Judgment of the Court (Sixth Chamber) of 27 October 2011 – Commission v Poland

(Case C-362/10)

Failure of a Member State to fulfil obligations – Directive 2003/98/EC – Re-use of public sector information – Incorrect transposition of or failure to transpose certain articles within the period prescribed

1. Acts of the institutions – Directives – Implementation by Member States – Transposition of a directive without legislative action – Conditions – Existence of a general legal context ensuring the full application of the directive (Art. 288, third para., TFEU; European Parliament and Council Directive 2003/98) (see paras 46, 60)

2. Acts of the institutions – Directives – Implementation by Member States – Directive intended to create rights for individuals – Requirements of clarity and legal certainty – Directive 2003/98 – Right to re-use public sector information – No transposition by statutory or regulatory provision – Not permissible (Art. 288, third para., TFEU; European Parliament and Council Directive 2003/98, Art. 2, paras 1 to 3, 4, 6, 7 and 10) (see paras 50-52, 54-56)

3. Acts of the institutions – Directives – Implementation by Member States – Transposition of a directive without legislative action – Not permissible in the case of an express requirement for reference to be made to a directive (Art. 288, third para., TFEU; European Parliament and Council Directive 2003/98) (see para. 58)

4. Acts of the institutions – Directives – Implementation by Member States – Necessity of full transposition into national law – Activity referred to by a directive does not exist in a Member State – No effect (Art. 288, third para, TFEU; European Parliament and Council Directive 2003/98) (see para. 64)

Re:

Operative part

The Court:

1.Declares that, by failing to adopt, within the prescribed period, all the laws, regulations and administrative provisions necessary to transpose into the Polish legal order Articles 2 to 4, 6 to 8, 10 and 11 of Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information, the Republic of Poland has failed to fulfil its obligations under those articles;

2.Orders the Republic of Poland to pay the costs.