1 By application lodged at the Registry of the Court on 18 October 2000, the Commission of the European Communities brought an action under Article 226 EC for a declaration that, by failing to adopt, within the prescribed period, all the measures necessary to comply with Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances (OJ 1997 L 10, p. 13) and, in particular, Article 11 thereof, the Federal Republic of Germany has failed to fulfil its obligations under the EC Treaty.
2 According to Article 1 thereof, Directive 96/82 is aimed at the prevention of major accidents which involve dangerous substances, and the limitation of their consequences for man and the environment, with a view to ensuring high levels of protection throughout the Community in a consistent and effective manner.
3 Article 11(1) of Directive 96/82 provides: Member States shall ensure that, for all establishments to which Article 9 applies: (a) the operator draws up an internal emergency plan for the measures to be taken inside the establishment, - for new establishments, prior to commencing operation, - for existing establishments not previously covered by Directive 82/501/EEC, three years from the date laid down in Article 24(1), - for other establishments, two years from the date laid down in Article 24(1); (b) the operator supplies to the competent authorities, to enable the latter to draw up external emergency plans, the necessary information within the following periods of time: - for new establishments, prior to the start of operation, - for existing establishments not previously covered by Directive 82/501/EEC, three years from the date laid down in Article 24(1), - for other establishments, two years from the date laid down in Article 24 (1); (c) the authorities designated for that purpose by the Member State draw up an external emergency plan for the measures to be taken outside the establishment.
4 Under the first subparagraph of Article 24(1) of Directive 96/82, the Member States were to bring into force the laws, regulations and administrative provisions necessary to comply with the directive not later than 24 months after its entry into force and to inform the Commission thereof forthwith.
5 Pursuant to Article 25, Directive 96/82 entered into force on the 20th day following that of its publication in the Official Journal of the European Communities. As publication took place on 14 January 1997, the directive entered into force on 3 February 1997 and the period laid down in the first subparagraph of Article 24(1) of the directive expired on 3 February 1999.
6 Since, when that time-limit expired, it had not been informed of the provisions adopted by the Federal Republic of Germany in order to comply with Directive 96/82 and it had no other information from which to conclude that that Member State had adopted the provisions necessary for that purpose, the Commission took the view that the Federal Republic of Germany had failed to fulfil its obligations under the directive and, by letter of 10 May 1999, gave the German Government formal notice to submit its observations within a period of two months.
7 By letter of 19 July 1999, the German authorities informed the Commission that, by adopting the Fünftes Gesetz zur Änderung des Bundes-Immissionsschutzgesetzes (Fifth Law amending the Federal Law on protection against pollution) of 19 October 1998 (BGBl. 1998 I, p. 3178), the Federal Republic of Germany had fulfilled, at Federal level, the conditions necessary to implement Directive 96/82 by way of regulation. In that letter they also forwarded to the Commission the legislative provisions adopted by the Länder of Bavaria, Berlin, Hesse and Thuringia implementing Article 11 of the directive.
8 By two letters of 13 September 1999 and 8 November 1999, the German authorities also forwarded to the Commission the legislative provisions adopted for that purpose by the Land of Bremen and by the Länder of North Rhine-Westphalia and Baden-Württemberg respectively. With the letter of 8 November 1999 they also sent the Commission a draft Federal Government regulation intended to transpose Directive 96/82 and pointed out that the Bundesrat had already begun its deliberations with a view to approving that regulation.
9 Taking the view that the Federal Republic of Germany had not yet adopted all the laws, regulations and administrative provisions necessary to comply with Directive 96/82 or, in any event, had not yet fully notified them to the Commission, with the exception of those adopted by the Länder of Baden-Württemberg, Bavaria, Berlin, Bremen, Hesse, North Rhine-Westphalia and Thuringia with regard to Article 11 thereof, the Commission sent a reasoned opinion on 21 January 2000 to the Federal Republic of Germany calling on it to adopt the measures necessary to comply therewith within two months from notification of the opinion.
10 In reply to the reasoned opinion, the German authorities informed the Commission, by letter of 11 May 2000, that on 17 March 2000 the Bundesrat had approved the abovementioned regulation which was intended to transpose Directive 96/82 and that it would forward the text as soon as it was published in the Bundesgesetzblatt. In that same letter they also notified the Commission of the provisions adopted by the Länder of Brandenburg, Bremen, Saarland and Hamburg implementing Article 11 of Directive 96/82.
11 By letter of 3 August 2000, the German authorities forwarded to the Commission the text of the Verordnung zur Umsetzung EG-rechtlicher Vorschriften betreffend die Beherrschung der Gefahren bei schweren Unfällen mit gefährlichen Stoffen (Regulation on the transposition of Community legislation concerning the control of major-accident hazards involving dangerous substances) of 26 April 2000 (BGBl. 2000 I, p. 603), and informed it that that regulation had entered into force on 3 May 2000. They pointed out that the provisions necessary to implement Article 11 of Directive 96/82 at the level of the Länder had already been adopted by 10 of them and notified to the Commission and announced that the provisions necessary to implement it in the Länder of Mecklenburg-Western Pomerania, Lower Saxony, Rhineland-Palatinate, Saxony, Saxony-Anhalt and Schleswig-Holstein would probably be adopted before the end of the current year.
12 Taking the view that, in those circumstances, the Federal Republic of Germany had not yet adopted all the provisions necessary to implement Article 11 of Directive 96/82 in German law, the Commission brought the present action.
13 The German Government does not dispute that all the measures necessary to implement Article 11 of Directive 96/82 in national law have not yet been adopted. It points out that, after the adoption of the various legislative measures discussed in the course of the pre-litigation procedure, implementation is still in issue only in the Länder of Mecklenburg-Western Pomerania, Lower Saxony, Rhineland-Palatinate, Saxony, Saxony-Anhalt and Schleswig-Holstein.
14 In that respect, the German Government points out that the legislation necessary to transpose Article 11 of Directive 96/82 into the law of the Länder of Schleswig-Holstein and Rhineland-Palatinate entered into force on 1 and 21 December 2000 respectively and that the procedures to effect transposition in the Länder of Mecklenburg-Western Pomerania, Lower Saxony, Saxony and Saxony-Anhalt are in hand.
15 The German Government considers that, by reason of the number and complexity of the implementating measures necessary both at the federal and the Länder level, there were special circumstances in this case which the Commission should have taken into account in accordance with the principle of cooperation, set out in Article 10 EC. It states, moreover, that it had pointed out several times to the Länder authorities the urgent need for implementation; procedures are at an advanced stage and it is expected that the matter will be concluded in the near future.
16 It is settled law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that 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-110/00 Commission v Austria [2001] ECR I-7545, paragraph 13, and Case C-423/00 Commission v Belgium [2002] ECR I-593, paragraph 14).
17 It is not disputed that the Federal Republic of Germany had not adopted, before the expiry of the period of two months laid down in the reasoned opinion, all the measures necessary to implement Directive 96/82 in national law.
18 Furthermore, the Court has repeatedly held that, a Member State may not plead provisions, practices or situations in its internal legal order, including those resulting from its federal organisation, in order to justify a failure to comply with the obligations and time-limits laid down in a directive (see, in particular, Case C-423/00 Commission v Belgium, cited above, paragraph 16). While, pursuant to the principle of cooperation, the Commission and the Member States must work together in good faith, such cooperation must be in full compliance with the Treaty and secondary legislation.
19 Moreover, under the system established by Article 226 EC, the Commission enjoys a discretionary power as to whether it will bring an action for failure to fulfil obligations and it is not for the Court to judge whether that discretion was wisely exercised (see, in particular, Case C-236/99 Commission v Belgium [2000] ECR I-5657, paragraph 28).
20 It follows that the Federal Republic of Germany was not entitled to require the Commission to desist from bringing the action or to delay it in order to take account of the number and complexity of the necessary implementing measures and of the efforts which had been or were being made.
21 In those circumstances, it must be held that the action brought by the Commission is well founded.
22 Accordingly, it must be held that, by failing to take, within the prescribed period, all the measures necessary to comply with Article 11 of Directive 96/82, the Federal Republic of Germany has failed to fulfil its obligations under that directive.