C-286/01

OPINION OF MR MISCHO — CASE C-286/01

O P I N I O N O F ADVOCATE GENERAL MISCHO delivered on 23 April 2002 1

1. In the infringement proceedings which ensure the availability throughout the are the subject of this Opinion the Com- Community of uniform, good quality fixed mission seeks a declaration that, by failing telephone services at an affordable price. to adopt and bring into force within the prescribed period the whole of the laws, regulations and administrative provisions, including any penalties, necessary to comply with Directive 98/10/EC of the European Parliament and of the Council of 26 February 1998 on the application of 3. The Commission points out that open network provision (ONP) to voice Article 32 of the directive provides that telephony and on universal service for Member States are to take the measures telecommunications in a competitive necessary to comply with the directive by environment, 2 the French Republic has 30 June 1998 and forthwith inform the failed to fulfil its obligations under Commission thereof. Article 32 of that directive and Article 249 EC.

4. It claims that the defendant has failed to take these measures.

5. The Commission is specifically alleging 2. The aim of that directive is the harmon- failure to transpose Article 6(3) and (4) and isation of conditions for open and efficient Articles 10, 21 and 26 of the directive. access to and use of fixed public telephone networks and fixed public telephone ser- vices, in accordance with the principles of open network provision (ONP), and to

1 — Original language: French. 6. However, the French Republic asks the 2 — OJ 1998 L 101, p. 24. Court to dismiss, in part, the action for I - 5464

9. The transposition measures referred to by the French Government, which, I would repeat, were notified to the Commission in August and October 2001 and in January 2002, were therefore taken after the period laid down in the reasoned opinion had expired, so that they do not have any bearing on the existence of the failure to 7. The defendant adds that Articles 10(1) comply with obligations which is alleged by and 21 of the directive have been trans- the Commission. posed following the adoption of Decree No 2002-36 of 8 January 2002 relating to certain standard clauses in contract docu- ments attached to authorisations issued under Article L 33-1 of the Post and Tele- communications Code, 4 which was noti- fied to the Commission on 31 January 2002. 10. As regards the other provisions at issue, namely Articles 6(4) and 26 of the direc- tive, the defendant does not deny that the necessary transposition measures are still in the course of adoption.

8. It must be noted, however, as argued by the Commission, that it is settled case-law that failure to comply with obligations must be determined by reference to the 11. It follows that it has failed to comply situation at the end of the period laid down with its obligations, as alleged by the Commission. 3 — Journal Officiel de la République Française (JORF) of 28 July 2001, p. 12132, corrigendum in JORF of 20 Oc- tober 2001, p. 16564. 5 — See, for example, Case C-119/00 Commission v Lux- 4 — JORF of 10 January 2002, p. 585. embourg [2001] ECR I-4795.

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OPINION OF MR MISCHO — CASE C-286/01