OPINION OF ADVOCATE GENERAL

delivered on 4 May 1995 (*1)

1.In these proceedings the Commission seeks a declaration under Article 169 of the Treaty that, by failing to take within the prescribed period the measures necessary to implement Council Directive 90/219/EEC on the contained use of genetically modified microorganisms (1) and Council Directive 90/220/EEC on the deliberate release into the environment of genetically modified organisms, (2) or by failing to inform the Commission of those measures, Greece has failed to fulfil its obligations under the Treaty.

2.Directive 90/219 was adopted by the Council under Article 130s of the Treaty on 23 April 1990. It lays down common measures for the contained use of genetically modified microorganisms with a view to protecting human health and the environment. Article 22 provides as follows:

‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than 23 October 1991. They shall forthwith inform the Commission thereof.’

3.Directive 90/220 was adopted by the Council under Article 100a of the Treaty on 23 April 1990. Article 1(1) provides as follows:

‘The objective of this Directive is to approximate the laws, regulations and administrative provisions of the Member States and to protect human health and the environment:

—when carrying out the deliberate release of genetically modified organisms into the environment,

—when placing on the market products containing, or consisting of, genetically modified organisms intended for subsequent deliberate release into the environment.’

Article 23 required the Member States to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive before 23 October 1991 and required the Member States immediately to inform the Commission of all implementing provisions.

4.On 20 May 1992 the Commission sent the Greek Government a letter stating that the period for the implementation of the two directives had expired and that the Commission did not possess any information which enabled it to conclude that Greece had transposed the directives into national law. In case the Greek Government considered that existing legislation complied fully with the requirements of the directives, the Commission requested the Government to inform it of those measures.

5.By a letter dated 14 September 1992 the Greek Government informed the Commission that the process for the implementation of the directives was under way. Since the Greek Government did not send any further information to the Commission, the Commission issued a reasoned opinion on 25 May 1993 in which it stated that, by not adopting the measures necessary to transpose into national law the provisions of Directive 90/219 and Directive 90/220, Greece had failed to fulfil its obligations under the Treaty. It invited Greece to adopt those measures within two months of notification of the reasoned opinion. The Commission received no response, and on 18 May 1994 it requested information with regard to the implementation of the directives at a meeting with the competent Greek authorities. At that meeting, the Greek authorities stated that the necessary implementing measures were under preparation. The Commission initiated the present proceedings on 15 June 1994.

6.In its defence, the Greek Government stated that the measures for the transposition of Directives 90/219 and 90/220 into national law were under preparation. In particular, with regard to Directive 90/220, the Ministry for the Environment and the Ministry of Agriculture, which were the competent authorities, considered that the process for the adoption of the implementing measures should be completed by the end of 1994. With regard to Directive 90/219, the Greek Government stated that a draft presidential decree had been prepared but, in view of the distinctive character of the subject-matter of that directive, the draft decree had to be examined by a number of public authorities, in particular the Ministry for the Environment, the Ministry of Health, the Ministry of Employment and the Ministry of Industry, so that it was not possible to fix a precise date for its final adoption.

7.In its rejoinder, the Greek Government stated that a committee, consisting of representatives of the competent ministries and of scientific organizations, had been established with a view to preparing two ministerial decrees for the implementation of the directives. Drafts of the two measures are annexed to the rejoinder.

8.The Greek Government therefore does not contest that it has failed to implement the directives. According to the case-law of the Court a Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with obligations and time-limits resulting from Community law. (3) It follows that, by failing to adopt the necessary implementing measures, Greece has failed to fulfil its obligations under the Treaty. Since Greece has failed to take the necessary implementing measures, it is unnecessary for the Court to make a declaration that Greece has failed to notify them to the Commission. (4)

Conclusion

Accordingly, I am of the opinion that the Court should:

(1)declare that, by failing to adopt within the prescribed period the measures necessary to implement Council Directive 90/219/EEC on the contained use of genetically modified microorganisms and Council Directive 90/220/EEC on the deliberate release into the environment of genetically modified organisms, Greece has failed to fulfil its obligations under the Treaty;

(2)order Greece to pay the costs.

(*1) Original language: English.

(1) OJ 1990 L 117, p. 1.

(2) OJ 1990 L 117, p. 15.

(3) Case C-263/88 Commission v France [1990] ECR I-4611, paragraph 7; Case C-254/83 Commission v Italy [1984] ECR 3395, paragraph 5.

(4) Case C-365/93 Commission v Greece, judgment of 23 March 1995, paragraph 12.