JUDGMENT OF THE COURT (Fifth Chamber)

16 December 1999 (1)

(Failure by a Member State to fulfil its obligations — Directive 94/33/EC —Failure to transpose within the prescribed period)

In Case C-47/99,

Commission of the European Communities, represented by D. Gouloussis, LegalAdviser, acting as Agent, with an address for service in Luxembourg at the officeof C. Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

applicant,

v

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

defendant,

APPLICATION for a declaration that, by failing to adopt, or by failing tocommunicate to the Commission, within the prescribed period the laws regulationsand administrative provisions necessary to comply with Council Directive 94/33/ECof 22 June 1994 on the protection of young people at work (OJ 1994 L 216, p. 12),the Grand Duchy of Luxembourg has failed to fulfil its obligations under the ECTreaty and under the said directive,

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: 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 14 October1999,

gives the following

Judgment

1.

    By application lodged at the Court Registry on 16 February 1999, the Commissionof the European Communities brought an action under Article 169 of the ECTreaty (now Article 226 EC) for a declaration that, by failing to adopt, or by failingto communicate to the Commission, within the prescribed period the lawsregulations and administrative provisions necessary to comply with CouncilDirective 94/33/EC of 22 June 1994 on the protection of young people at work (OJ1994 L 216, p. 12, hereinafter 'the Directive‘), the Grand Duchy of Luxembourghas failed to fulfil its obligations under the EC Treaty and the said directive.

2.

    Under Article 17(1) of the Directive, the Member States were required to bringinto force not later than 22 June 1996 the laws, regulations and administrativeprovisions necessary to comply with the Directive or to ensure by that date at thelatest that the two sides of industry (management and labour) introduce therequisite provisions by means of collective agreements, and to inform theCommission thereof forthwith.

3.

    Having received no notification from the Luxembourg Government concerning thetransposition of the Directive, the Commission formally requested thatGovernment, by letter of 16 January 1997, to submit its observations on the matter.

4.

    The Luxembourg Government replied by letter of 25 February 1997 mentioningcertain preparatory measures for the transposition of the Directive.

5.

    On 20 January 1998, having received no further information concerning themeasures adopted to transpose the Directive into Luxembourg law, the Commission

sent the Grand Duchy of Luxembourg a reasoned opinion setting out theobservations contained in its letter of formal notice and calling on it to complytherewith within two months of notification of the opinion.

6.

    By letter of 10 March 1998, the Luxembourg authorities sent the Commission apreliminary draft of a law transposing the Directive and asked for an extension oftime in which to complete the transposition process, which the Commission granted.

7.

    In the absence of any further communication from the Luxembourg Governmentconcerning its adoption of the measures necessary to comply with its obligationsunder the Directive, the Commission brought the present action.

8.

    In its application, the Commission submits that the Grand Duchy of Luxembourgdid not transpose the Directive within the prescribed period and that it hastherefore failed to fulfil its obligations under the EC Treaty and the Directive.

9.

    The Luxembourg Government does not dispute that the Directive has not beentransposed within the period allowed. It maintains that the amount of preparatorywork actually required for the law transposing the Directive greatly exceededestimates and, in particular, given that the draft law was of concern to severalministries, made it necessary to create an ad hoc interministerial group whichconsidered the content of the draft on a number of occasions.

10.

    The Luxembourg Government adds that, on 19 March 1999, the draft implementinglaw was adopted by the Government in council and that, on 13 April 1999, it wassent to the Council of State, the legislative organ, and to professional bodies, inorder to obtain their views, as is required by the Luxembourg legislative process.It said that the draft was to be laid before Parliament before the end of April 1999and that the law would therefore be adopted before the end of the year.

11.

    That being so, the Luxembourg Government asks the Court to order the suspensionof the present proceedings for a period to be determined, or, alternatively, todismiss the application and order the Commission to pay the costs.

12.

    It should be observed at the outset that there are no grounds for the Court tosuspend the proceedings.

13.

    As to the substance, since the directive was not transposed within the periodallowed, the Commission's action for failure to fulfil obligations is well founded.

14.

    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 underthat 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 to be awarded against theGrand Duchy of Luxembourg and the latter has been unsuccessful, it must beordered to pay the costs.

On those grounds,

THE COURT (Fifth Chamber)

hereby:

1.    Declares that, by failing to adopt within the prescribed period all the laws,regulations and administrative provisions necessary to comply with CouncilDirective 94/33/EC of 22 June 1994 on the protection of young people atwork, the Grand Duchy of luxembourg has failed to fulfil its obligationsunder that directive;

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

EdwardSevón Kapteyn Jann Ragnemalm

Delivered in open court in Luxembourg on 16 December 1999.

R. Grass

D.A.O. Edward

Registrar

President of the Fifth Chamber

1: Language of the case: French.