C-422/99

COMMISSION V ITALY

OPINION OF ADVOCATE GENERAL ALBER delivered on 14 September 2000 *

1. In the present Treaty infringement pro- tive provisions necessary to comply with ceedings against the Italian Republic, the the Directive no later than 31 December Commission claims that the Court should: 1997.

(1) declare that, by failing to adopt or, in 3. Since the Commission had not been any event, by failing to communicate to informed within the prescribed period of the Commission the laws, regulations any measures transposing the Directive into and administrative provisions neces- Italian law and since it had no information sary to comply with Directive 97/51/ from which to conclude that Italy had EC of the European Parliament and of fulfilled that obligation, on 25 August the Council of 6 October 1997 amend- 1998, it initiated the procedure laid down ing Council Directives 90/387/EEC and in Article 169 of the EC Treaty (now 92/44/EEC for the purpose of adapta- Article 226 EC) by sending a letter of tion to a competitive environment in formal notice. telecommunications, 1 the Italian Republic has failed to fulfil its obliga- tions under that directive;

4. By letter of 16 October 1998, the Italian Government informed the Commission that the measures necessary to implement (2) order the Italian Republic to pay the the Directive would be drafted. costs.

5. By letter of 26 January 1999, the Com- 2. Under Article 3(1) of the Directive, the mission sent to the Italian Republic a Member States were required to bring into reasoned opinion in that regard calling on force the laws, regulations and administra- it to adopt the measures necessary to comply with the Directive within two months of the notification of the opinion * Original language: German. and to communicate them to the Commis- 1 — OJ 1997 L 295, p. 23. sion.

7. Since the Commission received no fur- ther information about the Italian imple- menting measures, it brought the present action. 10. Therefore, it must be held that, by failing to adopt within the prescribed period the laws, regulations and adminis- trative provisions necessary to comply with the Directive, Italy has failed to fulfil its 8. The Italian Government does not deny obligations under Article 3(1) of Directive the Treaty infringement, but it points out 97/51. that a draft (Italian) regulation has been sent to the Commission, for information, and to the Italian Council of State, for its opinion. Before taking a view, the Council of State deemed it necessary to seek opi- nions from the Autorità per le Garanzie 11. Under Article 69(2) of the Rules of nelle Comunicazioni (Communications Procedure, the unsuccessful party is to be Authority) and the Autorità Garante della ordered to pay the costs. Since Italy has Concorrenza e del Mercato (Competition been unsuccessful, it must be ordered to Authority). pay the costs.

I - 10654

COMMISSION V ITALY

Conclusion

12. Consequently, I propose that the Court:

(1) declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 97/51/EC of the European Parliament and of the Council of 6 October 1997 amending Council Directives 90/387/EEC and 92/44/EEC for the purpose of adaptation to a competitive environment in telecommunications, the Italian Republic has failed to fulfil its obligations under that directive;