// Case C-394/00 - Opinion - Failure to transpose 96/82/EC
OPINION OF ADVOCATE GENERAL
delivered on 11 October 2001 (1)
Commission of the European Communities
(Action for failure to fulfil obligations - Directive 96/82/EC - Failure to transpose into national law within the period prescribed)
On 25 October 2000 the Commission brought an action under Article 226 EC for a declaration that Ireland had failed to transpose into national law Directive 96/82/EC (2) within the period prescribed for the Member States to do so.
I. Directive 96/82
According to Article 1, the directive 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.
Article 24 imposed on the Member States the obligation to adopt national measures in order to implement the directive not later than 24 months after its entry into force, and to inform the Commission thereof. The Member States had also to communicate to the Commission the main provisions of domestic law adopted in the field governed by the directive.
In accordance with Article 25, the directive was to enter into force on the 20th day following that of its publication in the Official Journal of the European Communities. Given that publication took place on 14 January 1997, Directive 96/82 entered into force on 3 February 1997 and the period prescribed for its transposition into national law expired on 3 February 1999.
II. The administrative procedure
In May 1999, seeing that Ireland had not communicated any measures implementing the directive, the Commission sent it a letter of formal notice giving it two months to submit its observations. The Irish authorities replied on 19 October, claiming that the legislative process of adapting its national legislation was under way.
On 27 October the Commission addressed a reasoned opinion to Ireland setting a time-limit of two months for the transposition of the directive into national law.
In early January 2000 the Irish authorities informed the Commission that they regretted the delay and that they would soon be sending a draft text. In July of that year they sent draft regulations entitled European Communities (Control of Major Accident Hazards Involving Dangerous Substances) Regulations, 2000, giving the assurance that they would communicate the regulations as soon as they were adopted.
III. Procedure before the Court
On 25 October 2000 the Commission, since it had still not received evidence of the Irish legislation's having been adapted, brought this action before the Court. The Government alleged to be at fault lodged its defence on 22 January 2001. To those two sets of pleadings were added a reply on 23 February 2001 and a rejoinder on 9 April 2001.
Since neither of the parties submitted an application setting out reasons for wishing to submit oral observations, the Court of Justice decided, pursuant to Article 44a of the Rules of Procedure, to determine the case without a hearing.
IV. Examination of the action
Ireland acknowledges that, at the end of the period prescribed by Directive 96/82 for its transposition into national law, it had not fulfilled that obligation. In the pleadings which it has lodged in the course of this action before the Court it maintains that, by adopting the European Communities (Control of Major Accident Hazards Involving Dangerous Substances) Regulations, 2000 on 21 December 2000, and by enacting the law entitled Planning and Development Act, 2000 on 28 August 2000, both of which have been notified to the Commission, the reform of its national law is to all intents and purposes complete. It states that that Act was supplemented by an order made by the Minister for the Environment on 31 October 2000, even though, when the rejoinder was lodged, there was no evidence of that legislative instrument's having been communicated to the Commission.
According to Article 249 EC, a directive is binding, as to the result to be achieved, upon each Member State to which it is addressed, but leaves to the national authorities the choice of form and methods. By virtue of Article 10 EC, the Member States are to take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of the Treaty or resulting from action taken by the institutions of the Community.
The defendant government submits that it has adopted the necessary legislative and administrative measures for the performance in its territory of the obligations imposed by the directive. In July 1999 it published a circular addressed to the competent authorities advising them to operate as if the Community rules had already been transposed into national law.
However, in its case-law the Court of Justice has held that circulars are alterable at will by the authorities issuing them and therefore do not provide all the guarantees of legal certainty. Mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of the obligations imposed on a Member State. (3)
In its rejoinder Ireland claimed that various regulations which should complete the transposition of the directive into national law were to be adopted in May 2001 and that they would be brought into force within two to three months. It did not deny the failure to implement Directive 96/82 laid to its charge, but suggested that it would be expedient to stay the infringement proceedings in order to give the Commission time to examine the Irish legislation and pointed out that the case might be brought to an end by discontinuance.
The fact of the matter is that in October 2001 the Commission has not given the slightest hint that it wishes to discontinue the action. Nor is the suggestion of any relevance, since the circumstances which might justify a decision to stay proceedings by virtue of Article 82a(1)(b) of the Rules of Procedure are not found to be present in the present case.
Furthermore, it is well known that the object of an action under Article 226 EC is established by the Commission's reasoned opinion, and even when the default has been remedied after the time-limit prescribed by paragraph 2 of the same article has expired, pursuit of the action still has an object. That object may consist in particular in establishing the basis of the liability that a Member State could incur towards those who acquire rights as a result of its default. (4)
The Commission has established beyond any doubt that the defendant Member State has not within the period prescribed adopted the laws, regulations and administrative provisions necessary to comply with Directive 96/82.
Consequently, the action must be considered irrespective of whether or not Ireland transposed the Directive into its national law after the period prescribed had expired.
Since the action brought by the Commission is well founded and its claims must be upheld, Ireland must be ordered to pay the costs in accordance with Article 69(2) of the Rules of Procedure.
In light of the preceding considerations, I propose that the Court should:
(1) declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 96/82/EC of 9 December 1996 on the control of major accident hazards involving dangerous substances, Ireland has failed to fulfil its obligations under the directive;
(2) order Ireland to pay the costs.
1: - Original language: Spanish
2: - 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).
3: - Case 168/85 Commission v Italy  ECR 2945, paragraph 13.
4: - Case 39/72 Commission v Italy  ECR 101, paragraph 11, and Case 154/85 Commission v Italy  ECR 2717, paragraph 6.