 70

No 12 Statistics on complaints and infringements detected by the Commission 's own inquiries 73

IV . ANNEXES

A. Infringements of the Treaties and of Regulations 78

B. Infringement of Directives 96

C. Monitoring of the application by Member States of environment Directives 150

No C 250 / 6 Official Journal of the European Communities 28 . 9 . 92

I. INTRODUCTION

The annual report on monitoring of the application of MEPs are playing an increasingly significant role,
Community Law (') is produced in response to a request too :
made by Parliament in its resolution of 9 February

1983 ( 2 ). In point 2 of declaration No 19 on the
implementation of Community law annexed to the
Treaty on European Union signed in Maastricht on 7
February 1992, the Conference ' asks the Commission to
publish periodically a full report for the member States
and the European Parliament .' This ninth report is the
response to the two requests .

— the sharp rise in the number of Article 169 ( EEC )

proceedings should not hide the fact that the
Commission uses this instrument to put an end to
infringements — in particular to secure proper
implementation of directives — without actions
necessarily having to be brought before the Court of
Justice ;

It comprises a sector-by-sector analysis, which is
followed by a set of tables and charts and three annexes : — contacts with the national authorities are playing an

increasingly important role ;

— a list of infringements of the Treaties and regulations — the same is true of measures to enhance under ­

at 31 December 1991 ( Annex A ),
standing and knowledge of Community law .

— a list of infringements of directives at 31 December

1991 ( Annex B ), Implementation of directives

— a review of the application of environmental In point 1 of the abovementioned declaration annexed to
directives at 31 December 1991, as requested by the the Treaty on European Union, ' the Conference stresses
Dublin European Council in June 1990 ( Annex C ). that it is central to the coherence and unity of the

process of European construction that each Member
State should fully and accurately transpose into national
law the Community directives addressed to in within the
A number of points emerge from the report : deadlines laid down therein .'

— the transposal of Community law into national law,

notably the implementation of directives, is one of
the Community 's chief concerns, especially in the
run-up to 1993 ;

— complaints from citizens continue to be a key factor

in the detection of infringements . Questions by

(') First annual report COM(84 ) 181 final, 20 . 4 . 1984 .

Second annual report COM(85 ) 149 final, 23 . 4 . 1985 .
Third annual report COM(86 ) 204 final, 3 . 6 . 1986,
published in OJ No C 220, 1 . 9 . 1986 .
Fourth annual report COM(87 ) 250 final, 24 . 8 . 1987,
published in OJ No C 338, 16 . 12 . 1987 .
Fifth annual report COM(88 ) 425 final, 13 . 9 . 1988,
published in OJ No C 310, 5 . 12 . 1988 .
Sixth annual report COM(89 ) 411 final, 22 . 12 . 1989,
published in OJ No C 330, 30 . 12 . 1989 .
Seventh annual report COM(90 ) 288 final, 22 . 5 . 1990,
published in OJ No C 232, 17 . 9 . 1990 .
Eighth annual report COM(91 ) 231 final, 31 . 7 . 1991,
published in OJ No C 338, 31 . 12 . 1991 .
O OJ No C 68, 14 . 3 . 1983 .

The list of infringements of directives shows the diffi ­
culties encountered by Member States in keeping up with
the pace of Community legislative activity, in particular
with 174 directives becoming due for implementation in

1991 . The Commission is concerned at the delays
observed . As well as systematically initiating the Article

169 procedure, it is stepping up its contacts with national
authorities also with a view to helping them to deal with
any major risks which might compromise the opening-up
of frontiers by 1993 .

The sector-by-sector analysis includes, for each area of

Community activity, a table showing the implementation
of directives applicable at 31 December 1991 ( notifi ­
cation of implementing measures up to that time ).

As the situation in a number of Member States has

improved substantially since the end of the year ( Italy,
for instance, notified implementing measures for around
a hundred directives at the end of February under the

28 . 9 . 92 Official Journal of the European Communities No C 250 / 7

Italian ' Community Act '), it is considered worth
presenting here the position for these directives at 25
March 1992 as well as at 31 December 1991 .

Position at 31 December 1991

Directives
applicable on
31 December

1991

Directives

for which

measures

have been

notified

%

Belgium 831 733 88

Denmark 830 809 97

Germany 832 773 92,9

Greece 820 735 89,6

Spain 826 760 92

France 836 795 95

Ireland 822 721 88,6

Italy 840 643 76,5
Luxembourg 826 718 86,9

Netherlands 831 752 90

Portugal 819 701 85,5
United Kingdom 824 781 94,7

Position at 25 March 1992

Directives
applicable on
31 December

1991

Directives

for which

measures
have been

notified

%

Belgium 831 778 93,6

Denmark 830 822 99

Germany 832 808 97

Greece 820 769 93,7

Spain 826 780 94

France 836 808 96,6

Ireland 822 766 93

Italy 840 773 92

Luxembourg 826 742 89,8

Netherlands 831 790 95

Portugal 819 739 90

United Kingdom 824 799 96,9

Means of detecting infringements

Apart from the formal monitoring of measures for
implementing directives, the Commission, in its control
function, also relies on :

— complaints lodged by private individuals who have

suffered in some way in an area covered by
Community law . The number of complaints
registered is still very high, although lower than in

1990 (1 252 in 1990 as against 1 052 in 1991 ). It
should be stressed that complaints are treated in strict
confidence ( which is not breached even in this
report ),

— cases detected by the Commission itself ( 381 in 1991

as against 283 in 1990 ). Commission staff make use
of all the sources of information available ( meetings
with national experts or in Council bodies, Member

States ' official journals, national or specialized press ).
It is most important to stress that 125 of the cases
come directly or indirectly from Parliamentary
questions and 17 from petitions sent to Parliament .

Use of Article 169 of the EEC Treaty

The following picture can be painted :

— the total number of letters of formal notice fell ( 877

in 1991 compared with 960 in 1990 ). This is
accounted for by a desire to limit the number of
procedures : where a number of complaints relate to
the same subject, they are grouped together in a
single infringement file . But another reason is that in

1990 the Commission set up stricter arrangements for
sending letters of notice for failure to notify
implementing measures, which meant that that year a
large volume of arrears was worked off ;

— the total number of reasoned opinion continued to

increase sharply compared with the previous year
( 412 in 1991 as against 251 in 1990 ). The main
reason for this increase is that in a number of cases
the letters of notice sent in 1990 for failure to notify
implementing measures did not produce any action .
There are now more and more procedures being
initiated against Member States ;

— the number of cases referred to the Court of Justice

was down ( 64 in 1991 as against 77 in 1990 ). This
highlights the fact that despite the sharp increase
in reasoned opinions, infringements are being
terminated before the final stage of the procedure is
reached .

No C 250 / 8 Official Journal of the European Communities 28 . 9 . 92

Contacts with Member States

Contacts with Member States were stepped up in 1991 :
even more so than in the past, the Commission keeps in
close and constant contact with national authorities . A
growing number of infringement cases are being resolved
by means of this collaboration . It also ensures virtually
day-by-day monitoring of the implementation of
Community law and observance of the Member States '
obligation to notify the Commission of national
implementing measures with a view to identifying diffi ­
culties and resolving them by solutions which do not
involve formal proceedings . It is the Commission 's
intention, in these contacts concerning directives, not
only to address cases of late implementation but also to
watch out for directives about to become applicable .

Transparency and simplification of Community law —

Training

As Parliament has stated on a number of occasions, the
situation demands extra effort in this field :

— transparency and simplification of Community law .

In order to deal with the difficulties of implementing
Community law caused by the complexity of the
legislation, the Commission has launched two oper ­
ations for consolidating legislation :

— legislative consodidation proper : the replacement

of old instruments which have been repeatedly
amended by new ones which have to be enacted
by the Council ;

— consolidation for information purposes only : the

consolidation of instruments, acquiring no legal
value but enabling national authorities and the
business world to keep abreast of the devel ­
opment of legislation in certain areas ;

— training of lawyers . The Commission has extended

the programmes and measures designed to improve
the training of lawyers in Community law :

— the programme of exchanges of lawyers in civil

services now extends to areas covered by the
internal market ;

— seminars, lectures and conferences in all legal

sectors for which the Commission provides a
subsidy ;

— establishment in all Member States by the end of

1992 of associations of lawyers .

While it is aware of the need to speed up the integration
of the Community in legal matters, the Commission does
not underestimate the difficulties of its task as guardian
of the Treaties . However, a number of developments in

1991 may well mobilize the Member States to improve
application of Community law . A special mention should
be made of two developments in particular, one
concerning Court judgments and the other the Treaty on
European Union :

— in its judgments of 20 November 1991 ( Francovich

and Bonifaci ) the Court of Justice held that indi ­
viduals are entitled to demand that the Member State

make good damage which they sustained as a result
of the Member State 's failure to transpose a directive
and laid down the following conditions for its
application : the result to be achieved by the directive
must include the conferment of rights on individuals,
these rights must be identifiable on the basis of the
directive and there must be a causal link between the
infringement of the Member State 's obligation and
the damage sustained ;

— the new Article 171 of the Treaty laid down in the

Treaty on European Union will allow the Court,
once the Treaty has entered into force, to impose a
lump sum or penalty payment on a Member State
which, after the Court has found that it has failed to
fulfil its obligations, still does not comply with the
Court 's judgment .

II . SECTOR-BY-SECTOR ANALYSIS

A. AN AREA WITHOUT INTERNAL FRONTIERS Commission has put forward all the proposals
announced in the programme and by the end of 1991
more than 82 % of them had been adopted by the

The establishment of an area without internal frontiers Council and Parliament . However, the main burden of
depends mainly on the adoption and implementation of responsibility falls on the Member States, who have to
the legislative programme published in the Commission 's ensure that these rules are incorporated into national law
White Paper in 1985 . Over the last three years the and actually applied .

28 . 9 . 92 Official Journal of the European Communities No C 250 / 9

By the end of 1991, 213 of the measures set out in the
programme had been adopted . Of these, 173 are already
in force in the Member States, while 136 still require
measures to incorporate them into national law ( 1 ). The
task of implementing the programme must be given the
highest priority since it will determine whether the
abolition of controls at intra-Community frontiers —
planned for the end of 1992 — is actually achieved .

exchange information, come to a better under ­
standing of each other 's problems and monitor jointly
the implementation of Community rules . Discussions
are also held at a political level, in particular at
informal meetings of the Ministers responsible for the
internal market .

Community law is all the more difficult to implement
where the legislative set-up results in fragmentation of
the texts, thereby detracting from consistency and
hampering understanding . For this reason the
Commission embarked on a consolidation exercise in

1988 ; it has so far yielded a consolidated Directive on
cosmetics ( 2 ) and a series of Commission proposals .

The Commission is responsible for administering hampering, understanding . For this reason the
Community instruments in this field and monitoring Commission embarked on a consolidation exercise in
their proper application at national level . The crucial 1988 ; it has so far yielded a consolidated Directive on
importance of this aspect of the establishment of the

cosmetics ( 2 ) and a series of Commission proposals .

single market has prompted the Commission to take a
number of initiatives aimed at highlighting the political
significance of applying these provisions if an area
without internal frontiers is to be established . Alongside legislative consolidation, the Commission has
announced its intention of developing declaratory
consolidation, whereby consolidated texts, which do not
have the force of law but are published for information
Openness regarding the transposal of Directives js of purposes only, will be made available to users of the
fundamental importance : the Member States and the INFO 92 database .
general public must know the exact state of progress in
implementation in each country . Since 1989 this infor ­
mation has been published in special reports on the
application of the measures set out in the White Paper . The various activities outlined above have helped
The situation is also reviewed regularly by the Council . improve the situation regarding the transposal of
Two other channels of information are the public Community law : the main evidence for this is the
databases INFO 92, which provides details on the growing awareness among certain Member States of
implementation of single market legislation, and their need to catch up . Despite the entry into force of a
CELEX, which covers all Community legislation . large volume of new legislation, the rate of transposal

The various activities outlined above have helped
improve the situation regarding the transposal of
Community law : the main evidence for this is the
growing awareness among certain Member States of
their need to catch up . Despite the entry into force of a
large volume of new legislation, the rate of transposal
rose considerably, from 72 % at the end of 1990 to more
than 77 % at the end of 1991 .

The Commission is stepping up its cooperation with
Member States, in particular through bilateral and multi ­
lateral contacts :

— it holds bilateral meetings with national government

'
departments — know as ' package meetings — to
take stock of progress in the implementation of
Directives and observance of Article 30 of the EEC
Treaty . These meetings ensure that the situation is
kept constantly under joint review and allow the
Commission to bring extra pressure to bear on the
competent national departments . In 1991 meetings
were held with the Greek and Irish authorities, which
helped improve the situation regarding the transposal
of Directives ;

But the Commission must now do more than just
monitor the transposal of Community instruments : it is
intent on stepping up controls on their application .
Surveillance of this kind is particularly important to
ensure mutual confidence between national adminis ­
trations, especially as regards the implementation of
legislation on veterinary and plant health controls and
Directives on the opening up of public procurement . In
this context, two initiatives are already under way :

— exchanges between national civil servants . In October

. 1991 the Commission presented to the Council an
were held with the Greek and Irish authorities, which

action plan — to become operational in January 1993

helped improve the situation regarding the transposal — covering all aspects of the internal market . The
of Directives ; plan supplements specific programmes adopted by the

Council ( in the customs and veterinary fields ) and
existing pilot schemes ( taxation ). It schould help
ensure greater convergence between the national
— a group of senior national civil servants was set up in arrangements for administering Community rules ;

1990 to examine problems in achieving the 1992
objective . It met five times in 1991 . These meetings
provide an opportunity for Member States to

(') Commission communication SEC(91 ) 2491 final . (') Not yet formally adopted by the Council .

No C 250 / 10 Official Journal of the European Communities 28 . 9 . 92

— the establishment of electronic data transmission provisions is the fact that they are almost all contained in
networks for the exchange of information between Regulations .
national administrations concerning the adminis ­
tration of Community rules . In October 1991 the
Commission presented the priorities for establishing
such networks and defined the various requirements . Since these Regulations are directly applicable, there
The Commission aims to make such networks oper ­ should be no difference in the way they are implemented

ational by the end of 1992 to ensure the proper
application of the rules adopted on indirect taxation,
veterinary and plant health controls, statistics and

customs .

These two initiatives reflect the Commission 's desire to
extend its monitoring activities to cover not only the
transposal of Directives but also the proper application
of Community rules at the various tiers of government in
the Member States .

1 . REMOVAL OF PHYSICAL BARRIERS

Since these Regulations are directly applicable, there
should be no difference in the way they are implemented
from one Member State to another . However, customs
treatment still varies because of the different interpre ­
tations favoured by national authorities in issuing
instructions to their own departments .

The Commission has therefore begun a detailed review
of customs provisions to remedy this situation .

Infringement proceedings in the customs union sector
mainly involve intra-Community trade and are
concerned with Articles 9 et seq . of the EEC Treaty,
which ban any charges having an effect equivalent to
customs duties in trade between Member States, and
Council Directive 83 / 643 / EEC of 1 December 1983 on
the facilitation of physical inspections and administrative
formalities in respect of the carriage of goods between
Member States .

The political dimension of the area without internal
frontiers depends on the adoption and implementation of
all provisions relating to customs, statistics and animal
and plant health which are designed to remove physical
controls at internal frontiers . It also depends on the
vigorous application of Articles 30 et seq . of the EEC
Treaty to challenge any border control which might be
considered to be disproportionate to the objectives being
pursued . This report does not deal with the application
of measures adopted to ensure the free movement of
persons, as the most important of these measures have
been adopted in the context of international agreements .

Treaty to challenge any border control which might be In 1991 a number of major infringement proceedings

were settled after Member States had reacted to

considered to be disproportionate to the objectives being
pursued . This report does not deal with the application Commission pressure and complied with its requests .
of measures adopted to ensure the free movement of Worth mentioning in this respect are the cases relating to
persons, as the most important of these measures have the charge levied in France for the computerized
been adopted in the context of international agreements . checking of customs declarations, the refusal to allow

free movement of goods imported from third countries
and bound for Andorra and two cases concerning Italy
( obstacles to the free movement of iron and steel
( a ) Customs union products, systematic checks on bonded goods ).

Alongside the measures adopted by the Council, the
Commission, in conjunction with the Member States,
conducted a systematic survey of the controls carried out
by customs administrations at intra-Community frontiers .
The results of the survey show that many controls
involve technical checks on products or inspections
relating to the protection of public health, environmental
protection or security .

In December 1991 the Commission published a
communication on the abolition of border controls,
which draws conclusions from the survey . The
Commission has also contacted the relevant departments
in the Member States to assess the compatibility of some
of these controls with the Treaty or with secondary

The infringement relating to the import levy in the

Canary Islands on flour of bread-making quality was
settled by the introduction of Community measures to
integrate the islands more closely into the Community
( Council Regulation ( EEC ) No 1911 / 91 of 26 June 1991
and Council Decision 91 / 314 / EEC of 26 June 1991
setting up a programme of options specific to the remote
and insular nature of the Canary Islands — Poseican ).

The main infringement proceedings currently under way

which draws conclusions from the survey . The concern Italy ( disproportionate charges for services
Commission has also contacted the relevant departments supplied by customs to several firms at the same time,
in the Member States to assess the compatibility of some customs agents ' monopoly and prices, veterinary services '
of these controls with the Treaty or with secondary telegram costs charged to livestock importers — in this

- legislation . last case the Commission has commenced proceedings

against Italy under Article 171 for failing to implement a
Court ruling in the Commission 's favour ) and Portugal
As stated in last year 's report, a feature of the moni ­ ( refusal to allow forwarding agents to make customs
toring of the application of Community customs declarations, stamp duty on import ).

- legislation .

28 . 9 . 92 Official Journal of the European Communities No C 250 / 11

The infringement proceedings relating to imports of
military equipment free of customs duties under the
Common Customs Tariff are still suspended pending the
outcome of discussions in the Council .

Progress in implementing Directives applicable to the customs

union

The Commission is gratified by the situation here .

obstacles detected and combated by Commission
departments remain as before, and have been classified
as set out below .

The reason most frequently put forward by Member
States for imposing such obstacles is the protection of
public, animal and plant health :

— technical provisions relating to the presentation,

quality and packaging of products which have the
effect of restricting or discouraging imports . A case
in point is Italian Law No 396 of 2 February 1939,
which prohibits the production of cheeses with a fat
content lower than that stipulated by Italian law for
marketing in Italy . This has the effect of preventing
the marketing of imported cheeses which have been
lawfully manufactured and marketed in the Member
State of origin and was condemned by the Court of
Justice in its judgment of 11 October 1990 in Case

210 / 89 ( 5 ). The Italian authorities have since given
notice of their intention to repeal the law in question .

In a similar case France has taken the necessary steps
to comply with the judgment of the Court of Justice
in Case 286 / 86 ( Edam ) where the Court ruled that,
' Articles 30 et seq . of the Treaty must be interpreted
as precluding a Member State from applying national
legislation making the right to use the trade name of
a type of cheese subject to the observance of a
minimum fat content to products of the same type
imported from another Member State when those
products have been lawfully manufactured and
marketed under that name in that Member State and
consumers are provided with proper information ' ( 4 ).

Directives
applicable on
31 December

1991

Directives

for which

measures

have been

notified

%

Belgium 17 17 100

Denmark 17 17 100

Germany 17 17 100

Greece 17 17 100

Spain 17 17 100

France 17 17 100

Ireland 17 17 100

Italy 17 17 100

Luxembourg 17 17 100

Netherlands 17 17 100

Portugal 17 17 100

United Kingdom 17 17 100

( b ) Free movement of agricultural products

Establishing freedom of movement for agricultural
products ( x ) in a single market is one of the principles
underpinning the operation of the CAP and its common
market organizations .
The Italian authorities have announced their
intention of removing a similar restriction concerning
the system for monitoring the authenticity of butter,

The Court of Justice has repeatedly pointed out that which is based entirely on the ratio between certain
Articles 30 and 34 of the EEC Treaty are still an integral fatty acids established with reference to home ­
part of the common market organizations, even though produced butter without taking into account standard
there has no longer been any need to write them into the values for butter produced in other Member States .
Regulations since 1 January 1970 ( 2 ).

In 1991 the Commission once again kept a constant
watch to make sure that obstacles to trade in agricultural
products in the Community were removed . The types of

(') Those listed in Annex II to the EEC Treaty .
( 2 ) See judgment of the Court of Justice in Case 83 / 78 Pigs

Marketing Board v Redmond [ 1978 ] ECR 2347, 2371,
Ground 55 .

As regards the Italian law setting a maximum fat

content for butter at 82 ° / o, which also applies to

( } ) Judgment of the Court of Justice in Case 210 / 89
Commission v Italy [ 1990 ] ECR 369 7 .
( 4 ) Judgment of the Court of Justice in Case 286 / 86 Ministère

Public v Deserbais [ 1988 ] ECR 4907, 4927 .

No C 250 / 12 Official Journal of the European Communities 28 . 9 . 92

butter imported from other Member States, the auth ­
orities have informed the Commission that this rule is
no longer applied in practice and that a bill on the
matter has been passed by the Italian Parliament .

licence ' scheme while the case concerning Ireland
has been referred to the Court of Justice ( Case
235 / 91 ). The prior authorization scheme for the
import of dairy products into Denmark has been
abolished and replaced by a licence scheme which
conforms to Community law .

However, the Italian authorities have still not lifted
the restrictions on the marketing or importing into
Italy of oils and fats ( the requirement that a tracer be
present ) which have been condemned by the Court of
Justice ('). In its judgment of 5 July 1990 in Case 304 / 88,
the Court of Justice ruled against Belgium 's
practice of individually authorizing each import
of meat or livestock from other Member

Lastly, the Commission has noted with satisfaction States ( 4 ). The Belgian authorities have now
that, after receiving a reasoned opinion, the Greek suspended the arrangements in question and
authorities have adopted a new regulation in order to agreed to adopt legislative measures to ensure
comply with the Court 's judgment in Case 124 / 85, that the Court 's ruling is implemented .
which condemned the restrictions on the import of
and wholesale trade in certain cuts of fresh beef and

veal O ;

— Import controls : these are the most numerous of all

the obstacles to trade . A distinction should be drawn

between the following types :

( a ) Double checks and systematic checks such as

those applied in Italy to salted fish imported from
Greece with a health certificate issued by the
Member State of dispatch or to livestock, meat,
dairy products and fishery products when animal
health inspectors are on strike and are replaced
by military veterinary surgeons .

( b ) The requirement that the producer Member State

issue certificates guaranteeing that products
conform to the standards of the importing
Member State ; such a requirement was applied in
Greece in respect of pasteurized butter but was
abolished by the Greek authorities following the
judgment of the Court of Justice in Case
205 / 89 ( 3 ).

( c ) The requirement for prior import licences or

permits applied in Italy to any vegetable matter
sensitive to fire blight and in the United
Kingdom and Ireland to sperm intended for arti ­
ficial insemination purposes . The United
Kingdom now allows the import of sperm
collected after 1 July 1990 under the ' general

(*) Judgment of the Court of Justice in Case 67 / 88 Commission

v Italy [ 1990 ] ECR 4285 .
( J ) Judgment of the Court of Justice in Case 124 / 85
Commission v Greece [ 1986 ] ECR 3935 .
( J ) Judgment of the Court of Justice in Case 205 / 89, not yet

reported .

( d ) Over-complicated checking arrangements such as

those in force in Germany, which required trans ­
porters of fresh poultrymeat as a matter of course
to declare their goods in advance so that animal
health inspectors could be called in routinely .
Following the Court of Justice 's ruling ( 5 ),
Germany took the requisite steps to comply in
practice . Other practices were also condemned by
the Court of Justice, such as the ban placed by
Italy on imports of grapefruit from other
Member States through its land border posts ( 6 ).
In view of Italy 's refusal to comply with the
Court 's ruling, the Commission has decided to
send a reasoned opinion .

( e ) The setting of a single maximum profit margin

applied to imported and home-produced cheeses
in Greece . This practice discriminated against
imported products since the cost of importing
was included in the profit margin . It was
abolished by the Greek authorities after the
Commission had sent a reasoned opinion .

( f ) Bans on the import of products from other

Member States, for example crayfish in Germany
and pigs in Portugal . The Commission has
decided to refer these cases to the Court of

( 4 ) Judgment of the Court of Justice in Case 304 / 88
Commission v Belgium, [ 1990 ] ECR 2801 .
( 5 ) Judgment of the Court of Justice of 28 November 1989 in

Case 186 / 88 Commission v Germany, [ 1989 ] ECR 3997 .
( 4 ) Judgment of the Court of Justice of 12 July 1990 in Case

128 / 89 Commission v Italy, [ 1990 ] ECR 3239 .

28 . 9 . 92 Official Journal of the European Communities No C 250 / 13

Justice . Meanwhile, France has repealed its legis ­

lation prohibiting the import of all shellfish
intended for immersion or implantation on
French shellfish farms .

2 . REMOVAL OF TECHNICAL BARRIERS

Removing technical barriers entails applying the rules in
the Treaty and introducing the measures called for by
the White Paper .

The White Paper legislative programme is virtually
complete . Work has now reached the implementation
stage — transposing, vetting and adjusting the legis ­
lation . There is a large body of legislation here . Of the

135 measures in the White Paper, 78 are already
applicable in the Member States . They cover all areas,
though technical regulations account for the lion 's share .
These new measures have been by way of addition to
those already in force before the White Paper .

( a ) Free movement of goods

regulations which, without being strictly speaking
discriminatory, subjected imported products to national
rules in such a way as to be in restraint of intra ­
Community trade .

The Commission acts on complaints it receives, on
problems brought up by Parliament and on petitions
presented to Parliamentary committees . Commission
departments have also developed a practice of moni ­
toring national regulations which come to their notice .

As regards industrial products there has been a
continuing rise in monitoring activity, the number of
cases to be considered under Articles 30 to 36 of the
EEC Treaty rising to more than 1 500 in 1991 . In
around 60 of them, infringement proceedings were
commenced under Article 169 of the EEC Treaty .

The cases mainly concerned public supply contracts,
national pricing rules, generic designations for certain
types of national product, exclusive industrial and
commercial property rights, national advertising rules,
the obligation to use the national language at stages
upstream of the retail sale stage, and so on .

The Commission pursued its measures to remove
technical barriers to trade in goods on the basis of the
three instruments available in Community law — Articles
30 to 36 of the EEC Treaty, prohibiting measures equi ­
valent to quantitative effect ; preventive measures under

three instruments available in Community law — Articles Following the approach called for by Parliament 's
30 to 36 of the EEC Treaty, prohibiting measures equi ­ resolution of 22 February 1991 (*), the Commission
valent to quantitative effect ; preventive measures under pursued the practice of regular dialogue with the

Directive 83 / 189 / EEC ; and approximation of laws Member States at what are now known as package
under Articles 100 and 100a of the EEC Treaty . meetings to find rapid solutions to cases outstanding .

The new approach is based on trust and cooperation ; it
has yielded very good results, as can be seen from the
low frequency of referrals to the Court of Justice .
Package meetings were held this year with France,
( i ) Articles 30 et seq . of the EEC Treaty and the principle Germany, Greece, Italy, Portugal and Spain .

Directive 83 / 189 / EEC ; and approximation of laws
under Articles 100 and 100a of the EEC Treaty .

of mutual recognition

Articles 30 et seq . of the EEC Treaty, as interpreted by
the Court of Justice, seek to abolish all barriers to intra ­
Community trade . The rule in Cassis de Dijon is that
any product lawfully made in a Member State must
broadly speaking enjoy access to all other Member
States . The principle flowing from this rule, which is
behind all that the Commission does in this field, is the
principle of mutual recognition, whereby each Member
State accepts products which comply with the rules,
standards or customary processes of the other Member
States if they ensure a level of protection at least equi ­
valent to its own .

Implementing the mutual recognition principle has effec ­
tively liberalized whole markets and opened them up to
Community competition . A wide range of restrictive
rules and practices have been adjusted to the dimension
of the single market in food, manufacturing and tele ­
communications industries .

The Commission is continuing to publish notices of

or customary processes interpretation, which are an ideal instrument for
States if they ensure a level of protection at least equi ­ applying the principles of subsidiarity and mutual recog ­
valent to its own . nition . Community law can be brought to a wide

audience along with the case law of the Court of Justice ;
the Member States are given guidance for their own
This principle is the operational expression of the subsi ­ law-making purposes ; and the business world can be
diarity principle . It has given the Commission the
grounds for attacking thousands of national technical 0 OJ No C 72, 18 . 3 . 1991 .

No C 250 / 14 Official Journal of the European Communities 28 . 9 . 92

acquainted with the rights conferred by the Community ( iii ) Implementation of Directives
legal order . Following its general notice on the free
movement of foodstuffs within the Community ('), the
Commission published a specific notice on the names
under which foodstuffs are sold on 15 october 1991 in Technical harmonization and standardization
the Official Journal of the European Communities No
C 270 of 15 October 1991 .

Apart from a few delays in adjusting to the new

approach, particularly in foodstuffs, this is an area which
gives relatively little cause for concern, bearing in mind
the number of Directives involved .

( ii ) The preventive rules of Directive 83 / 1 89 / EEC

The new approach

The notification procedure of Directive 83 / 1 89 / EEC, as
amended by Directive 88 / 182 / EEC, is an essential tool
for preventing barriers to trade from being raised and for
sharing information . Member States are required to
notify drafts of new technical regulations for vetting .
The amendment made by Directive 88 / 182 / EEC extends
the procedure to all technical regulations except those
issued to implement Directives .

The Commission enforces the notification system by
routinely scrutinizing the regulations issued by the
Member States . There are currently about 40 sets of
regulations under scrutiny . If the Directive is infringed,
Article 169 proceedings are commenced .

Of the Directives adopted by the Council under the new
approach, only those relating to pressure vessels, toy
safety, electromagnetic compatibility and construction
products are already in force . The first Directives on
pressure vessels and toy safety entered into force in

1990 ; their implementation has not been satisfactory,
particularly on the pressure vessels side . The two later
Directives, in force since mid - 1991, have been fully
transposed in only four Member States .

To help Member States with the transposal, the
Commission organizes meetings of senior officials from
standards offices to consider questions relating to the
presentation of the new approach . It has presented to the
Council a proposal for a regulation concerning the EC
market conformity as a means of harmonizing the rules
on marking laid down in a whole series of directives .

Harmonization by sector

In 1991 the Commission received 415 drafts of national ( a ) Motor vehicles, agricultural tractors and motorcycles
technical regulations for vetting under Articles 30 to 36
of the EEC Treaty . This represents a 5 % rise from

1990 . Around 170 of these 415 cases required a detailed
opinion . The main purpose is to secure compliance with
the principle of mutual recognition and debar the estab ­
lishment of new barriers to trade : considerable success
has been achieved . The Member States agreed with the
opinion in 95 cases, but in five cases the Commission had
to ask the Member State for a one-year postponement of
the measure, since harmonization Directives were in the
pipeline, three of them being over and above what was
announced in the White Paper .

The rate of transposal of the 143 Directives involved
here ( 99 on motor vehicles, 39 on tractors and 5 on
motorcycles ) has been reasonably goods, with a great
improvement on previous years . Part of the explanation
lies in the fact that Greece has transposed 18 Directives
for which infringement proceedings had been
commenced .

In 1991 the Commission examined 40 infringement cases
— 37 for failure to notify national measures ( 24 of them
being now closed ), and three for failure to apply
Directives properly ( of which 2 are now closed ).

In the tractors area, there are delays in implementing
( l ) OJ No C 271, 24 . 10 . 1989 . Directives 89 / 680 / EEC, 89 / 681 / EEC and 89 / 682 / EEC

28 . 9 . 92 Official Journal of the European Communities No C 250 / 15

( protection devices ). Three Member States ( Belgium,
Germany and Luxembourg ) have not yet transposed
them .

Of the five Directives on motorcycles already in force,
only one ( Directive 89 / 235 / EEC on the sound level of
motorcycle exhaust systems ) remains to be transposed,
and that only in Greece ; infringement proceedings are
under way .

in 37 cases and reasoned opinions in 35 ; the remaining
two ( non-ionic and anionic surface agents ) have been
referred to the Court .

( e ) Mechanical engineering, measuring equipment,
prepackaging, electronics and medical equipment

In these industries there was a welcome improvement in
the transposal rate, mainly because of efforts made by
( b ) roodstuns T ; A (( t Greece ^ e Commission and Portugal and to the catch Member up . Cooperation States has between been
amplified .

This is the industry with the most serious delays in
transposal . Progress is very slow, chiefly because of the
complexity of the subject-matter . The Commission is
paying special attention to the implementation of the
new framework Directives, notably the health inspection
Directive, on which genuine free movement of goods
depends .

In the course of the year 106 infringement cases were
examined . All concerned failures to notify ; reasoned
opinions have gone out in 65 of them, and another 34
have already been closed .

Commission staff are in regular contact with the auth ­
orities in the Member States to assist them their
transposal problems, especially in complex cases where
there are separate deadlines for the marketing of
products that comply and the banning of products that
do not .

There are 91 harmonization Directives, of which 86 are

due for transposal ( the remaining five fall due in 1992 ).
The number of infringement proceedings is well down

on the previous year 's ; of the 56 cases under way ( down
from 103 last year ), only 13 were commenced in 1991 .

The Commission was able to close half the cases
commenced against Portugal . Even so, despite the great
efforts made, that is still the country with the highest
number of infringements ( 29 cases ). The reason is that
obligations flowing from the Act of Accession have still
not been fully discharged .

Greece has also made a special effort and only one case
was still in progress at the end of the year . Six cases
against Ireland were closed in the course of the year,
leaving only one in progress . The remainder breaks
down as follows :

( c ) Pharmaceuticals Spain ( 7 ); Netherlands ( 6 ); Luxembourg ( 4 ); Italy ( 3 );
Germany ( 3 ); United Kingdom ( 2 ); Belgium ( 1 );
Denmark ( 1 ). It will be noticed that France has fully
discharged its obligations . Most of the Dutch
The rate of transposal picked up in 1991 and the infringements are in the particularly sensitive machine
situation now is really rather satisfactory . Italy alone is tools industry .
lagging behind with Directive 87 / 20 / EEC ( veterinary
medicines ), in force since 1987 .

( d ) Chemicals

Here the situation is broadly stable, and some earlier
delays subsist . The 74 proceedings in hand all concern
failure to notify . Letters of formal notice have gone out

The Commission took proceedings in six cases
concerning failure of implementing measures to comply
properly with the Directives, but was able to close three
of them ( against Denmark, France and Germany ).
Proceedings continue against Greece and Italy regarding
Directive 73 / 23 / EEC ( low-tension equipment ) and
against Ireland regarding Directive 84 / 532 / EEC
( construction plant ) ; these cases are on the way to being
solved .

No C 250 / 16 Official Journal of the European Communities 28 . 9 . 92

Opening up of public procurement departments ) to issue a notice for guidance at the
beginning of each financial year, setting out the various
contracts worth ECU 750 000 or more which are
expected to be placed in each product category . Two

Public procurement is among the Community 's chief reasoned opinions were addressed to Italy to follow up
priorities in the 1992 programme . There have been action taken in 1989 (') concerning procedural delays in
changes to the rules governing the award of public works publishing notices of invitation to tender ( verification
and supply contracts . But there have been delays in system run with the Publications Office ).
transposing the new Directives, so that they cannot be
applied in a harmonious fashion by the public authorities
and state-owned enterprises of the Member States .

In 1991 the Commission 's activities in this field concen ­

trated on three aspects :

— transposal of Directives ;

The Commission continued action begun in 1990 to vet
the placing of contracts in connection with projects or
programmes financed by the structural Funds or other
Community machinery ( 2 ).

Infringement cases were processed in the following
— vetting their application by various public-sector areas :

bodies ;

— processing individual infringement cases . — interpretation of the scope of Directives :

The situation regarding transposal is described below .

— concept of awarding authority — infringement

Directive 89 / 665 / EEC on complaint procedures is the
only one of the White Paper Directives to have come
into force in 1991 . Four Member States have notified

implementing measures .

The Commission took Portugal to the Court of Justice

for failure to notify measures transposing Directive
77 / 62 / EEC and issued a reasoned opinion to Spain for
incorrectly transposing Directives 77 / 62 / EEC and
71 / 305 / EEC .

The Commission commenced Court proceedings against

Italy, and addressed a reasoned opinion to the
Netherlands, for failure to notify measures implementing
Directive 88 / 295 / EEC ( public supply contracts ).
Infringement proceedings were also commenced against
Belgium for failure to apply the Directive properly .

proceedings against Spain for the recognition of
the Consorci de la Vila Olimpica (a composite
public authority ) as an awarding authority for the
purposes of Directive 71 / 305 / EEC were closed ;

— type of contract subject to the Directive —

proceedings against the Netherlands concerning a
meteorological office computer leasing contract
not complying with the supplies Directives
( 77 / 62 / EEC, as amended by 88 / 295 / EEC ) were
closed ;

— excluded sectors — the Commission closed the

proceedings against Portugal in respect of a

Infringement proceedings were also commenced against public supply contract to be awarded by Aero ­
Belgium for failure to apply the Directive properly . portos e Navigação EP, a body to be treated as a

public transport authority for the purposes of
Directive 77 / 62 / EEC and Article 3 ( 4 ) of
Directive 71 / 305 / EEC .
Infringement proceedings were commenced against Italy
and the Netherlands in relation to the new public works
Directive ( 89 / 440 / EEC ).

The work of vetting application of Directives by public ­
sector bodies centred on Article 9 ( 1 ) of Directive
88 / 295 / EEC regarding the obligation for what are
known as GATT authorities ( central procurement

(') Eighth Annual Report to the European Parliament on

Commission monitoring of the application of Community
law ( 1990 ), point II.A.2.A, ( iii ).
( 2 ) Ibid .

28 . 9 . 92 Official Journal of the European Communities No C 250 / 17

— Failure to publish a notice in the Official Journal of

the European Communities, on grounds of urgency
not in conformity with the Directives ' requirements .
The Commission continued investigating cases where
notices were issued only in national publications or
where there was no provision for publicity at all .

— The obligation to be entered in a national suppliers '

register . A reasoned opinion was addressed to Italy in
respect of four contracts to be awarded by the Asses ­
sorato Acque ed Acquedotti in Naples .

— Award criteria . The German Government accepted

the Commission 's view and removed clauses that
gave preference to firms training apprentices
especially female apprentices .

Product liability

The Commission is pursuing infringement proceedings

against those Member States which have not yet
transposed the product liability Directive ( 85 / 374 / EEC ).
Two cases — against France and Ireland — are before
the Court of Justice ; in another — against Spain — a
reasoned opinion has been issued . The Commission has
also decided to refer the United Kingdom 's failure to
transpose the Directive properly to the Court of Justice .

( b ) The market for services and capital

Infringement proceedings brought by the Commission
are directed towards abolition of restrictions imposed by
national legislation contrary to Articles 52 and 59 of the
EEC Treaty .

The judgment given by the Court of Justice on 25 July

1991 in Case C-353 / 89 declared that the Netherlands
had failed to fulfil its obligations by maintaining
restrictions on the cable retransmission of programmes
broadcast from other Member States and containing
advertising material addressed specifically to the public
in the receiving country as well as by requiring broad ­
casting authorities to spend a specified proportion of
their budgets with a Dutch public-sector firm .

The Commission commenced proceeding in the Court

against Belgium ( Flemish community ) for infringing
Community obligations by banning the cable retrans ­
mission of programmes from other Member States not
broadcast in the language of the receiving country .

There are several further cases in hand for infringement

of Articles 52 and 59 of the EEC Treaty ( Belgium —
French community, France, Greece and the
Netherlands ). Some of these cases restrictions imposed
on language grounds which are out of proportion to the
objective pursued .

Turning to the cinema, proceedings are still in hand

against Spain in the matter of the compulsory licensing
system for the dubbing of films originating in the EEC ;
the grant of a licence is subject to production and distri ­
bution of national films .

( ii ) Intellectual property

1 . The market for services There is little legislation in this field . It consists of :

— Directive 87 / 54 / EEC concerning legal protection for

semi-conductors, which has been transposed by all
( i ) Audiovisual the Member States ;

— Directive 89 / 104 / EEC on the approximation of trade

The television without frontiers Directive ( 89 / 552 / EEC ), mark laws, where the date prescribed for transposal

in force since October 1991, aims to secure free has been postponed to 31 December 1992 ;

in force since October 1991, aims to secure free
movement of TV programmes so as to create a common
broadcasting area . It has been tranposed in six Member
States ( Germany, Ireland, Italy, Luxembourg, Portugal
and the United Kingdom ), though not everywhere to the
full extent required . The other Member States have
transposed parts of it or have drafts in hand .

— Directive 91 / 250 / EEC on legal protection for
computer programmes, which is to be transposed
before 1 January 1993 .

No C 250 / 18 Official Journal of the European Communities 28 . 9 . 92

( iii ) Telecommunications 2 . Capital movements

On the telecommunications front, the Commission
closed the proceedings opened against Belgium and
Spain for failure to notify measures to implement
Directives 86 / 361 / EEC (') and 87 / 372 / EEC ( 2 ) after
receiving notification in the course of the year .

The Commission found that Greece, Ireland and Italy
had not notified measures implementing Directive
90 / 387 / EEC ( 3 ) and accordingly commenced
proceedings — Article 169 referrals in the case of the
former Directive, reasoned opinions in the case of the
latter . But it withdrew the proceedings against Ireland,
where national implementing measures are in the process
of being adopted, and suspended the proceedings against
Greece and Italy . Directive 91 / 287 / EEC entered into
force only oh 31 December 1991, so no infringement
proceedings have yet been commenced .

Progress in implementing Directives applicable to Telecommuni ­

cations

Only average progress has been made here, at 62,6 ° / o . The
Commission must remain vigilant .

Directives
applicable on
31 December

1991

Directives

for which

measures
have been

notified

%

Belgium 4 3 75

Denmark 4 3 75

Germany 4 3 75

Greece 4 2 50

Spain 4 3 75

France 4 3 75

Ireland 4 2 50

Italy 4 2 50

Luxembourg 4 3 75

Netherlands 4 2 50

Portugal 4 3 75

United Kingdom 4 3 75

( 1 ) Initial stage of mutual recognition of type approval for tele ­

communications terminal equipment .
( 2 ) Frequency bands for pan-European cellular digital
lana-based mobile communications .

( 5 ) Internal market in telecommunications services .

Following the removal of all remaining restrictions on
the movement of capital in eight Member States during

1990, as required by Directive 88 / 361 / EEC,
considerable advance in capital liberalization was made
this year in the four member States ( Greece, Ireland,
Portugal and Spain ) which are allowed by the Directive
to keep certain restrictions temporarily .

An important measure in this direction was the abro ­
gation ( 4 ) of the Commission decision ( 5 ) authorizing
Greece to take certain safeguard measures with regard to
capital movements and tourist expenditure . This followed
a decision taken by the Greek Government . In
compliance with the terms of the Community balance of
payments loan, to remove as from 6 May 1991 all
restrictions authorized by the derogation .

As a result of the above development no more safeguard
measures are in place and the provisions of the capital
movements directive apply in their entirety . It is note ­
worthy that, to a certain degree varying by country,
capital liberalization measures were taken, or are
planned, ahead of the time-limits set by the directive . In
this respect Spanish authorities announced that they will
proceed to complete capital liberalization by the end of

1991, a year ahead of the time limit set by the directive .
This development reflects the absence of balance of
payments problems owed to capital flows, following
liberalization measures, as well as the desire of the
Member States concerned to keep in pace with the accel ­
erated drive towards financial and monetary integration
for which free movement of capital is a basic ingredient .

Despite the important progress made in eliminating
direct restrictions on capital movements a numer of
indirect obstacles are still in place in almost all
Community countries . These indirect obstacles basically
emanate from national measures and practices imposing
or favouring domestic financial instruments and
institutions, mainly through tax measures or prudential
investment rules . Commission efforts are currently
focused on the identification of these obstacles and the
initiation of the appropriate procedure for their elim ­
ination .

( 4 ) Commission Decision 91 / 285 / EEC of 4 June 1991 .
( 5 ) Commission Decision 85 / 594 / EEC of 22 November 1985,

as last amended by Decision 90 / 663 / EEC of 19 December

1990 .

28 . 9 . 92 Official Journal of the European Communities No C 250 / 19

Action taken towards eliminating identified restrictions The Commission came across problems in several
did not reach a stage beyond a warning letter from the Member States regarding obstacle to direct investment,
Commission . Infringement proceedings initiated in the which usually entails an element of establishment ( as
past, involving warning letters in regard to restrictions on where a majority holding is acquired in a company set
commercial credits, proved ineffective and were dropped up in another Member State ). Its attention was drawn to
this year, following appropriate modifications of national United Kingdom practices which could have the effect of
legislation . raising barriers to direct investment by state-controlled

firms . Talks were held and the barriers were removed .
The Commission has launched a general survey of the
barriers to direct investment which may subsist in many
Member States . Work proceeded throughout the year ;
conclusions are expected in 1992 .
( c ) Freedom to provide financial services, direct taxation

and company law

Community law in this area is primarily to be found in
the provisions and principles of the Treaty itself ; only a
limited number of cases concerned incorrect application
of directives . If the cases investigated by the Commission
in the report period are grouped by type of suspected or
confirmed infringement, it can be seen that most fall to
be considered under Article 59 of the EEC Treaty, since
freedom to provide financial services is chiefly
constrained by measures of public law, relating especially
to taxation, which fail to reflect the new dimension in
the services industries . In many cases forms of tax relief
provided for in Member States ' legislation do not apply
to providers of services ( relief being available only to
residents ). A second category consists of barriers to
investment raised by Member States ' legislation or
administrative practice ; the third consists of national
legislation discriminating between foreign firms estab ­
lished in the Member State and firms incorporated in
accordance with its own laws .

One of the most typical cases where national law,
particularly in the tax field, does not take account of the
new dimension in the services sector is the deductibility
of insurance premiums in the computation of the amount
liable to personal income tax . Infringement proceedings
have been commenced against several Member States,
but they have been suspended while the Commission
awaits the outcome of cases C-204 / 90 and C-300 / 90,
where the Court of Justice it to rule on the Belgian legis ­

lation .

An example of a case in which a directive was wrongly

There is a specific problem with the guarantees required
by public authorities in most Member States ( notably in
connection with customs, public contracts and the like ).
National rules commonly provide that such guarantees
must be given by an establishment within the Member
State receiving the guarantee, which constitutes a
restraint on financial institutions ' freedom to provide
services . To overcome these problems the Commission
made a proposal for a Council Regulation ( EEC ) on
securities given by credit institutions or insurance under ­
takings . Parliament gave its opinion in 1989 ('); the
Commission then made a revised proposal on 31 January

1991 ( 2 ). The Council has begun discussing it, but it has
become apparent that there will be serious difficulties in
the way of early adoption . The Commission will conse ­
quently have to consider reactivating the currently
suspended infringement proceedings here .

The banking directives are giving more concern that

most directives : there have been serious delays in
implementing them and in notifying measures taken to
that end . Only about half the measures that should have
been taken have been notified ; the worst delays concern
transposal of the directives on banks ' accounts and subsi ­
diaries . The transposal rate has been satisfactory for
insurance but uneven for securities : there have been
delays with the two most recent directives on stock ­
exchange prospectuses . In the company law area, the
Commission has been particularly attentive to the
Council Regulation on the European Economic Interest
Grouping ( Regulation ( EEC ) No 2137 / 85, adopted by

11 Member States ).

applied was the case of the ' concessione governativa ', an
annual registration charge ; this had no relation with the
aministrative cost of registering a firm in the companies
register and was accordingly to be regarded as contrary
to Directive 69 / 335 / EEC on taxes on the raising of (') OJ No C 159, 26 . 6 . 1989, p. 4 .
capital . O OJ No C 53, 28 . 2 . 1991, p. 74 .

No C 250 / 20 Official Journal of the European Communities 28 . 9 . 92

The Commission regrets that Germany has still not come
into line with the directives on annual accounts, its
publicity rules being far from satisfactory . But it closed
the proceedings against Germany for infringement of the
7th Directive ( consolidated accounts ) when a satisfactory
answer was received to its reasoned opinion .

Progress in implementing Directives applicable to Financial

Institutions, Direct Taxation and Company Law

At 83,8 %, progress is good here, though Greece, Italy and
Luxembourg still have backlogs .

With this in mind the Commission has reorganized some
of its departments and introduced a new procedure for
vetting national legislation, especially on VAT .

Ad hoc working parties have been formed to prepare the
ground for introduction of the new VAT transitional
arrangement so that they can operate in full compliance
with Community law from 1 January 1993 .

The Commission continued vetting national legislation

for conformity with the taxation provisions of the EEC
Treaty ( Articles 95 and 96 ). It commenced proceedings

against Greece in two cases — one for levying tax at
higher rates on imported coffee than on locally ­
produced coffe and the other for subjecting imported
ciders and perries to the higher rate of VAT while
charging the lower rate on domestic products .
Proceedings were brought in the Court of Justice in
another case concerning the Greek special consumption

tax on motor-cars .

Directives
applicable on
31 December

1991

Directives

for which

measures

have been

notified

%

Belgium 37 30 81

Denmark 36 36 100

Germany 37 32 86,5

Greece 36 25 69

Spain 37 35 94,6

France 37 35 94,6

Ireland 37 30 81

Italy 37 25 67,6

Luxembourg 37 25 67,6

Netherlands 36 31 86

Portugal 36 - 32 88,8 Proceedings were brought against Belgium for taxing

United Kingdom 37 33 89 imported semi-sparkling grape-based beverages more
heavily than local products and for charging taxes on
small packets imported from other Member States ; the
second case was dropped when Belgium accepted the
Commission 's view .

3 . REMOVAL OF TAX FRONTIERS

The Court gave judgment against Greece, Spain and

Italy for failure to comply with Article 95 of the Treaty
as interpreted by the Court in Schul and subsequent
cases, requiring Member States of importation to take
account of the amount of VAT charged in the Member
This the abolition was the of year tax in checks which at agreement borders between was reached Member on State of exportation . Those Member States have now
States and on harmonization of VAT and excise rates ; complied with the Court 's ruling .
the Commission 's endeavours have at last borne fruit .

As the Commission stated in the previous report, priority
will have to be given to monitoring the application of

Community law in the Member States if a success is to
made of the new VAT and excise schemes due to

commence on 1 January 1993 .

It also gave judgment against Luxembourg and Belgium
since under their excise schemes imported beers did not
qualify for the same rebates as home-produced beers .
Turning to spirits, the Court held that the Greek practice

of taxing whisky, gin, rum etc . more heavily than local
specialities such as ouzo was discriminatory and
therefore contrary to Article 95 of the EEC Treaty .

28 . 9 . 92 Official Journal of the European Communities No C 250 / 21

The Commission has the task of seeing that all the
taxation directives are properly applied . Regarding the
uniform interpretation of the rules laid down by the
Sixth VAT Directive, it commenced proceedings against
France, Ireland, Luxembourg and Spain, where the tax
arrangements for advertising agencies gave rise to cases
of double taxation or of non-taxation where services
were performed for taxable persons established in
another Member State .

A reasoned opinion was addressed to France for leaving
out of the basis of assessment a number of taxes such as
the EDF tax an electricity and water charges, contrary to
Article 11 ( 2 ) of the Directive . The proceeding was
dropped when France amended its legislation as
required .

A reasoned opinion was also addressed to Italy for
failure to comply with the Court 's judgment on flat-rate
percentages for compensation in agriculture ( Case 3 / 86 ).

Three cases were brought before the Court of Justice

against Member States that had failed to comply with
reasoned opinions : Italy ( renewal of the VAT exemption
given after the earthquake ); Germany ( taxation of travel
agencies ) ; and Denmark ( new employers ' contribution of
3.05% contrary to Article 33 of the Sixth Directive,
which bans the introduction of new turnover taxes other

than VAT ).

the Community, The Commission addressed two
reasoned opinions to Greece . One concerned the
excessive fine and the prison sentence inflicted on a
Dutch national who imported her motor car into Greece
when taking up residence here . The other concerned the
incorrect transposal of Directive 83 / 183 / EEC by the
Greek authorities, who required evidence of the normal
place of residence and demanded payment of security
upon importation .

The Commission successfully intervened with the Belgian

authorities in support of a private individual who, when
moving to Belgium, was required to prove that he
resided there in order to import his personal property
duty-free .

In several other cases proceedings have been commenced
in the Court . One concerns the infliction of a
particularly heavy fine on a private individual who
imported a video camera into Greece . The second
concerns the Spanish requirement of a special invoice for
the duty-free importation of goods by travellers . The
third was brought against France, where a complainant
was subject to double taxation because she was regarded
as resident both by the Belgian and by the French auth ­
orities . This case is also pending in the French Cour de
cassation .

The Court held that VAT exemptions for services
supplied by plastic artists, journalists, composers etc .
were contrary to Article 2 of the Sixth Directive, and
gave judgment against Spain accordingly . The Court gave judgment for the Commission in a case

against Denmark, which excluded imports of more than
ten litres of fuel from the travellers ' tax-free allowance .

Proceedings commenced under Article 171 of the EEC
Treaty against the Netherlands for failure to comply
with the judgment in Case 235 / 85 on the exemption of
services suplied by notaries and court bailiffs were
terminated when the Dutch Finance Law 1991 rectified

the infringement .

The situation regarding transposal of tax directives is
broadly satisfactory . But the Commission has had to take
Italy to Court under Article 171 of the EEC Treaty for
failure to transpose the Council Directives of 28 March

1983 on duty-free allowances on change of residence or
for certain imports of goods ( marriage, study visits,
Then there are the tax directives designed to give pharmaceuticals, prospectuses, etc ), although judgment
European citizens the benefit of facilities in travel within was already given in 1987 ( Cases 124 / 86 and 125 / 86 ).

No C 250 / 22 Official Journal of the European Communities 28 . 9 . 92

contrary to Article 7 ( 2 ) of Regulation No 1612 / 68, as

Progress in implementing Directives applicable to Indirect interpreted by the Court of Justice in Case C - 175 / 89,
Taxation Biehl : the Commission addressed reasoned opinions to

France, Luxembourg and the Netherlands .
The Commission is gratified by the 99% success rate here .

Directives
applicable on
31 December

1991

Directives

for which

measures

have been

notified

%

Germany was sent an additional reasoned opinion in the
infringement proceedings concerning discriminatory
provisions which disregarded children and other family
members of workers residing outside the country in
calculating the family status for tax purposes .

The Commission also sent a reasoned opinion to
Germany concerning discrimination between the tax on
income of taxable persons working in Germany but not
living there and the tax on persons both living and
working in the country .

Museum admission charges

Belgium 51 51 100

Denmark 55 55 100

Germany 51 51 100

Greece 52 52 100

Spain 51 49 96

France 52 52 100

Ireland 52 51 98

Italy 51 49 96

Luxembourg 51 51 100

Netherlands 51 51 100

Portugal 51 51 100

United Kingdom 51 51 100

Spain continued to discriminate against nationals of
other Member States, making them pay more than its
4 . FREE MOVEMENT OF PERSONS own nationals for admission to museums .

( a ) Ban on discrimination — Welfare benefits and tax

relief The Commission considers this discrimination to be
contrary to Article 7, 48 and 59 of the EEC Treaty and
commenced the infringement proceedings in 1987 ( Case
352 / 87 ).
Proceedings are in hand against several Member States
in matters covered by Regulation ( EEC ) No 1612 / 68 on
the free movement of workers . The Commission
addressed reasoned opinions to Belgium, Greece, Spain,
and the United Kingdom in cases concerning equal At the end of 1989 Spain announced that it would use
treatment as regards access to employment on board the 1990 reform of national taxation schemes to establish
ship ; proceedings against Italy have already reached the equal treatment for all Community nationals .
Court of Justice .

In cases concerning equal access of all Community
nationals to welfare benefits, the Commission has
commenced court proceedings against Luxembourg on
account of discrimination regarding the grant of prenatal
and maternity benefits . Other proceedings are in hand
against Belgium, Greece and France .

Proceedings are in hand against several Member States
for failure to guarantee equal treatment regarding tax
relief for Community workers, and particularly discrimi ­
natory aspects of national legislation governing the final
assessment of income tax for non-resident workers,

By letter dated 9 May 1991, the Spanish authorities
informed the Commission that there would be a minis ­
terial agreement to terminate the discrimination by June

1991 . The agreement has not been notified to the
Commission, which has accordingly taken the case to the
Court of Justice .

Greek legislation imposing discriminatory treatment
regarding museum admission charges was amended in
line with Community rules . The Commission accordingly
closed the infingement proceedings .

28 . 9 . 92 Official Journal of the European Communities No C 250 / 23

( b ) Entry and residence areas of the public service ( education, civilian research,
operational health services, public-sector enterprises (*))
was followed up in March and April 1991, when letters
The Commission has been successful in its work on of formal notice were sent to the governments
compliance with Community rules governing the concerned .
issuance of visas to family members of Community
nationals who are not themselves Community nationals
( they must be issued free of charge and with all
facilities ). Eight of the nine proceedings commenced Given the importance and complexity of the matter, the
have been closed as a result of satisfactory answers from Commission gave an exceptionally long period of six
the Member States . The case against Belgium has unfor ­ months for an answer .
tunately had to be referred to the Court of Justice .

Articles 2 and 3 of Directives 68 / 360 / EEC and
73 / 148 / EEC provide that the only formality required to
enter or leave the territory of a Member State at an
internal border is the presentation of an identity card or

passport .

Apart from Belgium and Luxembourg, which have not
yet reacted, the Commission received a satisfactory

answer from the United Kingdom and the answers from

internal border is the presentation of an identity card or France and Denmark showed that progress really was
passport . being made with national legislation . In the other

Member States, ideas are moving but no practical results
have yet been attained .
Case C-68 / 89, Commission v Netherlands, concerned
the specific problem of questions put to travellers by
border officials, where the Netherlands was accused of
infringing Community law .
In the first quarter of 1992 the Commission will decide
what action is to be taken in each of these proceedings

The Dutch Court legislation held that providing the directives that nationals were infringed of Member by depending letters of formal on the notice Member . States ' replies ( if any ) to the
States could be required to answer questions from border
officials regarding the purpose and duration of their visit
and the financial resources available to them before
being allowed to enter Dutch territory . ( e ) Recognition of qualifications

( c ) Equal treatment — Trade union rights

In Case C-2 13 / 90 the Court of Justice held that
Luxembourg legislation withholding from Community
workers the right to vote at elections for members of a
professional body was contrary to Article 8 ( 1 ) of Regu ­
lation ( EEC ) No 1612 / 68 .

Since this judgment is silent on the question of the right
of Community workers to stand for election as members
of professional bodies, the Commission has decided to
continue the proceedings against Luxembourg on this
point, in the Court of Justice .

( d ) Access to public-sector employment

As in previous years the Commission had to deal with
forty or so complaints regarding restrictions contrary to
Articles 52 and 59 of the EEC Treaty and to the
Directives on mutual recognition of vocational or
professional qualifications . In some of these cases
infringements proceedings were commenced against the
Member States under Article 169 of the EEC Treaty ;
other cases were closed as unfounded .

The Court of Justice gave several judgments in cases

concerning restrictions contrary to Articles 52 and 59 of
the EEC Treaty . The following are among the more
noteworthy :

Article 48 ( 4 ) of the EEC Treaty — the Italy tourist ; C - 189 guides / 89, cases Commission ( C - 180 / 89 v, Commission Greece ; and v

C                      - 154 / 89, Commission v France ). The Court held
that these Member States had violated their
The Commission 's decision of 25 July 1990 to commence
Article 169 proceedings against all those Member States

acting contrary to Community law in the four ' priority ' C ) OJ No C 72, 18 . 3 . 1988 .

No C 250 / 24 Official Journal of the European Communities 28 . 9 . 92

obligations under Article 59 by requiring tourist
guides accompanying groups of tourists from other
Member States to hold a licence awarded following
the passing of an examination when their function
was to guide tourists in places other than museums

and historical monuments which could be visited only
with a guide ;

— the Vlassopoulou preliminary ruling ( Case
C-340 / 89 ), where the Court amplified its earlier
ruling in Case 22 / 86, Heylens, relating to salaried
persons and extended it to cases of freedom of estab ­
lishment, holding that even in the absence of a
Directive the host Member State is required to take
account of qualifications acquired in another
Member State by a Community national, provided
the occupation is the same .

The host Member State must check to what extent
the qualification corresponds to that required by its
own rules ; only if it does not fully correspond may it
require the person to prove that he has the
knowledge and skills not attested ;

— Case C-76 / 90, Dennemeyer, was a preliminary ruling

on freedom to provide services in the protection of
industrial property . The Court interpreted Article 59
of the EEC Treaty as meaning that national legis ­
lation could not prohibit a firm established in another
Member State from supplying patent holders in
national territory with patent monitoring and renewal
services for a fee, on the sole ground that the activity
is reserved for holders of a specific professional
qualification issued in the host Member State ( patent
attorney, for instance ) ;

— Case C - 167 / 90, Commission v Italy, held that Italy

had failed to tulfil its obligations under Articles 48,
52 and 59 of the EEC Treaty by maintaining
provisions allowing only Italian nationals to have
foreign qualifications as medical auxiliaries
recognized in Italy, thus excluding nationals of other
Member States ;

— the Article 169 proceedings commenced against
Belgium, Luxembourg and the Netherlands for
discrimination in their criminal injuries compensation
schemes, following the judgment in Case 186 / 87,
Cowan, continued with referrals to the Court of
Justice ;

— Case C-294 / 89, Commission v France, concerned

freedom to provide services as lawyers . It was held
that the relevant Directive had not been properly
transposed since under French legislation a French
advocate established outside France did not enjoy
freedom to provide services in France ; he had to
work with an advocate established in France even in

non-judicial business and even in circumstances
where the law did not require a lawyer to be
involved . There was a further infringement in the
requirement that the advocate had to be assisted by
an advocate of the local bar whenever he wished to
carry out any procedural formalities .

There were also a series of infringement proceedings based
on Article 1 71 of the EEC Treaty for failure to give effect
to a Court of Justice judgment

Judgment was given against France in Case C-263 / 88

for refusing to allow freedom of establishment and
freedom to provide services in the overseas departments .
France has still not complied, so the Commission has
commenced fresh proceedings under Article 171 of the
EEC Treaty .

Similar proceedings were commenced against France,
Greece and Italy for failure to notify measures to comply
with the tourist guides cases referred to above .

The Commission closed the case against Greece for

failure to comply with the judgment given against it in
the frontier regions case .

28 . 9 . 92 Official Journal of the European Communities No C 250 / 25

Infringements was 4 January 1991 . The Commission commenced
Article 169 proceedings against Belgium, Greece, Italy,

Luxembourg and the Netherlands for failure to notify
implementing measures .
There are several proceedings in hand for infringement

of Articles 52 and 59 of the EEC Treaty, many of them
having reached the reasoned opinion stage . They include
the proceedings against France ( access to the occupation
of estate agent — licensing rules ), Spain ( tourist guides )
and Italy ( refusal to issue a licence for a detective
agency ).

Several cases have been closed, including the case against
France concerning recognition of Belgian diplomas of
registered nurses .

The Commission is continuing to monitor both primary
and secondary legislation . It has commenced proceedings
in several cases of failure to notify measures to give
effect to Council Directives issued under Article 57 of
the EEC Treaty to secure freedom of movement and
recognition of occupational qualifications or for failure
to transpose them properly .

Incorrect transposal or application
of Directives

Proceedings were commenced against several Member
States for incorrect transposition or application of
Directives . The following cases are of particular interest :

following a series of complaints the Commission
commenced proceedings against Germany for failure
to implement the dentists Directives properly .
Germany requires dentists who have qualified in
accordance with the Directives ' requirements in
another Member State to resit examinations and meet
other conditions going beyond what the Directive
allows .

There was once again an increase in the number of
cases, partly as a result of the entry into force of new
Directives on architects and pharmacists and the new
general Directive . Spain was also found to be infringing the dentists
Directives by allowing dentists trained and qualified
in Latin America, where the requirements are well
below those of the Directive, to become established

National implementing measures in Spain . The Commission agrees that dentists from

non-member countries may become established, but
only if their qualifications correspond to the
Directives .

Several Member States notified measures in response to
Commission decisions commencing proceedings against
them . Examples are Spain ( Directives on midwives,
hairdressers, transitional measures ), Belgium and Italy
Infringement proceedings were commenced against
( transport auxiliaries Directive ). Italy under the same dentists Directives ;

But other Member States had judgments given against
them in the Court of Justice for failure to transpose
Directives : Belgium in Case C - 167 / 90 and Italy in Case
C-296 / 90 ( pharmacists ); Greece in Case C-309 / 90
( architects ) and Spain in Case C-3 13 / 89 ( midwives ).
Luxembourg took the measures needed to comply with
the pharmacists Directive after judgment had been given
in Case C - 168 / 90 .

The final date for transposing Directive 89 / 48 / EEC on a
general qualifications system awarded for the after recognition at least of three higher years education ' study

— the Commission found Spain to be infringing the

architects Directives by confining architects to prac ­
tising in the same capacities as in their country of
origin and by restricting the time they are allowed to
practise ;

— the doctors Directive 75 / 363 / EEC provides that

doctors must be remunerated when undergoing
specialist training . Portugal and Spain have not
complied ; infringement proceedings are in hand .

No C 250 / 26 Official Journal of the European Communities 28 . 9 . 92

( f ) Independent commercial agents prices . Ireland, Italy, the Netherlands and Spain have
still not transposed the Directives .

Infringement proceedings brought against France,
Greece and Italy for failure to transpose Directive
86 / 653 / EEC on self-employed commercial agents were
closed when measures were notified . But reasoned
opinions were sent to Belgium, Luxembourg and Spain
for failure to notify . Ireland and the United Kingdom
have a derogation until 1994 .

5 . CONSUMER POLICY AND PRODUCT SAFETY

Regarding commercial practices, the rate of transposal of
the Directive on consumer credit remains preoccupying .
Two years after the deadline set by the Directive

87 / 102 / EEC, only eight Member States have transposed
it into national law, Belgium and Greece being the latest
to do so ; but Ireland, Italy, Luxembourg and Spain are
seriously out of step in an area which is of great interest

to consumers .

There has been an improvement in the situation

This was a year of consolidation for consumer policy . regarding the misleading advertising Directive

84 / 450 / EEC . Belgium has recently adopted new
provisions, and Italy is now the only country not to have
done so, even though judgment has already been given
Directive 88 / 378 / EEC on toy safety has received special against it by the Court of Justice .
attention as it was the first of the ' new approach '
directives to become applicable . This year Denmark, the
Netherlands and Italy transposed the Directive, so that
Luxembourg is now the only Member State not to have
done so, two and a half years after the deadline . As for the general application of Community law by the

This was a year of consolidation for consumer policy .

Member States, the Commission has still been receiving
complaints which highlight the difficulties of applying
Community rules in cross-frontier situations, where the
supplier and the consumer are established in different
There were three cases concerning conformity checks, Member States . The Commission will further step up its

against Belgium, Greece and Portugal . endeavours to find rapid solutions to these problems .

against Belgium, Greece and Portugal .

The situation will be even more satisfactory when all

Member States have designated approved certification
bodies ( Belgium, Ireland and Luxembourg have yet to
make notifications ). Given that only two Member States
— France and the United Kingdom — used the
safeguard clause, the situation is reasonably satisfactory .
This is borne out by the fact that the Commission has
received no complaints in this area .

The situation is less satisfactory as regards the
conformity of national law with Directive 76 / 768 / EEC
on cosmetic products . Five Member States — France,
Greece, Italy, Portugal and Spain — are still out of line,
and the Court of Justice will have a third opportunity to
rule on this point, in a new case concerning the French
provisions .

Belgium 39 37 95

Denmark 39 39 100

Germany 39 39 100

Greece 39 38 97

Spain 39 35 87

France 39 38 97

Ireland 39 34 87

Italy 39 32 82

Luxembourg 39 36 92

Netherlands 39 34 87

Progress in implementing Directives applicable to Consumers

Progress here, at 93 %, is good .

Directives
applicable on
31 December

1991

Directives

for which

measures
have been

notified

%

Belgium, France, Greece and the United Kingdom have Portugal 39 35 90
rectified their situation in relation to Directives United Kingdom 39 38 97
88 / 314 / EEC and 88 / 315 / EEC on the indication of

28 . 9 . 92 Official Journal of the European Communities No C 250 / 27

B. EMPLOYMENT AND SOCIAL POLICY

Progress in implementing Directives applicable to the Opening

of Public Procurement

1 . EQUAL TREATMENT

The average progress rate is only 85 ° / o here ( Italy is partly
to blame ), although this is a matter for priority treatment in
the frontier-free area and Spain and Portugal both enjoy
derogations .

Directives
applicable on
31 December

1991

Directives

for which

measures

have been

notified

%

Belgium 8 8 100

Denmark 8 8 100

Germany 8 7 87,5

Greece 6 5 83,3

Spain 6 6 100

France 8 7 87,5

Ireland 8 8 100

Italy 8 4 50

Luxembourg 8 7 83,3

Netherlands 8 5 62,5

Portugal 6 4 66,6
United Kingdom 8 8 100

Progress in implementing Directives applicable to the Internal

Market

With an average rate of 77 %, despite Italy 's poor performance,
the process of establishing the frontier-free area is becoming
irreversible .

The Commission was obliged to bring before the Court
of Justice a specific case of discrimination against women
in occupational supplementary redundancy payment
schemes, contrary to Directive 76 / 207 / EEC on equal
treatment of women and men in respect of access to
employment .

The proceedings commenced against Greece in 1990 for
non-conformity of national implementing measures were
closed when the offending provisions were brought into
line .

Proceedings based on Article 171 of the EEC Treaty are
likewise under way against France, which was
condemned by the Court for failing to transpose
Directive 76 / 207 / EEC fully into national law . France
was condemned for :

— maintaining a system of separate recruitment based

on sex for appointments in various sectors of the civil
services :

— maintaining usages, clauses of contracts of
employment or collective agreements which provide
special rights for women .

On 25 July 1991, the Court of Justice gave a preliminary
ruling in response to a request from a French court
( Case C-345 / 98, Stoeckel ) regarding night work by
women . It held that Directive 76 / 207 / EEC was suf ­
ficiently precise to place the Member States under an
obligation to refrain from giving statutory effect to a ban
on night work y women, even if that obligation was
subject to exceptions, where night work for men was not
prohibited .

This interpretation meant that there was conflict between
the Directive and ILO Convention No 89, which bans all
night work by women in industry . The Commission
accordingly requested the Member States that are
bouned by the Convention ( Belgium, France, Greece,
Italy, Spain and Portugal ) to denounce it by 28 February

1992 . There should be no particular difficulty about this .

The Commission also decided to close the proceedings

against the United Kingdom and the Netherlands in
connection with Directive 79 / 7 / EEC on the gradual
implementation of equal treatment of men and women in
the field of social security . Two other proceedings —
against Ireland and Greece — are being continued since
those Member States are still not applying the Directive
properly .

Directives
applicable on
31 December

1991

Directives

for which

measures

have been

notified

%

Belgium 130 75 73

Denmark 129 122 94,5

Germany 130 99 76,1

Greece 127 102 80,3

Spain 129 100 77,5

France 131 117 89,3

Ireland 129 94 72,8

Italy 131 70 53,4

Luxembourg 128 88 68,7

Netherlands 130 96 73,8

Portugal 131 108 82,4

United Kingdom 129 110 85,2

No C 250 / 28 Official Journal of the European Communities 28 . 9 . 92

Finally, infringement proceedings for failure to notify Three such proceedings were closed in 1991 ; reasoned
national implementing measures are pending against opinions were sent to Member States in four others .
Belgium, Denmark, Greece, Italy, Luxembourg and the
Netherlands, which have genuine problems with the
transposal of Directive 86 / 378 / EEC on equal treatment
of men and women in occupational social security The procedures closed concerned Italy, which has
schemes . This Directive requires the Member States to rectified the situation regarding nationality discrimi ­
abolish certain forms of discrimination by 1 January nation in respect of the payment of contributions
1993 ; it should have been incorporated into national law reserved for Italians ; France, which now permits the
by 30 July 1989 . export of sickness benefits ; and Belgium, which no

longer requires the repayment of supplementary family
allowances paid to pensioners .

However, the difficulties encountered by the Member
States have been further complicated by the fact that, as
a result of the ruling by the Court of Justice of 17 May

1990 in Case 262 / 88, Barber, several provisions of the On the other hand, Italy and Belgium ' continue to
Directive have ceased to be applicable to wage-earners, prohibit the export of the ' social pension and disability
to whom Article 119 of the EEC Treaty applies directly . benefits respectively, despite a number of rulings by the

Court of Justice, which in June 1991 once again
confirmed the exportability of such benefits in Case
C-356 / 89, Newton . The Commission therefore decided
Finally, several requests for preliminary rulings on the to send reasoned opinions to the two Member States .
same Directive are pending in the Court ; they should
clarify the scope of the Barber ruling and its effects

1990 in Case 262 / 88, Barber, several provisions of the
Directive have ceased to be applicable to wage-earners,
to whom Article 119 of the EEC Treaty applies directly .

rationae temporis .

Reasoned opinions were sent to France and Belgium in
respect of nationality discrimination in connection with
unemployment benefits and unjustified reductions of old
At all events, the Maastricht European Council on 9 and age pensions .

10 December 1991 adopted a protocol interpreting
Article 119 with direct reference to the consequences of
the Barber ruling .

On 11 June 1991, the Court gave judgment against
France in Case C-89 / 307 for reserving benefits from the
national solidarity fund for French nationals . The French

2 . THE ANTI-CANCER CAMPAIGN authorities have now informed the Commission that

implementing measures to rectify the situation are almost
ready .
The final date for transposal of Directive 89 / 622 / EEC

( labelling of tobacco products ) was 1 July 1990 ; most
Member States had not notified their national
implementing measures by that date . 4 . WORKING CONDITIONS

In response to the initiation of infringement proceedings,
the Commission received notifications from almost all
Member States . Spain and Ireland simply assured the
Commission that the deadlines for entry into force of the
Directive ( 31 December 1991 ) would be met . However,
the proceedings against these two Member States
continued, and will shortly reach the reasoned opinion

stage .

There was a distinct improvement regarding Directive

88 / 364 / EEC on the banning of certain specific agents
and / or certain activities, since, of the six Member States
which had failed to notify their national implementing
measures, all except Luxembourg have now done so, and
their measures are being vetted for conformity with the
Directive .

3 . SOCIAL SECURITY FOR MIGRANT WORKERS But there has been no net decline in infringement
proceedings for failure to notify national measures
implementing Directive 86 / 188 / EEC, which is designed
to protect workers against noise, for the closing of the

Nearly half the infringement proceedings commenced to proceedings against Italy is made up for by the letter of
ensure correct application of Community rules coordi ­ formal notice served on Portugal, which — along with
nating national social security schemes for migrant Luxembourg and the Netherlands — is one of the
workers were closed . countries which have not yet notified their measures .

28 . 9 . 92 Official Journal of the European Communities No C 250 / 29

Finally, proceedings against Denmark, France, Italy,
Luxembourg, Spain and the Netherlands are being
continued for failure to notify national measures
implementing Commission Directive 88 / 35 / EEC
adapting to technical progress Council Directive
82 / 130 / EEC on approximation of the laws of the
Member States on electrical material which may be used
in mines susceptible to firedamp .

The deadline for transposal of Directive 88 / 642 / EEC on
the protection of workers against chemical, physical and
biological agents was 21 December 1990 . Since some
Member States failed to notify their national
implementing measures, the Commission commenced
infringement proceedings . In 1991, two of these Member
States notified the measures in question, and the
proceedings against them were closed . The infringement
procedures continue against the other Member States —
Belgium, Greece, France, Ireland and Portugal — who
have still not come into line .

Belgium 22 20 90

Denmark 21 20 95

Germany 22 21 95

Greece 22 17 77

Spain 22 20 90

France 22 18 81

Ireland 20 16 80

Italy 22 20 90
Luxembourg 22 17 77

Netherlands 22 17 77

Progress in implementing Directives applicable to Employment

and Social Policy

There were 23 directives to be transposed by the Member States
on 31 December 1991 (*). The transposition rate was 86 % .

Directives
applicable on
31 December

1991

Directives

for which

measures
have been

notified

%

Worker representation in British firms depends on a Portugal 20 17 85

decision the to . United Kingdom 22 22 100

decision by the employer to recognize representatives .
This is the major point in dispute between the
Community and the United Kingdom as regards the
transposal of Directives 75 / 129 / EEC on collective
redundancies and 77 / 129 / EEC on maintenance of
workers ' rights in the event of transfers of undertakings .

(') The number varies from one Member State to another because of

derogations, and provisions which are not applicable or that have
been changed .

C. COMMON AGRICULTURAL AND FISHERIES
The issue is rendered more complicated by British POLICIES
traditions of collective bargaining ; the United Kingdom
government is encountering enormous difficulties in
resolving the problem along Community lines . 1 . COMMON AGRICULTURAL POLICY

( a ) Agricultural legislation

This is the background to the action brought by the

Commission in the Court of Justice in 1991 to have the
infringement established ; at the same time, contacts are
continuing with the British authorities in an attempt to
find an acceptable out-of-court solution .

On the other hand, there was a positive outcome to the
proceeding against Italy for failure to notify national
measures implementing Directive 75 / 129 / EEC . Law No
223 of 23 July 1991 incorporated the Directive in
national law, and the procedure was accordingly closed .

Following judgment given by the Court of Justice against
Greece in Case C-53 / 88 for failure to conform with
Directive 80 / 987 / EEC on protection of workers in the
event of an employer 's insolvency, the Commission has
resumed contacts with the Greek authorities to see what

action is being taken in response .

Whilst working towards the removal of technical barriers
to the free movement of agricultural products ( in the
ways described above ), the Commission has also
endeavoured to ensure that the other provisions of the
Community 's agricultural legislation are genuinely and
properly applied .

In particular it has closely monitored compliance with
the mechanisms introduced to bring agricultural
production under control and thus ensure the rapid,
effective and non-discriminatory application of the
measures taken to reform the common agricultural
policy ( CAP ). This close surveillance has revealed a
number of shortcomings affecting the specific measures
to contain production ( milk quotas, co-responsibility levy
on cereals ).

The action taken on infringements against the milk
quota system again included the partial recovery of the

No C 250 / 30 Official Journal of the European Communities 28 . 9 . 92

additional levy due in certain Member States for
1988 / 89 (') and for 1989 / 90 ( 2 ). This was consistent with
the Commission 's decision to withhold a total of ECU

57,4 million of the advances due to these Member States
in respect of European Agricultural Guidance - and
Guarantee Fund ( EAGGF ) expenditure . This decision
was contested in the Court of Justice by two of the

Member States concerned .

Whilst monitoring the application of the measures taken
to stabilize agricultural production, the Commission also
made a point of prosecuting those infringements which
could affect the control exercised over EAGGF
expenditure .

The Commission initiated proceedings against certain
Member States, Belgium in particular, for their failure to
On 17 October the Court of Justice ruled ( 3 ) that the carry out proper inspections of the storage conditions
Commission had the power, pending a final decision on and health status of intervention beef .
the clearance of annual accounts, to reduce the sums
payable as monthly advances in the light of the Member
State 's accounting position vis-a-vis the EAGGF, if it
found that in breach of Community law the national
authorities had failed to collect certain revenue intended
for the EAGGF or had effected certain expenditure The Commission 's position on this matter received
charged to the Fund . support from the Court of Justice, which ruled in Case

In the meantime most Member States ( exept Italy ) have
acknowledged their financial obligation towards the
Community budget and have initiated the administrative
and legal procedures for the recovery of the sums due .
Most significantly the Commission has had the satis ­
faction of seeing the Court of Justice confirm that it is
competent to withhold advances .

Similarly the Commission had to initiative Article 169
proceedings when it discovered that France was incor ­
rectly implementing the arrangements whereby the fat
content of milk deliveries is taken into account and that,
consequently, French producers enjoyed an unfair
advantage . In certain circumstances a higher fat content
may entail the collection of the additional levy . Since the
procedure was initiated, however, France has complied
with the rules and is now correctly implementing the

arrangements in question .

A problem similar to that encountered with the milk
quota scheme was France 's failure to collect and pay to
the Community budget the co-responsibility levy on
cereals . The Commission therefore issued a reasoned
opinion on this matter . The French authorities have now
rectified the situation .

(*) Belgium, Germany, Italy, Luxembourg and Ireland .
( J ) Belgium, Germany, Italy and Luxembourg .
( 5 ) Case 342 / 89, Germany v. Commission, not yet reported ; cf .

Judgment of 17 October 1991 in Case 346 / 89, Italy v.

113 / 90 ( 4 ) that the waiver of the right to lodge any
complaint provided for in Article 2 ( 2 ) ( d ) of
Commission Regulation ( EEC ) No 2173 / 79 of 4
October 1979 laying down procedures for the disposal of
beef purchased by intervention agencies and repealing
Regulation ( EEC ) No 216 / 69 does not extend to any
latent defects which, by their very nature, cannot be
detected on prior inspection by the person concerned
and render the product unfit for consumption .

On 16 May, the Commission also had the satisfaction of
seeing the Court endorse its view that it was illegal for
the Netherlands authorities to admit to free circulation,
at a reduced levy of 6 % ad valorem, quantities of
manioc exported from Thailand without an export
certificate ( 5 ). The Commission will recover the own
resources which the Netherlands failed to collect .

Although the measures taken to curb production have
received special attention, the Commission has not
neglected to check on the application of specific market ­
organization mechanisms . The Court of Justice gave
judgment for the Commission in two actions against

Greece for non-compliance with the rules on the
common organization of the market in cereals .

( 4 ) Judgment of 2 October 1991 in Case 113 / 90, Gebroeders

Schulte and E. Reinert v . Belgische Dienst voor Bedrijsleven
en Landbouw and Others, not yet reported .

( 5 ) Judgment of 16 May 1991 in Case 96 / 89, Commission v.

Netherlands, not yet reported .

Commission, not yet reported .

28 . 9 . 92 Official Journal of the European Communities No C 250 / 31

For several years the Commission has been endeavouring
to eliminate the irregularities in the management of this
market which have arisen from Government intervention
through KYDEP ( described as a form of cooperative
organization ), with the result that, in the case of
products such as feed grain, what might be called a
national market organization has continued to operate
since Greek accession .

The Commission succeeded in collecting sufficient
evidence to convince the Court that the Government had
instructed KYDEP to buy in poor-quality durum wheat
which failed to meet intervention standards ('), that feed
grain had been bought in at prices higher than the
market price, and that KYDEP had sold this grain at a
loss to stockfarmers, the loss being covered by the
State ( 2 ).

The Commission also endeavoured to put an end to
certain abuses perpetrated by the Milk Marketing Boards
( MMBs ) in the United Kingdom . The United Kingdom
authorities have failed to ensure that the MMBs do not
overstep the exclusive purchasing rights conferred by the
Community rules ( Article 25 ( 1 ) ( a ) of Regulation ( EEC )
No 804 / 68 ). In particular the United Kingdom has done
nothing to prevent the MMBs from restricting the
options available under the Community rules, which
allow producers to process their milk and market the
by-products ( e.g. skimmed milk ) independently of the
Boards .

Lastly, the Commission must single out for special
criticism Italy 's persistent refusal to comply with the
Court 's ruling of 12 February 1987 in Case 69 / 86, in
which the Court censured Italy under Article 171 of the
EEC Treaty for failure to comply with the judgment
given against it on 15 November 1983 in Case 322 / 82
for failure to observe the rules for the enforcement of
quality standards in the fruit and vegetables sector .

In 1991 the Court of Justice again supported the
Commission by ruling against the export ban imposed on
private traders at KYDEP ' s request in autumn 1985 ( 3 ). Despite repeated approaches from the Commission, Italy
still refuses to comply with the rules, to the detriment of
the proper working of the Community, which is based
on observance of the law .

One other case is pending, concerning a system of
Government ' programme contracts ' to encourage
exports, at set prices, of pasta products, flour and meal
made from cereals receiving a hidden subsidy from the
State (*).

( b ) Agricultural directives

The areas covered by the harmonization directives are
plant health, seeds and seedlings, animal feedingstuffs
and the veterinary sector .
Following these rulings, the Greek authorities have
indicated their willingness to cooperate with the
Commission and have given firm undertakings that such
illegal practices involving KYDEP will not recur .
Generally speaking, the Commission has nothing but In 1991, where the transposal of directives was
encouragement for the efforts being made to ensure the concerned, the number of infringement proceedings
correct operation of the market organization for cereals initiated under Article 169 of the Treaty rose to a record
in Greece . In view of the gravity of the Court 's findings, level of 201, up from 90 in 1989 and 127 in 1990 . The
however, the Commission will continue to keep a number of reasoned opinions rose even more specta ­
watchful eye on the situation . cularly, from 28 in 1990 to 132 in 1991 . Referrals to the

Court for non-communication of national implementing
measures totalled 15 in 1991, as compared with three in

(*) Judgment of 29 November 1989 in Case 281 / 87,
Commission v. Greece ( 1989 ), ECR 4015-4028 .
( 2 ) Judgment of 12 July 1990 in Case 35 / 88, Commission v.

Greece ( 1990 ), ECR 3125-3150 .
( J ) Judgment of 30 May 1991 in Case 110 / 89, Commission v.

Greece, not yet reported .
( 4 ) Case 61 / 90, Commission v. Greece, pending .

1990 .

As in 1990 the situation is least satisfactory in Italy and
Portugal . The latter Member State accounts for by far
the largest number of formal notices served ( 39 ) and
reasoned opinions issued ( 55 ). The large number of
infringement proceedings against Portugal is essentially

No C 250 / 32 Official Journal of the European Communities 28 . 9 . 92

attributable to the fact that this Member State has failed

to transpose numerous directives which were already
part of the Community rules at the time of Portuguese
accession in 1986 . In 1991 Portugal made a great effort
to reduce the backlog in the plant health sector, with the
result that the situation there is now comparable to that
in the other Member States . Portugal has also made
considerable progress in the veterinary sector : only three
reasoned opinions had to be issued in 1991 for failure to
transpose veterinary directives . In Portugal the essential
problem is the delay in the transposal of directives
relating to seeds and seedlings . Although Article 344 of
the Accession Treaty gave Portugal extra time for this
purpose, infringement proceedings have been initiated in
respect of most directives covering this sector . It should
be pointed out, however, that in the feedingstuffs sector
Portugal is one of only three Member States against
whom no infringement proceedings were initiated in

1991 .

Leaving aside Portugal, Italy was the Member State with
the largest number of non-transposed directives in 1991,
as in previous years . This resulted in 19 infringement
proceedings, 17 reasoned opinions and 10 referrals to the
Court of Justice .

substantial problems would still appear to exist in
Belgium and Luxembourg ( both Member States have
failed to comply with 15 reasoned opinions ).

In all, 15 cases were referred to the Court ( 10
applications against Italy, two against Belgium, two
against Luxembourg and one against Ireland ). It should
be pointed out, however, that the Commission withdrew
two cases against Italy and two against Luxembourg
when the Member States concerned notified it of
measures to transpose the legislation . These were the
only cases relating to the feedingstuffs sector ( Italy ) or
seeds and seedlings ( Luxembourg ). All the cases now
before the Court are therefore concerned with the
transposal of veterinary directives .

In some Member States awareness of the fact that the
single market is hearing completion has led to a
noticeable improvement in the transposal of directives .
The figures for 1991 indicate that France and Greece in
particular have done a great deal to make up for earlier
delays and now rank among the Member States which
are leading the way with the transposal of the agri ­
cultural Directives .

In five cases judgments given by the Court censuring
Italy for not meeting its obligation to transpose directives
have not been implemented ('). In each case a reasoned On the other hand, there has been a sharp increase in
opinion for failure to comply with Article 171 of the the number of infringement proceedings against Ireland
Treaty has been issued . and the Netherlands where the issue of a reasoned

opinion or referral to the Court has not been followed
by due compliance ; in Belgium and Luxembourg,
moreover, the situation is now giving cause for concern .
Progress with the transposal of agricultural directives can
be expected in the near future as a result of the new
' Community laws ' implemented in Italy .

As regards the other Member States, 1991 was
significant in that the Commission had to address
numerous letters of formal notice to them all . The
number of procedures initiated ranged from 10 ( against
Spain ) to 19 ( against Luxembourg ).

The differences between Member States as regards the
number of reasoned opinions received are growing
wider, however . By the end of 1991 the number of
reasoned opinions not complied with was nil in
Denmark, Germany, France and the United Kingdom
and very small in Greece . On the other hand,

The increase in the overall number of infringements may
be explained both by the introduction of new adminis ­
trative routines within the Commission, reducing the
time required to initiate infringement proceedings if
Member States fail to notify measures for the transposal
of directives, and by the problems encountered with the
directives designed to achieve the objectives of the White
Paper . Such difficulties would seem to be particularly
significant in the veterinary sector .

In certain Member States there have been substantial
delays in transposing the directives on artificial insemi ­
nation and breeding . In addition to the difficulties
encountered in 1990 by Directives 87 / 328 / EEC and
88 / 407 / EEC ( as mentioned in the Eighth Annual
Report ), problems arose in 1991 with Directives
90 / 120 / EEC ( deep-frozen semen of bovine animals ),

( l ) Italy subsequently notified the Commission of implementing

measures . 88 / 661 / EEC ( breeding pigs ), 89 / 361 / /EE ( pure-bred

measures .

28 . 9 . 92 Official Journal of the European Communities No C 250 / 33

sheep and goats ), 89 / 556 / EEC ( embryos of domestic
bovine animals ), 90 / 118 / EEC ( pure-bred pigs for
breeding ) and 90 / 119 / EEC ( hybrid pigs for breeding ).
Substantial delays have also affected the directives on
trade in meat products ( Directives 88 / 658 / EEC and
89 / 227 / EEC ).

The figures on reasoned opinions indicate, however, that
certain Member States ( see above ) have taken appro ­
priate steps to tackle the problems posed by the
transposal of these directives . In the eighth annual report
it was feared that some Member States would have
considerable difficulty in meeting the obligations
imposed by the completion of the single market and this
fear has been confirmed by the worsening of the
situation in Belgium, Ireland, Luxembourg, the
Netherlands and elsewhere .

In 1991 the Commission, monitoring compliance with
this requirement in the agricultural sector, examined
some 60 legislative texts adopted by the Member States
and had to initiate 10 infringement proceedings as a
result . It should be noted that certain Member States, in
particular Denmark, Greece and Portugal, suspended the
legislation in question and duly forwarded a new draft .

Progress in implementing Directives applicable under the
Common Agricultural Policy ( CAP )

Under the agricultural policy a total of 330 harmonization
directives have to be implemented . Although implementing
measures have been notified for 93 % of all these directives
together, problems have been encountered in the veterinary
area, particularly in relation to artificial insemination and
breeding .

The low figure for Portugal is evidence of the difficulties which
that Member State is having with the transposal of directives,
particularly those relating to seeds and seedlings, which were
already established Community law at the time of Portuguese
Since of ' White the deadline Paper ' agricultural for the transposal directives of a will large expire number in accession .

1992 and since the Council has still to adopt many such
directives in the course of 1992, the Member States, and
more particularly those now in difficulties, will have to
make a considerable effort if they are to meet their
obligations in the restricted time remaining until
31 December 1992 .

As regards the application of Directive 83 / 189 / EEC, as
amended by Directive 88 / 182 / EEC, which lays down a
procedure for the provision of information in the field of
technical standards and regulations, 47 draft technical
regulations relating to agriculture were examined in 1991
for compatibility with the Treaty and the secondary
legislation . Of these drafts, 18 were from the EFTA
countries . These figures represent a 17,5 % increase on

1990 ( 39 notifications from the Member States and one
notification from an EFTA country ). Having systemat ­
ically vetted the drafts, the Commission had to ask for
adjustments in almost every second case to ensure that
adoption would not create new obstacles to the free
movement of goods ( detailed opinions ). In other cases
the status quo was imposed for 12 months as from the
date of notification, either because the Commission
intended to present a proposal to the Council or because
the measures proposed were covered by a Commission
proposal to the Council for Community legislation to
replace national measures .

The Commission also measures that Member States
comply with their obligation to notify any legislation
laying down technical standards or rules pursuant to
Directive 83 / 189 / EEC, as amended in respect of agri ­
culture by Directive 88 / 182 / EEC .

Directives
applicable on
31 December

1991

Directives

for which

measures
have been

notified

%

Belgium 330 305 92,4

Denmark 330 322 97,6

Germany 330 322 97,6

Greece 328 315 96

Spain 326 310 95,1

France 330 326 98,8

Ireland 330 311 94,2

Italy 330 284 86,1
Luxembourg 330 306 92,7

Netherlands 330 313 94,8

Portugal 326 258 79,1
United Kingdom 330 320 97

2 . COMMON FISHERIES POLICY

To enforce the Community arrangements for the conser ­
vation and management of fish stocks, the Commission
continued to give its special attention to the measures
taken by Member States to ensure observance of the
fishing quotas allocated to them . The Commission 's view
that the Member States are answerable for overfishing if
they have failed to monitor fishing activities was again
endorsed by the Court in its judgment of 31 January

No C 250 / 34 Official Journal of the European Communities 28 . 9 . 92

1991 in Case C-244 / 89, Commission v France, which
dealt with instances of overfishing in the course of 1986 .
On 5 February 1991 an action was also brought against
the Netherlands ( Case C-52 / 91 ) for overfishing in 1986 .
Infringement proceedings were also initiated against the
United Kingdom ( overfishing in 1985, 1986 and 1987 ),
the Netherlands ( overfishing in 1987 ), Spain ( overfishing
in 1988 ), France ( overfishing in 1988 ) and Denmark
( overfishing in 1988 ).

With a view to ensuring the consistency of the conser ­
vation arrangements, the Commission continued to
monitor the fishery control measures which Member
States must apply on their territory and within their
waters . In its judgment of 11 June 1991 in Case
C-64 / 88, the Court found that France had failed to
ensure adequate enforcement of technical measures for
the conservation of stocks and then on 25 July 1991, in
Case C-258 / 86, Commission v Spain, it reaffirmed the
Community 's authority to fix TACs and quotas even for
waters outside the Community fishing zone and, as a
corollary, the obligation on the Member State to apply
to the catches concerned the control measures required
by the Community rules .

Infringement proceedings continued against Spain
( failure to check landing declarations against the data
recorded when the fish were sold ), France ( failure to
meet its obligation to penalize breaches of the
Community rules concerning logbooks ), Spain ( refusal to
cooperate with Commission inspectors ), France ( failure
to observe deadlines for the notification of catches
subject to TACs or quotas ) and Denmark ( national legis ­
lation contrary to the Community rules concerning
logbooks ).

Member States ' application of the Community rules on
the compulsory notification of the data required under
the common organization of the market may now be
considered satisfactory . Following the Court 's judgment
in Cases C-39 / 88 against Ireland and Case C-200 / 88
against Greece, the Commission was able to close the
files concerned . The judgment given on 27 November

1990 in Case C-209 / 88 against Italy has not yet been
fully implemented, however .

The Commission has continued its close and systematic
monitoring of national fisheries legislation in order to
assess its compatibility with Community law . In this
context mention should be made of Case C-221 / 89,
Factortame II, in which the Court was asked for a
preliminary ruling on the United Kingdom legislation on
the granting of national flag rights to fishing vessels . On
25 July 1991 the Court gave its eagerly awaited ruling .
In this leading judgment, as in that given on 4 October

1991 in Case C-246 / 89 concerning the incompatibility of
the said United Kingdom legislation with the EEC
Treaty, the Court held that, as Community law stood at
present, it was for the Member States to determine the
conditions governing the right of fly their flag but, in
exercising that power, Member States had to respect the
primacy of Community law, and in particular Articles 7,
52 and 221 of the Treaty, whereby the right to fly a
particular flag cannot be refused on the grounds that the
owners or operators of the vessel concerned are nationals
of another Member State or that they reside or have
their principal place of business in another Member
State . By its judgment of 4 October 1991 in Case
C-93 / 89, the Court also ruled that Article 52 of the
Treaty was infringed by Irish legislation requiring
nationals of other Member States to set up an Irish
company before obtaining a licence for sea fishing .
These various rulings reaffirm the primacy of the basic
principles of the Treaty as regards the granting of flag
rights and / or licences to fishing vessels and are thus of
major political importance with profound repercussions
not only on the fishing industry but also on the transport
and other sectors .

Judgment is still pending in the proceedings brought

against the British legislation which make fishing licences
subject either to nationality and residence conditions as
regards the composition of crews or to conditions
whereby vessels must return periodically to British ports

( Case C-279 / 79 ) and against Irish legislation which,
following the example of the United Kingdom, prohibits
British vessels from fishing in Irish waters unless they
have obtained a fishing licence subject to the terms laid
down by the abovementioned British legislation ( Case
C-280 / 90 ) 0 ).

Whilst initiating proceedings against the United
Kingdom legislation on the granting of flag rights
and / or licences to fishing vessels, the Commission alsc
reviewed the legislative position in the other Membei
States . It emerged that almost all the other Membe
States had similar national rules whereby the granting o
fishing licences and / or flag rights was subject t
conditions of nationality, residence and / or main plac

(') See also judgment of 14 December 1989 in Case C-3 / f

( 1989 ) ECR 4459, and Case C-216 / 87 ( 1989 ) ECR 4509 .

28 . 9 . 92 Official Journal of the European Communities No C 250 / 35

of establishment . Infringement proceedings were initiated the point of doing so . The Commission is, however,
accordingly and are still in progress . paying particular attention to the situation in Spain
and Italy .

In the abovementioned cases the Court ruled on
important matters of principle but two questions have
still to be answered in this context : one is to what extent,
subject to compliance with the Treaty and given the
underlying principles and specific features of the
common fisheries policy, a relationship must exist
between a fishing vessel and the Member State whose
flag it flies and whose quotas it fishes ; the other is to
what extent the constraints imposed by the Community 's
structural policy, which is designed to bring the capacity
of the fishing fleet into line with the fish stocks available,
may be reconciled with the fundamental principles of the
Treaty .

As regards other national fisheries measures, the
Commission was able to terminate the infringement
proceedings initiated against Denmark and France for
bilaterally concluding fisheries agreements with
non-member countries and thus encroaching on the
Community 's exclusive powers in this field . On 7 July

1991 the Court gave an important ruling in Case
C - 146 / 87 concerning the legislation whereby the United
Kingdom had extended its territorial waters in 1987 . The
Court held that when applying the specific access
arrangements laid down in Article 6 ( 2 ) and in Annex I
to Regulation ( EEC ) No 170 / 83, the United Kingdom
would have to abide by the baselines in force on 25
January 1993, the date when the Regulation came into

force .

— Most Member States have notified the Commission

of the measures they have taken to comply with
Directive 90 / 388 / EEC of 28 June 1990 ( 2 ) on
competition in the market in telecommunications
services . The Commission is now vetting them . It has
reason to believe that three Member States —
Greece, Ireland and Italy — have not yet fully
transposed the Directive and accordingly, on 25 April

1991, have them the opportunity to present their
observations as required by the Article 169
procedure .

On 19 March 1991 the Court of Justice gave
judgment, in Case C-202 / 88, brought by France,
supported by Belgium, Germany, Greece and Italy,
to have parts of Directive 88 / 301 / EEC annulled . The
judgment is of particular interest in that the Court
recognizes that Article 90 ( 3 ) gives the Commission
the general power to issue directives defining the
obligations imposed by Articles 90 ( 1 ).

2 . COMMERCIAL MONOPOLIES

The following points relating to the adjustment of

national commercial monopolies are worthy of note :
D. COMPETITION

— In the more general context of the measures taken
1 . PUBLIC UNDERTAKINGS

The Commission 's main activities in relation to Member

States ' obligations towards their public undertakings are
summarized below .

— All the Member States have abolished the special or

exclusive rights banned by Directive 88 / 301 / EEC of

16 May 1988 (*) on competition in the markets in
telecommunications terminal equipment, or are on

to establish an internal market in energy, the
Commission commenced infringement proceedings
against several Member States where exclusive rights
to import and export electricity and gas were found
to be in restraint of intra-Community trade . Letters
dated 9 August 1991 informed Belgium, Denmark,
France, Greece, Ireland, Italy, the Netherlands, Spain
and the United Kingdom that the Commission
considered these exclusive rights to be contrary to the
EEC Treaty, in particular Article 37, and gave them
notice to present their observations .

( l ) OJ No L 131, 27 . 5 . 1988, p. 73 . O OJ No L 192, 24 . 7 . 1990, p. 10 .

No C 250 / 36 Official Journal of the European Communities 28 . 9 . 92

— The Commission continued to supervise measures

taken by the Spanish authorities to comply with their
obligations regarding adjustment of the petroleum
monopoly . It drew the Spanish Government 's
attention to the fact that the exclusive supply clause
in its legislation — allowing service stations in the
State-owned network to supply only Spanish
products — would have to be dropped at the end of
the transitional period .

— Turning to the Portuguese petroleum monopoly, the

Commission concluded that changes made to
Portuguese legislation had indeed liberalized the
market . The Commission is currently analysing the
reasons why this liberalization has still not resulted in
increased imports .

Progress in implementing Directives applicable to Competition

The overall rate of implementation is 91.6 % ; delays subsist in
Greece, Ireland and Italy .

transport and on the mutual recognition of qualifications
in these fields ( 77 / 7 96 / EEC ). Infringement proceedings
relating to the first two of these directives have been
running for 16 years ! The Commission is glad to see
Italy has now responded to its pressure and put an end
to this serious, prolonged violation of Community law . It
will be discussing with the Italian authorities certain
shortcomings in the application of the rules governing
access to the occupations .

Portugal has still not transposed Directive 74 / 562 / EEC,
though draft legislation does seem to be well on the way
towards adoption .

Directive 89 / 438 / EEC, amending these three directives,
has now been transposed by most of the Member States,
though not by France . But some of the implementing
provisions have been found to be incomplete or incorrect
and the Commission is continuing the proceedings .

The new Directive ( 90 / 398 / EEC ) on the use of vehicles

hired without drivers for the carriage of goods by road
entered into force on 1 January 1991 . Italy, the
Netherlands and Portugal are the only Member States
that have not transposed it .

Directives
applicable on
31 December

1991 (')

Directives

for which

measures
have been

notified

%

Belgium 3 3 100,0

Denmark 3 3 100,0

Germany 3 3 100,0

Greece 3 2 66,6

Spain 3 3 100,0

France 3 3 100,0

Ireland 3 2 66,6

Italy 3 2 66,6

Luxembourg 3 3 100,0

Netherlands 3 3 100,0

In the important area of road safety, virtually all the

Portugal 3 3 100,0 Member States have taken the measures needed to

United Kingdom 3 3 100,0 broaden obligations regarding the technical testing of

light commercial vehicles . Ireland is the only exception,
but it has notified the Commission of a bill which the
(') The two Directives referred to under heading D.l and Directive

80 / 723 / EEC . Commission has approved ; it will be enacted shortly .

Portugal 3 3 100,0

United Kingdom 3 3 100,0

80 / 723 / EEC .

E. TRANSPORT POLICY

1 . ROAD TRANSPORT

Italy at last complied with judgments given against it by
the Court of Justice for failure to transpose the
Directives on access to the occupation of road haulage
operator ( 74 / 561 / EEC ) and of passenger transport
operator ( 74 / 562 / EEC ) in national and international

Technical harmonization of road transport is a key

component of the common transport policy . One of the
most recent measures in this area — Directive
89 / 461 / EEC fixing maximum authorized dimensions for
articulated vehicles — has been implemented in all
Member States but two — Italy and Luxembourg . The
Commission has commenced infringement proceedings
against these two Member States and hopes that they
will come into line with Community law in the near
future .

28 . 9 . 92 Official Journal of the European Communities No C 250 / 37

In a hybrid area concerning both the social protection of
workers and road safety, the Commission has still not
been able to induce Italy, Belgium and Luxembourg to
take the measures needed to implement Directive
88 / 599 / EEC, which lays down standard checking
procedures for the implementation of social legislation
relating to road transport and to recording equipment in
vehicles . The Commission may have to bring proceedings

in the Court of Justice .

student to the effect that the German authorities have
replaced the concept of ' habitual residence ' used in
Directive 80 / 1263 / EEC by the concept of ' permanent
stay ' in applying the rules governing the exchange of
driving licences . A student domiciled in one Member
State but residing in Germany solely in order to study
there is given full residence status by the German auth ­
orities and accordingly has to exchange his national
driving licence, which he can only use for one year in
Germany from the beginning of his stay . Infringement
proceedings have accordingly been commenced against
Germany .

Italy and the United Kingdom have at last adopted the
Community driving licence for all categories prescribed
by Directive 80 / 1263 / EEC . All the Member States are
now issuing the same type of driving licence . In July 1991 the Council adopted a new Directive on
driving licences ( 91 / 439 / EEC ), which provides that with
effect from July 1996 the driving licence issued by the
national authorities of the Member States will be
recognized rather than exchanged, even when the holder
moves to a different Member State . It also confirms the

In May the Court of Justice gave an important judgment Commission 's approach that attendance at a university or
relating to combined transport ( Case C-45 / 89 ). The school in another Community State should not be
background to the case was to be found in a complaint regarded as a transfer of habitual residence . Students
received by the Commission from the Italian subsidiary may thus continue to use the driving licence issued in
of a German company, according to which the Italian their Member State of origin .

In May the Court of Justice gave an important judgment
relating to combined transport ( Case C-45 / 89 ). The
background to the case was to be found in a complaint
received by the Commission from the Italian subsidiary
of a German company, according to which the Italian
authorities were refusing to issue any new authorizations
for tractors used for combined transport operations . The
Court held that by maintaining in force a system of auth ­
orizations and / or quotas for combined road / rail carriage
of goods between Member States and by withholding
authorizations from private persons wishing to undertake
such carriage, the Italian Republic had failed to fulfil its
obligations under Directive 75 / 130 / EEC on the estab ­
lishment of common rules for certain types of certain
road / rail carriage of goods between Member States .

In the light of these new provisions and following earlier
discussions with the Commission, the German national
authorities, acting in agreement with the Lander, will be
issuing regulations exempting students from the obli ­
gation to exchange driving licences imposed by the
existing law

This greatly helps to clarify the rules governing
combined tansport in a manner which will be conducive
to its development in line with the rules made by the
Council . 2 - INLAND WATERWAYS

The Commission subsequently asked the Italian
government to take the necessary measures to comply
with this judgment, but none have yet been notified .

In December the Court of Justice gave judgment
declaring that Belgium had failed to comply with its obli ­
gations under Article 171 of the EEC Treaty by failing
to give effect to the earlier judgment of 24 May 1988 .
Belgium has still not transposed Directive 82 / 714 / EEC
laying down technical requirements for inland waterway
vessels . But it has notified the Commission of draft legis ­

lation to do so ; the Commission hopes that it will be
The citizens ' Europe concept has transport policy adopted so as to put an end to this serious infringement
aspects . The Commission received a complaint from a of Community law .

No C 250 / 38 Official Journal of the European Communities 28 . 9 . 92

Despite Commission pressure, Directive 87 / 540 / EEC on
access to the occupation of carrier of goods by waterway
has not yet been transposed in all the Member States,
although in many cases their authorities have prepared
drafts . The Commission may soon have to take the
Member States to the Court of Justice if they do not
notify measures .

Directive 7 9 / 409 / EEC is " the other environmental
directive most frequently infringed . As in the past, the
cases concerned failure to designate special protection
areas, disruption or damage in designated areas and
unlawful hunting for protected species ( 1 ).

Progress in implementing Directives applicable to Transport 2 . WATER

The results are good here, with an average rate of 93 %, and no
appreciable divergences between the various Member States .

Directives
applicable on
31 December

1991

Directives

for which

measures
have been

notified

%

Belgium 42 39 92,9

Denmark 40 39 97,5

Germany 42 40 95,2

Greece 41 39 95,1

Spain 42 41 97,6

France 45 42 93,3

Ireland 39 38 97,4

Italy 41 36 87,8

Luxembourg 40 35 87,5

Netherlands 43 40 93

Portugal 35 32 91,4

United Kingdom 40 39 97,5

The Court of Justice gave judgment against Germany in
Case C - 131 / 88 and Italy in Case C-360 / 87 for failure to
transpose Directive 80 / 68 / EEC on the protection of
groundwater . It will be remembered that judgment was
given against the Netherlands in 1987 ( Case C-219 / 84 )
on the same grounds ; the requisite implementing
measures have still not been notified .

Judgment was also given against Belgium in Case
C-290 / 89 and Germany in Case C-58 / 89 for incorrect
transposal of Directives 75 / 440 / EEC and 79 / 869 / EEC
on surface water .

Among the numerous infringement proceedings
commenced against Member States who failed to apply
or actively violated Community law on water protection,
one of the more noteworthy was the case commenced
against all Member States for failing to implement
programmes to reduce water pollution by 99 dangerous
substances and to establish quality objectives as required
F. ENVIRONMENT by Article 7 of Directive 76 / 464 / EEC on pollution by
dangerous substances ( l ).

1 . PROTECTION OF WILD FAUNA AND FLORA

3 . AIR

Directive 85 / 337 / EEC on the assessment of the affects
of certain public and private projects on the environment
was the one that prompted the largest number of cases
flowing from complaints or the Commission 's own inves ­
tigations in 1991 . With the exception of Luxembourg,
where there has been delay in adopting the requisite
Grand-Ducal regulation, all the Member States have
now transposed the directive and most of the cases
arising are for failure to apply it properly .

Of the six Member States required to take national
measures to implement Directive 89 / 427 / EEC,
amending Directive 80 / 779 / EEC, on sulphur dioxide
and suspended particulates, Portugal was the only one to
do so in the time allowed, though Denmark announced

(') Fuller details are given in Annex C.

28 . 9 . 92 Official Journal of the European Communities No C 250 / 39

within the time limit that its existing legislation was

already in conformity . Progress in implementing Directives applicable to the

Environment

The 85 % average success rate here is quite good, though the
delays in Italy and Greece continue to give cause for concern .
In May the Court of Justice gave judgment against
Germany for failure to transpose Directive 80 / 779 / EEC

Directives

on sulphur dioxide and suspended particulates and Directives for which
Directive 82 / 884 / EEC on lead ( Cases C-361 / 88 and 31 applicable December on measures %

have been

C-59 / 89 ). Jugdment was given against France in 1991 notified
October for incorrect transposal of those two Directives
and Directive 85 / 203 / EEC on nitrogen dioxide ( Cases
C-64 / 90, C-13 / 90 and C-14 / 90 ) 0 ). Belgium 92 75 81

Directives
applicable on
31 December

Directives

for which

measures
have been

%

1991

notified

4 . NOISE

Directives 88 / 180 / EEC and 88 / 1 81 / EEC amending
Directive 84 / 538 / EEC relating to the permissible sound
power level of lawnmowers have not yet been fully
transposed throughout the Community . Implementing
measures remain to be taken in one of the three regions
of Belgium and in Germany, Ireland and the United
Kingdom . Spain has transposed only Directive
88 / 181 / EEC .

Belgium 92 75 81

Denmark 92 91 98

Germany 92 84 92

Greece 91 70 76

Spain 91 85 93

France 92 82 89

Ireland 91 77 84

Italy 92 55 59
Luxembourg 92 80 86

Netherlands 92 88 95

Portugal 91 86 94

United Kingdom 91 77 85

G. ENERGY

5 . WASTE — CHEMICAL AND BIOCHEMICAL 1 . PETROLEUM PRODUCTS

SUBSTANCES

The Commission 's proceedings against Italy and the

Netherlands for failure to transpose Directive

Germany has already notified the Commission of the 85 / 536 / EEC ( use of substitute fuels in petrol ) reached
measures taken to transpose Directives 90 / 219 / EEC and the Court of Justice ; the case against Belgium was
90 / 220 / EEC on the contained use and deliberate release closed .
into the environment of genetically modified organisms ;
the Commission has been informed that measures have
also been adopted in Denmark and the Netherlands .
The Commission terminated the proceedings against

Portugal for failure to transpose Directives 75 / 339 / EEC
and 75 / 405 / EEC and suspended the proceedings for
failure to transpose Directives 78 / 170 / EEC and
Denmark, Germany and Luxembourg have notified their 82 / 885 / EEC .
measures for the implementation of Directive
90 / 517 / EEC amending for the eleventh time Directive
67 / 548 / EEC on the classification, packaging and
labelling of dangerous substances (').

2 . TRANSIT OF ELECTRICITY — Directive 90 / 547 / EEC

Belgium, Denmark, France, Germany and the
(') Fuller details are given in Annex C. Netherlands have already transposed this Direcitve .

No C 250 / 40 Official Journal of the European Communities 28 . 9 . 92

3 . TRANSPARENCY OF PRICES — Directive H. THE EXTERNAL DIMENSION

90 / 377 / EEC

1 . EXTERNAL RELATIONS

None of the Member States has yet transposed this
Directive .

4 . COAL — Decision 90 / 296 / ECSC

The Commission took Greece to court for blocking
imports of matches from Sweden and Bulgaria by means
of a ' delta procedure ', never notified to the Commission,
whereby the Central Bank can withhold import licences .
The Greek authorities have never answered the
Commission 's requests for information about this
procedure .

The Commission commenced proceedings under Article

688 of the ECSC Treaty by addressing a letter of formal 2 . DEVELOPMENT COOPERATION

688 of the ECSC Treaty by addressing a letter of formal
notice to the German authorities regarding their failure
to notify the plans for reduction of compensatory
payments under the third Electricity-from-coal Law and
for restructuring, rationalization and modernization of
the mining industry ( as required by Commission
Decision 89 / 296 / ECSC ).

The main purpose of monitoring the application of

Community law here is to ensure that Member States
comply with the various Protocols to the Lome
Convention, agreements with non-member countries and
legislation implementing international commodity
agreements to which the Community is a party .

Similar proceedings were commenced against Spain ; the
Spanish authorities gave a satisfactory answer to the
Commission 's letter of formal notice and notified plans
for the reduction of aids and the restructuring of the
mining industry . I. STATISTICAL, ADMINISTRATIVE AND BUDGETARY

MATTERS

Progress in implementing Directives applicable to Energy 1 . STATISTICS

Generally speaking there are no major problems with notifi ­
cation of implementing measures ; the average rate is a healthy
91 % . Road transport

Directives
applicable on
31 December

1991

Directives

for which

measures

have been

notified

%

Belgium 14 13 92,9

Denmark 14 13 92,9

Germany 14 13 92,9

Greece 12 9 75

Spain 12 10 83

France 14 13 92,9

Ireland 11 9 81,8

Italy 14 11 78,6

Luxembourg 12 10 83

Netherlands 14 12 85,7

Portugal 13 9 69

United Kingdom 11 9 81,8

With respect to statistics, Member States are required to

supply figures at given intervals on certain subjects and
in accordance with strict procedures .

The main purpose of Council Directive 78 / 546 / EEC on
statistical returns in respect of carriage of goods by road,
as part of regional statistics is to obtain comparable
annual data on the carriage of goods by vehicles
registered in one of the Member States in the territory of
that Member State ( national transport ) and to and from
other Member States or non-member countries ( inter ­
national transport ). This information is extremely useful
for the formulation of Community transport policy,
which requires a good knowledge of the scale and devel ­
opment of road haulage operations ; it is complemented
by similar Directives concerning the other two modes of
inland transport — rail and inland waterways .

28 . 9 . 92 Official Journal of the European Communities No C 250 / 41

On 18 July 1989 the Council extended the scope of this
Directive to provide more comprehensive statistics on the
carriage of goods by road . The amending Directive
( 89 / 642 / EEC ) lays down that certain data be forwarded

, at shorter intervals ( every three months ) and that
additional information be provided on traffic to and
from non-member countries .

Infringements

supplied under Directives 7 3 / 132 / EEC and 7 8 / 53 / EEC .
Considerable progress has since then been made in estab ­
lishing agricultural statistics in Italy . The Commission
hopes that doubts still surrounding these statistics will be
allayed when the final results of the 1990 agricultural

census emerge .

The weakness of Belgium 's agricultural statistics is such
that at the end of 1991 the Commission had to
commence infringement proceedings for delays in
notifying statistics on herds and agricultural production .
The Directives concerned here are 76 / 630 / EEC ( pigs );

Following the establishment of an infringement 73 / 132 and 78 / 53 / EEC ( cattle ); 72 / 280 / EEC ( milk and
concerning Italy, an action was brought before the Court milk products ), and 82 / 177 / EEC ( sheep and goats ).
of Justice, which gave judgment on 11 July 1985 ( 1 ). In
view of the importance of the Directive, the Commission
decided on 29 June 1989 to bring a second action before
the Court, which gave judgment on 8 May 1991 ( 2 ). The
data for 1989 supplied by Italy in July 1991 are in 2 . COMMUNITY STAFF
conformity with the Directive .

At the end of November 1991, thanks to technical
assistance from Eurostat, Luxembourg resumed
supplying data with effect from the first quarter of 1991 .
The infringement proceedings have been suspended until

30 June 1992 to give time to establish whether the flow
of data is resumed on a regular basis ; if so, the
proceedings will be terminated .

The infringement proceeding against the Netherlands
regarding the transfer of pension rights under Article 1 1
of Annex VIII to the Community Staff Regulations were
closed when the Dutch authorities gave a satisfactory
answer to the Commission 's letter of formal notice .

In the same context, Belgium responded to infringement
proceedings by passing a new law in May 1991 that
allows pension transfers to be made on the basis of a
Agricultural statistics subrogation principle .

Several Council Directives provide for the transmission
of agricultural statistics regularly used by management
committees . The nature of the data, and the frequency
and timing of notification, have been determined with
the Member States so as to meet the needs of these
committees . Agricultural measures regularly entail heavy
expenditure from national budgets and the Community
budget, and can only be devised properly if the statistics
available for use by the committees are fully reliable and
available on time .

The first transfers are now being effected . The
proceedings will be closed after the implementation and
operation of the new law have been monitored for a
' running in ' period .

With respect to the aggregation of family allowances

under Article 68 of the Staff Regulations, the
Commission is continuing its discussions with the
German authorities on the implementation of the Court
of Justice judgment of 7 May 1978 in Case 189 / 85
( 1987 ), ECR 2075 . Germany passed new legislation in

At the end of 1988 the Commission commenced 1987, the discussions now concern the question of
proceedings against Italy for failure to supply reliable compensation to the Community in respect of the period
statistics on cattle herds . Comparison of its figures with from 31 January 1975 to 30 April 1987 .
those of previous years, with those given for the
purposes of calculating milk cow premiums and with
other data supplied by Italy to the management
committees raised doubts as to the correctness of data The Spanish authorities responded to the infringement

proceedings based on Article 12 of the Protocol on
(') Case 101 / 84, Commission v. Italy . Privileges and Immunities by changing their legislation to
( 2 ) Case C-266 / 89, Commission v. Italy . solve difficulties met by former officials and temporary

No C 250 / 42 Official Journal of the European Communities 28 . 9 . 92

staff wishing to import their motor vehicles tax-free . The
Commission is pursuing its discussions with the Spanish
authorities in order to settle a number of specific cases
covered by the old legislation .

The Commission addressed a reasoned opinion to France

in order to obtain payment of VAT own resources ( with
interest ) that have not been paid, contrary to Directive
77 / 388 / EEC and Regulation ( EEC ) No 1552 / 89 .

The Belgian authorities brought in new tax measures Progress in implementing Directives applicable to Statistics
whereby the spouses of Community officials with earned

income liable to Belgian tax did not qualify for the
married person 's allowance . As they had not sought to
cooperate with the Community institutions as required
by Article 19 of the Protocol on Privileges and
Immunities, the Commission sent a letter of formal

notice .

3 . BUDGETARY MATTERS

On 16 May the Court of Justice gave judgment against
the Netherlands in Case C-96 / 89, ordering it to pay
agricultural levies for 1983 ( with interest running from
June 1984 ) on consignments of manioc imported from
Thailand without export certificates and charged to levy
at the preferential rate of 6 ° / o instead of the full rate of
72 % . The Netherlands responded by paying the corre ­
sponding own resources to the Commission ( Hfl
19 765 281 by way of levies and Hfl 57 946 131 by way
of interest ).

The generally good rate of progress here at 98,5 %, makes
Italy 's slight delay all the more significant .

Directives
applicable on
31 December

1991

Directives

for which

measures
have been

notified

%

Belgium 42 38 90

Denmark 42 42 100

Germany 43 43 100

Greece 42 42 100

Spain 47 47 100

France 42 42 100

Ireland 42 42 100

Italy 42 42 95
Luxembourg 42 41 98

Netherlands 42 42 100

Portugal 47 47 100

United Kingdom 42 42 100

III . TABLES, CHARTS AND SUMMARIES

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No 7

Number of infringement proceedings initiated since 1984, classified by legal basis and stage of proceedings

Treaties and Regulations

Directives

Formal notice

1984 1985 1986 1987 1988 1989 1990

Reasoned

opinion

Reference to Court

of Justice

Judgment

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No 11

Application of Community law by national courts

I. APPLICATION OF ARTICLE 177 OF THE EEC TREATY Origin of cases referred by national courts of final instance

Belgium Cour de Cassation 1
1 . In 1991 the Court of Justice received 153 requests from Hof van Cassatie
national courts for preliminary rulings in cases where difficulties France Cour de Cassation 2
arose in the interpretation of Community law or there were Conseil d'fitat 1
doubts as to the validity of a Community instrument .

Germany Bundesverwaltungsgericht 2
Bundesfinanzhof 9
Over the last few years the number of cases referred to the Bundessozialgericht 1
Court for preliminary rulings has remained relatively stable — Bundesgerichtshof 5

141 in 1990 and 139 in 1989 — although the figure for 1988
was slightly higher ( 179 ).

2 . For the second consecutive year, cases were referred by
courts in all the Member States . Admittedly there are disparities
between the various countries, most notably between Germany,
which asked for rulings on 50 cases, and Ireland, which referred
only one ; but the figures show quite clearly that there is no
longer a single Member State that is against the procedure on
principle .

3 . The three tables below show the number of references
form each Member State, the number of cases referred by each
court of final instance and the areas of Community law
concerned . It should be pointed out that as and when these
cases are recorded by the Court of Justice ' Registry, they are
published in full in the Official Journal of the European
Communities .

Number of cases per Member State

Ireland Supreme Court 1

Italy Corte Suprema di
Cassazione 2

Consiglio di Stato 1

Luxembourg Conseil d'Etat 1

Netherlands Hoge Raad 3
Raad van State 1

Portugal Supremo Tribunal
Administrativo 2

United Kingdom House of Lords 3

Areas of Community law concerned

Agriculture 27

Brussels Convention 4

Commercial policy 1
Community staff 2

Company law 3

Competition 1 3

Environment and consumer policy 0

External relations 4

Free movement of capital 1
Free movement of goods 27
Free movement of persons 9

Social policy 41

State aid 4

Taxation 14

Transport 3

II . REVIEW OF SIGNIFICANT JUDGMENTS OF

NATIONAL COURTS OF FINAL INSTANCE

Total
Member State
references (')

References by
courts of final

instance (')

Belgium 17 ( 17 ) 1 ( 4 )

Denmark 2 ( 5 ) - (-)

France 24 ( 21 ) 3 ( 2 )

Germany 50 ( 34 ) 17 ( 12 )

Greece 2 ( 2 ) - ( 2 )

Ireland 1 ( 4 ) 1 ( 2 )

Italy 18 ( 25 ) 3 ( 1 )

Luxembourg 2 ( 4 ) 1 ( 2 )

Netherlands 17 ( 9 ) 4 ( 3 )

Portugal 3 ( 2 ) 2 (-)

Spain 4 ( 6 ) - (-)

In an appendix to the Eighth Annual Report, the Commission

United Kingdom 13 ( 12 ) 3 ( 2 ) published a study on the attitude of national superior courts to

Community law, in particular their approach to the principle of
the primacy of Community law over national law, the direct
(') 1990 figures in brackets . effect of many Community rules and the obligations arising
from Article 177 of the EEC Treaty .

United Kingdom 13 ( 12 ) 3 ( 2 )

28 . 9 . 92 Official Journal of the European Communities No C 250 / 71

Analysis of the judgments referred to below shows that national
superior courts are paying more and more attention to
Community law .

As in the previous year, the Commission has had access to data
gathered by the research and documentation department of the
Court of Justice . It was thus able to identify decisions which
were of significance for the application of Community law,
although it should be pointed out that it is not possible, by
consulting data bases, to identify cases where national courts
ought to have applied Community rules but where the judgment
contains no reference to them . Moreover, the Commission
cannot undertake a systematic analysis of the thousands of
judgments delivered each year by the national superior courts .

The research

Research was carried out on the following questions :

1 . Were there cases where decisions against which there was no

appeal were taken without a reference for a preliminary
ruling ?

2 . Were there any cases where courts, contrary to the ruling in

Case 314 / 85 Fotofrost, declared an act of a Community
institution to be invalid ?

3 . Were there any decisions that were noteworthy as setting

good or bad examples ?

Decisions given late in 1990 and in the course of 1991 were
reviewed .

Question 1

A final decision worthy of comment in this field is that given by
the Dutch College van Beroep voor het Bedrijfsleven on 30
January 1991 . It had been established that the Dutch
Government, contrary to Article 5 of Directive 8 8 / 301 / EEC,
had failed to notify the Commission of terminals type-approval
procedures . The applicant in the main proceedings had argued
that this failure to discharge a Community obligation
invalidated all type-approval procedures . The Court used Case
380 / 87, Enichem Base v. Comune di Ciniselio Balsamo, as
authority for holding that neither the terms nor the purpose of
the Directive warranted a conclusion that failure to notify
invalidated all procedures . But it must be remembered that the
legal effect of failure to notify technical rules is in issue in
several cases pending before the Court of Justice ( e.g. Cases
C-69 / 91, Decoster ; C-92 / 91, Taillandier ; C-93 / 91, Evrard ).

430 / 83, which provides for the expulsion from Portugal of
foreign nationals convicted of certain offences . Having regard
to the judgment given by the Court of Justice in Case 67 / 74,
Bonsignore, it upheld the decision to expel a Dutch national
convicted of a drug offence .

There was a particularly important development in Spain . An
administrative division of the Tribunal Supremo and the
Tribunal Constitucional both had soubts as to their jurisdiction
to refer questions for a preliminary ruling on the compatibility
of a national provision with Community law . In four judgments
given at the end of November 1990 on Spanish legislation
implementing the Sixth VAT Directive, the Sala de lo
Contencioso Administrativo of the Tribunal Supremo held that
a court or tribunal whose jurisdiction is confined to reviewing
administrative measures and regulations and does not extend to
reviewing administrative measures and regulations and does not
extend to reviewing legal provisions has no power to ask the
Court of Justice questions that might lead to a ruling as to the
applicability or otherwise of a legal rule ; the Tribunal Constitu ­
cional alone had that power . But the Tribunal Constitucional
did not share that interpretation of its own jurisdiction . In two
judgments that were by no means unanimously acclaimed, it
held that it could not rule on the compatibility of Spanish law
with Community law since Community law was not part of the
Spanish Constitution . The first of these judgments — given on

14 February 1991 — concerned the compatibility of a Spanish
law governing the election of Members of the European
Parliament with a decision of the Council of the European
Communities . The Tribunal Constitucional held that the

question whether a provision of Spanish law conflicted with
Community law did not fall to be treated as a question of
constitutional law : it concerned a conflict of laws arising below
the constitutional level and could be adjudicated by the lower
courts . The Tribunal declared that it had no jurisdiction to
ensure the uniform application of Community law and
accordingly declined to refer the question for a preliminary
ruling . By a further judgment given on 22 March 1991 it upheld
its earlier approach, adding that it could review the implemen ­
tation of Community law by the Spanish authorities only where
an abuse of fundamental rights was involved .

A on judgment 27 August given 1991 by, upholding the Bundesverfassungsgericht the decision of the in Bundesge Germany ­ that invalidated this
richtshof a series of of questions 15 January relating 1990 not to company to refer to law the ( Court compatibility of Justice of 380 / 87,
the German concept of ' disguised contributions in kind ' with the authority
Council Directive 77 / 91 / EEC ) is particularly noteworthy . In

invalidated

two also judgments declined to given ask for on preliminary 17 October rulings 1991 the in cases Bundesfinanzhof concerning several legal effect
failure to take account of losses sustained on rental of property
outside Germany ( but within the Community ) for income tax C-69 / 91,
purposes, although the possibility exists where the property is
situated within Germany . But questions on the same subject
were subsequently put by the Landgericht Hannover ( Case
C-83 / 91 ). Question 2

In Portugal the Supremo Tribunal de Justifa declined to request
a preliminary ruling in a recent case concerning Decree-Law No Research revealed no cases of this type .

No C 250 / 72 Official Journal of the European Communities 28 . 9 . 92

Question 3

Research yielded several exemplary decisions of supreme courts
in the Member States ; the judgment given by the Italian Corte
Costituzionale on 18 April 1991 is a shining example . It
confirmed the right in Italian law for an individual to plead
provisions of a Directive which are sufficiently precise and
unconditional against the State if the State has failed to
transpose the Directive into national law or has done so but not
correctly . The Corte Costituzionale held that where a court
established that a national provision conflicts with a directly
applicable provision of Community law it must of its own
motion disapply the national provision ; it need not refer the
question for constitutional review, and if it did so the reference
would be dismissed for want of jurisdiction .

A few cases to close with :

— the decision of the House of Lords in Chief Adjudication

Officer v. Foster, based on the judgment of the Court of
Justice of 12 July in Case C-l 88 / 89, rejected arguments in

favour of restrictive interpretations of Court of Justice
judgments ;

— on 4 June 1991 the commercial division of the French Court

of Cassation, in Doyen et al v. Soci6t6 des pompes funèbres
des regions libérées, annulled a Court of Appeal judgment as
unreliable in law since it had applied Article 86 of the EEC
Treaty without regard for the criteria established by the
Court of Justice ;

— on 8 July 1991 the French Conseil d'État, in Palazzi, held a

decree governing rights of residence to be illegal as incom ­
patible with Council Directive 64 / 221 / EEC on the coordi ­
nation of special measures applicable to the movement and
residence of foreign nationals on grounds of public policy,
public security or public health ;

— on 4 December 1990 the Dutch Raad van State declared in

Bruin & Hartveld v. Minister van Landbouw that it had
jurisdiction to check a national administrative regulation for
conformity with a principle of Community law ( in this case
the principle of proportionality ).

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Action taken on presumed infringements ( complaints and cases detected by the Commission ) at the end of

1991, by major policy area

Year of Infringement
Policy areas File closed proceedings
registration

proceedings

opened

External relations 1985 10 2

1986 12 4

1987 5 5

1988 7 1

1989 5 0

1990 2 0

l

1991 0 ' 0

Internal market and industrial affairs 1985 243 54

1986 186 96

1987 170 71

1988 199 120

1989 212 74

\ 1990 210 30

1991 86 18

Competition 1985 4 2

1986 U 2

1987 12 3

1988 5 12

1989 9 1

1990 12 0

1991 5 11

Employment and social affairs 1985 19 10

1986 44 21

1987 20 22

1988 26 27

1989 60 24

l 1990 31 56

1991 27 1

Agriculture 1985 150 50

1986 110 33

1987 102 32

1988 100 23

1989 113 30

1990 93 22

1991 97 19

Transport 1985 8 2

1986 23 3

1987 7 8

1988 18 11

1989 20 5

1990 4 3

1991 9 1

28 . 9 . 92 Official Journal of the European Communities No C 250 / 77

Year of Infringement
Policy areas registration File closed proceedings

proceedings

opened

Environment 1985 27 19

1986 60 45

1987 62 60

1988 105 50

1989 146 67

l 1990 173 8

1991 89 7

Fisheries 1985 4 22

                                                                                                                         - 1986 3 23

1987 3 14

1988 1 3

1989 6 12

1990 0 8

1991 2 2

Financial institutions and company law 1985 23 35

1986 7 5

1987 5 5

1988 10 6

\ 1989 11 9

1990 10 11

1991 9 1

Customs union and indirect taxation 1985 25 19

1986 70 19

1987 63 39

1988 54 35

1989 65 23

1990 32 14

1991 31 12

Consumer protection 1985 0 0

1986 0 3

1987 1 4

1988 7 1

1989 6 0

1990 6 4

1991 7 0

Total 1985 528 236

1986 534 265

1987 456 273

1988 544 314

1989 66 7 258

1990 581 158

1991 370 73

Note : this table does not include the files which are in progress .

No C 250 / 78 Official Journal of the European Communities 28 . 9 . 92

ANNEX A

Infringements of the Treaties and of Regulations

Contents

Page

External relations 81

Economic and monetary policy 81

Internal market and industrial affairs 81

Competition 85

Employment, social affairs and education 86

Agriculture 87

Transport 89

Administrative questions 89

Environment 90

Fisheries 90

Financial institutions and taxation 91

Budgetary questions 91

Customs union 92

Indirect taxation 93

Enterprise policy, tourism and cooperatives 95

Legal basis

The indication of the legal basis provided here is derived from the document number in the Celex data
base, which is itself derived from the act 's own original number ; it is made up as follows :

— one figure identifying the documentary sector ( e.g. 1 = Treaties establishing the Communities, etc .),

— two figures identifying the reference year ( year of publication, signature, etc .),

— one or two letters identifying the legal form ( e.g. E ( in sector 1 ) = EEC Treaty ),

— a serial number representing the number given to the document on publication or the article number .

Example : 3 80 R 2144

Sector 3 : secondary legislation

Year of publication

Regulation

Regulation No 2144 / 80

28 . 9 . 92 Official Journal of the European Communities No C 250 / 79

Sector Letter code
I

1 TREATIES ESTABLISHING THE EUROPEAN COMMUNITIES ;
TREATIES AMENDING OR SUPPLEMENTING THOSE TREATIES

A Euratom Treaty ( 1957 )

B Accession Treaty Denmark, Ireland, Norway and the United Kingdom

( 1972 )

E EEC Treaty ( 1957 )

F Treaty establishing a single Council and a single Commission ( 1965 )
Treaty amending certain budgetary provisions ( 1970 )

H Accession Treaty Greece ( 1979 )

K ECSC Treaty ( 1951 )

R Treaty amending certain financial provisions
Treaty amending certain provisions of the statute of the European
Investment Bank ( 1975 )

G Amending Treaty ( Greenland ) ( 1985 )

2 LEGAL ACTS RESULTING FROM THE EXTERNAL RELATIONS OF

THE EUROPEAN COMMUNITIES

A Agreements with non-member countries or international organizations

3 SECONDARY LEGISLATION

B Budget

C Censure

D Decision ( except ECSC general decisions )

L EEC / Euratom Directives

R EEC / Euratom Regulations

X Other acts ( resolutions, opinions, etc. ) published in the OJ L series or in the
OJ prior to 1967

Y Other acts published in the OJ C series

4 COMMUNITY SUPPLEMENTARY LEGISLATION

A Agreements between Member States

D Decisions ( of the representatives of the governments of Member States
meeting within the Council )

X Other acts published in the OJ L series

Y Other acts published in the OJ C series

5 PREPARATORY DOCUMENTS

PC Commission proposals

AP EP Opinions ( if consulted )

IP EP Opinions ( own initiative )

AC ESC Opinions ( if consulted )

IC ESC Opinions ( own initiative )

CC Court of Auditors Opinions

BP EP preparatory acts for the budget

No C 250 / 80 Official Journal of the European Communities 28 . 9 . 92

Sector Letter code

6 CASE LAW

B Order — Court of First Instance

C Opinions of the Advocate-General — Court of Justice

J Judgment — Court of Justice

O Order — Court of Justice

S Seizure

T Third party proceedings — Court of Justice

v Opinion

x Ruling

7 NATIONAL PROVISIONS IMPLEMENTING DIRECTIVES

9 PARLIAMENTARY QUESTIONS

E Written questions

H Questions asked during question time

O Oral questions

P Petitions

Note : Sectors planned :

7 — National provisions implementing Directives .
8 — National case-law .

10 — Academic writing .

NB : A /..../ ..

( A /..../,.)

E. g .: A / 39 / 83 European Court judgment of 3 December 1987
( A / 480 / 88 )

The procedure under Article 171 EEC — A / 480 / 88 — is based on the failure by the Member State
to implement the Court 's judgment in infringement procedure A / 39 / 83 .

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ANNEX B

Infringement of directives

Contents

Statistical questions . 97

Internal market and industrial affairs 97

Competition 112

Financial institutions and company law 112

Employment, social affairs and education 115

Environment, consumer protection and nuclear safety 116

Agriculture 128

Transport 143

Energy 145

Budgets 146

Customs union and indirect taxation 146

Telecommunications, information industries and innovation 149

Explanation of entries

78 / 546

( 31 . 12 . 1989 )

blank

yes

n.m.n .

n.p.i .

n.p.a .

1 . 1 . 1986

A / 74 / 89

Case 171 / 88

Judgment 1 . 3 . 1983

r.o .

number of Directive

deadline for incorporation of Directive into national law

no measures notified by 31 December 1990 although measures may in fact
have been taken ( measures notified by MS currently under study )

national implementing measures notified

proceeding initiated or pursued on the ground that no measures have been
notified

proceeding pursued on the ground that the Directive has not been properly
incorporated into national law

proceeding pursued on the ground that the Directive is not being properly
applied

deadline for incorporation by the particular Member State

infringement number (. . ./ 82 = year in which proceedings were initiated )

number of case on Court of Justice register

date of Court judgment

reasoned opinion

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ANNEX C

Monitoring the application by Member States of environment Directives

I. INTRODUCTION

On the other hand, there appear to be few problems in the
implementation of environmental Directives applicable to
marketable products . This may account for the relatively small
number of cases concerning the application of Community law
relating to chemicals and noise .

The main feature which emerges from a review of the various . may
complaints received by the Commission and cases it established number of cases concerning the application of Community law
on its own initiative regarding the environment in 1991 is that a relating to chemicals and noise .
great many of them concern Community instruments on nature
conservation, in particular Directive 85 / 337 / EEC on the
assessment of environmental impact .
In general, there was no sign in 1991 of a fall in the number of
complaints to the Commission concerning the environment (').

The reason for this preponderance is not that other provisions
of Community environment law are applied more effectively :
such a hypothesis is hardly borne out by the rather scant infor ­
mation at the Commission 's disposal . It is rather a reflection of
the particular sensitivity of individuals and their increasing
awareness of the consequences of major public works for the
environment and their quality of life . In this respect, the
complaints (') show the growing importance which the public
attaches not only to the principle that a project 's impact on the
environment must be assessed — a requirement which is still too
often ignored — but also their right to be consulted before
work begins on a project, as provided for in Article 6 ( 2 ) of
Directive 85 / 337 / EEC .

Since the administrative workload has not eased, the
Commission needs to review the ways in which complaints are
handled . In this respect there is a special place for ' package
meetings ' which give the Commission more opportunity to
explain to Member States the exact nature of the problems and
grievances raised by complainants and obtain more relevant
information from them without the risk of mutual misunder ­
standings . In 1991 meetings of this kind where held with
Belgium, Italy, France and Ireland .

II . SITUATION IN THE MEMBER STATES

There are other reasons why the impact assessment Directive is Belgium
of particular importance . In 1991 there were a great many cases
where major construction projects, most frequently involving
transport infrastructure, were implemented without due regard Late transposal
to Directive 85 / 337 / EEC .

The Brussels Capital Region has made up much of the delay
observed in the past .
As regards the other sectors, the Commission 's observation in
the eighth annual report still holds true : the situation is at its
least satisfactory in cases where Community legislation lays
down obligations to plan ahead, since few Member States do so The Walloon and Brussels Capital Regions have notified
satisfactorily . measures transposing Directives 88 / 180 / EEC and 88 / 181 / EEC
amending Directive 84 / 538 / EEC on the permissible sound
power level of lawnmowers . The Flemish Region has notified
measures implementing Directives 90 / 219 / EEC and
90 / 220 / EEC on the contained use and deliberate release into
This is the case for many Directives concerning water ; it is
therefore no surprise that this sector ranks second in terms of the environment of genetically modified organisms .
complaints and infringements recorded in 1991 .

No measures have been notified for Directive 90 / 517 / EEC
amending for the 11th time the Directive on the classification,
The waste sector ranks third for the same reason and also packaging and labelling of dangerous substances .
because of incorrect transposal and slack application in many
Member States, problems which also apply to the Directives on
water and to a lesser extent those on air quality .

Conformity with Community Directives

(') The statistics on the number of complaints recorded in 1991 cannot

be compared to statistics for previous years as the criteria for
counting them, in particular complaints addressed to the Commission
in the form of petitions, have been changed .

Legislation adopted to give effect to Directives is generally in
order . But the complications of allocating powers at the various
levels of authority are such that gaps, sometimes substantial,
subsist .

28 . 9 . 92 Official Journal of the European Communities No C 250 / 151

A judgment given by the Court of Justice in 1987 in six cases of
failure to comply with Directive 79 / 409 / EEC has still not been
complied with . New proceedings under Article 171 of the EEC
Treaty are in hand .

Directive 84 / 360 / EEC is still not fully transposed . Nor are
Directives 85 / 203 / EEC ( nitrogen dioxide ), 76 / 403 / EEC ( PCBs
and PCTs ), 78 / 319 / EEC ( toxic waste ), 78 / 176 / EEC ( titanium
dioxide ) and 87 / 217 / EEC ( asbestos ).

designated ; in the Walloon Region, problems subsist with
hunting and trapping regulations, even though the Court of
Justice gave judgment against Belgium in 1987 .

Application of the impact assessment Directive ( 85 / 337 / EEC )
also gives rise to problems, particularly as regards public
inquiries and evaluation by the public authorities of impact
assessments carried out by those in charge of projects .

On 11 June 1990, the Court of Justice gave judgment against Denmark
Belgium for failure to transpose fully Directives 75 / 440 / EEC
and 79 / 869 / EEC ( surface water for human consumption and
analysis procedures ).

Late transposal

Directive 85 / 337 / EEC ( impact assessment ) has not been fully
transposed in the Walloon and Flemish Regions, though the
VLAREM legislation has settled some of the problems ; it has
not been transposed in the Brussels Capital Region .

, Denmark has discharged its obligations in this respect and
VLAREM legislation has settled some of the problems ; it has notified instruments transposing Directives 88 / 180 / EEC and
not been transposed in the Brussels Capital Region . 88 / 181 / EEC amending Directive 84 / 538 / EEC on the

permissible sound power level of lawnmowers, and also
Directive 90 / 517 / EEC amending for the 11th time the Directive
The Commission withdrew its action in the Court of Justice on the classification, packaging and labelling of dangerous
substances .

regarding transposal of Directive 85 / 339 / EEC ( containers of
liquids for human consumption ) when Belgium notified the
requisite measures .

Denmark has also transposed Directives 90 / 219 / EEC and
90 / 220 / EEC on the contained use and deliberate release into
Effective application the environment of genetically modified organisms .

In the water sector, there are still serious problems with
transposal of Directive 76 / 464 / EEC ( dangerous substances in Conformity with Community law
water ), as all rivers are badly polluted . The situation will
continue to give cause for concern as long as there are no
programmes for the reduction of this pollution under Article 7
of the Directive . The drinking water situation in Verviers is In general terms Denmark goes
deteroriating despite the judgment given by the Court of Justice transposing Community
on 5 July 1990 . Water quality remains well below the
requirements of Directive 80 / 778 / EEC . An implementation
report has been notified for Directive 76 / 160 / EEC ( bathing
water ), but not for Directive 78 / 659 / EEC ( fish waters ) or The rare cases of non-conformity
79 / 923 / EEC ( shellfish waters ). pre-existing law to the new

In general terms Denmark goes seriously about the business of
transposing Community environment Directives .

water ), but not for Directive 78 / 659 / EEC ( fish waters ) or The rare cases of non-conformity concern failure to adapt
79 / 923 / EEC ( shellfish waters ). pre-existing law to the new requirements . The infringement

proceedings for failure to notify programmes to reduce water
pollution by certain dangerous substances as required by
There are no special problems of air pollution . Directive 76 / 464 / EEC ( dangerous substances ) is an example .

Implementation reports regarding waste have been notified for Effective application
all Directives except Directives 86 / 339 / EEC ( containers of
liquids for human consumption ) and 86 / 278 / EEC ( agricultural
sludge ). Plans for the removal of general waste and toxic and
dangerous waste have still to be notified for the Brussels Capital Individual violations of Community environment law are so few
Region ; they are expected early in 1992 . and far between that their media impact is much greater than it

would be in other Member States .

The situation regarding the Seveso Directive ( 82 / 501 / EEC ) is
improving, but much remains to be done as regards emergency The most striking example in 1991 was the planned construction
plans . of a bridge to link Denmark to Sweden across the 0resund ( the
sound ). There was a vast public debate on the compatibility of
this project with Directives 79 / 409 / EEC ( wild birds ) and

Directive 79 / 409 / EEC on wild birds continues to pose 85 / 337 / EEC ( impact assessment ), and the Commission received
implementation problems in both Wallonia and Flanders . In the a series of complaints . It has yet to decide on the action to be
Flanders Region, insufficient special protection areas have been taken .

No C 250 / 152 Official Journal of the European Communities 28 . 9 . 92

Germany the prescribed date (3 July 1988 ). Commission vetting of the
legislation revealed that it did not fully transpose the Directive .
Länder rules were missing as were certain implementing rules ;
and several provisions were not in line with the Community
Late transposal requirements .

Germany has transposed Directive 90 / 517 / EEC ( 11th
amendment to Directive 67 / 548 / EEC on the classification,
packaging and labelling of dangerous substances and Directives
90 / 219 / EEC and 90 / 220 / EEC ( genetically modified
organisms ). But the Commission has yet to receive notification
of the measures to transpose Directives 88 / 180 / EEC and
88 / 181 / EEC ( permissible sound power level of lawnmowers ).

In the water area, the Court of Justice gave judgment against
Germany for incorrect transposal of Directive 80 / 68 / EEC
( groundwater ) in Case C-131 / 88 ( on 28 February 1991 ) and of
Directives 75 / 440 / EEC and 79 / 869 / EEC ( surface water ) in
Case C-58 / 89 ( on 17 October 1991 ). Germany has announced
measures to comply with the groundwater judgment .

Effective application
In September Germany notified measures to transpose Directive
88 / 610 / EEC on the prevention of major accident hazards in
certain industrial activities, the deadline for which was 1 June

1990 ., reports Germany required is still by not Community supplying Directives the Commission . The Commission with all the has
therefore begun taking action to obtain reports in the waste
sector for past years under Directives 75 / 442 / EEC,

It was a little late — between two and seven months — in 76 / 403 / EEC, 78 / 319 / EEC and 84 / 631 / EEC . The three-yearly
notifying the areas of the new Länder to be designated before implementation reports and the annual derogation reports under
the end of 1992 under Directive 90 / 656 / EEC for the purposes Directive 79 / 409 / EEC have not been sent for some years . Nor
of Directive 79 / 409 / EEC on the conservation of wild birds . has the Commission received the report due in mid - 1991 on

implementation of Directive 85 / 339 / EEC on containers of
liquids for human consumption .

It was a little late — between two and seven months — in
notifying the areas of the new Länder to be designated before
the end of 1992 under Directive 90 / 656 / EEC for the purposes
of Directive 79 / 409 / EEC on the conservation of wild birds .

Conformity with Community law

Most cases of non-conformity arise where new Community law
is to be grafted on to existing national law . The Commission
considers, for instance, that Directive 86 / 609 / EEC on
laboratory animals has not been fully transposed in Germany .

The Commission also considers that the German hunting legis ­
lation remains incompatible with many of the requirements of
Directive 79 / 409 / EEC ( protection of birds ), even though
judgment to this effect was given by the Court of Justice in

1990, and it has not been informed of any measures to comply
with the Court 's judgments in Cases 412 / 85 and 288 / 88 ( given
on 17 September 1987 and 3 July 1990 respectively ) declaring
several German provisions incompatible with Directive
79 / 409 / EEC .

The German legislation implementing the environmental impact
assessment Directive ( 85 / 337 / EEC ) came into force — in
incomplete form — in autumn 1990 . The Commission now has
a number of complaints before it, from which it emerges that
assessments were not carried out for a series of projects covered
by the Directive . Many of the complaints concern projects in
the new Länder, where the Community did not allow a
transitional period .

In two specific cases the Commission has commenced official
proceedings against the German authorities, after raising two
comparable cases in 1990 . Differences of opinion subsist in all
these cases .

The Commission has been in contact with the German auth ­

79 / 409 / EEC .

orities on a number of cases where waste has been transported
to other Member States in violation of Community rules . One
of these cases began with a complaint from the Environment
Ministry of another Member State .
Germany has now announced measures to comply with the
judgments given on - 3Q May 1991 in Cases C-361 / 88 and
C-59 / 89 regarding Directives 80 / 779 / EEC on air pollution by
S0 2 and particulates and 82 / 884 / EEC on lead pollution . The current situation derives from the fact that German legis ­
lation does not define waste in the same way as Community
law ; in the Commission 's opinion several provisions are out of
line with Directives adopted unanimously by the Council from

German legislation was developing in parallel with the prep ­
aration of Directives 90 / 219 / EEC and 90 / 220 / EEC on gen ­
etically modified organisms, but the Commission found that
some of the German provisions diverged from the Community
rules .

In February 1990 Germany adopted federal legislation trans ­
posing Directive 85 / 337 / EEC on environmental impact
assessment . It came into force in August 1990, two years after

1975 onwards . The Commission has commenced infringement
proceedings for incompatibility of German law on waste with
Community law .

In water matters the Commission has received a large number
of complaints about the quality of drinking water, especially in
the southern parts of the country . Maximum permissible
concentrations, in particular of nitrates and pesticides, are
regularly exceeded, contrary to Directive 80 / 778 / EEC . The

28 . 9 . 92 Official Journal of the European Communities No C 250 / 153

Commission regrets Germany 's frequent failure to respond to its
requests for notification of drinking water analyses in those
areas in good time, if at all .

In the eastern Lander, Germany will not be able to meet
the quality objectives of the drinking water Directive by
31 December 1991, as required by Article 7 of Directive
90 / 656 / EEC . The drinking water Directive will not in fact be
fully applied throughout the eastern parts of the country before
the end of 1995 .

The practical application of the water Directives leaves much to
be desired . Industrial waste water containing dangerous
substances listed in Directive 76 / 464 / EEC is all too often
discharged into the sea .

The parameters of Directive 76 / 160 / EEC ( bathing waters ) are
not all tested or inspected, and the frequency of measurements
at bathing places is commonly insufficient .

The Greek authorities have not notified the Commission of
mandatory measures designating fish and shellfish waters
( Directives 78 / 659 / EEC and 79 / 923 / EEC ), though the

The 78 / 659 designation / EEC and 79 of / 923 fish / EEC and ) has shellfish still not waters been made ( Directives in the implementation shellfish waters, report 16 of carp for 1990 waters referred and 9 of to salmon 47 designations waters . Nor of
form of mandatory legal instruments enjoying adequate are the requirements of Directives 75 / 440 / EEC ( surface water )
publicity . Programmes required by Article 5 of each of the two and 80 / 68 / EEC ( groundwater ) met in many cases .
Directives have apparently not been prepared . The Commission
observes the same shortcomings in relation to Directive
76 / 464 / EEC : the programmes for the reduction of pollution by
dangerous substances required by Article 7 are still missing . Most problems of air pollution are concentrated in - the Athens
area, where the limit values of Directive 80 / 779 / EEC are
regularly exceeded . The measures announced by the Greek
authorities have so far done little to improve the situation .

Greece

Transposal

The Greek authorities are now transposing Directives quicker
than in the past, but they are still not managing to make all the
requisite notifications within the prescribed time limits . They
have notified measures implementing only two of the Directives
to be implemented in 1991 — Directives 88 / 180 / EEC and
88 / 181 / EEC amending Directive 84 / 538 / EEC on the sound
power level of lanwmowers .

Waste elimination plans are still missing, and Greece has a
serious shortage of waste-disposal facilities . There are frequent
complaints about unauthorized or unchecked dumps .

The number of nature conservation areas designated under
Directive 79 / 409 / EEC as regards wild birds ( 26, so far ) still
appears inadequate, and the conservation measures to be taken
in most of these areas are still awaited .

Implementation of Directive 85 / 337 / EEC ( impact assessment ) is
still in its infancy, as the Directive was not transposed until

1990 . But there have already been several complaints that the
Conformity with Community law Directive is not being properly applied .

The number of proceedings in hand against Greece for incorrect
Spain
transposal is quite low in proportion to the total number of
Directives .

Late transposal

Greece commonly transposes the text of the Directive — both
Articles and Annexes — into Greek law in the form, generally,
of a Presidential Decree or a Ministerial Order . An exception
was Directive 85 / 337 / EEC ( impact assessment ), which was not
entirely transposed in proper form .

Effective application

Most of the problems that arise concern the practical
application of Directives and flow from the inadequacy of local
and regional infrastructures ( sampling facilities, laboratories,
qualified staff ).

The effort of Spanish authorities to implement EEC environ ­

mental Directives has been quite remarkable in recent years,
given the existence of multiple autonomous administrations with
legislative competences in this field . There are, however,
significant deficiencies in the transposition of some Directives
regarding the application of the principles of good laboratory
practice for tests on chemical substances ( Directive
87 / 18 / EEC ); the classification, packaging and labelling of
dangerous substances ( Directive 90 / 517 / EEC ); the control of
air pollution from new municipal waste incinerator plants
( Directives 89 / 369 / EEC and 89 / 429 / EEC ); the quality limit
values and guide values for sulphur dioxide and suspended
particulates ( Directive 89 / 427 / EEC ); the permissible sound
power level of lawnmowers ( Directive 88 / 180 / EEC ); and the
contained use and deliberate release into the environment of

No C 250 / 154 Official Journal of the European Communities 28 . 9 . 92

genetically modified micro-organisms ( Directives 90 / 219 / EEC
and 90 / 220 / EEC ).

genetically modified micro-organisms ( Directives 90 / 219 / EEC impact assessment, water, waste and air issues . Quite many new
and 90 / 220 / EEC ). complaints relate to development projects which have been

authorized without the required environmental impact
assessment as required by Directive 85 / 337 / EEC .
The dispersion of legislative and administrative competences
and the consequent lack of a more centralized coordination of
current environmental delays matters in the implementation appear to be the of main EEC reason Directives behind, as has the Another serious deficiency in the Spanish implementation of
been repeatedly recognized by the Spanish authorities . EEC environmental Directives is the delay in the presentation of

Partial conformity

Most of the deficiencies of the Spanish legislation indicated in
last year 's report have not yet been corrected . As was stated in
that report, the Spanish implementing legislation in the nature,
water and waste sectors does not fully comply with all the
requirements of EEC legislation .

Another serious deficiency in the Spanish implementation of
EEC environmental Directives is the delay in the presentation of
implementation reports, particularly those required by the
Directives on waste, water ( no reports on shellfish waters ;
incomplete report on fish waters ; but satisfactory report on
bathing waters ) and air . This deficiency seemingly corresponds
to the lack of existing information and insufficient adminis ­
trative resources for the preparation of those plans .

France

Late transposal
In the water sector, while some existing differences between
Directive 76 / 464 / EEC on dangerous substances and the
Spanish legislation appear to have been resolved, the partial
conformity of the Spanish legislation on groundwater ( Directive Several Directives were transposed in 1991, among them
80 / 68 / EEC ) still subsists . incinerators Directives 89 . / 369 / EEC and 89 / 429 / EEC on municipal waste

As for the waste Directives, and particulary toxic waste
( Directive 78 / 319 / EEC ), the Spanish legislation has not set up
the necessary regulatory and administrative framework for the
effective control of hazardous wastes .

Furthermore, some of the delays included in the Spanish rules
have no correlation with the provisions of the Directives .

This very same issue has arisen quite often in relation to other
environmental Directives ; the Directive on the supervision and
control of the shipment of hazardous waste within the European
Community ( Directive 84 / 631 / EEC ) is the most recent case in
point .

Environmental impact assessment remains as another important
field in which the differences between EEC legislation
( Directive 85 / 337 / EEC ) and the Spanish provisions still subsists .
The lack of any reference in the Spanish texts to most of the
projects of Annex II to the Directive was already emphasized in
last year 's report . Despite the initiation of infringement
proceedings against Spain, the deficiency has not been
corrected .

Effective application

In the previous two sections — lack of notifications and
incomplete transposition — Spanish performance has somewhat
improved in recent years . In contrast, the inadequate application
of environmental Directives appears as one of the most
important deficiencies still to be corrected . The increasing
number of environmental complaints from Spain in the last year
is an objective indicator of the depth of the problem .

The complaints make reference to all areas and are generalized
in all the regions of the country . They mostly involve nature,

The Commission has so far received no notification of measures

transposing Directive 88 / 490 / EEC, amending for the tenth time
Directive 67 / 458 / EEC ( classification, packaging and labelling
of dangerous substances ), which was to be transposed by

1 January 1990 ; Directive 90 / 517 / EEC ( 11th amendment ), or
Directives 90 / 219 / EEC and 90 / 220 / EEC on genetically
modified organisms, which were to be transposed by 23 October

1991 .

Conformity with Community law

France has continued its endeavours to replace administrative
circulars implementing the water Directives by decrees and
orders that provide the clarity and certainty in the law needed
for proper transposition . But the practice of using circulars has
not completely died out . In October the Court of Justice gave
judgment against France for using circulars to transpose
Directives 80 / 779 / EEC ( air quality ), 82 / 884 / EEC ( air
pollution by lead ) and 85 / 203 / EEC ( nitrogen dioxide ). To the
Commission 's knowledge the decrees which the French auth ­
orities were to issue by the middle of 1991 have still not come

out .

There are still a few cases of incorrect transposal of Directives

on water and nature conservation . Directives 85 / 337 / EEC
( impact assessment ) and 80 / 68 / EEC ( groundwater ) have not
yet been incorporated in French law .

Effective application

The limit values established for pollution of drinking water by
Directive 80 / 778 / EEC are still regularly exceeded, notably
where nitrates and pesticides are concerned .

28 . 9 . 92 Official Journal of the European Communities No C 250 / 155

The Commission is waiting for the French authorities to step up
their efforts to see that seaside and inland bathing waters
comply with the mandatory standards set by Directive
76 / 160 / EEC . The general level of fish water designations is
also geographically imbalanced, with no designations in 15 of
the 22 European regions of France ( 78 / 659 / EEC ).

others : Directives 85 / 337 / EEC ( impact assessment ),
75 / 442 / EEC ( waste ), 78 / 319 / EEC ( toxic and hazardous
waste ), 80 / 68 / EEC ( groundwater ), 76 / 464 / EEC ( dangerous
substances ), 79 / 923 / EEC ( shellfish waters ), and 79 / 409 / EEC
( wild birds ). Proceedings under Article 169 are running in
respect of all of these .

The Commission is continuing to receive complaints about Practical implementation
water pollution by dangerous substances, which suggests the
possible absence of genuine programmes to reduce pollution,
required by Article 7 of Directive 76 / 464 / EEC . In the water sector, an increasing number of complaints call into
question practical implementation of the groundwater Directive
( 80 / 68 / EEC ). The lack of a proper statutory framework is a

France seems to be having difficulties in meeting its obligations major factor in hampering such implementation . Investigation of
to draw up programmes and reports on the implementation of several complaints suggests that the bathing water Directive
Directives, notably Directives 86 / 278 / EEC ( sewage sludge ) and ( 76 / 160 / EEC ) is not applied to enough waters .
85 / 339 / EEC ( containers of liquids for human consumption ).

In the nature conservation area the Commission is still receiving
very many complaints regarding the application of Directive
79 / 409 / EEC, alleging damage to habitats and disruption to
bird-life there or the maintenance of hunting practices contrary
to the Directive . In 1991 the disappearance of large areas of
natural landscape with exceptional ecological riches continued ;
the Marais Poitevin ( marshlands to the north of La Rochelle ) is
a case in point . But several areas were designated for special
protection in the course of the year, and this would indicate
that the French authorities are going seriously about the
business of implementing Article 4 of the Directive . The
Commission keenly hopes that the process will continue and will
be supported by the announcement of special conservation
measures in the designated areas .

There is evidence that the number of designations under the
shellfish water Directive ( 79 / 923 / EEC ) is inadequate, and more
work appears to be necessary on classification and action
planning under the surface water Directive ( 75 / 440 / EEC ). A
significant number of water supplies do not comply with the
drinking water Directive ( 80 / 778 / EEC ), although extensive
remedial and other works seem to be under way . Increasingly,
implementation of the dangerous substances Directive
( 76 / 464 / EEC ) is coming into question ( lack of programmes,
deficiencies in the authorization system ).

keenly hopes process The success of Irish measures adopted in 1990 to deal with
be supported by the announcement of special conservation pollution of the air appears to indicate a satisfactory response to
measures in the designated areas . the many complaints made to the Commission since 1987 on air

quality in Dublin ( Directive 80 / 779 / EEC ). It is regrettable that
no programme yet seems to have been adopted under the large
The number of complaints for infringement of Directive combustion plants Directive ( 88 / 609 / EEC ).
85 / 337 / EEC is rising constantly . Many of them also concern
infringements of Directive 79 / 409 / EEC and arise from major
transport infrastructure projects that can have the effect of Irish implementation of Community rules on waste gives serious
damaging or destroying the habitats of wild bird species . cause for dissatisfaction, largely as a result of the inadequacy of

Ireland

Late transposal

The problem of late transposal of environmental Directives
persisted in 1991, with no measures communicated for any of
the Directives which came into operation during the year

Irish implementation of Community rules on waste gives serious
cause for dissatisfaction, largely as a result of the inadequacy of
the statutory framework . In particular, the requirements as to
making waste plans and issuing permits under the waste
Directive ( 75 / 442 / EEC ) and toxic waste Directive
( 78 / 319 / EEC ) are not fully respected . In addition, the first
programme sent under the liquid containers Directive
( 85 / 339 / EEC ) proved to be deficient . The Commission is
running a number of proceedings under Article 169 .

On nature conservation, Ireland continues to fall short of the
requirements of the wild birds Directive ( 79 / 409 / EEC ) in
regard to the number of habitats it has designated, and a
worrying number of complaints suggest threats to particular
habitats .

( Directives 88 / 180 / EEC and 88 / 181 / EEC on lawnmowers,
90 / 517 / EEC on chemical substances, 90 / 219 / EEC and
90 / 220 / EEC on genetically modified organisms ). Furthermore,
several Directives which were due to be transposed in previous
years still await legislation, for example Directives 87 / 101 / EEC
( waste oils ) and 86 / 278 / EEC ( sewage sludge ). Italy

Late transposal
Partial conformity

Lack of conformity of Irish legislation with several important
environmental Directives remained a problem in 1991 .
Significant flaws exist in relation to the following, among

Italy transposes Community Directives in environmental as in
other matters by the annual Community law . Legislative decrees
may now be issued each year by a simplified procedure to
facilitate the transposal of Directives .

No C 250 / 156 Official Journal of the European Communities 28 . 9 . 92

In the course of 1992 the following Directives, among others,
are to be transposed : Directives 75 / 464 / EEC, 82 / 176 / EEC,
83 / 513 / EEC, 84 / 156 / EEC, 84 / 491 / EEC, 88 / 347 / EEC and
90 / 415 / EEC on dangerous substances in water ; 87 / 217 / EEC
on asbestos ; 87 / 219 / EEC on the sulphur content of liquid fuels ;
87 / 416 / EEC on the lead content of petrol ; 78 / 659 / EEC on
protection of fish waters ; 79 / 923 / EEC on shellfish waters ;
80 / 68 / EEC on groundwater ; 87 / 101 / EEC on disposal of waste
oils ; and 85 / 21 1 / EEC on the conservation of threatened
species .

It must, however, be emphasized that a legislative programme
has been announced, nothing more .

Transposal is effected by a series of national ( central
government ) measures that confer powers on various national
and regional authorities, especially the latter . There is a
manifest need for better information on these matters to give a
clearer picture of the legal situation at all levels .

Partial conformity

The failure to transpose Directive 76 / 464 / EEC properly,
already mentioned, illustrates the problem . Other noteworthy
cases include the bathing waters Directive ( 76 / 160 / EEC ) and
the impact assessment Directive ( 85 / 337 / EEC ), Annex II to
which remains almost wholly untransposed . Infringement
proceedings are accordingly in hand .

Infringement proceedings are also under way in the important
matter of failure to comply with provisions requiring plans and
programmes to be presented ( waste and water ).

Effective application

Complaints relating to Italy cover all the areas to which
environmental Directives extend . The most delicate area remains
the impact assessment Directive ( 85 / 337 / EEC ). It is followed
by conservation of wild birds ( 79 / 409 / EEC ) and the waste
Directives ( 75 / 442 / EEC and 78 / 319 / EEC ).

One interesting point is that several of these complaints were
filed by Members of the European Parliament, and that action
is often also taken in the Italian Courts .

Luxembourg

Late transposal

Luxembourg is having real difficulty in transposing certain
Directives within the prescribed periods .

The fact that the sole judgment which the Court of Justice gave

against it on environmental matters in 1991 ( judgment of 24
July 1991, Case C-252 / 89 ) related to its failure to transpose

Directive 85 / 339 / EEC ( containers of liquids for human
consumption ) is significant .

Luxembourg has also failed to notify within the prescribed
period legislation implementing Directives 90 / 219 / EEC
( contained use of genetically modified micro-organisms ) and
90 / 220 / EEC ( deliberate release into the environment of gene ­
tically modified organisms ).

Such delays do not occur in every case, however, since
Directives 88 / 180 / EEC and 88 / 1 8 1 / EEC amending Directive
84 / 538 / EEC ( permissible sound power level of lawnmowers )
were implemented by a Grand-Ducal Regulation of 5 March

1990, whereas the deadline for transposal was only 1 July 1991 .

Lastly, Directive 90 / 517 / EEC adapting to technical progress,
for the 11th time, Directive 67 / 548 / EEC ( classification,
packaging and labelling of dangerous substances ) was
transposed by a Grand-Ducal Regulation of 23 July 1991 .

Partial conformity

Luxembourg transposes the Community Directives faithfully
and, where possible, literally . The few discrepancies arise from
errors of interpretation .

On the other hand, transposal may present problems when an
existing legal text has to be amended in line with a Directive .
One example of this has been the difficulty of transposing into
Luxembourg law Directive 85 / 337 / EEC ( assessment of environ ­
mental impact ).

Lastly, the provisions relating to sampling in Directive
76 / 160 / EEC ( bathing water ) have not been satisfactorily
transposed in every case .

Effective application

Luxembourg has failed to provide the reports required by
various Directives, particularly those relating to waste . The

Commission was therefore obliged to initiate infringement
proceedings in 1991 .

In the field of nature conservation, Luxembourg should increase
the number of special protection zones provided for in Article 4
of Directive 79 / 409 / EEC ( wild birds ). Seven areas suitable for
the conservation of birds are now being considered for
designation .

As regards water standards, Luxembourg does not correctly

apply Directive 80 / 778 / EEC ( quality of drinking water ) since
several districts continue to receive drinking water in which the
nitrate concentration exceeds 50 mg / 1, the maximum permissible
concentration set by the Directive .

The Commission has still not received from the Luxembourg
authorities any precise information on the implementation of
Directives 75 / 440 / EEC ( quality of surface water intended for
the abstraction of drinking water ) and 79 / 869 / EEC
( measurement and sampling of such surface water ), and in
particular the provisions relating to the systematic plan of
action, the frequencies of sampling and analysis and the scope
for derogations .

Lastly, the Luxembourg authorities have not sent the
Commission the programmes which they were to draw up for
the reduction of water pollution from certain dangerous
substances ( listed in Annex II to Directive 76 / 464 / EEC )
discharged into the aquatic environment .

Generally speaking, the problems which Luxembourg
encounters in implementing the Community 's Directives on the
environment would seem to be mainly attributable to its limited
administrative infrastructure ( it is the smallest Member State ).

28 . 9 . 92 Official Journal of the European Communities No C 250 / 157

Netherlands

Late transposal

The Netherlands authorities notified the Commission of
measures implementing lour of the Directives which the
Netherlands was to transpose in 1991 — Directives
90 / 219 / EEC and 90 / 220 / EEC ( contained use and deliberate
release of genetically modified organisms, respectively ) and
Directives 88 / 180 / EEC and 88 / 181 / EEC amending Directive
84 / 538 / EEC ( permissible sound power level of lawnmowers ).

non-compliance with Directive 85 / 337 / EEC ( impact
assessment ) in connection with roadbuilding and other
infrastructure projects .

As regards water pollution, mention should be made of the
failure to produce the improvement plans required by Directive
76 / 464 / EEC ( dangerous substances in the aquatic
environment ). Moreover, the maximum permissible concen ­
trations set by the Directives on drinking water are still being
exceeded, particularly in the case of pesticides .

Lastly, infringement proceedings have been initiated for the
Netherlands ' failure to designate a sufficient number of special
On the other hand, the Netherlands is late in transposing protection areas under Directive 79 / 409 / EEC ( wild birds ).
Directive 90 / 517 / EEC, amending for the 11th time Directive
67 / 548 / EEC ( classification, packaging and labelling of
dangerous substances ).

Portugal

Lastly, Directive 80 / 68 / EEC ( groundwater ), already mentioned
by the Commission in its 1990 report, has still not been
transposed into Dutch law despite a judgment by the Court of
Justice in 1988 . The Lozingen Besluit Bodembescheming ( Order

on protection against waste ) entered into force in July 1990, but
the Commission has received no information regarding changes
to the law governing groundwater nor any of the other
instruments needed .

Partial conformity

As regards water protection, the Commission informed the

Netherlands authorities that Directives 80 / 778 / EEC ( drinking
water ), 76 / 160 / EEC ( bathing water ), 79 / 869 / EEC and
85 / 440 / EEC ( surface water ) had not been transposed in a
satisfactory manner .,

As regards air pollution, the Netherlands has so far issued only
a circular to transpose Directives 89 / 369 / EEC and
89 / 429 / EEC ( municipal waste-incineration plants ).

The Netherlands has also failed to ensure the correct or
complete transposal of Directives 82 / 501 / EEC ( major - accident
hazards of certain industrial activities ), 85 / 337 / EEC ( impact
assessment ) and 79 / 409 / EEC ( wild birds ), despite the Court 's
ruling in 1987 .

Effective application

Effective application is difficult to assess with any accuracy
since few complaints are received by the Commission and the
reports on the implementation of the Directives are of a very
general nature .

For instance, the Netherlands has not fully met its obligation to
provide the reports required by Directives 75 / 442 / EEC ( waste ),
78 / 319 / EEC ( toxic and dangerous waste ), 76 / 403 / EEC ( PCBs
and PCTs ) or 84 / 631 / EEC ( transfrontier shipment of
hazardous waste ).

The Commission has received complaints concerning, in
particular, the lack of adequate protection for green areas and

Late transposal

When Portugal joined the Community, it faced the considerable
task of incorporating the environment Directives into national
law . The Commission acknowledges that Portugal has done
much to achieve this objective . For example, it has already
notified a framework law to implement Directive 76 / 160 / EEC
( bathing water ), the only Directive for which the transitional
period has not yet come to an end .

On the other hand, of the environment Directives which were
to be transposed in 1991 at the latest, only three appear to have
passed into Portuguese law .

Portugal has notified measures transposing Directives
88 / 180 / EEC and 88 / 181 / EEC amending Directive
84 / 538 / EEC ( permissible sound power level of lawnmowers )
and Directive 89 / 427 / EEC amending Directive 80 / 779 / EEC
( air quality values for sulphur dioxide and suspended
particulates ).

On the other hand, Portugal is late in communicating measures
to transpose Directives 90 / 219 / EEC and 90 / 220 / EEC
( contained use and deliberate release of genetically modified
organisms, respectively ) and Directive 90 / 517 / EEC amending
for the 11th time Directive 67 / 548 / EEC ( classification,
packaging and labelling of dangerous substances ).

Partial conformity

The preferred instruments for the transposal of environmental

Directives are the law and the decree-law, which often have to
be supplemented by a ' portaria ' ( implementing order ). In the
absence of the latter, problems sometimes arise .

As regards air pollution, Portugal notified a framework law
designed to transpose most of the Directives concerned in their
entirety . The limit values and guide values have still to be laid
down by portaria, however . Since the framework law has
repealed the existing legislation, the Commission notes that
there is now a legal vacuum .

As regards water pollution, Portugal has notified the
Commission of another framework law which transposes all the

No C 250 / 158 Official Journal of the European Communities 28 . 9 . 92

environmental Directives . Although limit values and guide
values have been laid down, Portugal has not designated the
areas in which these values will apply . On the other hand it is
already transmitting information on bathing waters although it
is not yet legally bound to do so .

In other spheres such as noise pollution, Portugal has merely
made reference to a Directive without transposing its provisions .
The Commission regards this technique as unacceptable since
persons subject to the law are not clearly informed of their
rights and obligations .

Lastly, Directive 85 / 337 / EEC has still not been properly
transposed into Portuguese law . Certain road infrastructure
projects inter alia are excluded from the scope of the
Portuguese legislation, at the very time when the Portuguese
authorities are planning to renew much of the country 's road
network .

Effective application

The lack of effective application is the main problem facing the
implementation of the Community Directives in Portugal . The
situation is largely attributable to the absence of satisfactory
infrastructures but is slowly improving thanks to aid from the
Structural Funds and other EEC financial instruments .

Problems are encountered in all sectors .

As regards air pollution, the Commission is receiving an
increasing number of complaints concerning industrial pollution
in residential areas, often as a result of bad planning . The new
law on town and country planning should make it possible to
avoid this type of problem in future, however .

As regards water pollution, unsatisfactory implementation of
Directive 76 / 464 / EEC ( dangerous substances in the aquatic
environment ) is giving rise to serious problems, particularly
where rivers have been polluted by the textile industry . The
inadequacy of clean-up programmes outside priority areas such
as the Ave and those covered by the Envireg programme
( district waste water systems in coastal areas ) is significant in
this context .

Neither the methods of waste disposal nor the management of
municipal dumps yet seem to comply with Directive
75 / 442 / EEC .

The first programme concerning containers of liquids for
human consumption does not satisfy the requirements of
Directive 85 / 339 / EEC . The Portugese authorities have notified
a new programme for the beginning of next year .

Although in some sectors such as tourism Portugal seems to be

increasingly aware of the importance of nature conservancy, the
incorrect transposal of Directive 85 / 337 / EEC ( environmental
impact assessment ) is seriously hampering progress .

Lastly, Portugal is encountering difficulties in producing the
implementation reports required by Directives 75 / 442 / EEC
( waste ), 76 / 402 / EEC ( PCBs and PCTs ), 84 / 631 / EEC ( trans ­
frontier shipment of hazardous waste ), 79 / 409 / EEC ( wild
birds ) and 78 / 659 / EEC ( fresh water for fish-farming ).

United Kingdom

transposal

No transposing legislation has been notified in respect of the
following Directives : 90 / 219 / EEC and 90 / 220 / EEC ( contained
use of genetically and deliberate release of genetically modified
organisms, respectively ); 88 / 180 / EEC and 88 / 181 / EEC
amending Directive 84 / 538 / EEC ( permissible sound power
level of lawnmowers ); and 90 / 517 / EEC adapting to technical
progress for the 11th time Directive 67 / 548 / EEC ( classification,
packaging and labelling of dangerous substances ).

Partial conformity

There remain relatively significant failures in the obligation fully
to transpose Directives . For example, the following Directives
have not been adequately transposed ; Directives 85 / 337 / EEC
( impact assessment ), 85 / 203 / EEC ( nitrogen dioxide ),
84 / 360 / EEC ( adaptation of existing plants to the best available
technologies ), 79 / 409 / EEC ( wild birds ), 76 / 464 / EEC
( dangerous substances in the aquatic environment ), and
80 / 778 / EEC ( drinking water ). Infringement proceedings have
been commenced in respect of each of these .

Practical implementation

In the water sector, serious problems exist with regard to the
implementation of Directives 76 / 160 / EEC ( bathing water ) and
80 / 778 / EEC ( drinking water ). The implementation of Directive
76 / 464 / EEC ( certain dangerous substances discharged into the
aquatic environment ) is also the subject of infringement
proceedings .

With regard to the bathing water Directive, Case C-56 / 90
concerning the quality of the bathing waters at Blackpool,
Formby and Southport is before the Court of Justice . In
addition, infringement proceedings for failure to comply with
the requirements of the Directive have been commenced . About

100 United Kingdom bathing waters have still to be designated .

Case C-337 / 89 concerning the lack of binding provisions trans ­
posing Directive 80 / 778 / EEC ( drinking water ) in Northern
Ireland, and the levels of lead and nitrates in United Kingdom
drinking water is before the Court of Justice . The Commission
has also commenced proceedings concerning, more generally,
the quality of United Kingdom drinking water and the
provisions transposing the Directive in the United Kingdom . In
particular, the Commission is concerned that the United
Kingdom Government has authorized the granting to water
companies of derogations from the provisions of the Directive .

With regard to Directive 76 / 464 / EEC ( dangerous substances ),
the Commission has commenced infringement proceedings in
respect of failure to establish all necessary programmes to
reduce the pollution of inland surface water, territorial waters,
internal coastal waters and ground water in accordance with
Article 7 .

28 . 9 . 92 Official Journal of the European Communities No C 250 / 159

A significant proportion of the complaints received this year effective environment protection and sustainable management of
concerned impact assessment . The Commission commenced natural resources .
proceedings concerning the transposition of Directive
85 / 337 / EEC on environmental impact assessment and its
implementation in specific cases . This set of proceedings, Late transposal
combined with those previously initiated, should resolve some
important issues, for example, the question whether the
Directive applies to all projects in respect of which development Of the six environmental Directives which came into force in
consent was granted after 3 July 1988, as the Commission 1991, only one was concerned with the quality of air . This was
argues, or whether it applies only to projects in respect of which Directive 89 / 427 / EEC amending Directive 80 / 779 / EEC on air
application for development consent was made after the coming quality limit values and guide values for sulphur dioxide and
into force of national transposing legislation, as the United suspended particulates . Directive 80 / 779 / EEC provides that the
Kingdom argues . Member States have a certain discretion as to which method of

Late transposal

In the air sector, infringement proceedings have been
commenced in respect of the failure by the United Kingdom to
establish sufficient measuring stations to ensure compliance with
Directive 85 / 203 / EEC on air quality standards for nitrogen
dioxide, and in respect of inadequate transposition of the
Directive .

In the nature sector, the general problem of insufficient desig ­
nation of special protection areas remains . In this context, the
Commission has decided to bring before the Court of Justice a
case concerning the non-designation of special protection areas
for certain species of bird listed in Annex I to Directive
79 / 409 / EEC on the conservation of wild birds, and provisions
in the Wildlife and Countryside Act 1981 which provide,
contrary to the Directive, for a licensing system whereby certain
birds can be killed or taken at all times .

Of the six environmental Directives which came into force in

1991, only one was concerned with the quality of air . This was
Directive 89 / 427 / EEC amending Directive 80 / 779 / EEC on air
quality limit values and guide values for sulphur dioxide and
suspended particulates . Directive 80 / 779 / EEC provides that the
Member States have a certain discretion as to which method of
sampling and analysis they use . Directive 89 / 427 / EEC amends
Annex IV of Directive 80 / 779 / EEC, which sets out the limit
values applicable when the gravimetric method of sampling and

analysis has been chosen . Therefore, Member States such as
Belgium, Luxembourg, the Netherlands, the United Kingdom,
Ireland and, possibly, Greece which do not use the gravimetric
method, did not have to introduce any measures to transpose
Directive 89 / 427 / EEC . Denmark informed the Commission
that its present legislation already complies with the new
Directive, but Portugal is the only other Member State
concerned that notified implementation measures to the
Commission .

Partial conformity

in the Wildlife and Countryside Act 1981 which provide, In Cases C-361 / 88 and C-59 / 89, the Court of Justice gave
contrary to the Directive, for a licensing system whereby certain judgment against Germany in May 1991 for having inade ­
birds can be killed or taken at all times . quately transposed ( by circulars and administrative measures

only ) Directives 80 / 779 / EEC ( sulphur dioxide and suspended
particulates ) and 82 / 884 / EEC ( lead ). The German Government
has now announced that it will introduce legislative transposing
In and the otherwise waste sector has been, a concern the pollution frequently of raised water in, in complaints particular measures .
groundwater, by various wastes . The Commission is assessing
the situation . In Cases C-64 / 90, C-13 / 90 and C-14 / 90, the Court gave
judgment against France in October 1991 for having inade ­
quately transposed ( by circular only ) Directives 80 / 779 / EEC on

III . THE SITUATION SECTOR BY SECTOR air quality limit values and guide values for sulphur dioxide and

suspended particulates, 82 / 884 / EEC on a limit value for lead in
the air, and 85 / 203 / EEC on air quality standards for nitrogen

Air dioxide .

III . THE SITUATION SECTOR BY SECTOR

Air

Measures adopted by Council and Commission in 1991 Some Member States have still only partially transposed
Directives 89 / 369 / EEC on the prevention of air pollution from
new municipal waste incineration plants and 89 / 429 / EEC on
Council Regulation ( EEC ) No 594 / 91 on substances that the reduction of air pollution from existing municipal waste ­
deplete the ozone layer was adopted on 4 March ('). It applies incineration plants .
to the import, export, production and consumption of chloro ­
fluorocarbons, other fully halogenated chlorofluorocarbons,
halons, carbon tetrachloride, 1.1.1-trichloroethane, and to the Effective application
reporting of data on these substances and on transitional
substances .

Further to the Community 's decision of October 1990 to
stabilize carbon dioxide emissions at their 1990 level by the year
2000, in September the Commission adopted a communication
to the Council on a Community strategy to limit carbon dioxide
emissions and to improve energy efficiency . Depending on the
Council 's reaction to this communication, the Commission may
go on to present legislative proposals with a view to ensuring
that the Community sets an example to the world as regards

(') OJ No L 67, 14 . 3 . 1991, p. 1 .

The implementation of Directive 80 / 779 / EEC on air quality
limit values and guide values for sulphur dioxide and suspended
particulates continues to pose difficulties . The measures taken in
Athens, for example, have not led to a perceptible improvement
in the situation . But progress has been made in Ireland where, in

1990, the authorities adopted certain measures in response to
the many complaints made to the Commission since 1987 about
the quality of air in Dublin . These appear to be dealing satisfac ­
torily with the matters raised in the complaints .

Only a minority of the Member States have notified the
Commission of the programmes required by Article 3 of

No C 250 / 160 Official Journal of the European Communities 28 . 9 . 92

Directive 88 / 609 / EEC on the limitation of emissions of certain Effective application
pollutants into the air from large combustion plants .

The administration of Community measures on chemicals is

Not one single report has been received under Article 16 of that discussed in detail at meetings between the Commission and
Directive . national experts . Many of the problems concerning the

application of Directives are tackled and resolved at these
meetings .
Directives 82 / 884 / EEC on a limit value for lead in the air,
85 / 203 / EEC on air quality standards for nitrogen dioxide, and
80 / 779 / EEC on air quality limit values for sulphur dioxide and Complaints received by the Commission are mainly concerned
suspended particulates all provide that the Member States shall with the failure of manufacturers and public authorities to fulfil
inform the Commission annually of instances where the relevant their obligations under Articles 5, 7 and 8 of Directive
limit values are exceeded . For each annual period, some 82 / 501 / EEC regarding information and emergency plans and
Member States notify such cases and others notify a ' clean bill the obligation to notify the Commission of accidents .
of health '. A significant number of Member States, however, fail
to notify anything .

Not one single report has been received under Article 16 of that
Directive .

Complaints received by the Commission are mainly concerned
with the failure of manufacturers and public authorities to fulfil
their obligations under Articles 5, 7 and 8 of Directive
82 / 501 / EEC regarding information and emergency plans and
the obligation to notify the Commission of accidents .

This is not contrary to the provisions of the Directives, but it
does make it difficult for the Commission to know whether in

such cases there have been no instances where the limit values
were exceeded, or whether there have been such instances
which have not been reported . The Commission will therefore
be writing to Member States, where appropriate, in order to
clarify the situation .

Chemical and biochemical substances

Late transposal

There are still problems concerning the transposal by several

Member States of the Directives amending Directive
67 / 548 / EEC on the classification, packaging and labelling of
dangerous substances, especially the 10th and 11th amending
Directives 88 / 490 / EEC and 90 / 517 / EEC, respectively . A series
of infringement proceedings have been initiated under Article

169 of the EEC Treaty .

There have also been delays in the transposal of Directive

88 / 610 / EEC, amending Directive 82 / 501 / EEC, on the major
accident hazards of certain industrial activities . Article 169
infringement proceedings have also been commenced in this

respect .

The great majority of Member States have failed to notify the
Commission of measures to implement Directives 90 / 219 / EEC
and 90 / 220 / EEC on the contained use and deliberate release of
genetically modified organisms, although the deadline for
transposal was October 1991 .

The same applies to Directive 87 / 18 / EEC on good laboratory
practice . Infringement proceedings have been initiated .

Partial conformity

The main problem of imcomplete or incorrect transposal in this
field concern Directive 82 / 501 / EEC on the major accident
hazards of certain industrial activities and its amending
Directives, in particular the divergences between Community
provisions and certain national laws which predate them .

Water

Community legislation on water was further extended in 1991
with the adoption of Directive 9 1 / 271 / EEC on urban waste
water treatment . The Directive sets out a well-defined
programme, with a precise timetable, aimed at the gradual
introduction of appropriate systems for treating urban waste
water according to the size of conurbations . Directive
91 / 676 / EEC concerning the protection of waters against
pollution caused by nitrates from agricultural sources was
adopted in 1991 . Waters are to be monitored and sensitive areas
are to be designated by the end of 1993 . Action programmes to
reduce pollution are to be prepared and implemented . It is
specifically provided that the amount of livestock manure
applied to the land in sensitive areas may not exceed 170 kg N
per hectare and per year .

Late transposal

There has been a decline in the use by Member States of admin ­

istrative circulars to transpose Directives . The Commission has
noted with satisfaction a trend towards the incorporation of
Directives into legal instruments which mean that Community
law is implanted with greater transparency and certainty and
fuller mandatory force .

Partial conformity

Although there has been a welcome reduction in the use of

circulars to transpose Directives, the Commission notes the
continued existence of interpreting circulars which run counter
to Community law, especially as regards drinking water, where
they allow the maximum permissible concentrations to be
exceeded in cases other than those provided for in Directive
80 / 778 / EEC .

As regards incorrent transposal, there are particular problems
with Directive 80 / 68 / EEC ( groundwater ), which has not been
properly implemented in several Member States .

In its judgment of 28 February 1991 in Case C-131 / 88,
Commission v. Germany, the Court of Justice gave a ruling on

28 . 9 . 92 Official Journal of the European Communities No C 250 / 161

the interpretation of several Articles of the above Directive and
how they should be incorporated into national law .

According to Ground 19 of the judgment, a national law can
faithfully incorporate Article 4 ( 1 ) of Directive 80 / 68 / EEC only
if it prohibits all direct discharges into groundwater of the
substances on List I of the Annex to the Directive .

On the basis of this judgment, the Commission is now reviewing
the measures adopted by other Member States to transpose the
Directive . It may have to initiative proceedings against some of
them for failing to fulfil their obligations .

On the same day and on similar grounds, the Court gave
judgment against Italy in Case C-360 / 87, holding that Italian

Law No 319 of 10 May 1976 is incompatible with the Directive
on groundwater . Under this law anyone applying for authoriz ­
ation to discharge substances into groundwater is given a
provisional authorization if their application has not been
rejected within six months .

There are problems in the transposal of other Directive but,
generally speaking, only a small number of Member States are
involved .

Among the Directives concerned are those on surface water

( 75 / 440 / EEC and 79 / 869 / EEC ). The Court of Justice has
given judgment against Belgium ( Judgment of 11 May, Case
C-290 / 89 ) and Germany ( Judgment of 17 October, Case
C-58 / 89 ) for failing to implement these Directives properly .

Effective application

The effective application of Community law on water does not
measure up to the aspirations of the common policy on conser ­
vation and quality in this field .

Most of the Member States have failed to carry out the
planning work required by various Directives .

The case of Directive 76 / 464 / EEC on dangerous substances is
symptomatic of this problem : the Commission has been forced
to commence infringement proceedings against all the Member
States for failing to notify it of programmes to reduce pollution
caused by 99 dangerous substances which are mentioned in List
I of the Annex to the Directive but have not yet been the subject
of specific Community legislation .

Another example is Directive 75 / 440 / EEC — only one Member
State, France, has notified the Commission of its systematic
plans of action and quality objectives in accordance with Article
4 ( 2 ) of the Directive : it did so for the first time in 1991 .

The same applies to Directives 78 / 659 / EEC ( water for
supporting fish life ) and 79 / 923 / EEC ( shellfish waters ), where
there is also a general problem of an insufficient number of
designated waters or inadequate publicity of designation,
though progress was made by some Member States in 1991 .

All the Member States have sent their reports on bathing waters

( Directive 76 / 160 / EEC ), but the same cannot be said of fish
waters ( Directive 78 / 659 / EEC ) and shellfish waters ( Directive

79 / 923 / EEC ). This particular problem should be solved in the
medium term by Directive 91 / 692 / EEC harmonizing and
rationalizing reports on the implementation of certain environ ­

mental Directives . The Commission 's system of questionnaires,
provided for by the Directives, should help to improve the
quality and quantity of the information and standardize
presentation .

As regards the Directive on drinking water ( 80 / 778 / EEC ),
there is still a problem concerning instances where the maximum
permissible concentrations are exceeded, especially for nitrates
and pesticides .

Finally, the Member States must continue their efforts to bring
the quality of all bathing water up to the standards laid down in
Directive 76 / 160 / EEC .

The adoption of the Directive on urban waste water treatment
should help reduce the pollution of coastal waters and other
areas of bathing water in the medium or long term .

Noise

Community Directives in this field have focused on the setting
of emission levels for new products .

The main problem is the delay in transposing certain Directives .

Directives 88 / 180 / EEC and 88 / 181 / EEC, amending Directive
84 / 538 / EEC, on the approximation of the laws of the Member
States relating to the permissible sound power level of lawn ­
mowers have not yet been transposed by Germany or the
United Kingdom or by the Flemish Region in Belgium .

The Commission has terminated the infringement proceedings
initiated against Belgium in 1990 for granting regional airports a
longer time limit than that laid down in Directive 80 / 51 / EEC
on noise emissions from subsonic aircraft . The unlawful extra
period of grace has already elapsed and such derogations are no
longer allowed under Belgian legislation .

Waste

In 1991 the Commission should have received reports from the
Member States on the application of the following waste
Directives : Directives 78 / 176 / EEC on waste from the titanium
dioxide industry ; 84 / 631 / EEC on the supervision and control
within the Community of the transfrontier shipment of
hazardous waste ; 85 / 339 / EEC on containers of liquids for
human consumption and 86 / 278 / EEC on the protection of the
environment, and in particular of the soil, when sewage sludge
is used in agriculture .

As in previous years, most Member States failed to fulfil this
obligation .

On 11 June 1991 the Court annulled Directive 89 / 428 / EEC on
the grounds that its legal base was inappropriate .

The Commission has accordingly drawn up a new proposal for

a Directive laying down procedures for the harmonization of
programmes for the reduction and eventual elimination of
pollution caused by waste from the titanium dioxide industry .

No C 250 / 162 Official Journal of the European Communities 28 . 9 . 92

Late transposal

A total of seven Member States have still not transposed
Directive 86 / 278 / EEC on the protection of the environment,
and in particular of the soil, when sewage sludge is used in
agriculture .

Partial conformity

There are still problems with the conformity of national
measures transposing the framework Directive 75 / 442 / EEC and
Directives 78 / 319 / EEC on toxic and dangerous waste ;
76 / 403 / EEC on PCBs and PCTs ; 84 / 631 / EEC on the
shipment of waste and 85 / 339 / EEC on containers of liquids for
human consumption . Monitoring the conformity of national law
with Community provisions is rendered more difficult by the
fact that all these Directives have already been amended ( for
example, the framework Directive was amended by Directive
91 / 156 / EEC ) or are in the process of being revised .

This makes the pursuit of infringement proceedings a rather

delicate matter as there are doubts over how certain points
should be handled .

The Commission has requested that the framework Directive
91 / 156 / EEC be annulled on the grounds that its legal base is
inappropriate : the ( Council decided to use Article 130s rather
than Article 100a as the Commission had proposed .

Effective application

The main problems in 1991 were the failure by Member States
to submit reports, the unsatisfactory nature of plans and
programmes, the important question of cases where the cross ­
border transport of waste takes no account of the relevant
Directive and the increase in uncontrolled disposal sites . It is by
no means certain that waste is being disposed of in an appro ­
priate manner respecting human and environmental constraints
throughout the Community as the 1975 rules require .

Nature

In 1991, great progress was made in extending Community
legislation on the protection of nature .

In March the Commission laid before the Council a proposal
for a new Directive on the protection of natural and semi ­
natural habitats and of wild fauna and flora (').

In the second half of 1991, there were intense negotiations on
this new proposal, an improved version of a proposal put
forward in 1988, with a view to securing its adoption under the
Dutch presidency . If this proposal were adopted, it would
considerably widen the Community 's role in the Berne and
Bonn Conventions and underline the Community 's resolve to
acknowledge and protect its common natural heritage .

Annexes I and III to Directive 79 / 409 / EEC on the conservation
of wild birds were amended by Directive 91 / 244 / EEC . The
Commission has also put forward a proposal ( COM(91 ) 42
final ) to amend Annex II, which would add five new species to
Part 2, thereby allowing them to be hunted .

At the end of the year the Commission decided to propose
wide-ranging new legislation on trade in wild animals with a
view to updating and extending the present Community rules
for the implementation of Cites ( Convention on international
trade in endangered species ).

Late transposal

The process of incorporating Directive 85 / 337 / EEC into
national law continued in 1991, particulary in the southern
Member States . Luxembourg has still not completed its
transposal, though a draft regulation to this effect has been sent
to the Commission .

Partial conformity

As the Commission pointed out in the eighth annual report,
national hunting regulations present one of the main obstacles
to the incorporation of Directive 79 / 409 / EEC on the protection
of wild birds . There has been no significant change in the
situation, a fact which is illustrated by the various infringement
proceedings under way, including some for failure to implement
judgments by the Court of Justice .

Another problem is the continued existence of national
provisions allowing derogations which are incompatible with the
Directive, although the proposed amendment to Annex II
mentioned above could be seen as an attempt by the
Commission to make the use of derogations easier .

As well as shedding light on how the Directive 's provisions on
designated habitats should be implemented, the Court 's
judgment in Case C-57 / 89 ( referred to below ) also suggested

that the legal protection of habitats is probably inadequate in
several Member States .

As regards environmental impact, the Commission is continuing

to scrutinize national regulations and has noted that most of the
Member States have not incorporated Directive 85 / 337 / EEC in
an entirely satisfactory manner . Infringement proceedings have
been commenced against the Member States concerned .

Effective application

On 28 February 1991 the Court of Justice gave an important
judgment on the protection of habitats under Directive
O OJ No C 75, 20 . 3 . 1991, p. 4 . 79 / 409 / EEC in Case C-57 / 89, Commission v. Germany .

28 . 9 . 92 Official Journal of the European Communities No C 250 / 163

The case concerned a particular special protection area, the

Leybucht, but the Court took the opportunity to clarify for the
first time the obligations of Member States with regard to such
areas and ruled that a reduction in the size of a special
protection area could be justified only on the grounds of a
superior general interest .

The Court 's final decision was clearly influenced by the
inclusion of compensatory conservation measures in the
construction project concerned .

The ruling came amid growing concern on the Commission 's
part over the inadequacy of the designation of special protection
zones in the Community and the continuing destruction of
habitats, sometimes caused by programmes receiving financial
assistance from the Community .

In 1991 the Commission commenced several infringement
proceedings and pressed on with those already under way .

The protection of habitats was high on the agenda at several
package meetings with Member States, and there was closer
coordination with Commission activitites relating to the
Structural Funds .

As regards environmental impact assessment, there was again an
increase in complaints concerning infringements of Directive
85 / 337 / EEC which is now one of the Community instruments
most often alleged to be infringed .

The Commission is extremely concerned by the fact that most
of the problems in the application of the Directive are related
not to small projects but to construction projects of national or
even European importance, in particular major transport infra ­
structure projects such as important motorway links or
high-speed rail networks . Because of their size, such projects
have a considerable impact on the environment . It is therefore
essential that Member States respect the aims of the Directive
and make a real effort to look for solutions which cause the

least possible damage to the environment rather than look on
impact assessment as a mere formality in the authorization
procedure .

IV . CONCLUSIONS

The conclusions to be drawn from monitoring the application of
Community environmental law in 1991 do not differ substan ­
tially from those set forth in the Eighth Report .

Whereas the body of Community law is growing larger and
more elaborate, as evidenced by the adoption in 1991 of
Directive 91 / 271 / EEC ( urban waste water ) and Directive

91 / 157 / EEC ( batteries and accumulators ) and by the continued
discussions on the draft Directives concerning ' habitats ' or
' nitrate pollution from agricultural sources ', the Member States
application of the existing law is still unsatisfactory on the
whole .

Admittedly, several Member States are making a great effort,
despite real difficulties, to make up the ground lost over a
number of years . There is also a clear tendency away from
legally questionable methods of transposal such as circulars .

Even so, a number of Member States continue to see the
deadlines for transposal as optional or indicative . It is not
unusual for implementing measures to provide for derogations
which have no basis in the Directive transposed or for dero ­
gations strictly defined by the Community rules to be written
into national law in the most flexible terms . Certain provisions
of Directives adopted more than 10 years ago are still a dead
letter . Measures to implement Court rulings are by no means
taken in every case, even after a second judgment based on
Article 171 of the EEC Treaty ( cf tables in this report ). It is the
exception, rather than the rule, for the Commission to receive
the reports provided for in many Directives, although this
requirement has been met in the case of the Directive on
bathing water .

In this context the Commission hopes that the new Directive on
reports adopted towards the end of 1991 will bring about a
significant quantitative and qualitative increase in the environ ­
mental information available at Community level in the medium
term . Since most of the new-style reports will not be available
until 1996 / 97 at the earliest, however, Member States will have
to continue for the time being to supply the Commission with
information under the arrangements currently in force, as
stipulated in Article 7 ( 2 ) of the Directive on reports .

In the medium term, the Commission also expects a positive
contribution from the measures which it is likely to adopt as a
result of its research into the the question of liability for
environmental damage and its discussions on the availability of
legal remedies .

To improve efficiency in the application of Community law,
possibilities for ! strengthening cooperation between the
Commission and the Member States and for streamlining the
Commission 's monitoring activities will be explored .

Lastly, the Commission would stress that developments relating
to enviromental law, unlike other branches of Community law,
are of considerable and ever - increasing interest to the public at
large .