62000J0364

1. Actions for failure to fulfil obligations - Examination of the merits by the Court - Situation to be taken into account - Situation prevailing at the end of the period laid down in the reasoned opinion

(Art. 226 EC)

2. Member States - Obligations - Implementation of directives - Failure to fulfil obligations - Justification based on practices or circumstances existing in its internal legal order, including technical difficulties - Not permissible

(Art. 226 EC)

In Case C-364/00,

Commission of the European Communities, represented by T. van Rijn, acting as Agent, with an address for service in Luxembourg,

applicant,

v

Kingdom of the Netherlands, represented by J. van Bakel, acting as Agent,

defendant,

APPLICATION for a declaration that, by failing to adopt, within the prescribed period, the laws, regulations and administrative measures necessary to implement the provisions of Council Directive 97/70/EC of 11 December 1997 setting up a harmonised safety regime for fishing vessels of 24 metres in length and over (OJ 1998 L 34, p. 1), the Kingdom of the Netherlands has failed to fulfil its obligations under the EC Treaty,

THE COURT (Fourth Chamber),

composed of: S. von Bahr (Rapporteur), President of the Chamber, D.A.O. Edward and A. La Pergola, Judges,

Advocate General: S. Alber,

Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 24 January 2002,

gives the following

Judgment

1 By application lodged at the Court Registry on 3 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, the laws, regulations and administrative measures necessary to implement the provisions of Council Directive 97/70/EC of 11 December 1997 setting up a harmonised safety regime for fishing vessels of 24 metres in length and over (OJ 1998 L 34, p. 1), the Kingdom of the Netherlands has failed to fulfil its obligations under the EC Treaty.

2 Under the first subparagraph of Article 12(1) of Directive 97/70:

Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 1 January 1999. They shall forthwith inform the Commission thereof.

3 Having given the Kingdom of the Netherlands formal notice to submit its observations, the Commission, by letter of 10 August 1999, issued a reasoned opinion requesting it to adopt the measures necessary to comply with its obligations under Directive 97/70 within two months from the date of notification of the opinion.

4 Since it received no information as to whether the implementation of Directive 97/70 had been completed, the Commission brought the present action.

5 Pointing out the obligations of the Member States under Article 10 EC and the third paragraph of Article 249 EC, the Commission claims that the Kingdom of the Netherlands was required to adopt the measures necessary to comply with Directive 97/70 within the prescribed period.

6 The Kingdom of the Netherlands states that the draft order intended to implement Directive 97/70 has recently been approved by the Governments of Aruba and the Netherlands Antilles, to which it had been sent for approval, and that it should shortly be submitted to the Council of Ministers, with its entry into force envisaged for the month of October 2001.

7 The Netherlands Government points out the difficulties with which it has been, and is still confronted in implementing the provisions of Directive 97/70, many of which consist only of a reference to the text of the Annex to the Torremolinos Protocol of 2 April 1993, which amended the International Convention for the Safety of Fishing Vessels, signed at Torremolinos on 2 April 1977. The translation of the consolidated text of that convention, of which there is no official version, has taken some considerable time. Further, the provisions of the said protocol lack clarity, which makes their implementation particularly difficult.

8 In that regard, it must be borne in mind that, according to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see, in particular, Case C-147/00 Commission v France [2001] ECR I-2387, paragraph 26).

9 In this case it is clear that the Kingdom of the Netherlands has not adopted the measures necessary to comply with the reasoned opinion within the period prescribed for doing so.

10 Further, it follows from the case-law of the Court of Justice that a Member State cannot rely on provisions, practices or circumstances existing in its internal legal order to justify its failure to comply with the obligations and time-limits laid down by Community directives, nor therefore the late or incomplete implementation of a directive (see, in particular, Case C-140/01 Commission v Belgium [2002] ECR I-2105, paragraph 16). Likewise, as the Court has also held, it is irrelevant that the failure of a Member State to fulfil its obligations is the result of technical difficulties encountered by it (see, in particular, Case C-152/98 Commission v Netherlands [2001] ECR I-3463, paragraph 41).

11 Therefore, the action brought by the Commission is well founded.

12 It must accordingly be held that, by failing to adopt, within the prescribed period, the laws, regulations and administrative measures necessary to comply with Directive 97/70, the Kingdom of the Netherlands has failed to fulfil its obligations under that directive.

Costs

13 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has applied for costs and the Kingdom of the Netherlands has been unsuccessful, the latter must be ordered to pay the costs.

On those grounds,

THE COURT (Fourth Chamber)

hereby:

1. Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative measures necessary to comply with Council Directive 97/70/EC of 11 December 1997 setting up a harmonised safety regime for fishing vessels of 24 metres in length and over, the Kingdom of the Netherlands has failed to fulfil its obligations under that directive;

2. Orders the Kingdom of the Netherlands to pay the costs.