CELEX: 62002CJ0218
Language: en
Date: 2004-01-29
Title: Judgment of the Court (Fourth Chamber) of 29 January 2004. # Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland. # Failure of a Member State to fulfil obligations - Directive 96/29/Euratom - Protection of the health of workers and the general public against the dangers arising from ionizing radiation - Failure to transpose in whole territory. # Case C-218/02.

Case C-218/02 Commission of the European CommunitiesvUnited Kingdom of Great Britain and Northern Ireland
            «(Failure of a Member State to fulfil obligations – Directive 96/29/Euratom – Protection of the health of workers and the general public against the dangers arising from ionising radiation – Failure to transpose in whole territory)»
            
               
                  Judgment of the Court (Fourth Chamber), 29 January 2004  
                     
                
               
            
                   
               
               
            
            Summary of the Judgment
         
         
                  
                  Actions for failure to fulfil obligations – Examination of the merits by the Court – Situation to be taken into consideration – Situation on expiry of the period laid down by the reasoned opinion(Art. 141 EA)
      

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT (Fourth Chamber)29 January 2004  (1)
         
         
            
         
               ((Failure of a Member State to fulfil obligations – Directive 96/29/Euratom – Protection of the health of workers and the general public against the dangers arising from ionizing radiation – Failure to transpose in whole territory))
               
             In Case C-218/02, 
            
            
            Commission of the European Communities,   represented initially by T.F. Cusack, and, subsequently, X. Lewis, acting as Agents, with an address for service in Luxembourg,
            
            
            applicant, 
            
            v
            United Kingdom of Great Britain and Northern Ireland,   represented by K. Manji, acting as Agent,
            
            defendant, 
            
             APPLICATION for a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply
            with Council Directive 96/29/Euratom laying down basic safety standards for the protection of the health of workers and the
            general public against the dangers arising from ionizing radiation (OJ 1996 L 159, p. 1) in its whole territory, or in any
            event by failing to communicate them to the Commission, the United Kingdom of Great Britain and Northern Ireland has failed
            to fulfil its obligations under that directive,
            
            
            THE COURT (Fourth Chamber),,
            
             composed of: C.W.A. Timmermans (Rapporteur), acting for the President of the Fourth Chamber, A. La Pergola and S. von Bahr, Judges, 
            
             Advocate General: A. Tizzano, Registrar: R. Grass, 
            
            
            having regard to the report of the Judge-Rapporteur,
            
            having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
         gives the following
         
         
         Judgment
         1
            
          By application lodged at the Court Registry on 12 June 2002, the Commission of the European Communities brought an action
         under the second paragraph of Article 141 EA for a declaration that, by failing to adopt the laws, regulations and administrative
         provisions necessary to comply with Council Directive 96/29/Euratom of 13 May 1996 laying down basic safety standards for
         the protection of the health of workers and the general public against the dangers arising from ionizing radiation (OJ 1996
         L 159, p. 1;  
         the Directive) in its whole territory, or in any event by failing to communicate those provisions to the Commission, the United Kingdom
         of Great Britain and Northern Ireland has failed to fulfil its obligations under that directive. 
         
            
               Relevant provisions
             The EAEC Treaty
         
         
         2
            
          Article 2(b) EA states that the Community must, as provided in the EAEC Treaty,  
         establish uniform safety standards to protect the health of workers and of the general public and ensure that they are applied. 
         
         
         3
            
          In this context, the first paragraph of Article 30 EA requires in particular the establishment in the Community of  
         basic standards for the protection of the health of workers and the general public against the dangers arising from ionising
         radiations. 
         
         
         4
            
          As provided in the second paragraph of that article, the expression  
         basic standards means: 
         
         (a)
          maximum permissible doses compatible with adequate safety;
         
         
         (b)
          maximum permissible levels of exposure and contamination;
         
         
         (c)
          the fundamental principles governing the health surveillance of workers
         . 
         
         
         5
            
          Article 31 EA lays down the procedure for working out and adopting those basic standards, whilst the first paragraph of Article
         32 EA enables them to be revised or updated, at the request of the Commission or of a Member State, in accordance with the
         procedure laid down in Article 31 thereof. 
         
         
         6
            
          Finally, Article 33 EA provides: Each Member State shall lay down the appropriate provisions, whether by legislation, regulation or administrative action,
         to ensure compliance with the basic standards which have been established and shall take the necessary measures with regard
         to teaching, education and vocational training.The Commission shall make appropriate recommendations for harmonising the provisions applicable in this field in the Member
         States.To this end, the Member States shall communicate to the Commission the provisions applicable at the date of entry into force
         of this Treaty and any subsequent draft provisions of the same kind.Any recommendations the Commission may wish to issue with regard to such draft provisions shall be made within three months
         of the date on which such draft provisions are communicated.
          The Directive
         
         
         7
            
          The Directive, which was adopted on the basis of Articles 31 and 32 of the EAEC Treaty, has the objective of revising the
         existing basic standards by taking account of the development of scientific knowledge concerning radiation protection. As
         stated in the ninth recital in its preamble, the Directive provides in particular that the Member States are required to submit
         certain practices involving a hazard from ionising radiation to a system of reporting and prior authorisation or to prohibit
         such practices. As set out in the 14th recital to the Directive, the Member States are also called on to strengthen their
         ties of cooperation with other Member States and those with third countries in order to prepare for the likelihood of potential
         radiological emergencies and to facilitate the management of such situations should they arise. 
         
         
         8
            
          As regards implementation of the Directive in national law, Article 55 thereof provides:  1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this
         Directive before 13 May 2000. They shall forthwith inform the Commission thereof....2. Member States shall communicate to the Commission the text of the main laws, regulations or administrative provisions which
         they adopt in the field governed by this Directive.
         Pre-litigation procedure
         
         9
            
          By letters dated 20 December 1999 and 17 May 2000 respectively, the United Kingdom authorities communicated to the Commission
         three instruments intended to transpose the Directive into national law, namely the Ionising Radiations Regulations 1999,
         the Radioactive Substances (Basic Safety Standards) (Scotland) Regulations 2000 and the Radioactive Substances (Basic Safety
         Standards) (Scotland) Direction 2000. 
         
         
         10
            
          Taking the view, on examining those instruments, that the Directive had not been fully transposed within the prescribed period
         since not only did the implementing measures communicated not cover all the provisions of the Directive, in particular Article 38
         relating  
         inter alia to the approved dosimetric services, Article 42 relating to the protection of air crew, and Articles 48 to 53 concerning
         intervention in cases of radiological emergency or of lasting exposure, but also those measures did not apply to Northern
         Ireland or Gibraltar, the Commission initiated the procedure provided for in Article 141 EA. After having given the United
         Kingdom formal notice to submit its observations, on 9 February 2001 the Commission issued a reasoned opinion calling on it
         to take the measures necessary to comply with it within a period of two months from its notification. 
         
         
         11
            
          In the course of the pre-litigation procedure, the United Kingdom authorities notified the Commission of several further provisions
         to implement the Directive which included, in particular, measures relating to the protection of air crew and to cases of
         radiological emergency and those concerning the implementation of the Directive in Northern Ireland, but none of these covered
         the implementation of the Directive in Gibraltar. In June 2002 the Commission had only two pieces of draft legislation in
         that connection, notified by the United Kingdom authorities on 30 April 2001: drafts of the Ionizing Radiation Regulations
         (2001) and of the Radiation (Emergency Preparedness and Public Information) Regulations (2001). 
         
         
         12
            
          In those circumstances, considering that those provisions achieved only a partial implementation of the Directive since they
         did not apply to the whole of the United Kingdom, the Commission decided to bring the present action. 
         The failure to fulfil obligations
         
         13
            
          The United Kingdom does not dispute that on expiry of the period laid down in the reasoned opinion it had not yet taken the
         measures necessary to transpose the Directive in Gibraltar. 
         
         
         14
            
          Since it is settled case-law that that time-limit is decisive when establishing whether a Member State has failed to fulfil
         its obligations (see, in particular, Case C-173/01  
         Commission   v  
         Greece [2002] ECR I-6129, paragraph 7, and Case C-483/01  
         Commission v  
         France  [2003] ECR I-4961, paragraph 22) the action brought by the Commission must be considered well founded. 
         
         
         15
            
          It must therefore be held that, by failing to adopt, within the prescribed period, the laws, regulations and administrative
         provisions necessary to comply with the Directive in its whole territory, the United Kingdom of Great Britain and Northern
         Ireland has failed to fulfil its obligations under that directive.  
         
         Costs
         16
            
          Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been
         applied for in the successful party's pleadings. Since the Commission has applied for costs and the United Kingdom has been
         unsuccessful, the latter must be ordered to pay the costs. 
         
         On those grounds, 
         
         
         
            
            THE COURT (Fourth Chamber),
         
         
          hereby:  
         
            
            1.
             Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary
               to comply with Council Directive 96/29/Euratom laying down basic safety standards for the protection of the health of workers
               and the general public against the dangers arising from ionizing radiation in its whole territory, the United Kingdom of Great
               Britain and Northern Ireland has failed to fulfil its obligations under that directive; 
            
            2.
             Orders the United Kingdom of Great Britain and Northern Ireland to pay the costs. 
            
                  Timmermans
               
               
                  La Pergola 
               
               
                  von Bahr 
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
            
            
            
            
            
            
            
         
         
          Delivered in open court in Luxembourg on 29 January 2004. 
         
         
         
         
                  R. Grass 
               
               
                  V. Skouris  
               
            
         
         
         
                  Registrar
               
               
                  President
               
            
      
      
          1 –
            
             Language of the case: English.