C-254/00

OPINION OF MR TIZZANO — CASE C-254/00

OPINION OF ADVOCATE GENERAL TIZZANO delivered on 14 June 2001 1

1. By the present action brought under 3. As the Commission had received no Article 226 EC, the Commission is asking notification from the Netherlands Govern- the Court to declare that, by failing to ment concerning the measures transposing notify the laws, regulations and admini- the Directive, it concluded that the Nether- strative provisions necessary for compliance lands had not yet taken those measures and with Directive 95/47/EC of the European had therefore failed to fulfil its obligations Parliament and of the Council of 24 Octo- in that respect. Consequently, by letter of ber 1995 on the use of standards for the 16 January 1997, the Commission initiated transmission of television signals (herein- an infringement procedure, putting the after 'the Directive') 2or by failing to adopt Netherlands Government on notice to sub- all the measures necessary for that purpose, mit its observations within two months. the Kingdom of the Netherlands has failed to fulfil its obligations under that directive.

4. On 24 March 1997 the Permanent Representation of the Netherlands replied that the measures necessary for compliance with the Directive were under preparation before the competent national authorities.

2. In accordance with Article 9 thereof, the Directive entered into force on the date of publication in the Official Journal, that is 23 November 1995; the Member States had to bring into force the laws, regulations and administrative provisions necessary for compliance within nine months of that date, that is by 23 August 1996, and had 5. On 14 October 1998, as no new infor- to inform the Commission thereof immedi- mation had been received, the Commission ately (Article 8). sent a reasoned opinion to the Netherlands Government asking it to adopt all the measures necessary for compliance with 1 — Original language: Italian. the obligations under the Directive within 2 — OJ 1995 L 281, p. 51 two months of notification of the opinion.

7. As the Commission did not receive any other communication from the Netherlands Government after that date, it decided on 9 June 2000 to bring the present action. 9. It may therefore be stated with certainty that the Netherlands has not introduced the measures necessary to transpose all the provisions of the Directive into national law within the period prescribed. Similarly, it is certain that it has not fulfilled the obligation to notify the Commission exhaustively and in good time of the 8. The Netherlands Government has not information requested in Article 8 of the disputed the failure to fulfil obligations at Directive. issue, and acknowledges that Articles 2, 3, 4(a) and (d), last paragraph, and 5 of the Directive have not yet been transposed into national law. In its defence pleadings it merely stated that the Directive will be completely transposed into national law when the bill amending the Telecommuni- catiewet, approved by the Council of 10. That being so, I would recall first of all, Ministers on 14 July 2000, has obtained as regards the failure to transpose the the opinion of the Council of State and may Directive within the period prescribed, therefore be submitted to the upper house that, according to settled case-law of the of Parliament. Moreover, the defendant Court, any action for failure to fulfil government objects that some provisions obligations brought by the Commission in

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OPINION OF MR TIZZANO — CASE C-254/00

11. As regards the defendant government's argument that the Netherlands legal order is already in conformity with the Directive (at least in part), I would note that that government has acknowledged that such a circumstance does not exempt the State from the obligation to implement the 12. Finally, with reference to the claim of Directive formally and within the period the defendant government that some provi- prescribed. As is clear from settled case- sions of the Directive have already been law, 'although [the third paragraph of transposed into national law through the Article 189 of the EC Treaty] leaves Mem- Telecommunicatiewet or other measures, I ber States to choose the ways and means of should point out that, even if this were so, ensuring that the directive is implemented, and notwithstanding the incomplete nature that freedom does not affect the obligation of the transposition, the fact remains that imposed on all the Member States to which those measures were not notified to the the directive is addressed, to adopt, in their Commission, as prescribed by the Direc- national legal systems, all the measures tive. necessary to ensure that the directive is fully effective, in accordance with the 6 — In particular, Case 14/83 Von Colson and Kamann [1984] ECR 1891, paragraph 15. 7 — For example, Case C-339/87 Commission v Netherlands [1990] ECR I-851, paragraph 25; Case C-59/89 Commis- 3 — Most recently, amongst many cases, Case C-97/00 Commis- sion v Germany [1991] ECR I-2607, paragraph 28; Case sion v France [2001] ECR I-2053, paragraph 10; Case C-340/96 Commission v United Kingdom [1999] C-83/00 Commission v Netherlands [2001] ECR I-2351, ECR I-2023, paragraph 27. paragraph 11. 8 — Case 91/79 Commission v Italy [1980] ECR 1099, para- 4 — Case C-328/96 Commission v Austria [1999] ECR I-7479. graph 6, and Case 92/79 Commission v Italy [1980] 5 — In particular, Case C-470/98 Commission v Greece [2000] ECR 1115, paragraph 6; and my Opinion of 23 January ECR I-4657, paragraph 11; Case C-83/00, cited above, 2001, Case C-144/99 Commission v Netherlands [2001] paragraph 10. ECR I-3541.

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