Court of Justice 30-06-1993 ECLI:EU:C:1993:277

Opinion of Advocate General Tesauro

delivered on 30 June 1993^(*)

Mr President,

Members of the Court,

By application of 17 July 1992, the Commission has asked the Court to rule that, by failing to adopt within the prescribed time-limits the measures necessary to comply with Council Directives 87/328/EEC of 18 June 1987,^(*) 88/661/EEC of 19 December 1988,^(*) 89/361/EEC of 30 May 1989,^(*) 90/118/EEC of 5 March 1990^(*) and 90/119/EEC of 5 March 1990,^(*) the Kingdom of the Netherlands has failed to fulfil its obligations under the EEC Treaty.

The Netherlands Government states first of all that the Commission has extended the subject-matter of the action to an alleged breach of Article 8A of the Treaty whereas the complaint in the respective reasoned opinions relating to the Netherlands Government's failure to implement the directives in question within the time-limits allowed was based exclusively on the first paragraph of Article 189 in conjunction with the first paragraph of Article 5. The Netherlands Government therefore asks the Court to rule the application inadmissible to the extent that it refers to Article 8A.

Although the Commission stated for the first time in the document instituting these proceedings that the failure to implement the directives before 31 December 1992 was liable to compromise the establishment of the internal market and could constitute a breach of Article 8A in conjunction with Article 5 of the Treaty, the Commission made it clear in its reply that it did not intend to rely on an additional ground to support its application, nor did it intend to put in a new complaint, but that it intended merely to emphasize that the implementation of the directives in question was becoming more urgent.

Moreover, it is clear that because the written stage of the present proceedings was completed before 31 December 1992, the Commission would in any event not have been in a position to charge the Netherlands Government with failing to fulfil an obligation which, at that time, was not effective.

So far as the substance of the case is concerned, suffice it to say that the Netherlands Government itself does not deny the alleged breach. In fact it confines itself, firstly, to justifying the failure to implement the directives within the prescribed time-limits by pleading the complexity of the amending legislation required and the delays in the relevant parliamentary procedures and, secondly, it points out that the implementing measures should now come into force very shortly.

In these circumstances, I propose that the Court grant the application and order the defendant State to pay the costs.