Commission of the European Communities v Federal Republic of Germany.
Date: 1991-05-30
18 It should be borne in mind in that respect that, according to the case-law of the Court (see, in particular, the judgment in Case 131/88 Commission v Germany [1991] ECR I-825), the transposition of a directive into domestic law does not necessarily require that its provisions be incorporated formally and verbatim in express, specific legislation; a general legal context may, depending on the content of the directive, be adequate for the purpose provided that it does indeed guarantee the full application of the directive in a sufficiently clear and precise manner so that, where the directive is intended to create rights for individuals, the persons concerned can ascertain the full extent of their rights and, where appropriate, rely on them before the national courts.
19 In that respect, it should be pointed out that the obligation imposed on the Member States to prescribe a limit value which must not be exceeded in specified circumstances, laid down in Article 2 of the directive, is imposed, according to Article 1, "specifically in order to help protect human beings against the effects of lead in the environment". It does not apply, however, to occupational exposure. Except in that case the obligation implies, therefore, that whenever the exceeding of the limit values could endanger human health the persons concerned must be in a position to rely on mandatory rules in order to be able to assert their rights. Furthermore, the fixing of a limit value in a provision the mandatory nature of which is undeniable is also necessary in order that all those whose activities are liable to give rise to nuisances may ascertain precisely the obligations to which they are subject.
24 It follows from the foregoing considerations that it is not established that Article 2(1) of the directive has been implemented with unquestionable binding force, or with the specificity, precision and clarity required by the case-law of the Court in order to satisfy the requirement of legal certainty.
The absence of appropriate measures for securing observance of the limit value
28 It should be pointed out in that respect that the fact that a practice is in conformity with the requirements of a directive may not constitute a reason for not transposing that directive into national law by provisions capable of creating a situation which is sufficiently precise, clear and transparent to enable individuals to ascertain their rights and obligations. As the Court held in its judgment in Case 339/87 Commission v Netherlands [1990] ECR I-851, paragraph 25, in order to secure the full implementation of directives in law and not only in fact, Member States must establish a specific legal framework in the area in question.
35 The fact that, after the action was brought, the German legislation was amended cannot alter that assessment. The Court has consistently held that the subject-matter of an action brought under Article 169 of the Treaty is determined by the Commission' s reasoned opinion and that, even where the default has been remedied after the time-limit prescribed in the second paragraph of that article has expired, there is still an interest in pursuing the action in order to establish the basis of liability which a Member State may incur, as a result of its default towards other Member States, the Community or private parties.