C-151/00
ECLI:EU:C:2000:592
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OPINION OF MR ALBER — CASE C-151/00
O P I N I O N OF ADVOCATE GENERAL ALBER delivered on 26 October 2000 1
1. In these infringement proceedings the tive provisions necessary for them to com- Commission alleges failure to transpose ply with Article 5 of this Directive not later certain provisions of Directive 97/66/EC than 24 October 2000. of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommuni- cations sector (hereinafter 'the directive'). 2
2. Article 15 of the directive reads as follows: 4. Member States shall communicate to the Commission the text of the provisions of national law which they adopt in the field governed by this directive.'
' 1 . Member States shall bring into force the laws, regulations and administrative provi- sions necessary for them to comply with this directive not later than 24 October 3. The Commission received no communi- 1998. cation from the French Republic concern- ing the transposition of the directive. On 3 February 1999 it therefore sent a letter of formal notice, pursuant to Article 226 EC, to the French Government, requesting it to submit observations within two months.
By way of derogation from the first sub- paragraph, Member States shall bring into force the laws, regulations and administra-
1 — Original language: German. 4. In a letter received on 16 April 1999, the 2 — OJ 1998 L 24, p. 1. French Republic stated that the directive
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had already been partially transposed and 8. The Commission of the European Com- that the remaining provisions of the direc- munities claims that the Court should: tive would, in part, be transposed in the near future under legislative proposals which were at an advanced stage.
(1) declare that, by failing to bring into force and to communicate to the Com- mission within the prescribed period 5. Since no further communication was the national measures transposing Arti- received from the French authorities, a cle 4(2), Article 6(1), (3) and (4), Arti- reasoned opinion was issued by the Com- cle 7, Article 8(2), (3), (4) and (6), mission to the French Republic on 23 July Article 11(2) and Article 12 of Direc- 1999. In that opinion the Commission tive 97/66/EC, the French Republic has complained that the French Republic had failed to fulfil its obligations under failed to fulfil its obligation to transpose Article 15 of that directive; the provisions of the directive mentioned in the application in due time. It set the French Republic a final time-limit of two months to comply with its obligations.
(2) order the French Republic to pay the costs.
6. The French authorities first requested an extension of the time-limit and, by letter of 22 October 1999, again announced that work on the necessary measures for the transposition of the abovementioned provi- sions was in progress.
Submissions of the parties
7. Since no further communications had been received in the meantime, on 19 April 9. The Commission notes that under the 2000 the Commission brought the present third paragraph of Article 249 EC and action against the French Republic. under Article 10 EC Member States are
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obliged to take whatever measures are the obligations and time-limits under Com- necessary to transpose directives into munity directives. national law before the expiry of the time-limits provided for in those directives. Member States are also obliged to commu- nicate such measures to the Commission without delay. The time-limit laid down in Article 15(1) of the directive expired on 24 October 1998 without France having adopted the measures transposing the pro- 11. The French Republic again points out visions mentioned in the application. Even that work on the necessary measures for the when the time-limit of 23 September 1999 transposition of the abovementioned provi- laid down in the reasoned opinion expired, sions is in progress. the French authorities had not communi- cated to the Commission the measures transposing those provisions.
Appraisal
12. The action is well founded. On the date material to the infringement proceedings, when the period of two months from 23 July 1999 prescribed in the reasoned opinion expired, the complaint made in the application had indisputably not yet been remedied, even taking into consideration possible extensions of the period on account of time taken by the post. The French Republic should therefore be found 10. Referring to the judgment in Case to have failed to fulfil its obligations, as 52/75, 3the Commission points out that claimed in the application. the Member States are liable no matter which organ of the State is responsible for the failure, and that a Member State may not plead provisions, practices or circum- stances existing in its internal legal system in order to justify a failure to comply with
13. The decision as to costs follows from 3 — Commission v Italy [1976] ECR 277, paragraph 14. Article 69(2) of the Rules of Procedure.
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Conclusion
14. I therefore propose that the Court should:
(1) declare that, by failing to bring into force and to communicate to the Commission within the prescribed period the national measures transposing Article 4(2), Article 6(1), (3) and (4), Article 7, Article 8(2), (3), (4) and (6), Article 11(2) and Article 12 of Directive 97/66/EC, the French Republic has failed to fulfil its obligations under Article 15 of that directive;
(2) order the French Republic to pay the costs.
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