JUDGMENT OF THE COURT (Fifth Chamber)

25 November 1999 (1)

(Failure to fulfil obligations — Failure to transpose Directive 93/83/EEC)

In Case C-212/98,

Commission of the European Communities, represented by K. Banks, of its LegalService, acting as Agent, with an address for service in Luxembourg at theChambers of C. Gómez de la Cruz, of the same service, Wagner Centre, Kirchberg,

applicant,

v

Ireland, represented by M.A. Buckley, Chief State Solicitor, acting as Agent, withan address for service in Luxembourg at the Irish Embassy, 28 Route d'Arlon,

defendant,

APPLICATION for a declaration that, by failing to adopt within the prescribedperiod the laws, regulations and administrative provisions necessary to comply withCouncil Directive 93/83/EEC of 27 September 1993 on the coordination of certainrules concerning copyright and rights related to copyright applicable to satellitebroadcasting and cable retransmission (OJ 1993 L 248, p. 15) and/or by failing toinform the Commission thereof, Ireland has failed to fulfil its obligations under theEC Treaty,

THE COURT (Fifth Chamber),

composed of: D.A.O. Edward, President of the Chamber, L. Sevón, P.J.G. Kapteyn(Rapporteur), P. Jann and H. Ragnemalm, Judges,

Advocate General: P. Léger,

Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 7 October1999,

gives the following

Judgment

1.

    By application lodged at the Court Registry on 9 June 1998, the Commission of theEuropean Communities brought an action under Article 169 of the EC Treaty (nowArticle 226 EC) for a declaration that, by failing to adopt within the prescribedperiod the laws, regulations and administrative provisions necessary to comply withCouncil Directive 93/83/EEC of 27 September 1993 on the coordination of certainrules concerning copyright and rights related to copyright applicable to satellitebroadcasting and cable retransmission (OJ 1993 L 248, p. 15; 'the Directive‘)and/or by failing to inform it thereof, Ireland has failed to fulfil its obligations underthe EC Treaty.

2.

    Under Article 14(1) of the Directive, Member States were to bring into force thelaws, regulations and administrative provisions necessary to comply with theDirective before 1 January 1995, and were immediately to inform the Commissionthereof.

3.

    As the Commission had not received any communication from the IrishGovernment relating to the transposition of the Directive and as it had no otherinformation from which to conclude that Ireland had complied with its obligation,the Commission, by letter of 16 May 1995, gave Ireland formal notice to submit itsobservations to it within a period of two months.

4.

    The Irish Government replied by letter of 28 July 1995, stating that the Irishauthorities had undertaken a comprehensive review of the Copyright Act of 1963and that the provisions of the Directive would be transposed in the amendedlegislation.

5.

    Since it had not received any information from the Irish Government, on 17 July1996, the Commission sent it a reasoned opinion requesting it to adopt thenecessary measures to comply with its obligations under the Directive within aperiod of two months of notification of that opinion.

6.

    By letters of 2 and 9 August 1996, the Irish authorities replied to the reasonedopinion and informed the Commission, inter alia, that they intended to adopt thenecessary legislative provisions as soon as possible.

7.

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

8.

    The Commission claims that Ireland has not transposed the Directive within theprescribed period and has thus failed to fulfil its obligations under the Treaty.

9.

    The Irish Government does not deny that the Directive has not been transposedwithin the prescribed period. It states, however, that, as a consequence of aSupreme Court judgment, the Directive may be transposed into the Irish legalsystem only by way of primary legislation. Consequently, it has been necessary toreview the Copyright Act of 1963. The Irish Government considers that it hasendeavoured to take every step necessary to initiate in due time the proceduresnecessary for transposing the Directive into domestic law. In those circumstancesit requests the Court to stay proceedings, so that the Commission, after examiningthe Irish legislation, may discontinue the action.

10.

    As regards the Irish Government's request to stay proceedings, the Commissionstates that four years have elapsed since the date on which Ireland should havelegislated to implement the Directive. It did not bring these proceedings until threeand a half years after that date. If the Commission did not act within the normaltime-limits laid down by the Court, it would be failing to fulfil its obligations asguardian of the Treaty.

11.

    With respect to the difficulties, encountered by the Irish Government, inimplementing the Directive in due time, it is settled case-law that a Member Statemay not plead provisions, practices or circumstances existing in its internal legalsystem in order to justify a failure to comply with the obligations and time-limitslaid down in a directive (see, inter alia, Case C-401/98 Commission v Greece [1999]ECR I-0000, paragraph 9).

12.

    As regards the Irish Government's request for proceedings to be stayed, it shouldbe observed that, if the Member State to which a reasoned opinion has been issuedhas not, by the end of the period which it is for the Commission to lay downpursuant to the second paragraph of Article 169 of the Treaty, put an end to theinfringement with which it is charged, the Commission is at liberty to decidewhether or not to bring the matter before the Court (see Case C-329/88

Commission v Greece [1989] ECR 4159). Since the Commission stated in its replythat it was maintaining the action, it is not appropriate to stay proceedings.

13.

    Therefore, since the Directive was not implemented within the prescribed period,the Commission's application must be held to be well founded.

14.

    It must therefore be declared that, by failing to adopt within the prescribed periodthe laws, regulations and administrative provisions necessary to comply with theDirective, Ireland has failed to fulfil its obligations under that directive.

Costs

15.

    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 has applied for costs, and since Ireland has beenunsuccessful, it 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 with CouncilDirective 93/83/EEC of 27 September 1993 on the coordination of certainrules concerning copyright and rights related to copyright applicable tosatellite broadcasting and cable retransmission, Ireland has failed to fulfilits obligations under that directive;

2.    Orders Ireland to pay the costs.

Edward Sevón Kapteyn             Jann                        Ragnemalm

Delivered in open court in Luxembourg on 25 November 1999.

R. Grass

D.A.O. Edward

Registrar

President of the Fifth Chamber

1: Language of the case: English.