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

JUDGMENT OF THE COURT (Third Chamber)

13 June 2002(1)

(Failure by a Member State to fulfil its obligations - Telecommunications - Open network - Universal service)

In Case C-286/01,

Commission of the European Communities, represented initially by P. Nemitz and B. Mongin, and, subsequently, by H. van Lier, acting as Agents, with an address for service in Luxembourg,

applicant,

v

French Republic, represented initially by G. de Bergues and A. Bréville-Viéville, and, subsequently, by G. de Bergues and V. Dan, acting as Agents, with an address for service in Luxembourg,

defendant,

APPLICATION for a declaration that, by failing to bring into force, within the prescribed period, all the laws, regulations and administrative provisions necessary to implement 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) and, in particular, Articles 6(3) and (4), 10, 21 and 26 thereof, the French Republic has failed to fulfil its obligations under Article 32 of that directive and Article 249 EC,

THE COURT (Third Chamber),

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

Advocate General: J. Mischo,

Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 23 April 2002,

gives the following

Judgment

1. By application lodged at the Court Registry on 19 July 2001, the Commission of the European Communities brought an action under Article 226 EC for a declaration that, by failing to bring into force, within the prescribed period, all the laws, regulations and administrative provisions necessary to implement 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') and, in particular, Articles 6(3) and (4), 10, 21 and 26 thereof, the French Republic has failed to fulfil its obligations under Article 32 of that directive and Article 249 EC.

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

3. Having given the French Republic formal notice to submit its observations as to the implementation of the Directive in national law, the Commission, by letter of 19 July 1999, issued that Member State with a reasoned opinion requesting it to adopt the measures necessary to comply with its obligations in that connection within two months from the date of notification of the opinion.

4. The French authorities responded to the reasoned opinion of the Commission by submitting to it a draft of a decree intended to complete implementation of the Directive.

5. On 19 January 2001, those authorities informed the Commission of the adoption of Law No 2001-1 of 3 January 2001 enabling the Government to transpose Community directives by way of orders and to implement certain provisions of Community law (Journal Officiel de la République Française (JORF) of 4 January 2001, p. 93).

6. On 19 July 2001, considering that the information made available to it did not permit it to conclude that the measures necessary for full implementation in French law of the Directive and, in particular, of Articles 6, 10, 21 and 26 thereof had been finally adopted and had entered into force, the Commission decided to bring the present action.

7. The French Government does not dispute that not all of the provisions of the Directive had been implemented by the expiry of the period laid down by the reasoned opinion. However, it submits that the implementation process is nearing completion.

8. It also claims that Articles 6(3) and 10(2) of the Directive were implemented by Articles 17 to 19 of Order No 2001-670 of 25 July 2001 on the adaptation to Community law of the Intellectual Property Code and of the Post and Telecommunications Code (JORF of 28 July 2001, p. 12132, corrigendum in JORF of 20 October 2001, p. 16564). The text of that order was notified to the Commission by letters of 1 August and 3 October 2001.

9. The French Government submits further that Articles 10(1) and 21 of the Directive have now been implemented by virtue of the adoption of Decree No 2002-36 of 8 January 2002 relating to certain standard clauses in contract documents attached to authorisations issued under Article L 33-1 of the Post and Telecommunications Code (JORF of 10 January 2002, p. 585) which was notified to the Commission on 31 January 2002.

10. With respect to Article 6(4) of the Directive, the French Government claims that that provision has not yet been implemented in French law because of the need to comply with consultation procedures. As regards Article 26 of the Directive, the FrenchGovernment submits that it has decided to create a 'telephone mediation' organisational structure in order to settle disputes with customers. The process of establishing such a structure is still at the stage of consultation between all interested parties.

11. It must be pointed out that, in accordance with consistent 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 in the reasoned opinion and that the Court cannot take account of any subsequent changes (see, in particular, Case C-279/00 Commission v Italy [2002] ECR I-0000, paragraph 10).

12. In the present case, it is established that the Directive was not transposed within the period prescribed for that purpose by the reasoned opinion.

13. Furthermore, the Court has repeatedly held that a Member State may not plead provisions, practices or situations in its internal legal order in order to justify a failure to comply with the obligations and time-limits laid down in a directive (see, in particular, Case C-423/00 Commission v Belgium [2002] ECR I-0000, paragraph 16).

14. It must therefore be held that, by failing to bring into force, within the prescribed period, all the laws, regulations and administrative provisions necessary to implement the Directive and, in particular, Articles 6(3) and (4), 10, 21 and 26 thereof, the French Republic has failed to fulfil its obligations under Article 32 of that directive.

    Costs

15. 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 French 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 bring into force, within the prescribed period, all the laws, regulations and administrative provisions necessary to implement 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 and, in particular, Articles 6(3) and (4), 10, 21 and 26 thereof, the French Republic has failed to fulfil its obligations under Article 32 of that directive;

2. Orders the French Republic to pay the costs.

MackenGulmann Puissochet

Delivered in open court in Luxembourg on 13 June 2002.

R. Grass F. Macken

Registrar President of the Third Chamber

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1: Language of the case: French.