Report of the Judge-Rapporteur in Case C-384/92

I — Background to the dispute and pre-litigation procedure

A — Community rules

1. Council Directive 88/661/EEC of 19 December 1988 on the zootechnical standards applicable to breeding animals of the porcine species (OJ 1988 L 382, p. 36) is intended partially to harmonize zootechnical standards with a view to liberalizing gradually intra-Community trade in such animals. It concerns both purebred and hybrid breeding pigs. That directive provides in particular that Member States may not prohibit, restrict or hinder on zootechnical grounds: intra-Community trade in purebred and hybrid breeding pigs or in their semen, ova and embryos, the establishment of herd-books or registers meeting the conditions laid down in the directive, the official approval of breeders' associations, breeding organizations or private undertakings which establish or maintain such herd-books or registers. According to the first paragraph of Article 13 of that directive:

‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than 1 January 1991. They shall forthwith inform the Commission thereof.’

2. Council Directive 89/361/EEC of 30 May 1989 concerning purebred breeding sheep and goats (OJ 1989 L 153, p. 30) is intended to overcome zootechnical problems which may arise in intra-Community trade in such breeding animals by pursuing the harmonization of provisions applicable in that field also. The directive provides in particular that the Member States may not prohibit, restrict or impede on zootechnical grounds: intra-Community trade in purebred breeding sheep and goats and the semen, ova and embryos thereof, the official approval of breeders' organizations or associations which maintain or establish flock books in accordance with the directive. Article 9 of the directive, which is worded in the same way as the first paragraph of Article 13 of Directive 88/661, imposes 1 January 1991 as the final date for bringing into force the necessary national provisions

3. Council Directive 90/118/EEC of 5 March 1990 on the acceptance of purebred breeding pigs for breeding (OJ 1990 L 71, p. 34) is intended to provide for harmonization additional to that provided for in Directive 88/661. It provides in particular that, without prejudice to animal health rules, there is no prohibition or restriction of or obstacle to: the acceptance of purebred breeding female pigs for breeding, the acceptance of purebred breeding male pigs for natural service and the use of ova and embryos from purebred breeding female P'gs. the acceptance for artificial insemination within its territory of purebred breeding male pigs or the use of their semen when those animals have been accepted for artificial insemination in a Member State on the basis of tests for monitoring their performance and assessing their genetic value to be carried out in accordance with Commission Decision 89/507/EEC of 18 July 1989 laying down methods for monitoring performance and assessing the genetic value of purebred and hybrid breeding pigs (OJ 1989 L 247, p. 43), the acceptance for official testing of purebred breeding male pigs or the use of their semen within the quantitative limits necessary for the tests for monitoring their performance and assessing their genetic value to be carried out in accordance with Decision 89/507 by officially approved associations or organizations. The first paragraph of Article 5 of Directive 90/118, which is worded in the same terms as the abovementioned articles of Directives 88/661 and 89/361, also imposes 1 January 1991 as the deadline for bringing into force the necessary national provisions.

4. Council Directive 90/119/EEC of 5 March 1990 on hybrid breeding pigs for breeding (OJ 1990 L 71, p. 36) is also intended to provide additional harmonization to that provided for in Directive 88/661. It provides in particular that, without prejudice to animal health rules, there is to be no prohibition or restriction of or obstacle to: the acceptance of hybrid breeding female pigs for breeding, the acceptance of hybrid breeding male pigs for natural service and the use of ova and embryos from hybrid breeding female pigs, the acceptance for artificial insemination or the use of the semen of hybrid breeding male pigs whose line has been tested for monitoring performance and assessing its genetic value, the acceptance, for official testing, of hybrid breeding male pigs or the use of the semen of such pigs within quantitative limits necessary for the tests for monitoring their performance and assessing their genetic value to be carried out. The first paragraph of Article 3 of Directive 90/119, which is worded in the same way as the abovementioned articles of Directives 88/661, 89/361 and 90/118, also imposes 1 January 1991 as the final date for bringing into force the necessary national provisions.

B — Pre-litigation procedure

Since it had not been informed of measures adopted by Ireland to comply with those four directives, the Commission, pursuant to Article 169 of the Treaty, sent the Irish Government on 25 April 1991 a letter formally requesting it to submit its observations on the matter.

The Irish authorities replied on 12 July 1991 that they were in the process of preparing the measures necessary to comply with the directives and that, in the meantime, practical effect was being given to the terms of those directives.

Having received no further information, the Commission addressed to Ireland on 20 November 1991 a reasoned opinion pursuant to Article 169 of the Treaty, declaring that Ireland had failed to fulfil its obligations and requesting that it take the necessary measures within two months.

Ireland replied on 6 February 1992 that the appropriate legislative provisions would be adopted on the basis of those which were in the process of being adopted in order to amend the regulations concerning trade in bovine semen. In that letter the Irish Government again assured the Commission that the directives were already being observed in practice.

II — Written procedure and forms of order sought by the parties

The application of the Commission was received at the Court Registry on 21 October 1992.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court, pursuant to Article 44(a) of the Rules of Procedure, decided, with the express consent of the parties, that the procedure would not include an oral part.

The Commission claims that the Court should:

declare that, by failing to bring into force within the time permitted the laws, regulations and administrative provisions necessary to comply with 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 purebred 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 hybrid breeding pigs for breeding, Ireland has failed to fulfil its obligations under the EEC Treaty;

order Ireland to pay the costs.

Ireland requests the Court to defer the taking of further steps in the present proceedings for a period of six months during which the necessary provisions will have been adopted.

III — Submissions and arguments of the parties

A — Complaints of the Commission

The Commission observes that, according to Article 189 of the Treaty, directives are to be binding as to the result to be achieved upon each Member State to which they are addressed and according to Article 5 the Member States are to take all appropriate measures to ensure fulfilment of their obligations. Ireland has so far not adopted the necessary measures to conform with directives 88/661, 89/361, 90/118 and 90/119, thus failing to fulfil its obligations.

B — The arguments of the Irish Government

Ireland points out that, as regards Directive 89/361 concerning purebred breeding sheep and goats, the competent Department has prepared the necessary measures and the appropriate legislation is expected to have been adopted in advance of the time at which the present case would normally have reached its conclusion.

As regards the other three directives, concerning breeding animals of the porcine species, the correspondence between the Irish authorities and the Commission in October and November 1992 has not enabled all the problems relating to the implementation of those directives to be resolved. However, pending the outcome of further initiatives, the authorities have taken measures, such as the issue of letters inviting applications for herd-book and register approval from interested parties, in accordance with those directives.

Ireland therefore requests the Court to stay proceedings for a period of six months.

C — The replies of the Commission to those arguments

The Commission recalls that the Court has consistently held that mere administrative practices, which by their nature may be altered at will by the authorities and are not given appropriate publicity, cannot be regarded as constituting proper fulfilment by a Member State of its obligations under Community law. Ireland acknowledges, moreover, that legislative measures must be adopted in order to implement the directives at issue.

Furthermore, the Commission notes that the Irish authorities, which have never given any firm undertaking to adopt the necessary measures, merely affirm that the problems raised will probably have been resolved within the six-month time-limit requested of the Court. In view of the failure to offer guarantees in this matter, the Commission sees no advantage in the Court granting any stay in these proceedings and adheres to the claims presented in its application.

F. Grévisse

Judge-Rapporteur

1 Language of the case: English.