Commission of the European Communities v French Republic.
Date: 2002-09-12
15 It must be remembered, in that regard, that it is settled case-law that whether a Member State has failed to fulfil its obligations must be determined by reference to the situation 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, in particular, Case C-354/99 Commission v Ireland [2001] ECR I-7657, paragraph 45).  It follows that none of the national provisions mentioned in the preceding paragraph can be taken into account by the Court in its consideration of this action.
Failure to transpose Article 4 of the Directive
19 In that regard, it is sufficient, first, to observe that such consequences do not follow at all from the wording of the national provisions mentioned in paragraph 17 of this judgment and, second, to point out that mere administrative practices, which by their nature can be changed as and when the authorities please and which are not published widely enough, cannot be regarded as a proper fulfilment of the obligation imposed on Member States to which the directives are addressed (see, in particular, Commission v Ireland, cited above, paragraph 28).
21 It is unnecessary to rule on the scope of Articles 4 and 8 of Regulation No 338/97. It is sufficient, in this case, to observe that those provisions concern the import of, and trade in, the species they cover and not experiments on such species.  With regard to the fact that the protected species covered by the Directive are only rarely bred in captivity in France, it is important to remember that, since failure to comply with an obligation imposed by a rule of Community law is itself sufficient to constitute a breach, the fact that such a failure had no adverse effects is irrelevant (see, in particular, Commission v Ireland, cited above, paragraph 34).
41 On the one hand, Article 11 shows that, where the strict conditions which it lays down are satisfied, the competent authority has a discretion, but not an obligation, to grant a licence to set animals free.  On the other hand, it is important to note that, under Article 24 of the Directive, the Member States are free to apply or adopt stricter measures to ensure the protection of animals used for experimental purposes or to control or restrict the use of animals for certain experiments.  It follows from the latter provision that the Member States are, in particular, entitled to prohibit any setting free of animals used in an experiment, or even to allow this, under the conditions laid down by Article 11 of the Directive, only so far as concerns animals taken from the wild.
59 It should be pointed out, in that regard, that it is clear from the Court's settled case-law that Article 22 of the Directive, which concerns the recognition by the Member States of the validity of data generated by animal experiments carried out in the territory of another Member State for one of the purposes listed in Article 3 of the Directive, that is to say, the development, manufacture, quality, effectiveness and safety testing of drugs, foodstuffs and other substances or products and the protection of the environment, does indeed require the adoption of appropriate measures of transposition (see Case C-268/97 Commission v Belgium [1998] ECR I-6069, paragraph 14).