Opinion of Mr Advocate General Léger delivered on 10 January 2002. # Commission of the European Communities v Hellenic Republic. # Failure of a Member State to fulfil its obligations - Failure to transpose Directive 96/61/EC. # Case C-64/01.

Opinion of the Advocate-General

1. Pursuant to Article 226 EC the Commission of the European Communities is asking the Court to declare that, by failing to adopt and, in the alternative, by failing to notify to the Commission, within the period laid down, the laws, regulations and administrative provisions necessary to comply fully with Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control, the Hellenic Republic has failed to fulfil its obligations under the EC Treaty. The Commission also requests that the Hellenic Republic should be ordered to pay the costs.

2. The Commission notes that the Directive provides, in Article 21, that Member States are to adopt the laws, regulations and administrative provisions necessary to comply with the Directive no later than three years after its entry into force, that is by 30 October 1999, and that they are forthwith to inform the Commission thereof.

3. Since the Hellenic Republic failed to notify the Commission of any measures adopted in order to comply with the Directive, the Commission requested it, in letter of formal notice No SG (2000) D/101634 of 18 February 2000, to submit its observations within a period of two months.

4. The Hellenic authorities did not reply to the letter of formal notice within the time allowed, and the Commission therefore, by letter No SG (2000) D/105301 of 25 July 2000, sent them a reasoned opinion in which it repeated its observations contained in its letter of formal notice and called upon them to comply with the reasoned opinion within a period of two months. In the absence of any information on the transposition of the Directive, the Commission brought the present proceedings for failure to fulfil obligations under the Treaty.

5. The Hellenic Republic contends that the Court should dismiss the present proceedings and order the Commission to pay the costs. It points out that the Directive is being transposed into national law in two stages. First, it is adopting an interministerial decision transposing Articles 1 to 3, 7, 11, 15, 16, 18 and 20 of the Directive. The final draft of that decision is to be sent to the Commission during April 2001. The other articles of the Directive, which are linked to Council Directive 97/11/EC of 3 March 1997 amending Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, are to be transposed during the second stage, which is to be completed before the end of 2001.

The failure to fulfil obligations

6. 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 prevailing in the Member State at the end of the period laid down in the reasoned opinion and that subsequent changes cannot be taken into account by the Court.

7. It is to be observed that, at the expiry of the period laid down in the reasoned opinion, that is on 25 September 2000, the measures necessary for the full transposition of the Directive into domestic law had not been adopted, a fact which the Hellenic Republic does not, moreover, dispute.

8. Since the Directive was not transposed within the period laid down, the action brought by the Commission should be held to be well founded.

9. Under Article 69(2) of the Court's 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, which is the situation in the present case.

Conclusion

10. Consequently, I propose that the Court should declare that:

(1) By failing to adopt, within the period laid down, the laws, regulations and administrative provisions necessary to comply with Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control, the Hellenic Republic has failed to fulfil its obligations under that directive.

(2) The Hellenic Republic shall pay the costs.