Opinion of Mr Advocate General Lenz delivered on 15 December 1993

1 Original language: German.

2 Council Directive of 23 November 1988 on standard checking procedures for the implementation of Regulation (EEC) No 3820/85 on the harmonization of certain social legislation relating to road transport and Regulation (EEC) No 3821/85 on recording equipment in road transport (OJ 1988 L 325, p. 55).

3 With the exception of Portugal, for which the time-limit was 1 January 1990.

4 It may be noted in passing that the period of about six weeks for transposition appears remarkably short. The defendant Member State has not, however, objected to this. In this connection the judgment in Case C-74/91 Commission v Germany [1992] ECR I-5437 should be noted, according to which a Member State, in the context of an action for failure to fulfil its obligations by reason of an infringement of a directive, cannot argue that the directive is unlawful, but only that it is legally non-existent (paragraphs 10 and 11). In any event, if it wishes to plead that implementation of the directive is absolutely impossible, it must substantiate that assertion (paragraph 12).

5 This is the Law on measures for implementation of international treaties and acts relating to road, railway or waterway transport (Moniteur Belge, 4 August 1969).