C-401/98
ECLI:EU:C:1999:317
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OPINION OF MR SAGGIO — CASE C-401/98
OPINION OF ADVOCATE GENERAL SAGGIO delivered on 17 June 1 9 9 9 *
Facts and procedure 3. In its application, the Commission stated that it had not received any communication from the Greek authorities concerning the adoption of the measures needed to trans- pose the Directive into Greek law, and that it had no information from other sources 1. By a document registered at the Court from which it could conclude that such Registry on 10 November 1998, the Com- measures had been brought into force. That mission brought infringement proceedings being the case, on 9 September 1997, the against the Hellenic Republic under Arti- Commission sent the Greek Government, cle 169 of the EC Treaty (now Article 226 in accordance with the procedure laid EC), seeking a declaration from the Court down in the first paragraph of Article 169 that the defendant State had failed to fulfil of the Treaty, a letter of formal notice its obligations under the Treaty and Direc- charging it with its failure to fulfil its tive 94/47/EC of the European Parliament obligation to implement the Directive and and the Council of 26 October 1994 on the protection of purchasers in respect of calling upon it to submit its observations, if certain aspects of contracts relating to the any. purchase of the right to use immovable properties on a timeshare basis (hereinafter 'the Directive').1
4. By letter of 11 November 1997, the Greek Government informed the Commis- sion that it had already prepared a draft ministerial decree containing the provisions 2. Article 12(1) of the Directive, which was in question. It added that the procedure for adopted on the basis of Article 100a of the approving the decree was under way. EC Treaty (now, after amendment, Arti- cle 95 EC), provides that 'Member States shall bring into force the laws, regulations and administrative provisions necessary for them to comply with [the] Directive no later than 30 months after its publication in the Official Journal of the European Com- 5. On 16 January 1998, having received no munities'. communication from the Greek authorities regarding the adoption of the measures in question, the Commission sent those autho- * Original language: Italian. rities a reasoned opinion charging them 1 — OJ 1994 L 280, p. 83. with failure to fulfil their obligations under
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COMMISSION V GREECE
the Directive and giving them a period of 8. In its defence, lodged on 15 December two months in which to comply with the 1998, the Greek Government expressly Directive. admitted that it had not yet transposed the Directive into national law. It stated that it was perfectly aware of the time-limit by which the internal procedure for imple- menting the Directive had to be completed and undertook to set about bringing the 6. In view of the position thus adopted by requisite national provisions into being as the Greek authorities, the Commission quickly as possible. In this connection, it concluded that they had not transposed pointed out that the Ministry of Develop- the Directive into national law and there- ment, being the relevant competent autho- fore brought the present action against rity, had already prepared a draft presiden- them. tial decree containing the provisions at issue and that the draft would be submitted to the Council of State for review as soon as all the necessary consents had been obtained. It reserved the right to place a copy of the draft decree before the Court.
The failure to implement the Directive
7. According to the third paragraph of Article 189 of the EC Treaty (now Arti- cle 249 EC), a directive is binding, as to the result to be achieved, upon each Member State to which it is addressed. Under the first paragraph of Article 5 of the EC Treaty (now Article 10 EC), Member States It is clear, therefore, that the Greek Gov- are to take all appropriate measures, whe- ernment has not adopted the measures ther general or particular, to ensure fulfil- required to implement the Directive within ment of the obligations arising out of the the period laid down in Article 12(1) Treaty or resulting from action taken by the thereof and that, in any event, it has not institutions of the Community. As far as communicated to the Commission the transposition of Directive 94/47 into adoption of such measures. Furthermore, national law is concerned, the obligation after expressly admitting its own failure to in this respect is stated explicitly in Arti- fulfil its obligations, the Greek Government cle 12 thereof, to which reference has has failed to provide any justification for already been made. That provision fixes such failure. It hardly needs to be added the time-limit for implementation at that the mere fact of preparing a draft 29 April 1997 and requires the Member decree, the text of which has not even been States immediately to inform the Commis- placed before the Court, cannot in any way sion of the adoption of the national provi- justify the inertia of the Greek Govern- sions. ment.
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OPINION OF MR SAGGIO — CASE C-401/98
Costs applied for in the successful party's plead- ings. Since, in the present case, the Com- mission has applied for costs and the Greek Government has been unsuccessful, the 9. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be latter must be ordered to pay the recover- ordered to pay the costs if they have been able costs.
Conclusion
10. In light of the foregoing considerations, I propose that the Court should:
(1) declare that, by failing to adopt the laws, regulations and administrative provisions necessary to implement Directive 94/47/EC of the European Parliament and the Council of 26 October 1994 on the protection of purchasers in respect of certain aspects of contracts relating to the purchase of the right to use immovable properties on a timeshare basis, the Hellenic Republic has failed to fulfil its obligations under that directive and Article 189 of the EC Treaty (now Article 249 EC);
(2) order the Hellenic Republic to pay the costs.
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