C-392/01
ECLI:EU:C:2002:576
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OPINION OF MRS STIX-HACKL — CASE C-392/01
OPINION OF ADVOCATE GENERAL STIX-HACKL delivered on 10 October 2002 1
1. By its application under Article 226 EC, 3. Since no implementing provisions had received at the Court of Justice on 10 Oc- been communicated to the Commission by tober 2001, the Commission seeks a dec- expiry of the implementation period on laration that, by failing to adopt the laws, 23 April 2000 and the Commission had regulations and administrative provisions received no other information in that necessary to comply with Directive regard, it initiated the Treaty infringement 97/55/EC of the European Parliament and procedure. Having given the Kingdom of of the Council of 6 October 1997 amend- Spain an opportunity to submit its obser- ing Directive 84/450/EEC concerning mis- vations and received no reply within the leading advertising so as to include com- relevant time-limit, it issued a reasoned parative advertising, 2or, in any event, by opinion on 9 March 2001 in which it called failing to inform the Commission thereof, on the Kingdom of Spain to adopt the the Kingdom of Spain has failed to fulfil its necessary measures within two months and obligations under that directive. The Com- to inform the Commission thereof. mission also claims that the Kingdom of Spain should be ordered to pay the costs.
4. In their reply of 25 June 2001, the Spanish authorities stated that transposi- tion of the directive into national law required a supplement to Law 34/88 of 11 November 1988 (General advertising law). In addition, the Spanish Government 2. According to Article 3(1) of the direc- stated that that law already included parts tive, the Member States were to bring into of the directive in question. force the necessary laws, regulations and administrative provisions at the latest 30 months after publication of the directive in the Official Journal of the European Com- munities, that is to say by 23 April 2000, and immediately inform the Commission thereof. 5. Having subsequently received neither a 1 — Original language: German. draft law nor an explanation as to which 2 — OJ 1997 L 290, p. 18. parts of the directive in question had
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COMMISSION v SPAIN
already been implemented by the above- therefore clear that the directive was not mentioned law, the Commission brought implemented within the relevant time-limit. the present action.
8. It is also settled case-law of the Court of Justice that the Member States may not rely 6. The Kingdom of Spain does not dispute on provisions of national law in order to that it was obliged to implement Directive justify the failure to implement a directive 97/55/EC within the prescribed time-limit. within the prescribed time-limit. 4 However, it submitted that the complex national procedure necessary to ensure implementation of the directive was at a very advanced stage. A final adoption of the draft law was expected at the end of April 2002. The application should there- fore be dismissed and the Commission should be ordered to pay the costs. 9. The obligation under Community law to implement the directive follows, on the one hand, directly from the directive and, on the other, from Article 249(3) EC and Article 10 EC.
7. It is settled case-law of the Court of Justice that the relevant time for determin- ing whether a Member State has failed to fulfil its obligations is the expiry of the period laid down in the reasoned opinion. 3 10. Since the Kingdom of Spain has thus That period expired on 9 May 2001 with- not complied with its obligation under out the measures required by the Commis- Community law, the Commission's appli- sion having been adopted. The Spanish cation should be allowed and a declaration Government in fact stated that it was made that that Member State has failed to working on the implementing law and that fulfil its obligations under the Treaty and the national procedure was in progress. It is must pay the costs.
3 — Case C-384/99 Commission v Belgium [2000] ECR 4 —Case C-139/97 Commission v Italy [1998] ECR I-605, I-10633, paragraph 16. paragraph 11.
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Conclusion
11. I therefore propose that the Court of Justice should give judgment as follows:
— By failing to adopt, within the prescribed time-limit, the laws, regulations and administrative provisions necessary to comply with Directive 97/55/EC of the European Parliament and of the Council of 6 October 1997 amending Directive 84/45 0/EEC concerning misleading advertising so as to include comparative advertising, the Kingdom of Spain has failed to fulfil its obligations under that directive.
— The Kingdom of Spain shall pay the costs.
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