C-259/94
ECLI:EU:C:1995:142
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OPINION OF MR ELMER — CASE C-259/94
OPINION OF ADVOCATE GENERAL ELMER delivered on 17 May 1995 *
1. By an application lodged at the Court By a letter of 7 April 1994 the Greek Gov- Registry on 20 September 1994, the Com- ernment replied to both the letter of formal mission is seeking a declaration that, by notice and the reasoned opinion. It stated omitting to adopt within the period pre- that it was in the process of implementing scribed the measures necessary to implement the directive in Greek law. Council Directive 92/44/EEC of 5 June 1992 on the application of open network provision to leased lines, 1and, in the alter- native, by omitting to notify the Commis- sion thereof, the Hellenic Republic has failed to fulfil its obligations under the EC Treaty. Since the Commission did not, however, receive subsequent notification from the Greek Government that the directive had been implemented, it brought proceedings before the Court.
2. Under Article 15 of the directive Member States were to take the measures necessary to comply therewith before 5 June 1993.
3. The Greek Government does not dispute that it is obliged to implement the directive in question in Greek law and that such implementation did not take place within the period prescribed.
Since the Hellenic Republic had not informed the Commission that it had imple- mented the directive before the time-limit expired, the Commission commenced the procedure leading to an action under Article 169 of the Treaty with a letter of formal However, in its defence, the Government notice dated 9 August 1993. The Greek Gov- stated that, in its letter of 7 April 1994 to the ernment did not reply and accordingly the Commission, it had already explained that Commission set out its views in a reasoned there were a number of problems in connec- opinion of 7 February 1994. tion with the implementation of the direc- tive, which were partly due to the nature of the directive and partly due to the lack of a statutory framework in Greek law governing * Original language: Danish. 1 — OJ 1992 L 165, p. 27. the telecommunications sector. The Minister
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COMMISSION ν GREECE
responsible had therefore set up a special The Court has also consistently held that working party to examine all aspects of those the subject-matter of an action under Article problems. 169 is determined in the Commission's rea soned opinion. Even when a default has been remedied while the case is pending before the Court, there is still an interest in pursu ing the action in order to establish the basis of liability which a Member State may incur as a result of its default towards other Mem ber States, the Community or private parties. The Greek Government added that in May 1994 the special working party had submit ted to the Commission draft administrative regulations to implement the directive. Those regulations had not so far been published in the Official Gazette of the Hellenic Republic because a framework law governing the tele communications sector had not yet been enacted. The law had, meanwhile, been approved by the Greek Parliament and would be published as soon as possible. 5. Since the Hellenic Republic has not dis puted that Council Directive 92/44 was not implemented in Greek law within the period prescribed in Article 15 of the directive, it should therefore be held that the Hellenic Republic has failed to fulfil its obligations under the EC Treaty. Immediately after publication of the frame work law, the Minister responsible would issue the abovementioned regulations imple menting Directive 92/44.
4. It is clear from the settled case-law of the 6. The Commission has claimed that the Court that a Member State may not plead Hellenic Republic should be ordered to pay provisions, practices or circumstances exist the costs. Under Article 69(2) of the Rules of ing in its internal system in order to justify a Procedure, the unsuccessful party is to pay failure to comply with the obligations laid the costs if they have been applied for in the down in Community law. 2 successful party's pleadings.
2 — Sec, for example, the judgment in Case C-303/93 Commis 3 — See inter alia the judgment in Case C-37/93 Commission ν sion ν Italy [1994] ECR 1-1901. Belgium [1993] ECR 1-6295.
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OPINION OF MR ELMER — CASE C-259/94
Conclusion
7. In view of the foregoing, I would propose that the Court hold as follows:
— By omitting to adopt within the period prescribed the measures necessary to implement Council Directive 92/44/EEC of 5 June 1992 on the application of open network provision to leased lines, the Hellenic Republic has failed to ful- fil its obligations under the EC Treaty.
— The Hellenic Republic is ordered to pay the costs.
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