Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE COURT (Sixth Chamber)
9 December 2004 (1)

applicant,

v

defendant,

THE COURT (Sixth Chamber),

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1. By its application the Commission of the European Communities seeks a declaration that by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10), or in any event by failing to notify all the necessary provisions to the Commission, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that directive.
2. Under Article 13 of Directive 2001/29, the Member States were to bring into force the laws, regulations and administrative provisions necessary to comply with that directive before 22 December 2002 and forthwith inform the Commission thereof.
3. The United Kingdom did not inform the Commission of the measures taken to comply with the directive within the period prescribed. As the Commission had no other information which would have enabled it to conclude that all the necessary provisions had been adopted it opened the infringement procedure provided for by Article 226 EC.
4. By letter of formal notice of 23 January 2003, the Commission called on that Member State to submit its observations within two months of receipt of that letter. In its reply of 19 March 2003, the United Kingdom Government pointed out that work on the implementation of Directive 2001/29 had not yet been completed.
5. On 11 July 2003 the Commission issued a reasoned opinion calling on that Member State to take the measures necessary to comply with that opinion within two months of its receipt.
6. In its reply of 10 September 2003 to that opinion the United Kingdom stated that the measures implementing Directive 2001/29 in United Kingdom national law were in the course of preparation and that separate legislative measures were being prepared by the Gibraltar Government.
7. By letter of 6 October 2003, the United Kingdom Government sent the Commission the regulations which were intended to implement the directive in the national law of the United Kingdom and were to come into force on 31 October 2003.
8. As the information sent to the Commission did not indicate that Directive 2001/29 had been implemented in the law applicable to Gibraltar, the Commission decided to bring this action.
9. The Commission takes the view that, as that directive is not primarily or exclusively concerned with the free movement of goods, it does not fall within the category of measures which do not apply to Gibraltar by virtue of its exclusion from the customs territory of the Community under the United Kingdom Act of Accession, as held by the Court in its judgment in Case C-30/01 Commission v United Kingdom [2003] ECR I-9481. It considers that it is the duty of the authorities of the United Kingdom to initiate, in due time, the procedures necessary for ensuring that the directive is incorporated into the law applicable to Gibraltar.
10. The Commission claims that by failing to adopt all the measures necessary to comply with Directive 2001/29, or in any event by failing to notify them to the Commission, the United Kingdom has failed to fulfil its obligations under the relevant provisions of that directive.
11. The United Kingdom, which does not dispute the Commission-�s argument outlined in paragraph 9 of this judgment, accepts, in its defence, that Directive 2001/29 has not yet been implemented in the law applicable to Gibraltar.
12. In that regard, it must be borne in mind that, according to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down by the reasoned opinion (see, inter alia, Case C-161/02 Commission v France [2003] ECR I-6567, paragraph 6).
13. In the present case it is common ground that, at the end of the period laid down by the reasoned opinion, the United Kingdom had not taken all the measures necessary to comply with Directive 2001/29.
14. Accordingly, it must be held that the action brought by the Commission is well founded.
15. It must, therefore, be held that by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2001/29 the United Kingdom has failed to fulfil its obligations under that directive.

Costs
16. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party-�s pleadings. Since the Commission has applied for costs and the United Kingdom has been unsuccessful, it must be ordered to pay the costs.




On those grounds, the Court (Sixth Chamber) hereby:
1. Declares that by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that directive;
2. Orders the United Kingdom of Great Britain and Northern Ireland to pay the costs.

Signatures.

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1 - Language of the case: English.