JUDGMENT OF THE COURT (Fifth Chamber)

14 September 1999 (1)

(Failure by a Member State to fulfil its obligations — Directive 94/47/EC — Non-transposition)

In Case C-401/98,

Commission of the European Communities, represented by Maria Condou-Durande, of its Legal Service, acting as Agent, with an address for service inLuxembourg at the office of Carlos Gómez de la Cruz, also of its Legal Service,Wagner Centre, Kirchberg,

applicant,

v

Hellenic Republic, represented by Nana Dafniou and Dimitra Tsagkaraki, of theSpecial Legal Service for the European Communities of the Ministry of ForeignAffairs, acting as agents, with an address for service in Luxembourg at the GreekEmbassy, 117 Val Sainte-Croix,

defendant,

APPLICATION for a declaration that, by failing to adopt the laws, regulations andadministrative provisions necessary to comply with Directive 94/47/EC of theEuropean Parliament and the Council of 26 October 1994 on the protection ofpurchasers in respect of certain aspects of contracts relating to the purchase of the

right to use immovable properties on a timeshare basis (OJ 1994 L 280, p. 83), theHellenic Republic has failed to fulfil its obligations under that directive,

THE COURT (Fifth Chamber),

composed of: J.-P. Puissochet, President of the Chamber, P. Jann, C. Gulmann(Rapporteur), D.A.O. Edward and L. Sevón, Judges,

Advocate General: A. Saggio,

Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 17 June 1999,

gives the following

Judgment

1.

    By application lodged at the Court Registry on 10 November 1998, the Commissionof the European Communities brought an action under Article 169 of the ECTreaty (now Article 226 EC) in which it sought a declaration that, by failing toadopt the laws, regulations and administrative provisions necessary to comply withDirective 94/47/EC of the European Parliament and the Council of 26 October1994 on the protection of purchasers in respect of certain aspects of contractsrelating to the purchase of the right to use immovable properties on a timesharebasis (OJ 1994 L 280, p. 83, hereinafter 'the Directive‘), the Hellenic Republic hasfailed to fulfil its obligations under that directive.

2.

    Under Article 12(1) of the Directive, Member States were required to bring intoforce the laws, regulations and administrative provisions necessary to comply withthe Directive by no later than 30 months after its publication in the Official Journalof the European Communities, and immediately to inform the Commission thereof.

3.

    Given that the Directive was published on 29 October 1994, Member States wererequired to adopt the measures necessary to implement it before 30 April 1997.

4.

    Having received from the Greek Government no notification concerning themeasures taken to transpose the Directive into Greek law, and in the absence ofany other information from which it could conclude that the Hellenic Republic hadfulfilled its obligation to do so, the Commission gave formal notice to that State by

letter of 9 September 1997, in accordance with the procedure laid down in Article169 of the Treaty, calling on it to submit its observations within a period of twomonths.

5.

    The Greek Government replied by letter of 11 November 1997, saying that aproposal for transposing the Directive had been drawn up in the form of aministerial decree and had been sent to the Greek Tourist Board for comment.

6.

    In view of the fact that, by 16 January 1998, the Greek authorities had still not senta copy of the decree, the Commission sent a reasoned opinion to the HellenicRepublic, requesting it to adopt the necessary measures to fulfil its obligationsunder the Directive within two months of notification of the opinion.

7.

    Having received no further information regarding the transposition of the Directive,the Commission decided to bring the present action.

8.

    In its defence, the Greek Government does not deny that the measures necessaryto transpose the Directive were not taken within the prescribed period. It states,however, that the Ministry for Development has prepared a draft presidentialdecree to which all the necessary signatures ought to be affixed shortly and whichwill then be sent to the Council of State for assessment, and that it is endeavouringto complete the procedure to bring its national law into line with the Directive asquickly as possible.

9.

    As the Commission has pointed out, it is settled case-law that a Member State maynot plead provisions, practices or circumstances existing in its internal legal systemin order to justify a failure to comply with the obligations and time-limits laid downin a directive (see, in particular, Case C-214/96 Commission v Spain [1998]ECR I-7661, paragraph 18).

10.

    Since the Directive has not been transposed within the period prescribed therein,the action brought by the Commission must be held to be well founded.

11.

    It must therefore be held that, by failing to adopt, within the prescribed period, thelaws, regulations and administrative provisions necessary to comply with theDirective, the Hellenic Republic has failed to fulfil its obligations under theDirective.

Costs

12.

    Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to beordered to pay the costs if they have been applied for in the successful party'spleadings. Since the Commission applied for costs and the Hellenic Republic hasbeen unsuccessful, the latter must be ordered to pay the costs.

On those grounds,

THE COURT (Fifth Chamber),

hereby:

1.    Declares that, by failing to adopt within the prescribed period the laws,regulations and administrative provisions necessary to comply withDirective 94/47/EC of the European Parliament and the Council of 26October 1994 on the protection of purchasers in respect of certain aspectsof contracts relating to the purchase of the right to use immovableproperties on a timeshare basis, the Hellenic Republic has failed to fulfilits obligations under that directive;

2.    Orders the Hellenic Republic to pay the costs.

PuissochetJann Gulmann Edward Sevón

Delivered in open court in Luxembourg on 14 September 1999.

R. Grass

J.-P. Puissochet

Registrar

President of the Fifth Chamber

1: Language of the case: Greek.