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

JUDGMENT OF THE COURT (Third Chamber)

30 November 2000 (1)

(Failure of a Member State to fulfil its obligations - Failure to implement Directive 97/51/EC)

In Case C-422/99,

Commission of the European Communities, represented by C. Schmidt, of its Legal Service, and G. Bisogni, national civil servant on secondment to that service, acting as Agents, with an address for service in Luxembourg at the office of C. Gómez de la Cruz, of the same service, Wagner Centre, Kirchberg,

applicant,

v

Italian Republic, represented by Professor U. Leanza, Head of the Legal Department at the Ministry of Foreign Affairs, acting as Agent, assisted by I.M. Braguglia, Avvocato dello Stato, with an address for service in Luxembourg at the Italian Embassy, 5 Rue Marie-Adélaïde,

defendant,

APPLICATION for a declaration that, by failing to adopt or, in any event, by failing to communicate to the Commission the laws, regulations and administrative provisions necessary to comply with Directive 97/51/EC of the European Parliament and of the Council of 6 October 1997 amending Council Directives 90/387/EEC and 92/44/EEC for the purpose of adaptation to a competitive environment in telecommunications (OJ 1997 L 295, p. 23), the Italian Republic has failed to fulfil its obligations under that directive,

THE COURT (Third Chamber),

composed of: C. Gulmann (Rapporteur), President of the Chamber, J.-P. Puissochet and F. Macken, Judges,

Advocate General: S. Alber,

Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 14 September 2000,

gives the following

Judgment

1. By application lodged at the Court Registry on 29 October 1999, the Commission of the European Communities brought an action under Article 226 EC for a declaration that, by failing to adopt or, in any event, by failing to communicate to it the laws, regulations and administrative provisions necessary to comply with Directive 97/51/EC of the European Parliament and of the Council of 6 October 1997 amending Council Directives 90/387/EEC and 92/44/EEC for the purpose of adaptation to a competitive environment in telecommunications (OJ 1997 L 295, p. 23; 'the Directive), the Italian Republic has failed to fulfil its obligations under that directive.

2. Article 3(1) of the Directive states that the Member States are to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive no later than 31 December 1997 and that they are immediately to inform the Commission thereof.

3. Since the Commission had established that the period prescribed by the Directive had expired without the Italian authorities having communicated any national implementing measures and since it had no other information from which to conclude that the Italian Republic had adopted the necessary provisions, by letter of 25 August 1998, it gave the Italian Government formal notice to submit its observations in that respect within two months.

4. By letter of 16 October 1998, the Italian Government replied to the Commission that it was in the process of drawing up the measures necessary to comply with the Directive.

5. Since no final legislative text had been communicated to it, on 26 January 1999, the Commission sent to the Italian Republic a reasoned opinion stating that it had not yet informed the Commission of the provisions which it had adopted to comply with the Directive and calling on it to adopt measures to that effect within two months of the notification of the opinion and to communicate them to the Commission.

6. On 12 April 1999, the Italian Republic replied to the reasoned opinion, enclosing as an annex a draft decree implementing a number of Community directives, including the directive in question.

7. However, since it had no other information from which to conclude that the Italian Republic had complied with the provisions of that opinion, the Commission decided to bring the present action.

8. In its defence, the Italian Government does not deny having failed to adopt the implementing measures necessary to comply with the Directive.

9. It points out, however, that a draft regulation has been sent to the Commission, for information, and that the opinion of the Italian Council of State has been sought. Before taking a view, the Council of State deemed it necessary to seek opinions from the Autorità per le Garanzie nelle Comunicazioni (Communications Authority) and the Autorità Garante della Concorrenza e del Mercato (Competition Authority).

10. In that regard, it must be pointed out that, according to settled case-law, a Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with the obligations and time-limits laid down in a directive (see, in particular, Case C-470/98 Commission v Greece [2000] ECR I-0000, paragraph 11).

11. Since the Directive has not been implemented within the prescribed period, the action brought by the Commission must be held to be well founded.

12. Consequently, it must be held that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with the Directive, the Italian Republic has failed to fulfil its obligations under that directive.

    Costs

13. 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 Italian Republic has been unsuccessful, the latter must be ordered to pay the costs.

On those grounds,

THE COURT (Third Chamber),

hereby:

1. Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 97/51/EC of the European Parliament and of the Council of 6 October 1997 amending Council Directives 90/387/EEC and 92/44/EEC for the purpose of adaptation to a competitive environment in telecommunications, the Italian Republic has failed to fulfil its obligations under that directive;

2. Orders the Italian Republic to pay the costs.

GulmannPuissochet Macken

Delivered in open court in Luxembourg on 30 November 2000.

R. Grass C. Gulmann

Registrar President of the Third Chamber

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1: Language of the case: Italian.