Opinion of the Advocate-General
1. In this case the Commission seeks a declaration, pursuant to Article 226 EC, that, by not adopting the laws, regulations and administrative provisions necessary to comply with Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal products on the market, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive.
2. The Directive lays down provisions governing:
(a) the authorisation and the placing on the market for use of biocidal products within the Member States;
(b) the mutual recognition of authorisations within the Community; and
(c) the establishment at Community level of a positive list of active substances which may be used in biocidal products.
3. Pursuant to Article 34 of the Directive, Member States were required to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive by 13 May 2000, and to communicate to the Commission the texts of the provisions which they adopt.
4. Having received no communication from the Grand Duchy of Luxembourg on implementing measures, the Commission introduced the present application.
5. The Grand Duchy of Luxembourg states in its defence that a draft law transposing the essential provisions of the Directive has been brought before the Luxembourg Parliament and submitted to the Conseil d'État for an opinion. A draft Grand-Ducal regulation will complete the transposition on points of detail.
6. It follows that the Commission is entitled to the declaration which it seeks.
Conclusion
7. The Court should therefore in my opinion:
(1) declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal products on the market, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;
(2) order the Grand Duchy of Luxembourg to pay the costs.
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