Commission of the European Communities v Hellenic Republic.
Date: 2009-09-10
23. As regards the overall approach taken by the Commission, it must be pointed out, first of all, that, without prejudice to the Commission’s obligation to discharge the burden of proof borne by that institution in proceedings under Article 226 EC, the EC Treaty does not contain any rule which precludes the overall treatment of a significant number of situations on the basis of which the Commission considers that a Member State has, repeatedly and over a long period, failed to fulfil its obligations under Community law (Case C-135/05 Commission  v Italy  [2007] ECR I‑3475, paragraph 20).
24. Secondly, it must be stated that it is settled case-law that, even if the applicable national legislation itself complies with Community law, a failure to fulfil obligations may arise due to the existence of an administrative practice which infringes Community law when it is, to some degree, of a consistent and general nature (see, inter alia, Case C‑278/03 Commission  v Italy  [2005] ECR I-3747, paragraph 13, and C‑135/05 Commission  v Italy , paragraph 21).
27. As regards the admissibility of the grounds of action relating to the provisions of Regulation No 1/2005 having repealed and replaced Directive 91/628 as of 5 January 2007, that is to say, after the expiry of the period set out in the reasoned opinion, it must be pointed out that, according to settled case-law, the existence of an infringement in proceedings brought under Article 226 EC must be assessed in the light of the Community legislation in force at the close of the period prescribed by the Commission for the Member State concerned in order to comply with its reasoned opinion (see, inter alia, Case C-61/94 Commission  v Germany  [1996] ECR I-3989, paragraph 42, and Case C‑377/03 Commission  v Belgium  [2006] ECR I-9733, paragraph 33).
28. However, as the Court has already held and as the Advocate General pointed out in point 35 of her Opinion, although the claims as stated in the application cannot as a rule be extended beyond the infringements alleged in the operative part of the reasoned opinion and in the letter of formal notice, the fact nevertheless remains that the Commission has standing to seek a declaration that a Member State has failed to fulfil obligations which were created in the original version of a Community measure, subsequently amended or repealed, and which were maintained in force under the provisions of a new Community measure (see, in that regard, Case C-365/97 Commission  v Italy  [1999] ECR I-7773, paragraph 36, and Case C‑363/00 Commission  v Italy  [2003] ECR I-5767, paragraph 22). Conversely, the subject-matter of the dispute cannot be extended to obligations arising under new provisions which do not correspond to those arising under the original version of the measure concerned, for otherwise it would constitute a breach of the essential procedural requirements of infringement proceedings (see, inter alia, Case C‑363/00 Commission  v Italy , paragraph 22).
29. Consequently, the claims in the Commission’s application for a declaration that the Hellenic Republic has failed to fulfil its obligations under the provisions of Regulation No 1/2005 are, in principle, admissible provided that the obligations under Regulation No 1/2005 are similar to those arising under Directive 91/628.
32. First of all, it is to be remembered that in proceedings under Article 226 EC for failure to fulfil obligations it is incumbent upon the Commission to prove the alleged failure. It is the Commission’s responsibility to place before the Court the information needed to enable the Court to establish that the obligation has not been fulfilled, and in so doing the Commission may not rely on any presumption (see, to that effect, Case 96/81 Commission  v Netherlands  [1982] ECR 1791, paragraph 6, and Case C-135/05 Commission  v Italy , paragraph 26).
33. Where the Commission has adduced sufficient evidence to prove the relevant facts which occurred in the territory of the defendant Member State, it is incumbent on the latter to challenge in substance and in detail the information produced and the consequences flowing therefrom (see, to that effect, Case 272/86 Commission v Greece  [1988] ECR 4875, paragraph 21, and Case C-365/97 Commission  v Italy , paragraphs 84 and 86).
75. It must be borne in mind that, under point 48.7(b) of Chapter VII of the Annex to Directive 91/628, in the case of transport by sea on a regular and direct link between two geographical points of the Community by means of vehicles loaded on to vessels without unloading of the animals, the latter must, as a rule, be rested for 12 hours after unloading at the port of destination or in its immediate vicinity (see, in that regard, Case C-277/06 Interboves  [2008] ECR I‑0000, paragraph 27).