C-386/01

OPINION OF MR ALBER — CASE C-386/01

O P I N I O N O F ADVOCATE GENERAL ALBER delivered on 30 May 2002 1

1. This action relates to the failure to of Spain regarding the adoption of meas- transpose, within the prescribed period, ures transposing Directive 98/7, the Com- Directive 98/7/EC of the European Parlia- mission sent the Spanish Government a ment and of the Council of 16 February letter of formal notice requesting it to 1998 amending Directive 87/102/EEC for submit its observations on the matter the approximation of the laws, regulations within two months. Since the Commission and administrative provisions of the did not receive any reply to that letter, it Member States concerning consumer credit sent a reasoned opinion to the Kingdom of ('Directive 98/7'). 2 Spain, by letter of 9 March 2001, in which it reiterated its complaint and instructed the Spanish Government to comply with its Treaty obligations within two months.

5. Spain does not dispute the contention fulfil its obligations must be determined by that it failed to transpose Directive 98/7 reference to the situation prevailing in the within the prescribed period. It merely Member State at the end of the period laid points out that it was not possible to down in the reasoned opinion. 3The sub- complete the procedure for adopting the ject-matter of the action is determined by transposition measures in the sixth parlia- the Commission's reasoned opinion. Even mentary session. In the meantime, the where the default referred to in that Spanish Minster for Justice has drawn up opinion is remedied after the expiry of the an appropriate draft law which has already period prescribed in accordance with the been approved by the Government and is second paragraph of Article 226 EC, there now only awaiting the adoption by the is still an interest in pursuing the action in Cortes Generales. order to establish the basis of liability which a Member State may incur as a result of its default towards other Member States, the Community or private parties. 4 Spain does not dispute the contention that it failed to transpose Directive 98/7 within 6. According to settled case-law, the ques- the prescribed period. The Commission's tion whether a Member State has failed to application must therefore be accepted.

3 — Case C-147/00 Commission v France [2001] ECR I-2387, p aragraph 26; Case C-366/00 Commission v Luxembourg [2002] ECRI-1749,paragraph 10. 4 — Case C-365/97 Commission v Italy [1999] ECR I-7773, paragraph 45; Case 361/88 Commission v Germany [1991] ECR I-2567, paragraph 31.

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