«(Failure of a Member State to fulfil obligations – No proper letter of formal notice – Application inadmissible)»

1.. Actions for failure to fulfil obligations – Examination of the merits by the Court – Situation to be taken into consideration – Situation on expiry of the period laid down by the reasoned opinion (Art. 226 EC)

2.. Actions for failure to fulfil obligations – Pre-litigation procedure – Letter of formal notice – Delimitation of the subject-matter of proceedings – Reasoned opinion referring to rules other than those cited in the letter of formal notice – Inadmissibility of the action (Art. 226 EC)

JUDGMENT OF THE COURT (Sixth Chamber) 5 June 2003 (1)

((Failure of a Member State to fulfil obligations – No proper letter of formal notice – Application inadmissible))

In Case C-145/01,

applicant,

v

defendant,

APPLICATION for a declaration that, by maintaining in force Article 47(5) and (6) of Law No 428 of 29 December 1990 laying down provisions for compliance with the obligations arising from Italy's membership of the European Communities (Community Law for 1990) (ordinary supplement to GURI No 10 of 12 January 1991, p. 5), which:

the Italian Republic has failed to fulfil its obligations under Council Directive 77/187/EEC of 14 February 1977 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of businesses (OJ 1977 L 61, p. 26), in particular Articles 3 and 4 thereof,

THE COURT (Sixth Chamber),,

composed of: J.-P. Puissochet (Rapporteur), President of the Chamber, R. Schintgen, C. Gulmann, F. Macken and J.N. Cunha Rodrigues, Judges,

Advocate General: P. Léger,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 10 April 2003,

gives the following

the Italian Republic has failed to fulfil its obligations under Council Directive 77/187/EEC of 14 February 1977 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of businesses (OJ 1977 L 61, p. 26), in particular Articles 3 and 4 thereof.

Member States may provide that, after the date of transfer ... and in addition to the transferee, the transferor shall continue to be liable in respect of obligations which arose from a contract of employment or an employment relationship.

Member States may limit the period for observing such terms and conditions, with the provision that it shall not be less than one year....

...

and, or alternatively, that,

...

the Italian Republic has failed to fulfil its obligations under Directive 77/187 ... and in particular Articles 3 and 4 thereof. In accordance with the second paragraph of Article 226 EC, the Commission requests the Italian Republic to take the measures necessary to comply with this reasoned opinion within two months of its notification.

On those grounds,

THE COURT (Sixth Chamber)

hereby:

Puissochet

Schintgen

Gulmann

Macken

Cunha Rodrigues

Delivered in open court in Luxembourg on 5 June 2003.

R. Grass

J.-P. Puissochet

Registrar

President of the Sixth Chamber