JUDGMENT OF THE COURT (Third Chamber)

16 December 1999 (1)

(Failure by a Member State to fulfil its obligations — Failure to transposeDirective 95/30/EC)

In Case C-26/99,

Commission of the European Communities, represented by P.J. Kuijper, LegalAdviser, and N. Yerrell, a national civil servant on secondment to its Legal Service,acting as Agents, with an address for service in Luxembourg at the office ofC. Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

applicant,

v

Grand Duchy of Luxembourg, represented by P. Steinmetz, Director of Legal andCultural Affairs at the Ministry of Foreign Affairs, acting as Agent, 5 Rue Notre-Dame, Luxembourg,

defendant,

APPLICATION for a declaration that, by failing to adopt and/or notify to theCommission the laws, regulations and administrative provisions necessary to complywith Commission Directive 95/30/EC of 30 June 1995 adapting to technical progressCouncil Directive 90/679/EEC on the protection of workers from risks related to

exposure to biological agents at work (seventh individual Directive within themeaning of Article 16(1) of Directive 89/391/EEC) (OJ 1995 L 155, p. 41), theGrand Duchy of Luxembourg has failed to fulfil its obligations under the ECTreaty,

THE COURT (Third Chamber),

composed of: J.C. Moitinho de Almeida (Rapporteur), President of the Chamber,C. Gulmann and J.-P. Puissochet, Judges,

Advocate General: N. Fennelly,

Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 28 October1999,

gives the following

Judgment

1.

    By application lodged at the Registry of the Court on 3 February 1999, theCommission of the European Communities brought an action under Article 169 ofthe EC Treaty (now Article 226 EC) for a declaration that, by failing to adoptand/or notify to the Commission the laws, regulations and administrative provisionsnecessary to comply with Commission Directive 95/30/EC of 30 June 1995 adaptingto technical progress Council Directive 90/679/EEC on the protection of workersfrom risks related to exposure to biological agents at work (seventh individualDirective within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1995L 155, p. 41, 'the Directive‘), the Grand Duchy of Luxembourg has failed to fulfilits obligations under the EC Treaty.

2.

    Article 2(1) of the Directive provides that the Member States are to bring intoforce the laws, regulations and administrative provisions necessary to comply withthis Directive by 30 November 1996 and that they are immediately to inform theCommission thereof.

3.

    Since it had not been notified of any implementing measures adopted by the GrandDuchy of Luxembourg in order to comply with the Directive and it had no otherevidence at its disposal to suggest that that State had adopted the necessaryprovisions, on 30 May 1997 the Commission sent a letter of formal notice to the

Luxembourg Government asking it to submit its observations within two months,pursuant to the procedure provided for in Article 169 of the Treaty.

4.

    The Commission received no response to that letter; accordingly, on 22 December1997 it issued a reasoned opinion, calling upon the Grand Duchy of Luxembourgto adopt the measures necessary to comply with the Directive within a period oftwo months.

5.

    By letter of 25 March 1998, the Grand Duchy of Luxembourg informed theCommission that a draft regulation applying the Directive had been submitted tothe Conseil d'État (Council of State) for its opinion and, by letter of 19 August1998, the text of the Governmental amendments to that draft regulation wasforwarded to the Commission.

6.

    Having received no notification that those measures transposing the Directive hadbeen adopted, the Commission commenced these proceedings.

7.

    The Grand Duchy of Luxembourg does not dispute either that it is under anobligation to adopt the measures necessary to comply with the Directive or that itwas late in doing so. It nevertheless contends that the delay in adopting theabovementioned draft regulation can be explained by the fact that, since it had heldthe Presidency of the Council of Ministers of the European Union, the first draftof the Grand Ducal Regulation was not adopted until 6 February 1998. Variousamendments were made to that draft, which is why the new text was not submittedto the Conseil d'État until 27 January 1999. As it has taken the measures necessaryto ensure that the Directive is transposed rapidly, the Luxembourg Governmentconsiders that the Commission's action will soon be devoid of purpose and asks theCourt to stay proceedings.

8.

    In its reply, the Commission takes formal notice of the information provided by theLuxembourg Government, but reaffirms the fact that no final measure oftransposition has been adopted.

9.

    The first point to be made is that the Luxembourg Government does not disputethe fact that the measures necessary to transpose the Directive into national lawhave not yet been adopted.

10.

    Secondly, it is settled case-law that a Member State may not plead provisions,practices or circumstances existing in its internal legal system in order to justify afailure to comply with the obligations and time-limits laid down in a directive (see,inter alia, Case C-401/98 Commission v Greece [1999] ECR I-0000, paragraph 9).

11.

    In those circumstances the action brought by the Commission must be held to bewell founded.

12.

    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 Grand Duchy of Luxembourg has failed to fulfil its obligations underArticle 2(1) of that Directive.

Costs

13.

    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 asked that the Grand Duchy of Luxembourgbe ordered to pay the costs and the latter has been unsuccessful, it must be orderedto pay the costs.

On those grounds,

THE COURT (Third Chamber)

hereby:

1.    Declares that, by failing to adopt, within the prescribed period, the laws,regulations and administrative provisions necessary to comply withCommission Directive 95/30/EC of 30 June 1995 adapting to technicalprogress Council Directive 90/679/EEC on the protection of workers fromrisks related to exposure to biological agents at work (seventh individualDirective within the meaning of Article 16(1) of Directive 89/391/EEC), theGrand Duchy of Luxembourg has failed to fulfil its obligations underArticle 2(1) of that Directive;

2.    Orders the Grand Duchy of Luxembourg to pay the costs.

Moitinho de AlmeidaGulmann Puissochet

Delivered in open court in Luxembourg on 16 December 1999.

R. Grass

J.C. Moitinho de Almeida

Registrar

President of the Third Chamber

1: Language of the case: French.