European Court reports 1999 Page I-03247

Parties

In Case C-417/97,

Commission of the European Communities, represented by Christina Tufvesson, Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

applicant,

Grand Duchy of Luxembourg, represented by Nicolas Schmit, Councillor of State and Head of the International Economic Relations and Cooperation Directorate in the Ministry of Foreign Affairs, acting as Agent, with an address for service in Luxembourg at the Ministry of Foreign Affairs,

defendant,

APPLICATION for a declaration that, by failing to bring into force within the prescribed period all the laws, regulations and administrative provisions, including any relevant sanctions, necessary for it to comply with Council Directive 93/22/EEC of 10 May 1993 on investment services in the securities field (OJ 1993 L 141, p. 27), the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 31 of that directive,

(Fourth Chamber),

composed of: P.J.G. Kapteyn, President of the Chamber, J.L. Murray (Rapporteur) 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 28 January 1999,

gives the following

Grounds

1 By application lodged at the Court Registry on 9 December 1997, the Commission of the European Communities brought an action under Article 169 of the EC Treaty (now Article 226 EC) for a declaration that, by failing to bring into force within the prescribed period all the laws, regulations and administrative provisions, including any relevant sanctions, necessary for it to comply with Council Directive 93/22/EEC of 10 May 1993 on investment services in the securities field (OJ 1993 L 141, p. 27) (hereinafter `the Directive'), the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive.

2 Article 31 of the Directive provides that the Member States are to adopt the laws, regulations and administrative provisions necessary for them to comply with the Directive by no later than 1 July 1995, are to bring those provisions into force by no later than 31 December 1995 and are to inform the Commission thereof forthwith.

3 Not having received notification regarding the transposition of the Directive into national law or being in possession of any other information which would enable it to form the view that the Grand Duchy had fulfilled its obligations, the Commission gave the Luxembourg Government formal notice by letter of 27 October 1995 to submit its observations within two months.

4 By letter of 8 January 1996 the Luxembourg authorities replied that the Chamber of Deputies had already undertaken the review of a draft law designed to implement the Directive and that a second draft law would shortly be finalised. On 19 August 1996 the Luxembourg Government informed the Commission that the second draft law had been presented to the Chamber of Deputies. On 8 February 1996 the Luxembourg Government notified the Commission that Article 21 of the Directive had been transposed into national law by virtue of a Ministerial Regulation dated 27 December 1995.

5 Not having received notification of any other measure transposing the Directive into Luxembourg law, the Commission sent a reasoned opinion to the Luxembourg Government on 5 March 1997 requesting it to adopt the necessary measures to comply with the opinion within two months of its notification.

6 By letter of 22 April 1997, the Luxembourg authorities informed the Commission first that, since the subject-matter of the Directive came within the purview of two different supervisory authorities, namely the Stock Exchange Commission and the Luxembourg Monetary Institute, two complementary draft laws had been prepared in order to ensure the complete transposition of the Directive. Secondly, a number of requirements laid down by the Directive were reflected in the Law of 5 April 1993 on the financial sector, with the result that the Directive had already been partially transposed into Luxembourg national law.

7 Taking into account the information provided by the Luxembourg authorities, and having received no further information to indicate that the process of transposing the Directive was complete, the Commission resolved to bring the present action.

8 The Commission claims that the Grand Duchy of Luxembourg has failed to adopt the measures necessary for it to comply with the Directive by no later than 1 July 1995, to bring such measures into force by no later than 31 December 1995 and to inform the Commission thereof forthwith. Whilst it acknowledges that the Luxembourg authorities have communicated to it certain provisions of national law which implement the Directive in part, the Commission takes the view that, as is clear from that communication, the Grand Duchy of Luxembourg admits, at least implicitly, that it has failed to adopt all the measures necessary to transpose the Directive in full, and in particular those implementing measures to which no reference is made in its letters to the Commission.

9 The Grand Duchy of Luxembourg acknowledges that it has not wholly fulfilled its obligation to transpose the Directive into national law. It states that a draft law on the supervision of the financial securities markets has been presented to the Chamber of Deputies which, it says, ought very shortly to adopt it.

10 There is no need for the Court to consider the content of that draft law. Suffice it to note that it is clear from the foregoing considerations taken as a whole that the measures necessary to ensure the proper transposition of the Directive have not been adopted or communicated to the Commission within the prescribed time period.

11 In those circumstances, it must be held that, by failing to bring into force within the prescribed period all the laws, regulations and administrative provisions, including any relevant sanctions, necessary for it to comply with the Directive, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 31 of the Directive.

Decision on costs

Costs

12 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party's pleadings. Since the Grand Duchy of Luxembourg has been unsuccessful and the Commission asked for costs against it, the Grand Duchy must be ordered to pay the costs.

Operative part

On those grounds,

hereby: