C-423/99
ECLI:EU:C:2000:489
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OPINION OF MR COSMAS — CASE C-423/99
OPINION OF ADVOCATE GENERAL COSMAS delivered on 21 September 2000 *
1. In this action brought under Article 226 availability throughout the Community of EC, the Commission asks the Court for a good-quality fixed public telephone ser- declaration that, by not adopting and, in vices and to define the set of services to any event, by not communicating to the which all users, including consumers, Commission the laws, regulations and should have access in the context of administrative provisions necessary to com- universal service, at an affordable price, in ply with Directive 98/10/EC of the Euro- the light of specific national conditions. pean Parliament and of the Council of 26 February 1998 on the application of open network provision (ONP) to voice telephony and on universal service for telecommunications in a competitive envir- onment (hereinafter 'the Directive'), 1the Italian Republic has failed to fulfil its obligations under the Directive.
3. Article 32(1) provides that the Member States are to take the measures necessary to comply with the Directive by 30 June 1998 and forthwith to inform the Commission thereof.
2. The Directive concerns the harmonisa- tion of conditions for open and efficient access to, and use of, fixed public telephone networks and fixed public telephone ser- vices in an environment of open and competitive markets, in accordance with the principles of open network provision (ONP). The Directive's aim is to ensure the 4. Since the Commission established that the time-limit in Article 32(1) of the Direct- * Original language: Greek. ive had expired without the Italian Gov- 1 — OJ 1998 L 101, p. 24. ernment having provided information on I - 11168
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the adoption of the necessary measures for 7. The Commission received a reply to the transposing the Directive into national law reasoned opinion by letter No 5626 of and it had no other information enabling it 12 April 1999, 4 which contained as an to conclude that the Italian Republic had annex a draft decree transposing various complied with its obligations under the Community directives, including the one at Directive, it sent that Member State a letter issue. However, since the Commission had of formal notice (No SG(7301)D/11246) no other information from which it could on 25 August 1998, setting a time-limit of conclude that the Italian Republic had duly two months for the submission of observa- complied with the reasoned opinion, it tions. decided to bring the present action. In its application lodged at the Court Registry on 29 October 1999, it sought, first, a declara- tion that, by not adopting and, in any event, by not communicating to the Com- mission the laws, regulations and adminis- trative provisions necessary to comply with the Directive, the Italian Republic had failed to comply with its obligations under the Directive and, second, an order for 5. In its reply of 16 October 1998, 2the costs against that Member State. Italian Republic stated that the measures necessary in order to comply with the Directive were in the process of being drawn up. However, no definitive text of the legislation was formally sent to the Commission.
8. As the Commission correctly points out, under Article 249 EC directives are binding on the Member States as to the result to be achieved. That obligation includes the obligation to comply with the time-limits 6. Thus, in accordance with the procedure laid down by a directive. 5 laid down in Article 226 EC, the Commis- sion sent a reasoned opinion to that State by letter of 26 January 1999, 3pointing out that it still had not informed the Commis- sion of the provisions adopted by it to transpose the Directive, and calling on it to adopt the measures necessary for that purpose within two months from notifica- tion of the opinion and to communicate 9. In addition, the Court has consistently them to the Commission. held that a Member State may not plead
2 — Letter No 6806/SG(98) A/15776. 4 — SG(99) A/5203. 3 — SG(98)D/602. 5 — Case 10/76 Commission v Italy [1976] ECR 1359.
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provisions, practices or circumstances 1 May 1997, 7 which, after amendment, existing in its internal legal system in order became Law No 189 of 1 July 1997, 8 was to justify a failure to comply with the prepared long ago and was submitted to the obligations and time-limits under the EC Commission for information and to the Treaty and Community directives.6 Consiglio di Stato (Council of State) for an opinion. However, the Consiglio di Stato considered it expedient, before giving its opinion, to consult the Autorità per le Garanzie nelle Comunicazioni (Commun- ications Authority) and the Autorità Gar- ante della Concorrenza e del Mercato (Competition Authority).
10. In the present case, the relevant provi- sions of the Directive require the Member States to take the appropriate measures by 30 June 1998 at the latest and forthwith to inform the Commission thereof. Notwith- standing the expiry of the time-limit, the Italian Republic has not taken the appro- priate measures to comply with the Direct- ive or provided any substantive informa- tion on such measures, thus failing to fulfil its obligations under Article 249 EC and 12. In view of the foregoing I consider that Article 32 of the Directive. the Italian Republic has not adopted, and in any event has not communicated to the Commission in due time, definitive mea- sures transposing the Directive and, there- fore, the infringement on its part pleaded by the Commission is substantiated.
11. It is to be noted that the Italian Republic does not dispute the Commis- sion's claim that it has failed to fulfil its obligations. It merely observes that, for the purpose of implementing the Directive, a draft regulation within the meaning of Article 1(3) of Decree-Law No 115 of
6 — See, for example, Case C-303/93 Commission v Italy [1994 ECR 1-1901, Case C-65/94 Commission v Belgium [1994 ECR 1-4627, Case C-294/96 Commission v Belgium 1997 7 — Gazzetta Ufficiale della Repubblica Italiana (GURI) ECR 1-1781 and Case C-13J/96 Commission v Belgium No 100 of 2 May 1997. [1997] ECR 1-1061. 8 — GURI No I J l of 1 July 1997.
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Conclusion
13. Consequently, I propose that the Court should:
— declare that, by not adopting and, in any event, by not communicating to the Commission the laws, regulations and administrative provisions necessary to comply with Directive 98/10/EC of the European Parliament and of the Council of 26 February 1998 on the application of open network provision (ONP) to voice telephony and on universal service for telecommunications in a competitive environment, the Italian Republic has failed to fulfil its obligations under that directive;
— order the Italian Republic to pay the costs.
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