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

JUDGMENT OF THE COURT (Third Chamber)

7 December 2000 (1)

(Failure of a Member State to fulfil its obligations - Failure to transpose Directive 98/10/EC)

In Case C-423/99,

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

applicant,

v

Italian Republic, represented by Professor U. Leanza, Head of the Legal Department in the Ministry of Foreign Affairs, acting as Agent, and 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 not adopting or, in any event, by not communicating to the Commission the laws, regulations and administrative provisions necessary to comply with Directive 98/10/EC of the European Parliament and of the Council of 26 February 1998 on the application of open network provision (ONP) to voice telephony and on universal service for telecommunications in a competitive environment (OJ 1998 L 101, p. 24), 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: G. Cosmas,

Registrar: R. Grass,

having regard to the Report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 21 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 not adopting or, in any event, by not communicating to it the laws, regulations and administrative provisions necessary to comply with Directive 98/10/EC of the European Parliament and of the Council of 26 February 1998 on the application of open network provision (ONP) to voice telephony and on universal service for telecommunications in a competitive environment (OJ 1998 L 101, p. 24; 'the Directive), the Italian Republic has failed to fulfil its obligations under the Directive.

2. Article 32(1) of the Directive provides that the Member States are to take the measures necessary to comply with the Directive by 30 June 1998 and forthwith to inform the Commission thereof.

3. After establishing that the period prescribed by the Directive had expired without the Italian authorities having sent the text of national implementing measures, theCommission, having no other information enabling it to conclude that the Italian Republic had adopted the necessary provisions, gave the Italian Government formal notice by letter of 25 August 1998 to submit its observations in that regard 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 needed to comply with the Directive.

5. Since no definitive text of the legislation was formally communicated to it, the Commission sent a reasoned opinion to the Italian Government on 26 January 1999, pointing out that the latter still had not informed the Commission of the provisions adopted by it to comply with the Directive, and calling on it to adopt measures to that effect within two months from notification 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 transposing several Community directives, including the one at issue.

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

8. In its defence the Italian Government does not deny that it has failed to adopt the implementing measures needed to comply with the Directive.

9. It states, however, that a draft regulation was submitted to the Commission for information and to the Consiglio di Stato (Council of State) for an opinion. The Consiglio di Stato considered it expedient, before giving its opinion, to obtain the views of 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, in accordance with 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, inter alia, Case C-470/98 Commission v Greece [2000] ECR I-0000, paragraph 11).

11. Since the Directive was not transposed within the time-limit laid down therein, the Commission's action must be considered well founded.

12. It must therefore be held that, by not adopting, within the time-limit laid down, the laws, regulations and administrative provisions necessary to comply with the Directive, the Italian Republic has failed to fulfil its obligations under the 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 not adopting, within the time-limit laid down, the laws, regulations and administrative provisions necessary to comply with Directive 98/10/EC of the European Parliament and of the Council of 26 February 1998 on the application of open network provision (ONP) to voice telephony and on universal service for telecommunications in a competitive environment, 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 7 December 2000.

R. Grass C. Gulmann

Registrar President of the Third Chamber

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1: Language of the case: Italian.