Keywords
Summary

Keywords

Actions for failure to fulfil obligations - Pre-litigation procedure - Letters of formal notice - Detailed opinion delivered under Directive 83/189 - No proper formal notice - Action inadmissible

(EC Treaty, Art. 169 (now Art. 226 EC); Council Directive 83/189, Art. 9(1))

Summary

$$It follows from the function assigned to the pre-litigation stage of proceedings for failure of a State to fulfil its obligations that the purpose of the letter of formal notice is, first, 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 and, second, to enable the Member State to comply before proceedings are brought before the Court. In addition, in order for a letter of formal notice to be issued, a prior failure by the Member State concerned to fulfil an obligation owed by it must be alleged.

However, at the time when a detailed opinion is delivered under Article 9(1) of Directive 83/189 laying down a procedure for the provision of information in the field of technical standards and regulations, the Member State to which it is addressed cannot have infringed Community law, since the measure exists only in draft form. The contrary view would result in the detailed opinion constituting a conditional formal notice whose existence would be dependent on the action taken by the Member State concerned in relation to the opinion. The requirements of legal certainty, which are inherent in any procedure capable of becoming contentious, preclude such incertitude.

Since a detailed opinion of that kind does not constitute a formal notice meeting the requirements of Article 169 of the Treaty (now Article 226 EC), the action for failure to fulfil obligations brought by the Commission is inadmissible.

( see paras 17-21 )