C-362/01

COMMISSION v IRELAND

OPINION OF ADVOCATE GENERAL RUIZ-JARABO C O L O M E R delivered on 17 September 2002 1

1. The legal interest presented by these 3. Since it had received no notification infringement proceedings is primarily pro- from the Irish authorities of any measure cedural. There can be no serious doubts as transposing the Directive into the domestic to the substance, that is to say, as to legal system, on 8 August 2000 the Com- whether the defendant really did fail to mission sent them a letter of formal notice fulfil its obligations by failing to transpose inviting them to submit observations within into its national law Directive 98/5/EC of two months. the European Parliament and of the Coun- cil of 16 February 1998 to facilitate prac- tice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained 2('Directive 98/5' or 'the Direc- tive'). 4. On 16 January 2001, more than three months after the period prescribed had expired, the Permanent Representation of Ireland to the European Union answered the letter of formal notice, acknowledging, in particular, that the drafting of the measures implementing the Directive was Background not yet complete and that it was necessary to involve the legislature, a circumstance which had become apparent only at a late stage. 2. Directive 98/5 provides lawyers with an easier means whereby they can integrate into the profession in the host Member State. 3The Member States were to bring into force the laws, regulations and admin- istrative provisions necessary to comply with the Directive by 14 March 2000, and 5. As the Permanent Representation states forthwith to inform the Commission in its letter, the Irish Constitution auth- thereof, making reference to the Directive orises the executive, even in areas where the in the new legislation. 4 law normally requires enactment by the national parliament of primary legislation, to adopt measures which are necessary in 1 — Original language: Spanish. 2 — OJ 1998 L 77, p. 36. order to comply with obligations imposed 3 — Fifth recital in the preamble to the Directive. by membership of the European Union. 4 — Article 16 of Directive 98/5. Article 6(3) of Directive 98/5 gives the

6. The reply of the Irish authorities was received at the Commission's registry on 9. As I have already observed, the crux of 17 January 2001. Ireland's defence is the allegation of a procedural irregularity constituted by the Commission's failure to take into consider- ation the Irish Government's observations submitted in reply to the letter of formal notice. Referring to the order of 11 July 1995 in Commission v Spain, 6 Ireland 7. Seven days later, on 24 January of the same year, the Commission sent Ireland a 6 — Case C-266/94 Commission v Spain [1995] ECR I-1975. In reasoned opinion requesting it to take the that case the issue was the entire transposition of Directive 92/44/EEC. The Commission had sent a letter of formal measures necessary to comply with the notice to which Spain replied with the acknowledgement provisions of Directive 98/5 and the Treaty that the domestic measures necessary to effect the required implementation had not yet entered into force; it did, within a further period of two months. In however, refer to resolutions already adopted in order to ensure, as a transitional measure, the fulfilment of obli- paragraph 3 of that opinion, the Commis- gations imposed by that directive. The Commission ignored that reply and sent a reasoned opinion in which it stated that sion stated that it had not received an it had received no answer to its first letter. Spain then wrote official reply to its letter of formal notice. again to the Commission, recalling its reply to the letter of formal notice. In its application, the Commission claimed that the fact that it had taken no account of the response to the letter before action was due to communication prob- lems, and in its reply argued that its application, unlike its 5 — Parliament's authorisation was in fact granted on 13 April reasoned opinion, did take into consideration the observa- 2002 by means of the Solicitors (Amendment) Act 2002, tions submitted by Spain, so that there was no mention in section 20 of which contains the relevant provisions for the the subject-matter of the application of those provisions of transposition of Directive 98/5 into national law. By virtue the directive to comply with which Spain had adopted of section 23(2) those provisions entered into force on the transitional implementing measures. The Court nevertheless very day the legislative instrument was promulgated. declared the application inadmissible.

11. It is necessary to bear in mind the complex nature of the procedure laid down in Article 226 EC for seeking a declaration 13. Precisely because of the hybrid nature of failure to fulfil obligations: a pre-liti- of this administrative stage, it is not poss- gation or administrative stage is followed ible to claim that it loses its practical effect by a judicial stage, but there is no necessary if the defendant State does not in its defence link between them. Specifically, the Com- avail itself of legal arguments, that is to say, mission has complete freedom to request of claims capable of supporting an objec- the Member State concerned to explain its tion in the judicial stage of the proceedings. position by means of a letter of formal As regards its nature, the pre-litigation notice, just as it is at liberty to send the reasoned opinion and to bring an action 8 — It is clear that in certain cases the excessive length of the before the Court of Justice. 7Furthermore, pre-litigation procedure is capable of making it more it enjoys a similar discretion in deciding difficult for the Member State concerned to refute the Commission's arguments, and of thus infringing the rights of the defence (Case C-96/89 Commission v Netherlands [1991] ECR I-2461, paragraph 16). 9 — See, in various wordings, the judgments in Case 85/85 7 — See, inter alia, the judgments in Case 247/87 Star Fruit v Commission v Belgium [1986] ECR 1149, paragraph 11, Commission [1989] ECR 291, paragraph 11; Case Case 293/85 Commission v Belgium [1988] ECR 305, C-l 91/95 Commission v Germany [1998] ECR I-5449, iaragiaph 46, and Case C-207/97 Commission v Belgium p aragraph 13, and Case C-159/94 Commission v France 1997] ECR I-5815, paragraph 103, and the order in f1999) ECR I-275, paragraph 24. Commission v Spain, cited above, paragraph 16.

20. In my opinion, that fact is irrelevant, unless to it is added proof that the Member 16. According to consistent case-law, the State acted in bad faith or clearly failed in opportunity for the Member State con- cerned to submit its observations consti- tutes an essential guarantee required by the 11 — See Case 31/69 Commission v Italy [1970] ECR 25, paragraph 13; Case 211/81 Commission v Denmark Treaty and, even if the Member State does [1982] ECR 4547, paragraph 9; Case 124/81 Commission not consider it necessary to avail itself v United Kingdom [1983] ECR 203, paragraph 6; Case 51/83 Commission v Italy [1984] ECR 2793, paragraph 5; thereof, observance of that guarantee is an Case 274/83 Commission v Italy [1985] ECR 1077, paragraph 20; Case C-135/94 Commission v Italy [1995] ECR I-1805, paragraph 6; Case C-340/96 Commission v United Kingdom [1999] ECR 1-2023, paragraph 36; Case C-365/97 Commission v Italy [1999] ECR I-7773, para- 10 — As is made clear in Case 353/85 Commission v United graph 23, and Case C-225/98 Commission v France [2000] Kingdom [1988] ECR 817, paragraph 19. ECR I-7445, paragraph 69.

I - 11438

COMMISSION vIRELAND

21. The period prescribed by the Commis- sion once the reasoned opinion is delivered 23. It is true that in Commission v Spain, is different in kind. Since its purpose is to cited above, upon which Ireland bases its define the subject-matter of any dispute and argument, the statements made by the since it presupposes the end of the pre- defendant in response to the letter of litigation stage, the new time-limit allowed formal notice revealed that the obligations presents the features of a 'period of grace' had been partly fulfilled; that as a result the during which the effects of the reasoned parties could not define with the necessary opinion are suspended. On the one hand, precision the nature and scope of their the Commission undertakes not to institute dispute even after the reasoned opinion had legal proceedings and, on the other, it is still possible for the Member State effec- tively to fulfil its obligations. Once the 13 — Case C-3/96 Commission v Netherlands [1998] ECR I-3031, paragraphs 14 to 21. The Court held that, in such administrative phase is complete, dialogue circumstances, even assuming that the contentious pro- gives way to action. Failure to take into cedure was opened by a Commission application which took no account of any new matters of fact or law put consideration the observations submitted forward by the Member State concerned in its reply to the reasoned opinion, that State's right to a fair hearing has not been infringed. It is fully open to the State to raise those matters in the contentious procedure, to begin with in its first pleading in defence. It will be for the Court to 12 — Case C-293/85 Commission v Belgium, cited in footnote 9 examine their relevance for the outcome of the action for above, paragraph 14. failure to fulfil obligations' (paragraph 20).

24. None the less, in light of the content of the reply addressed to the Commission by Ireland on 16 January 2001, the contrary cannot be asserted without further evi- 26. Now that I have reached this point, it dence. While it contained no information remains for me only to determine whether which might destroy, wholly or in part, the the irregularity found to exist may lead to validity of the infringement proceedings, any result other than the inadmissibility of once initiated, it did allow Ireland to the action. I think not. harbour the hope — taking account of the hybrid nature of this stage of the procedure — that its observations might have some effect on the Commission's position, for example, that the despatch of the reasoned opinion might be deferred or that the pre-litigation correspondence 27. The incomplete set of positive pro- might be extended. In short, if Ireland had cedural rules governing actions brought known at the appropriate time that the before the Court does not provide any reasons which it put forward in its reply specific remedy. Nor has the Community would not prevent the institution of pro- judicature the power to impose penalties on ceedings, it could at that point have made the party in default, other than to order it, other choices, such as expediting the trans- even if successful, to pay costs which the position measures so that they were Court considers that party to have unreas- adopted before the date on which the period prescribed in the opinion for fulfil- ment of obligations expired. 14 — Sec the judgments cited in footnote 11, above. Advocate General Fennelly expressed himself to the same effect in considering whether the Court should examine, with the aim of defining an essential procedural defect, the concrete effects on the interests of the person alleging such breach, or whether the outcome would have been any different if that requirement had been respected. 'In some cases,' says the Advocate General, 'it is clear that there was no such effect, or that the outcome would not in any case have been any different. In the context of infringement proceed- ings, for example, the Court has held that the requirement that a Member State be given the opportunity to present its observations is an essential procedural requirement "even 25. I intend that concatenation of hypo- if the Member State does not consider it necessary to avail theses to be purely illustrative. The one itself thereof". The fact that the adopting institution may re-enact a measure annulled for failure to comply with truly important point is that the failure to such a requirement does not affect its qualification as "essential"... Nor can an institution escape the con- take Ireland's response into consideration sequences of failing to comply with such a requirement deprived that State of a procedural right by seeking to demonstrate that compliance would have added nothing to its examination of the measure under granted by the Treaty. It is of no relevance consideration' (Opinion in Case C-286/95 P Commission v ICI [2000] I-2341 and Joined Cases C-287/95 P and to ask what use the defendant State could C-288/95 P Commission v Solvay [2000] ECR I-2391, have made of that right. As the Court has point 26, emphasis added).

28. The inadmissibility of the action is the only remedy available to the Community legal order which can restore the proceed- ings to where they were before the invali- dating defect occurred. 17 The undeniable gravity of that sanction is the corollary of the breach of what the Court considers 'an essential guarantee' inherent in the pro- ceedings, and at the same time it serves a clear 'preventive' purpose, encouraging the Commission to avoid such conduct in the future. 30. For those reasons I consider that this application for a declaration of failure to fulfil obligations must be held to be inad- missible and the applicant must be ordered 15 — Second paragraph of Article 69(3) of the Rules of Pro- cedure. to pay the costs in accordance with 16 — See point 16, above. Article 69(2) of the Rules of Procedure. 17 — In the order in Commission v Spain, cited above, the Court held as follows: if one of the essential conditions for the admissibility of an action pursuant to Article 226 EC, namely the proper conduct of the pre-litigation procedure, is not satisfied, the action must be dismissed as manifestly 18 — Point 44. inadmissible (paragraphs 25 and 26). 19 — Ibid., paragraphs 58 and 59.

I - 11441

OPINION OF MR RUIZ-JARABO — CASE C-362/01

31. If, on the contrary, the Court should be that Ireland has not fulfilled its obligations persuaded otherwise and decide to consider under Directive 98/5. In that case, the costs the substance of the case, it would be right, would be borne by the defendant State, in my view, to declare the infringement to pursuant to the same provision. have been established, given that it is plain