C-266/94

Kingdom of Spain, represented by Alberto Navarro González, Director-General for Community Legal and Institutional Coordination, and by Miguel Bravo-Ferrer Delgado, Abogado del Estado, acting as Agents, with an address for service in Luxembourg at the Spanish Embassy, 4-6 Boulevard Emmanuel Servais,

defendant,

APPLICATION for a declaration that, by failing to adopt all the measures neces- sary to comply with Council Directive 92/44/EEC of 5 June 1992 on the applica- tion of open network provision to leased lines (OJ 1992 L 165, p. 27), the King- dom of Spain has failed to fulfil its obligations under that directive,

* Language of the case: Spanish.

I - 1977

ORDER OF 11. 7. 1995 — CASE C-266/94

1 By application lodged at the Court Registry on 23 September 1994, the Commis­ sion of the European Communities brought an action under the second paragraph of Article 169 of the EC Treaty for a declaration that, by failing to adopt all the measures necessary to comply with Council Directive 92/44/EEC of 5 June 1992 on the application of open network provision to leased lines (OJ 1992 L 165, p. 27, 'the directive'), the Kingdom of Spain has failed to fulfil its obligations under that directive.

2 The first paragraph of Article 15(1) of the directive provides as follows:

'Member States shall take the measures necessary to comply with this Directive before 5 June 1993. They shall forthwith inform the Commission thereof.'

I - 1978

COMMISSION ν SPAIN

3 Since it had not received any communication from the Spanish Government informing it of the transposition measures taken, the Commission sent it a letter of formal notice on 9 August 1993 pursuant to Article 169 of the Treaty.

obligations under Articles 3, 4 and 7 of the directive, pending approval of the rules on the leasing of circuits.

8 In its application, the Commission claims that the reasoned opinion made no ref­ erence to the letter from the Spanish Government of 22 December 1993, received by the Commission on 17 January 1994, because of communication problems.

9 In its defence, the Spanish Government contends first of all that the action is inad­ missible on the ground that the Commission did not take account, in its reasoned opinion, of its observations in response to the Commission's letter of formal notice. Such an omission constitutes a breach of the rights of the defence. Instead of proceeding to lodge an application before the Court, the Commission should have explained, in a second reasoned opinion, the reasons why it considered the measures adopted by the Kingdom of Spain to be inadequate.

10 In its reply, the Commission counters by saying that, although it made no refer­ ence in its reasoned opinion to the provisions submitted by the Kingdom of Spain, it did so in its application. According to the Commission, there can be no question of a breach of the rights of the defence or of inadmissibility of the action since, in the body of the application, there was no mention in the subject-matter of the action of the provisions of the directive to which the Kingdom of Spain made ref­ erence in its reply to the letter of formal notice.

1 1 In its rejoinder, the Kingdom of Spain points out that the Commission determined the subject-matter of the dispute by delivering the reasoned opinion without tak­ ing account of the observations and the resolutions which had been communicated to it.

16 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 (see Case 293/85 Commission ν Belgium [1988] ECR 305, paragraph 13).

Ι-1981

ORDER OF 11. 7. 1995 — CASE C-266/94

17 The proper conduct of the pre-litigation procedure constitutes an essential guaran- tee required by the Treaty not only in order to protect the rights of the Member State concerned, but also so as to ensure that any contentious procedure will have a clearly defined dispute as its subject-matter.

18 It is only on the basis of a properly conducted pre-litigation procedure that the contentious procedure before the Court will enable the latter to judge whether the Member State has in fact failed to fulfil the specific obligations which the Com- mission alleges it has breached.

19 In the present case, the reasoned opinion wrongly stated that the letter of formal notice sent by the Commission had not yet elicited an official reply from the King- dom of Spain.

23 T h a t is n o t t h e p r o c e d u r e laid d o w n in t h e Treaty.

24 I n this case, although c o m m u n i c a t i o n p r o b l e m s had given rise to a misunderstand­ ing concerning t h e reasoned opinion, there was n o t h i n g to prevent t h e C o m m i s ­ sion w i t h d r a w i n g that o p i n i o n and examining t h e response of t h e K i n g d o m of Spain t o t h e letter of formal notice. T h e C o m m i s s i o n could then, if appropriate, have delivered a further reasoned o p i n i o n specifying t h e complaints w h i c h it intended to maintain.

25 It follows that one of the essential conditions for the admissibility of an action pursuant to Article 169 of the Treaty, the proper conduct of the pre-litigation pro­ cedure, is not satisfied in this case.

26 Accordingly, pursuant to Article 92(1) of the Rules of Procedure of the Court of Justice, the action must be dismissed as manifestly inadmissible.

Costs

27 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Commission has failed in its submissions, it must be ordered to pay the costs.

2. The Commission shall bear the costs.

Luxembourg, 11 July 1995.

R. Grass G. C. Rodriguez Iglesias Registrar President

I - 1984