Keywords
Summary

Keywords

1. Actions for failure to fulfil obligations — Examination of the merits by the Court — Situation to be taken into consideration — Situation on expiry of the period laid down by the reasoned opinion — (Art. 226 EC)

2. Actions for failure to fulfil obligations — Pre-litigation procedure — Letter of formal notice — Delimitation of the subject-matter of proceedings — Reasoned opinion referring to rules other than those cited in the letter of formal notice — Inadmissibility of the action — (Art. 226 EC)

Summary

1. In an action under Article 226 EC, 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, in accordance with the second paragraph of Article 226 EC, if a Member State has put a stop to the infringement before the end of that period, the Commission may no longer bring an action before the Court of Justice.

see para. 15

2. In the system established by Article 226 EC, the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity to comply with its obligations under Community law or to avail itself of its right to defend itself against the complaints made by the Commission. The proper conduct of that procedure thus constitutes an essential guarantee required by the Treaty in order to protect the rights of the Member State concerned. It is only when that guarantee is observed that the contentious procedure before the Court can enable it to judge whether the Member State has in fact failed to fulfil the obligations which the Commission alleges it has breached. More specifically, the purpose of the letter of formal notice in the pre-litigation procedure is to delimit the subject-matter of the dispute and to indicate to the Member State, which is invited to submit its observations, the factors enabling it to prepare its defence. It follows that the reasoned opinion and the application made to the Court pursuant to the second paragraph of Article 226 EC are flawed, with regard to the rights of the defence, since they refer to rules of Community law other than those cited in the letter of formal notice and since the change in the legal situation is likely to have affected the assessment of the compatibility of the national legislation in question with Community law.

see paras 17-18