CELEX: 62002CJ0067
Language: en
Date: 2003-09-11
Title: Judgment of the Court (Fourth Chamber) of 11 September 2003. # Commission of the European Communities v Ireland. # Failure of a Member State to fulfil obligations - Article 5 of Directive 79/923/EEC - Quality of shellfish waters - Pollution-reduction programme. # Case C-67/02.

Case C-67/02 Commission of the European CommunitiesvIreland
            «(Failure of a Member State to fulfil obligations – Article 5 of Directive 79/923/EEC – Quality of shellfish waters – Pollution-reduction programme)»
            
               
                  Judgment of the Court (Fourth Chamber), 11 September 2003  
                     
                
               
            
                   
               
               
            
            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. 226 EC)
      

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT (Fourth Chamber)11 September 2003  (1)
         
         
            
         
               ((Failure of a Member State to fulfil obligations – Article 5 of Directive 79/923/EEC – Quality of shellfish waters – Pollution-reduction programme))
               
             In Case C-67/02, 
            
            
            Commission of the European Communities, represented by M. Shotter, acting as Agent, with an address for service in Luxembourg,
            
            
            applicant, 
            
            v
            Ireland, represented by D. O'Hagan, acting as Agent, with an address for service in Luxembourg,
            
            defendant, 
            
             APPLICATION for a declaration that, by not adopting programmes for all its designated shellfish waters in accordance with
            Article 5 of Council Directive 79/923/EEC of 30 October 1979 on the quality required of shellfish waters (OJ 1979 L 281, p.
            47), Ireland has failed to fulfil its obligations under that directive,
            
            
            THE COURT (Fourth Chamber),,
            
             composed of: C.W.A. Timmermans, President of the Chamber, A. La Pergola (Rapporteur) and S. von Bahr, Judges, 
            
             Advocate General: F.G. Jacobs, 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 an application lodged at the Court Registry on 28 February 2002, the Commission of the European Communities brought an
         action pursuant to Article 226 EC for a declaration that, by not adopting programmes for all of its designated shellfish waters
         in accordance with Article 5 of Council Directive 79/923/EEC of 30 October 1979 on the quality required of shellfish waters
         (OJ 1979 L 281, p. 47, hereinafter  
         the Directive), Ireland has failed to fulfil its obligations under the Directive. 
         
         
         2
            
          Article 4 of the Directive provides: 
         
         1.
          Member States shall, initially within a two-year period following the notification of this directive, designate shellfish
         waters.
         
         
         2.
          Member States may subsequently make additional designations.
         
         
         3.
          Member States may revise the designation of certain waters owing in particular to factors unforeseen at the time of designation,
         taking into account the principle set out in Article 8.
         
         
         
         3
            
          Article 5 of the Directive provides: Member States shall establish programmes in order to reduce pollution and to ensure that designated waters conform, within
         six years following designation in accordance with Article 4, to both the values set by the Member States in accordance with
         Article 3 and the comments contained in Columns G and I of the Annex.
         
         
         4
            
          Ireland transposed the Directive by adopting the Quality of Shellfish Waters Regulations of 18 July 1994 (SI No 200 of 1994).
         By the same regulations, it also made the designations required under Article 4 of the Directive. It follows that Ireland
         had to establish the programmes in accordance with Article 5 of the Directive within a period of six years from that date.
         
         
         
         5
            
          In accordance with the procedure laid down in the first paragraph of Article 226 EC, the Commission, having given Ireland
         formal notice to submit its observations, sent a reasoned opinion to it by letter of 25 July 2001, inviting it to establish
         the pollution-reduction programmes required by Article 5 of the Directive within two months of notification of the opinion.
         Since the information communicated to the Commission by the Irish authorities in response to that opinion showed that Ireland
         had not adopted all the measures necessary to comply with the provisions of the Directive in relation to the establishment
         of the programmes required by the said Article 5, the Commission decided to bring this action. 
         
         
         6
            
          In its application, the Commission claims that, by not adopting programmes for all its designated shellfish waters, Ireland
         has failed to fulfil its obligations under Article 5 of the Directive. 
         
         
         7
            
          In its defence, the Irish Government does not contest the alleged infringement. It draws attention, however, to the draft
         programmes which the competent authorities have drawn up and requests the Court to suspend the proceedings in order to enable
         the Commission to consider them. 
         
         
         8
            
          In its reply, the Commission, as well as maintaining its action against Ireland, asserts that, in any event, those draft programmes
         do not comply with the requirements of the Directive. 
         
         
         9
            
          In its rejoinder, Ireland does not dispute that it has not established any programme under Article 5 of the Directive. It
         states its intention to review the draft programmes in accordance with the concerns expressed by the Commission. 
         
         
         10
            
          In that regard, it must be pointed out that, according to settled case-law, the question whether a Member State has failed
         to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the
         period laid down in the reasoned opinion and the Court cannot take account of any subsequent changes (see,  
         inter alia,  Case C-177/01  
         Commission v  
         France [2002] ECR I-5137, paragraph 13). 
         
         
         11
            
          It is clear from the foregoing that no pollution-reduction programme for the purpose of Article 5 of the Directive was established
         by Ireland within the time-limit laid down by the reasoned opinion. 
         
         
         12
            
          In those circumstances, the action brought by the Commission must be considered to be well founded. 
         
         
         13
            
          Consequently,  it must be declared that, by not adopting programmes for all its designated shellfish waters in accordance
         with Article 5 of the Directive, Ireland has failed to fulfil its obligations thereunder. 
         
         Costs
         14
            
          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 applied for costs and Ireland has been unsuccessful,
         the latter must be ordered to pay the costs of the proceedings. 
         
         On those grounds, 
         
         
         
            
            THE COURT (Fourth Chamber)
         
         
          hereby:  
         
            
            1.
             Declares that, by not adopting programmes for all its designated shellfish waters in accordance with Article 5 of Council
            Directive 79/923/EEC of 30 October 1979 on the quality required of shellfish waters, Ireland has failed to fulfil its obligations
            thereunder; 
            
            
            2.
             Orders Ireland to pay the costs. 
            
            
                  Timmermans
               
               
                  La Pergola 
               
               
                  von Bahr 
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
            
            
            
            
            
            
            
         
         
          Delivered in open court in Luxembourg on 11 September 2003. 
         
         
         
         
                   R. Grass 
               
               
                  C.W.A. Timmermans  
               
            
         
         
         
                  Registrar
               
               
                  President of the Fourth Chamber
               
            
      
      
          1 –
            
             Language of the case: English.