Opinion of Advocate General Van Gerven

Mr President,

Members of the Court,

1. In this action against a Member State for failure to fulfil its obligations, brought before the Court by application lodged at the Court Registry on 10 June 1993, the Commission asks the Court to:

2. Article 12 of the directive in question provides that the Member States are to take the measures necessary to comply with the directive within three years of its notification and communicate to the Commission the provisions of national law which they adopt in the field covered by the directive.

3. In its defence, the Grand Duchy of Luxembourg considers that the Court would not be justified in ruling against it since the main provisions of the directive have already been transposed into national law by the Law of 9 May 1990 concerning premises that are dangerous or insanitary or used for carrying on noisy or noxious trades and by the implementing Grand-Ducal Regulation of 18 May 1990 fixing the list and classification of premises that are dangerous or insanitary or used for carrying on noisy or noxious trades. The provisions which have not been transposed are of a technical kind, and even of an ancillary nature, and their formal transposition would in no way alter the practice of the public authorities, which consists of systematically requiring assessments of environmental effects in accordance with the directive and taking account of environmental interests. In its rejoinder, however, the Grand Duchy of Luxembourg impliedly acknowledges that legal certainty will be ensured only when a draft law and draft Grand-Ducal implementing regulation transposing the directive in full have been adopted.

4. It is apparent from the information in the documents before the Court that, in reality, the existing Luxembourg legislation does not transpose all the provisions of Directive 85/337/EEC. Moreover, the Court has consistently held that mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of the obligations imposed under Article 189 of the Treaty on the Member States to which directives are addressed.

5. For those reasons, I propose that the Court grant the Commission's application and uphold its claims.

1 Original language: French.

2 OJ 1985 L 175, p. 40.

3 Mémorial A 1990. p. 310.

4 Mémorial A 1990, p. 316.

5 Judgment in Case 102/79 Commission v Belgium [1980] ECR 1473, and more recently the judgment in Case C-381/92 Commission v Ireland [1994] ECR I-215. at paragraph 7.

6 Consistent case-law and, most recently, the judgment in Case C-303/92 Commission v Netherlands [1993] ECR I-4793, at paragraph 9.

7 Consistent case-law and, most recently, the judgment in Case C-280/89 Commission v Ireland [1992] ECR I-6185, at paragraph 7.