Keywords
Summary

Keywords

1. Actions for failure to fulfil obligations – Subject-matter of the dispute – Determination during the pre-litigation procedure – Amendment to forms of orders sought in the action – Whether permissible – Conditions

(Art. 226 EC)

2. Actions for failure to fulfil obligations – Subject-matter of the dispute – Determination during the pre-litigation procedure – Alteration due to a change in Community law – Whether permissible – Conditions

(Art. 226 EC)

3. Actions for failure to fulfil obligations – Right of the Commission to bring proceedings – Exercise of that right not dependent on a specific interest in bringing an action – To be exercised at its discretion

(Art. 226 EC)

4. Actions for failure to fulfil obligations – Pre-litigation procedure – Excessive duration – Matter affecting the admissibility of the action only where the rights of the defence have been infringed – Burden of proof

(Art. 226 EC)

5. Approximation of laws – Telecommunications sector – Application of open network provision (ONP) to voice telephony and on universal service for telecommunications – Directive 98/10 – Member State not having verified the compliance of cost accounting systems by a competent independent body and not having published a statement of compliance – Incorrect application of verification measures of those cost accounting systems – Failure to fulfil obligations

(European Parliament and Council Directives 97/33, Art. 7(5), 98/10, Art. 18(1) and (2), 2002/21, Art. 27, and 2002/22, Art. 16)

Summary

1. The subject-matter of an action under Article 226 EC for failure to fulfil obligations is delimited by the pre-litigation procedure provided for by that provision, so that the application must be based on the same grounds and pleas as the reasoned opinion. However, the requirement by which the subject-matter of an action brought under Article 226 EC is delimited by the pre-litigation procedure provided for by that provision cannot be stretched so far as to mean that in every case the statement of the complaints set out in the letter of formal notice, the operative part of the reasoned opinion and the form of order sought in the application must be exactly the same, provided that the subject-matter of the proceedings has not been extended or altered.

(see paras 36-37)

2. In the context of proceedings under Article 226 EC, the existence of a failure to fulfil obligations must be assessed in the light of the Community legislation in force at the close of the period prescribed by the Commission for the Member State concerned to comply with its reasoned opinion.

However, where Community law is amended during the course of the pre-litigation procedure, the Commission has standing to seek a declaration that a Member State has failed to fulfil obligations which were created in the initial version of a Community act, subsequently amended or repealed, and which were maintained in force under the new provisions. Conversely, the subject-matter of the dispute cannot be extended to obligations arising under new provisions which do not correspond to those arising under the initial version of the act in question, as otherwise it would constitute a breach of the essential formal requirements of the infringement procedure.

(see paras 43, 49)

3. When exercising its powers under Article 226 EC, the Commission does not have to show that there is a specific interest in bringing an action. The Commission’s function is to ensure, of its own motion and in the general interest, that the Member States give effect to Community law and to obtain a declaration of any failure to fulfil the obligations deriving therefrom with a view to bringing it to an end.

Furthermore, it is for the Commission to determine whether it is expedient to take action against a Member State, what provisions the Member State has infringed, and to choose the time at which it will bring an action for failure to fulfil obligations; the considerations which determine that choice cannot affect the admissibility of the action. The bringing and continuation of an infringement action is a matter for the Commission in its entire discretion and the Court must consider whether or not there has been a failure to fulfil obligations as alleged, without its being part of its role to take a view on the Commission’s exercise of its discretion.

(see paras 65-67)

4. Although it is true that the excessive duration of the pre-litigation procedure is capable of constituting a defect rendering an action for failure to fulfil obligations inadmissible, such a conclusion is inevitable only where the conduct of the Commission has made it difficult to refute its arguments, thus infringing the rights of the defence. It is for the Member State concerned to provide evidence of such a difficulty.

(see para. 76)

5. A Member State which fails to comply with the obligations to verify the compliance of cost accounting systems by a competent independent body and to publish a statement of compliance for the years 1998 and 1999, in accordance with Article 7(5) of Directive 97/33 on interconnection in telecommunications with regard to ensuring universal service and interoperability through application of the principles of Open Network Provision (ONP) and fails to apply correctly in practice the measures relating to the verification of the compliance of the cost accounting system by the national regulatory authority or another competent body, independent of the telecommunications organisation and approved by that regulatory authority, for the year 2000, in accordance with the provisions of Article 18(1) and (2) of Directive 98/10 on the application of open network provision (ONP) to voice telephony and on universal service for telecommunications in a competitive environment, as maintained by Article 27 of Directive 2002/21/EC on a common regulatory framework for electronic communications networks and services, read in conjunction with Article 16 of Directive 2002/22 on universal service and users’ rights relating to electronic communications networks and services, fails to fulfil its obligations under those provisions.

(see para. 92, operative part)