Important legal notice

62000C0297

European Court reports 2001 Page I-05189

I - Facts, relevant legislation and pre-litigation procedure

4. As that letter remained unanswered, the Commission sent a reasoned opinion within the meaning of Article 226 EC to the Grand-Duchy of Luxembourg on 24 January 2000 in which it demanded that the necessary measures be taken within a period of two months.

6. As that legislation did not fulfil the requirements of the Directive in the opinion of the Commission and as the Luxembourg Government did not communicate any further measures, the Commission brought an action before the Court.

-declare that, by failing to adopt the laws, regulations and administrative provisions necessary to transpose the Directive within the period prescribed for that purpose, the Grand-Duchy of Luxembourg has failed to fulfil its obligations under Council Directive 98/35/EC of 25 May 1998 amending Directive 94/58/EC on the minimum level of training for seafarers, as well as Article 249 EC;

-order the Grand-Duchy of Luxembourg to pay the costs of the proceedings.

-stay proceedings until such time as the Commission withdraws its application

or

-dismiss the application.

II - Infringement of Treaty

Submission of the parties

Assessment

11. Whilst the Luxembourg Government does not dispute that a specific transposition of the Directive is required through the enactment of corresponding legislation is still necessary, it also does not ultimately dispute that the obligations under the Directive were not completed in good time.

12. Whether and to what extent a parallel transposition of the Directive has taken place through the transposition of the STCW Convention does not in that respect require further discussion.

13. In so far as the Luxembourg Government refers to the draft prepared in the meantime for the transposition of the directive at issue and the promise of its early adoption in accordance with national procedure, it must be observed that, according to actual case-law of the Court, first, the existence of an infringement of the Treaty is to be determined solely on the basis of the situation at the time of expiry of the period prescribed in the reasoned opinion and second a Member State may not plead on any provisions, practices or circumstances of its internal legislation to justify the non-observance of obligations and time-limits laid down in a directive.

14. Furthermore an action based on Article 226 EC is directed solely to obtaining an objective finding of infringement of the treaty and requires no proof of continuing failure to act or of an adverse attitude on the part of the Member State concerned. Submissions like the reference to progress in the legislative procedure concerned by means of which the Luxembourg Government is attempting to demonstrate genuine and continuous endeavours in the present case to transpose the Directive are therefore of no consequence, where a Treaty infringement objectively exists at the procedurally relevant time, for the purposes of the outcome of the proceeding for infringement of the Treaty.

15. As regards the application by the Luxembourg Government for the proceedings to be stayed until the case is withdrawn by the Commission, it is to be noted that although the Commission has signalled its willingness in its letter to the Court of 21 December 2000 in respect to the abovementioned request in the rejoinder, to withdraw the action as soon as the draft in question has been finally adopted and published, however, this has clearly not yet happened.

16. It is therefore to be found that the Grand-Duchy of Luxembourg has not adopted the laws, regulations and administrative provisions within the prescribed time-limit in order to fulfil its obligations under the Directive. There is therefore an infringement of the Treaty and the Commission's application is well founded.

III - Costs

17. Under Article 69(2) of the Rules of Procedure of the Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for by the successful party. As the Commission has applied for costs and the Grand-Duchy of Luxembourg has been unsuccessful, the latter must pay the costs.

IV - Conclusion

18. In the light of those considerations, it is proposed that the Court should:

-declare that by not adopting within the prescribed period the necessary laws, regulations and administrative provisions in order to transpose Council Directive 98/35/EC of 25 May 1998 amending Directive 94/58/EC on the minimum level of training for seafarers the Grand-Duchy of Luxembourg has failed to fulfil its obligations under that directive and Article 249 EC;

-order the Grand-Duchy of Luxembourg to pay the costs.