C-211/02

OPINION OF MR ALBER — CASE C-211/02

O P I N I O N OF ADVOCATE GENERAL ALBER delivered on 10 December 2002 1

1. In the present proceedings against the regulations and administrative provisions Grand Duchy of Luxembourg for failure to necessary to comply with the provisions of fulfil Treaty obligations, the Commission the Directive not later than 24 October requests the Court to: 1998. By way of derogation from this time-limit, Member States were required under the second subparagraph of Article 15(1) to bring into force the laws, regulations and administrative provisions necessary to comply with Article 5 of the Directive not later than 24 October 2000. (1) declare that, by failing to adopt the Under Article 15(4) Member States were laws, regulations and administrative required to communicate to the Commis- provisions necessary to comply with sion the text of the provisions of national Directive 97/66/EC of the European law adopted by them in the field covered by Parliament and of the Council of the Directive. 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecom- munications sector, 2the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

3. No legal provisions for the implemen- tation of the Directive were forwarded to the Commission either by 24 October 1998 (2) order the Grand Duchy of Luxembourg or by 24 October 2000. The Commission to pay the costs of the proceedings. for that reason first sent to the Luxembourg Government a letter of formal notice on 3 February 1999. By letter of 31 March 1999 draft legislation was sent to the Commission by the Office of the Permanent Representative of Luxembourg but without any indication of the date on which such 2. Article 15(1) of the Directive required legislation was likely to enter into force. Member States to bring into force the laws, The Commission subsequently sent to that Member State, by letter of 23 July 1999, a reasoned opinion calling for implemen- 1 — Original language: German. tation within two months. No reply to that 2 — OJ 1998 L 24, p. 1. letter was received. In view of the expiry on

7. Under Article 69(2) of the Rules of 5. It is settled case-law that the question Procedure, the unsuccessful party is to be whether a Member State has failed to fulfil ordered to pay the costs if they have been its obligations must be determined by applied for in the successful party's plead- reference to the situation prevailing in that ings. As the Commission has applied for Member State at the end of the period laid costs to be awarded against the Grand down in the reasoned opinion. 4Nor can a Duchy of Luxembourg and as the latter will be unsuccessful on the basis of the views set out above, the Grand Duchy of Lux- 3 — Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of embourg should be ordered to pay the personal data and the protection of privacy in the electronic costs. communications sector (Directive on privacy and electronic communications) (OJ 2002 L 201, p. 37). 4 — See, inter alia, Case C-147/00 Commission v France [2001] ECR 1-2387, paragraph 26; Case C-364/00 Commission v Netherlands (2002] ECR I-4177, paragraph 8; and Case 5 — See, inter alia, Case C-78/00 Commission v Italy [2001] C-351/01 Commission v France [2002] ECR I-8101, para- ECR I-8195, paragraph 38, and Case C-351/01, cited in graph 9. footnote 4, paragraph 9.

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OPINION OF MR ALBER — CASE C-211/02

Conclusion

8. I propose that the Court rule as follows:

(1) By failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive.