«(Failure of a Member State to fulfil obligations – Failure to transpose Directive 1999/42/EC)»

Judgment of the Court (Second Chamber), 16 October 2003

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Summary of the Judgment

1..Actions for failure to fulfil obligations – Examination of merits by the Court – Situation to be taken into consideration – Situation at the end of the period laid down in the reasoned opinion (Art. 226 EC)

2..Member States – Obligations – Implementation of directives – Failure to fulfil obligations – National system pleaded as justification – Not permissible (Art. 226 EC)

JUDGMENT OF THE COURT (Second Chamber) 16 October 2003 (1)

((Failure of a Member State to fulfil its obligations – Failure to transpose Directive 1999/42/EC))

In Case C-388/02,

Commission of the European Communities, represented by M. Patakia and K. Banks, acting as Agents, with an address for service in Luxembourg,

applicant,

Ireland, represented by D. O'Hagan, acting as Agent, and A. Collins, Barrister, with an address for service in Luxembourg,

defendant,

APPLICATION for a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 1999/42/EC of the European Parliament and of the Council of 7 June 1999 establishing a mechanism for the recognition of qualifications in respect of the professional activities covered by the Directives on liberalisation and transitional measures and supplementing the general systems for the recognition of qualifications (OJ 1999 L 201, p. 77), or in any event by failing to notify those provisions to the Commission, Ireland has failed to fulfil its obligations under that directive,

THE COURT (Second Chamber),

composed of: R. Schintgen, President of the Chamber, V. Skouris and N. Colneric (Rapporteur), Judges, Advocate General: A. Tizzano, Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

By application lodged at the Court Registry on 4 November 2002, the Commission of the European Communities brought an action under Article 226 EC for a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 1999/42/EC of the European Parliament and of the Council of 7 June 1999 establishing a mechanism for the recognition of qualifications in respect of the professional activities covered by the Directive on liberalisation and transitional measure and supplementing the general systems for the recognition of qualifications (OJ 1999 L 201, p. 77) (the Directive), or in any event by failing to notify those provisions to the Commission, Ireland has failed to fulfil its obligations under that directive.

The legal framework and pre-litigation procedure

Article 14 of the Directive provides:

Taking the view that Directive 1999/42 had not been incorporated into Irish law within the prescribed period, the Commission initiated the procedure in respect of failure to fulfil Treaty obligations. After giving Ireland formal notice to submit its observations, the Commission, on 15 April 2002, issued a reasoned opinion calling on Ireland to adopt the measures necessary to comply with the reasoned opinion within a period of two months from the date of notification. Since Ireland did not reply to that opinion, the Commission brought the present proceedings.

The action

Arguments of the Irish Government

The Irish Government accepts that when the period laid down in the reasoned opinion expired it had not adopted the laws, regulations and administrative provisions necessary to comply with the Directive.

The implementation of the Directive in Ireland has been delayed owing to the relative complexity of the process involved. Prior to adopting the necessary measures, the principal government department responsible for the transposition of the Directive, the Ministry of Education and Science, contacted all of the other government departments responsible for the matters governed by the directives listed in Annex B to the Directive, which were repealed by virtue of Article 11(1) thereof. It has now been established that the activities referred to in those directives are not regulated in Ireland. The transposition of the Directive thus relates principally to the introduction of a mechanism for the production of proof that the conditions laid down in Article 4 have been satisfied, as required by Article 8 of the Directive. Discussions are currently underway with the Department of Enterprise, Trade and Employment, which is the government department responsible for the coordination of issues relating to the internal market.

Findings of the Court

It is settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation in the Member State as it stood at the end of the period laid down in the reasoned opinion (see, inter alia, Case C-71/99 Commission v Germany [2001] ECR I-5811, paragraph 29; and Case C-110/00 Commission v Austria [2001] ECR I-7545, paragraph 13.

In the present case, it is not disputed that the Directive was not transposed within the period prescribed by the reasoned opinion.

Furthermore, the Court has repeatedly held that a Member State may not rely on provisions, practices or circumstances in its own legal order to justify failure to implement a directive within the prescribed period (see, in particular, Case C-352/01 Commission v Spain [2002] ECR I-10263, paragraph 8).

The action brought by the Commission must therefore be considered to be well founded.

It must therefore be held that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with the Directive, Ireland has failed to fulfil its obligations under that directive.

Costs

Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has applied for costs to be awarded against Ireland and the latter has been unsuccessful, Ireland must be ordered to pay the costs.

On those grounds,

THE COURT (Second Chamber) hereby:

1.Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 1999/42/EC of the European Parliament and of the Council of 7 June 1999 establishing a mechanism for the recognition of qualifications in respect of the professional activities covered by the Directives on liberalisation and transitional measures and supplementing the general systems for the recognition of qualifications, Ireland has failed to fulfil its obligations under that directive;

2.Orders Ireland to pay the costs.

Delivered in open court in Luxembourg on 16 October 2003.

Schintgen

Skouris

Colneric

Registrar

President

—

Language of the case: English.