CELEX: 62008CJ0557
Language: en
Date: 2009-07-09
Title: Judgment of the Court (Fifth Chamber) of 9 July 2009. # Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland. # Failure of a Member State to fulfil obligations - Directive 2005/35/EC - Ship-source pollution and introduction of penalties for infringements - Failure to transpose. # Case C-557/08.

JUDGMENT OF THE COURT (Fifth Chamber)
      9 July 2009 (*)
      
      (Failure of a Member State to fulfil obligations – Directive 2005/35/EC – Ship-source pollution and introduction of penalties for infringements – Failure to transpose)
      In Case C‑557/08,
      ACTION under Article 226 EC for failure to fulfil obligations, brought on 16 December 2008,
      Commission of the European Communities, represented by L. Lozano Palacios and A.‑A. Gilly, acting as Agents, with an address for service in Luxembourg,
      
      applicant,
      v
      United Kingdom of Great Britain and Northern Ireland, represented by H. Walker, acting as Agent,
      
      defendant,
      THE COURT (Fifth Chamber),
      composed of M. Ilešič, President of the Chamber, A. Tizzano and J.‑J. Kasel (Rapporteur), Judges,
      Advocate General: J. Mazák,
      Registrar: R. Grass,
      having regard to the written procedure, 
      having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
      gives the following
      Judgment
      1        By its application, the Commission of the European Communities seeks a declaration from the Court that, by failing to adopt
         all the laws, regulations and administrative provisions necessary to comply with Directive 2005/35/EC of the European Parliament
         and of the Council of 7 September 2005 on ship-source pollution and on the introduction of penalties for infringements (OJ
         2005 L 255, p. 11, ‘the directive’) or, at least, by failing to notify those provisions to the Commission, the United Kingdom
         of Great Britain and Northern Ireland has failed to fulfil its obligations under that directive.
      
      2        The first paragraph of Article 16 of the directive provides that Member States are to bring into force the laws, regulations
         and administrative provisions necessary to comply with that directive by 1 March 2007 and forthwith inform the Commission
         thereof.
      
      3        Since it was not informed of the provisions taken to transpose the directive into the national legal system within the period
         prescribed, the Commission initiated the infringement procedure provided for in Article 226 EC. After sending a letter of
         formal notice to the United Kingdom asking it to submit its observations, the Commission, on 28 November 2007, issued a reasoned
         opinion calling on that Member State to take the measures necessary to comply therewith within a period of two months of its
         receipt.
      
      4        As the United Kingdom Government’s reply to that reasoned opinion showed that the provisions necessary to transpose the directive
         had not yet been adopted, the Commission decided to bring the present action.
      
      5        In its defence, the United Kingdom Government accepts that, on 1 April 2007, the directive had still to be transposed both
         in the United Kingdom and in the territory of Gibraltar and the legislative process to ensure such transposition was still
         in progress at that date. In addition, it explains that the delay is, inter alia, due to difficulties in incorporating the
         provisions transposing that directive into the existing legislation and, in the case of Gibraltar, to the lack of a legal
         framework enabling the directive to be transposed.
      
      6        It must be recalled in that connection that, according to the Court’s 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-23/05 Commission v Luxembourg [2005] ECR I-9535, paragraph 9, and Case C-152/05 Commission v Germany [2008] ECR I-39, paragraph 15).
      
      7        In the present case, it is common ground that, on the expiry of the time-limit imposed in the reasoned opinion, the measures
         intended to transpose the directive into the United Kingdom’s legal system had not been adopted.
      
      8        Moreover, the Court has repeatedly held that a Member State cannot plead provisions, practices or situations prevailing in
         its domestic legal order to justify failure to observe obligations and time-limits laid down by a directive (see, inter alia,
         Case C-423/00 Commission v Belgium [2002] ECR I-593, paragraph 16, and Case C-235/04 Commission v Spain [2007] ECR I-5415, paragraph 55).
      
      9        It follows that the action brought by the Commission must be considered to be well founded.
      
      10      Consequently, it must be declared that, by failing to adopt the necessary laws, regulations and administrative provisions
         necessary to comply with the directive, the United Kingdom has failed to fulfil its obligations under that directive.
      
       Costs
      11      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 (Fifth Chamber) hereby:
      1.      Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive
            2005/35/EC of the European Parliament and of the Council of 7 September 2005 on ship-source pollution and on the introduction
            of penalties for infringements, 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.
      [Signatures]
      * Language of the case: English.