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

JUDGMENT OF THE COURT (Second Chamber)

28 November 2002 (1)

(Failure by a Member State to fulfil its obligations - Failure to implement Directive 97/7/EC)

In Case C-414/01,

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 S. Ortiz Vaamonde, 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 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (OJ 1997 L 144, p. 19), or, in any event, by failing to inform the Commission of such provisions, the Kingdom of Spain has failed to fulfil its obligations under Article 15(1) of that directive,

THE COURT (Second Chamber),

composed of: R. Schintgen, President of the Chamber, V. Skouris and N. Colneric (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 17 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 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (OJ 1997 L 144, p. 19), or, in any event, by failing to inform it of such provisions, the Kingdom of Spain has failed to fulfil its obligations under Article 15(1) of that directive.

2. Under that provision, the Member States were to bring into force the laws, regulations and administrative provisions necessary to comply with Directive 97/7 no later than three years after it entered into force and to inform the Commission thereof forthwith. Directive 97/7 entered into force on 4 June 1997.

   Pre-litigation procedure

3. Taking the view that Directive 97/7 had not been implemented in Spanish law within the period prescribed, the Commission commenced the infringement procedure. Having given the Kingdom of Spain formal notice that it should submit its observations, on 9 March 2001, the Commission issued a reasoned opinion calling onthat Member State to take the necessary measures to comply with it within two months of its notification.

4. As it was clear from the information sent by the Spanish authorities that the work on the implementation of Directive 97/7 in Spanish law had not yet been concluded, the Commission decided to bring this action.

   The action

   Arguments of the parties

5. The Commission submits that the Kingdom of Spain has failed to fulfil its obligations under Article 15(1) of Directive 97/7 since it has not adopted the measures necessary to implement that directive in Spanish law or, in any event, has not informed it of such measures.

6. The Spanish Government does not dispute that it has not implemented Directive 97/7 within the prescribed period but contends that circumstances have prevented it from doing so.

7. According to the Spanish Government, when the Ley de Ordenación del Comercio Minorista No 7/1196 (law regulating retail trade) of 15 January 1996 was being drafted, the Spanish legislature decided to incorporate in that legislation what was at the time merely a draft directive, in the belief that when the time came the amendments which would have to be made to it would be minimal.

8. Much of the time which has passed since publication of Directive 97/7 was spent in discussion as to whether that directive had in fact already been implemented and, if it had not been fully implemented, in ascertaining whether it was more appropriate to amend the Ley de Ordenación del Comercio Minorista or to draw up a new law.

9. According to the Spanish Government, it was eventually decided that the Ley de Ordenación del Comercio Minorista should be amended as necessary. However, that raised the question whether other laws should be amended, such as the Ley General de Defensa de los Consumidores y Usuarios (General law on consumer and user protection) and the Ley de Contratos celebrados fuera del Establecimiento Mercantil (law on contracts concluded away from commercial premises). The discussion also covered the relationship between the measures to implement Directive 97/7 and the new rules on electronic commerce.

10. The Spanish Government points out that it has prepared a preliminary draft law which is about to be adopted as a draft law.

    Findings of the Court

11. 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-384/99 Commission v Belgium [2000] ECR I-10633, paragraph 16). It is clear that, on expiry of the period of two months prescribed by the reasoned opinion, the implementation of Directive 97/7 in Spanish law had not been completed.

12. It also follows from the case-law of the Court of Justice that a Member State cannot rely on provisions, practices or circumstances existing in its internal legal order to justify its failure to comply with the obligations and time-limits laid down by Community directives, nor therefore the late or incomplete implementation of a directive (see, in particular, Case C-364/00 Commission v Netherlands [2002] ECR I-4177, paragraph 10).

13. 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 97/7 the Kingdom of Spain has failed to fulfil its obligations under Article 15(1) of that directive.

    Costs

14. 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 of the proceedings.

On those grounds,

THE COURT (Second Chamber)

hereby:

1. Declares that by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts the Kingdom of Spain has failed to fulfil its obligations under Article 15(1) of that directive;

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

SchintgenSkouris Colneric

Delivered in open court in Luxembourg on 28 November 2002.

R. Grass R. Schintgen

Registrar President of the Second Chamber

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1: Language of the case: Spanish.