1 By application lodged at the Court Registry on 1 August 1997, the Commission of the European Communities brought an action under Article 169 of the EC Treaty for a declaration that, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with Commission Directive 94/51/EC of 7 November 1994 adapting to technical progress Council Directive 90/219/EEC on the contained use of genetically modified micro-organisms (OJ 1994 L 297, p. 29), the Portuguese Republic has failed to fulfil its obligations under the third paragraph of Article 189 of the EC Treaty and Article 2 of Directive 94/51/EC.
2 Under Article 2 of Directive 94/51 the Member States were to bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 30 April 1995 and inform the Commission thereof forthwith.
3 Since it had not received any notification concerning the transposition of Directive 94/51 into Portuguese law and had no other information enabling it to conclude that the Portuguese Republic had complied with that obligation, the Commission initiated the procedure provided for in Article 169 of the Treaty on 2 August 1995 by sending the Portuguese Government a letter of formal notice whereby it called upon it to submit its observations within two months.
4 By letter of 27 August 1996 the Portuguese Republic replied that Directive 94/51 had been transposed into Portuguese national law by Portaria (Implementing Order) No 602/94 of 13 July 1994 which had been notified previously to the Commission.
5 The Commission proceeded to analyse that order and concluded that it could not be considered to have transposed Directive 94/51 into domestic law. On 27 December 1996, it accordingly sent the Portuguese Republic a reasoned opinion, calling upon it to adopt the measures necessary to comply with its obligations under Directive 94/51 within two months with effect from its notification.
6 Since no reply was forthcoming and it had no other information to justify a finding that the Portuguese Republic had adopted the requisite measures, the Commission brought the present action.
7 The Portuguese Government does not deny that it failed to fulfil its obligations. However, it points out that a draft Portaria intended to transpose Directive 94/51 is currently awaiting publication in the Diário da República.
8 Since the transposition of Directive 94/51 has not been achieved within the prescribed period, the action brought by the Commission must be held to be well founded.
9 It must therefore be held that, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with Directive 94/51, the Portuguese Republic has failed to fulfil its obligations under Article 2 of that directive.