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

JUDGMENT OF THE COURT (Third Chamber)

26 September 2002 (1)

(Failure by a Member State to fulfil its obligations - Directive 98/5/EC - Practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was acquired)

In Case C-351/01,

Commission of the European Communities, represented by M. Patakia, acting as Agent, with an address for service in Luxembourg,

applicant,

v

French Republic, represented by G. de Bergues and C. Bergeot-Nunes, acting as Agents, with an address for service in Luxembourg,

defendant,

APPLICATION for a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained (OJ 1998 L 77, p. 36), the French Republic has failed to fulfil its obligations under that directive,

THE COURT (Third Chamber),

composed of: F. Macken, President of the Chamber, C. Gulmann (Rapporteur) and J.-P. Puissochet, 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 6 June 2002,

gives the following

Judgment

1. By application lodged at the Court Registry on 18 September 2001, the Commission of the European Communities brought an action under Article 226 EC for a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained (OJ 1998 L 77, p. 36; 'the Directive'), the French Republic has failed to fulfil its obligations under that directive,

   Legal context and background to the dispute

2. Under Article 16 of the Directive, the Member States were required to adopt the laws, regulations and administrative provisions necessary to comply with that Directive by 14 March 2000 at the latest and to immediately inform the Commission thereof.

3. On 8 August 2000, not having received notification from the French Government of any measure intended to implement the Directive, the Commission sent a letter of formal notice to that Government, in accordance with the procedure provided for inArticle 226 EC, calling on it to submit its observations on that matter within two months.

4. The French Government replied, by letter of 16 November 2000, stating that a preliminary draft law transposing the Directive had been drawn up, that there had been a consultation with representatives of the legal profession and that, following that consultation, a draft law had been put before the Parliament.

5. On 24 January 2001, the Commission sent a reasoned opinion to the French Republic calling on it to take the necessary measures to comply with its obligation to transpose the Directive within two months.

6. On 9 July 2001, the French Government sent the Commission a preliminary draft law transposing the Directive into French law. It stated that the draft law was to be put before the Parliament in the following autumn.

7. Since the Commission did not receive any other information to lead it to conclude that the measures necessary to transpose the Directive into French law had been definitively adopted, on 17 September 2001 it decided to bring the present action.

The failure to fulfil obligations

8. The French Government acknowledges that it did not transpose the Directive within the period prescribed. It states that the procedure for adopting the law transposing the Directive and its implementing decrees is currently ongoing. It adds that a number of French bars have already started to apply the provisions of the Directive.

9. In that respect, it need simply be noted that according to settled 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 (see, in particular, Case C-147/00 Commission v France [2001] ECR I-2387, paragraph 26) and that a Member State may not seek to rely on provisions, practices or circumstances in its internal legal order in order to justify failure to comply with the obligations and time-limits laid down in a directive (see, in particular, Case C-78/00 Commission v Italy [2001] ECR I-8195, paragraph 38).

10. In those circumstances, it must be held that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with the Directive, the French Republic has failed to fulfil its obligations under that directive.

    Costs

11. 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 adopt the laws, regulations and administrative provisions necessary to comply with Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained, the French Republic has failed to fulfil its obligations under that directive;

2. Orders the French Republic to pay the costs.

MackenGulmann Puissochet

Delivered in open court in Luxembourg on 26 September 2002.

R. Grass F. Macken

Registrar President of the Third Chamber

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1: Language of the case: French.