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

JUDGMENT OF THE COURT (Third Chamber)

28 November 2002 (1)

(Failure by a Member State to fulfil its obligations - Directive 97/55/EC - Comparative advertising - Failure to implement within the prescribed period)

In Case C-392/01,

Commission of the European Communities, represented by I. Martínez del Peral, acting as Agent, with an address for service in Luxembourg,

applicant,

v

Kingdom of Spain, represented by L. Fraguas Gadea, acting as Agent, 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 97/55/EC of the European Parliament and of the Council of 6 October 1997 amending Directive 84/450/EEC concerning misleading advertising so as to include comparative advertising (OJ 1997 L 290, p. 18), or, in any event, by failing to inform the Commission of the adoption of any such measures, the Kingdom of Spain has failed to fulfil its obligations under that directive.

THE COURT (Third Chamber),

composed of: J.-P. Puissochet, President of the Chamber, C. Gulmann and J.N. Cunha Rodrigues (Rapporteur), Judges,

Advocate General: C. Stix-Hackl,

Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 10 October 2002,

gives the following

Judgment

1. By application lodged at the Court Registry on 9 October 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 97/55/EC of the European Parliament and of the Council of 6 October 1997 amending Directive 84/450/EEC concerning misleading advertising so as to include comparative advertising (OJ 1997 L 290, p. 18), or, in any event, by failing to inform the Commission of the adoption of any such measures, the Kingdom of Spain has failed to fulfil its obligations under that directive.

   Legal framework

2. In accordance with Article 3(1) of Directive 97/55, the Member States were to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive at the latest 30 months after its publication in the Official Journal of the European Communities and immediately inform the Commission thereof.

3. Since Directive 97/55 was published in the Official Journal of the European Communities on 23 October 1997, the period prescribed for its implementation expired on 23 April 2000.

   Pre-litigation procedure

4. Since it had received no notification of the national measures implementing Directive 97/55, on 8 August 2000 the Commission, in accordance with the procedure laid down in Article 226 EC, sent the Kingdom of Spain a letter of formal notice, asking it to submit its observations within two months of receipt thereof.

5. Not having received any reply by expiry of that period, the Commission sent the Kingdom of Spain a reasoned opinion, by letter of 9 March 2001, asking it to take the measures necessary to comply with Directive 97/55 within two months of notification of the opinion.

6. By letter of 25 June 2001, the Spanish authorities responded to the reasoned opinion, stating that the measures for the incorporation of Directive 97/55 into national law were being taken.

7. Since it received no further information permitting it to conclude that the final text of the provisions implementing Directive 97/55 had been adopted, the Commission decided to bring the present action.

   The failure to fulfil obligations

8. The Kingdom of Spain does not deny the failure to fulfil obligations with which it is charged. It merely claims that the measures implementing Directive 97/55 are in the course of being adopted. A draft law has been approved by the Spanish Government and subsequently submitted to the Congreso de los Diputados (Congress of Deputies), which is the first stage in the parliamentary procedure for the adoption of implementation measures.

9. It is sufficient to point out 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-148/00 Commission v Italy [2001] ECR I-9823, paragraph 7) and that a Member State cannot rely on provisions, practices or circumstances in its own legal order to justify failure to implement a directive within the prescribed period (see, to that effect, Case C-276/98 Commission v Portugal [2001] ECR I-1699, paragraph 20).

10. Since Directive 97/55 was not implemented within the period prescribed by the reasoned opinion, the action brought by the Commission must be regarded as well founded.

11. It must therefore be held that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 97/55, the Kingdom of Spain has failed to fulfil its obligations under that directive.

    Costs

12. 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 Kingdom of Spain 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 97/55/EC of the European Parliament and of the Council of 6 October 1997 amending Directive 84/450/EEC concerning misleading advertising so as to include comparative advertising, the Kingdom of Spain has failed to fulfil its obligations under that directive.

2. Orders the Kingdom of Spain to pay the costs.

PuissochetGulmann Cunha Rodrigues

Delivered in open court in Luxembourg on 28 November 2002.

R. Grass J.-P. Puissochet

Registrar President of the Third Chamber

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1: Language of the case: Spanish.