Report of the Judge-Rapporteur in Case C-303/92

I — Facts and Procedure

1. Council Directive 87/328/EEC of 18 June 1987 on the acceptance for breeding purposes of pure-bred breeding animals of the bovine species requires the Member States to ensure that there is no prohibition, restriction or impediment on the acceptance of pure-bred female animals of the bovine species for breeding purposes (Article 1), or on the acceptance for official testing of purebred bulls or the use of their semen, or on the acceptance for artificial insemination or the use of their semen when those bulls have been accepted for artificial insemination in a Member State (Article 2). It also contains provisions on the identification of bulls and on the conditions for storage of the semen.

2. Council Directive 88/661/EEC of 19 December 1988 on the zootechnical standards applicable to breeding animals of the porcine species contains provisions on intra-Community trade in pure-bred and hybrid breeding pigs. The Member States may not prohibit, restrict or impede intra-Community trade in these animals, their sperm, ova or embryos, or the establishment of herd-books or the official approval of breeders' associations (Articles 2 and 7). The Member States may require pure-bred breeding pigs and the semen, ova and embryos of such animals to be accompanied at the time of their marketing by certificates (Articles 5 and 9). Directive 88/661/EEC was to be supplemented, in particular, by Community provisions for the approval of pure-bred breeding pigs for breeding (Articles 3 and 8). Those provisions are laid down by Council Directive 90/118/EEC of 5 March 1990 on the acceptance of pure-bred breeding pigs for breeding and Council Directive 90/119/EEC of 5 March 1990 on the acceptance of hybrid breeding pigs for breeding. Those Directives contain provisions on pure-bred and hybrid breeding pigs for breeding similar to the provisions of Directive 87/328/EEC on purebred breeding animals of the bovine species.

3. Council Directive 89/361/EEC of 30 May 1989 concerning pure-bred breeding sheep and goats provides that the Member States may not prohibit, restrict or impede intra-Community trade in pure-bred breeding sheep and goats and the semen, ova and embryos thereof, nor the official approval of breeders' organizations or associations (Article 3). The Member States may require purebred breeding sheep and goats and the semen, ova and embryos of such animals to be accompanied at the time of their marketing by a certificate (Article 6).

4. The penultimate article of each of those five directives provides that the Member States were to bring into force the laws, regulations and administrative provisions necessary to comply with Directive 87/328/EEC by 1 January 1989 at the latest and with the other directives by 1 January 1991 at the latest, and that the Member States were to inform the Commission thereof forthwith.

5. By the above dates the Commission had received no notification from the Netherlands Government concerning the measures for implementing those directives and therefore, by letters of 11 October 1989 (in relation to Directive 87/328/EEC) and 25 April 1991 (in relation to the others), it gave the Netherlands Government the opportunity to submit its observations within two months in accordance with the procedure under Article 169 of the EEC Treaty.

6. The Netherlands Government replied by letters of 9 January 1990 and 2 October 1991, indicating that the national authorities were preparing the necessary measures for implementing the directives.

7. In the light of this response, the Commission delivered reasoned opinions on 15 October 1990 and 13 November 1991 stating that, by failing to adopt within the prescribed time-limit the laws, regulations and administrative provisions necessary to comply with, firstly, Directive 87/328/EEC and, secondly, Directives 88/661/EEC, 89/361/EEC, 90/118/EEC and 90/119/EEC, the Kingdom of the Netherlands had failed to fulfil its obligations under the Treaty. The Commission requested the Kingdom of the Netherlands to take the necessary measures for compliance within two months of the date of notification.

8. The Netherlands Government replied by letters of 8 January 1991 and 21 November 1991, indicating that the directives would be implemented in the framework of the Gezondheids-en Welzijnswet voor dieren (Law on the Health and Welfare of Animals), the draft for which was passed by the Second Chamber on 26 May 1991. The Government added that this proposed legislation would be enacted by the First Chamber before the parliamentary recess of 1992.

9. By application lodged at the Court Registry on 17 July 1992, the Commission brought the present action.

10. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided not to make any preparatory enquiries and, with the agreement of the parties, to apply Article 44(a) of the Rules of Procedure.

II — Form of order sought

The Commission claims that the Court should:

1) declare that, by failing to adopt within the prescribed time-limit the laws, regulations and administrative provisions necessary to comply with Council Directive 87/328/EEC of 18 June 1987 on the acceptance for breeding purposes of purebred breeding animals of the bovine species, Council Directive 88/661/EEC of 19 December 1988 on the zootechnical standards applicable to breeding animals of the porcine species, Council Directive 89/361/EEC of 30 May 1989 concerning pure-bred breeding sheep and goats, Council Directive 90/118/EEC of 5 March 1990 on the acceptance of purebred breeding pigs for breeding and Council Directive 90/119/EEC of 5 March 1990 on the acceptance of hybrid breeding pigs for breeding, the Kingdom of the Netherlands has failed to fulfil its obligations under the EEC Treaty;

2) order the Kingdom of the Netherlands to pay the costs.

The Kingdom of the Netherlands contends that the Court should:

1) declare that, to the extent that it refers to Article 8A of the EEC Treaty, the action brought by the Commission should be dismissed as inadmissible and, with regard to the remainder, defers to the Court's assessment;

2) order each party to bear its own costs.

III — Submissions and arguments of the parties

A — Admissibility

1. The Netherfønds Government contends that the application and reasoned opinions on which it is based are inconsistent. It takes the view that the reasoned opinion of 19 October 1990 concerning Directive 87/328/EEC and that of 13 November 1991 concerning Directives 88/661/EEC, 89/361/EEC, 90/118/EEC and 90/119/EEC, allege that the Netherlands Government failed to implement the directives in question within the time-limits, solely by reference to the third paragraph of Article 189 in conjunction with the first paragraph of Article 5 of the Treaty. In contrast, the application extends the subject-matter of the proceedings to a breach of Article 8A of the Treaty. The Netherlands Government considers that, as the subject-matter of an action under Article 169 is determined by the reasoned opinion and, furthermore, the application and the reasoned opinion must both be based on the same grounds and submissions, the Commission's submission relating to Article 8A of the Treaty is inadmissible.

B — Substance

1. The Commission points out, first of all, that Article 189 of the Treaty requires the Member States to comply with directives within the specified time-limits. Referring to Article 8A of the Treaty, the Commission then observes that, together with the obligation in Article 5, Article 8A must be interpreted as meaning that, to the extent that the Community has adopted the measures necessary for establishing the internal market by 31 December 1992, the Member States are required to implement the Community measures in national law in sufficient time to ensure that the internal market is operational from 31 December 1992. In this respect the Commission considers that, because the Kingdom of the Netherlands failed to adopt within the prescribed time-limits the provisions necessary to implement the directives in national law, it has plainly failed to fulfil its obligations under the Treaty, particularly since implementation will not take place before 31 December 1992, thereby threatening the establishment of the internal market on this date. Finally, in reply to the observations of the Netherlands Government concerning the complexity of the amending legislation required and the delays caused by parliamentary procedures, the Commission points out that, according to the settled case law of the Court, such difficulties cannot justify the failure to fulfil obligations arising under the Treaty.

2. The Netherlands Government observes, firstly, that during the pre-litigation stage, it informed the Commission that the directives in issue would be implemented on the basis of the proposed Gezondheids-en Welzijnswet voor dieren (Law on the Health and Welfare being of Animals). It points out that the laws currently in force in the Netherlands do not provide a basis for imposing mandatory requirements in the area covered by the directives in question. On the other hand, the proposed law mentioned above will provide a statutory basis allowing the relevant directives to be implemented by a lower level of regulation. The Netherlands Government finally pleads the complexity of the requisite amendments to explain the delay in adopting the proposed law. It adds however that the First Chamber of the Staten-Generaal passed the draft law on 22 September 1992 and that since then the implementation of the relevant directives has been dealt with as a matter of priority.

M. Diez de Vclasco

Judge-Rapporteur

1 Language of the case: Dutch.