Avis juridique important

Judgment of the Court (Fifth Chamber) of 6 July 1995. - Commission of the European Communities v Hellenic Republic. - Failure to fulfil obligations - Directive 92/44/EEC - Telecommunication - Open network provision to leased lines. - Case C-259/94. European Court reports 1995 Page I-01947

Summary Parties Grounds Decision on costs Operative part

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Member States ° Obligations ° Implementation of directives ° Failure to implement ° Justification ° Not permissible

(EC Treaty, Art. 169)

A Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with the obligations and time-limits laid down in a directive.

In Case C-259/94,

Commission of the European Communities, represented by Dimitrios Gouloussis, Legal Adviser, and Anders Christian Jessen, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of M. Gómez de la Cruz, also of the Commission' s Legal Service, Wagner Centre, Kirchberg,

applicant,

v

Hellenic Republic, represented by Panagiotis Mylonopoulos, Legal Associate in the Special Legal Affairs Department of the Ministry of Foreign Affairs, and Ioanna Kiki, Secretary in the same Department, acting as Agents, with an address for service in Luxembourg at the Greek Embassy, 117 Val Sainte Croix,

defendant,

APPLICATION for a declaration that, by omitting to bring into force and, in the alternative, to notify to the Commission within the period prescribed the laws, regulations and administrative provisions necessary to comply in full with Council Directive 92/44/EEC of 5 June 1992 on the application of open network provision to leased lines (OJ 1992 L 165, p. 27), the Hellenic Republic has failed to fulfil its obligations under the EC Treaty,

THE COURT (Fifth Chamber),

composed of: C. Gulmann, President of the Chamber, P. Jann, J.C. Moitinho de Almeida, D.A.O. Edward (Rapporteur) and L. Sevón Judges,

Advocate General: M.B. Elmer,

Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 17 May 1995,

gives the following

Judgment

1 By application lodged at the Court Registry on 20 September 1994, the Commission of the European Communities brought an action under Article 169 of the EC Treaty for a declaration that, by omitting to bring into force and, in the alternative, to notify to the Commission within the period prescribed the laws, regulations and administrative provisions necessary to comply in full with Council Directive 92/44/EEC of 5 June 1992 on the application of open network provision to leased lines (OJ 1992 L 165, p. 27), the Hellenic Republic has failed to fulfil its obligations under the EC Treaty.

2 The first paragraph of Article 15 of the directive provides that the Member States are to adopt the measures necessary to comply therewith by 5 June 1993.

3 Since the Commission was not informed by the Hellenic Republic that the directive had been transposed into national law, the Commission sent it a letter of formal notice dated 9 August 1993. No reply was received to that letter, with the result that on 7 February 1994 the Commission issued a reasoned opinion requesting the Hellenic Republic to comply with the provisions of the directive within a period of two months. The Greek Government also failed to reply to the reasoned opinion, whereupon the Commission brought the present action. In its application it points out that under Article 189 of the Treaty a directive is binding upon each Member State to which it is addressed as to the result to be achieved.

4 The Greek Government does not dispute the fact that the directive has not been transposed into national law within the prescribed period. It explains that the principal cause of the delay was that, in its view, transposition of the directive was not feasible before the statutory framework relating to the telecommunications sector was enacted and that the measures necessary for transposition are in the process of being adopted.

6 It must therefore be held that, by omitting to bring into force within the period prescribed the laws, regulations or administrative provisions necessary to comply in full with the directive, the Hellenic Republic has failed to fulfil its obligations under the Treaty.

Costs

7 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party' s pleadings. Since the Commission asked that the Hellenic Republic be ordered to pay the costs and the latter has failed in its submissions, it must be ordered to pay the costs.

On those grounds,

THE COURT (Fifth Chamber)

hereby declares:

1. By omitting to bring into force within the period prescribed the laws, regulations and administrative provisions necessary to comply in full with Council Directive 92/44/EEC of 5 June 1992 on the application of open network provision to leased lines, the Hellenic Republic has failed to fulfil its obligations under the EC Treaty.

2. The Hellenic Republic is ordered to pay the costs.