C-207/00

OPINION OF MR ALBER — CASE C-207/00

OPINION OF ADVOCATE GENERAL ALBER delivered on 29 March 2001 1

1. In these infringement proceedings — Article 1(3) which inserts Article 2a brought by it, the Commission claims that into Directive 89/552; the Italian Republic has not yet transposed into national law all the provisions of Directive 97/36/EC of the European Parlia- ment and of the Council of 30 June 1997 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or adminis- trative action in Member States concerning — Article 1(4) which inserts Article 3a(3) the pursuit of television broadcasting activ- into Directive 89/552; ities. 2Under Article 2 of Directive 97/36, the time-limit for its implementation expired on 30 December 1998. In particu- lar, the Commission alleges failure to transpose the following provisions:

— Article 1(12) which replaces Article 10 of Directive 89/552 (with the exception of Article 10(2) which, the Commis- sion states, has already been transposed into Italian law); — Article 1(1), in so far as Article 1(c) of Directive 89/552 is amended;

— Article 1(14) which amends the first sentence of Article 12 of Directive 89/552; — Article 1(2) which replaces Article 2 of Directive 89/552 (with the exception of Article 2(3), (4), (5) and (6) which, the Commission states, has already been transposed into Italian law);

1 — Original language: German. — Article 1(15) which replaces Article 13 2 — OJ 1997 L 202, p. 60. of Directive 89/552, and I - 4572

3. By letter of 14 June 1999 the Italian Government also submitted to the Com- mission the Ministerial Decree (Decreto ministeriale) of 8 March 1999, stating that that decree had transposed Directive 97/36. The decree concerns the issue of licences for 5. The Court has consistently held that any private television broadcasters. However, remedying of the failure to fulfil obligations this is not the subject of Article 1(1), (2), after the action is brought does not affect (3), (4), (12), (14), (15) and (18) of the merits of the action. The subject-matter Directive 97/36 which the Commission of the action is determined by the Com- claims has not been transposed. mission's reasoned opinion. Even where the default has been remedied after the time- limit prescribed by the second paragraph of Article 226 EC has expired, there is still an interest in pursuing the action in order to establish the basis of liability which a Member State may incur, as a result of its 4. In response to the reasoned opinion of default, towards other Member States, the 4 August 1999 the Italian Minister for Community or private parties. 4Therefore, Telecommunications submitted a summary the fact that Draft Law d.d.l. A.S. No 1138 concerning the transposition of the provi- has since been enacted does not affect the sions of Directive 97/36 into Italian law on merits of the present action. Consequently, 22 November 1999. This list confirms the judgment must be given in the terms sought letter of 29 March 1999, according to by the Commission. which Draft Law d.d.l. A.S. No 1138 is

(1) declare that, by failing to transpose, within the prescribed period, Article 1(1), (2), (3), (4), (12), (14), (15) and (18) of Council Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, the Italian Republic has failed to fulfil its obligations under Article 10 EC, read in conjunction with Article 2 of the said directive.

(2) order the Italian Republic to pay the costs.

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