Case C-350/02

Commission of the European Communities

v

Kingdom of the Netherlands

(Failure of a Member State to fulfil obligations – Processing of personal data and the protection of privacy in the electronic communications sector – Articles 6 and 9 of Directive 97/66/EC – Requirement for specific statement of grounds of complaint in the reasoned opinion)

Summary of the Judgment

1. Actions for failure to fulfil obligations – Pre-litigation procedure – Delimitation of the subject-matter of the dispute – Reasoned opinion – Detailed statement of grounds of complaint – Ground of complaint alleged in the application which, although set out in the letter of formal notice, was not set out in the reasoned opinion – Not permissible

(Art. 226 EC)

2. 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 in the reasoned opinion

(Art. 226 CE)

1. In an action for failure to fulfil obligations, whilst the letter of formal notice which comprises an initial succinct résumé of the alleged infringement, may be useful in construing the reasoned opinion, the Commission is none the less obliged to specify precisely in that opinion the grounds of complaint which it already raised more generally in the letter of formal notice and alleges against the Member State concerned, after taking cognisance of any observations submitted by it under the first paragraph of Article 226 EC. That requirement is essential in order to delimit the subject-matter of the dispute prior to any initiation of the contentious procedure provided for in the second paragraph of Article 226 EC and in order to ensure that the Member State in question is accurately apprised of the grounds of complaint maintained against it by the Commission and can thus bring an end to the alleged infringements or put forward its arguments in defence prior to any application to the Court by the Commission.

Therefore, a ground of complaint alleged in the Commission’s application which was set out in the letter of formal notice but was not set out in the reasoned opinion must be regarded as irregular.

(see paras 21, 28)

2. In the context of an action under Article 226 EC, the question whether a Member State has failed to fulfil its obligations must be determined as at the end of the period laid down in the reasoned opinion.

(see para. 31)

JUDGMENT OF THE COURT (First Chamber) 24 June 2004 (1)

(Failure of a Member State to fulfil its obligations – Processing of personal data and the protection of privacy in the electronic communications sector – Articles 6 and 9 of Directive 97/66/EC – Requirement for specific statement of grounds of complaint in the reasoned opinion)

In Case C-350/02,

applicant,

v

defendant,

APPLICATION for a declaration that, by failing to adopt all the laws, regulations and administrative provisions necessary to transpose into national law Articles 6 and 9 of 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 (OJ 1998 L 24, p. 1) or, at least, by not communicating those provisions to the Commission, the Kingdom of the Netherlands has failed to fulfil its obligations under the EC Treaty,

THE COURT (First Chamber),,

composed of: P. Jann, President of the Chamber, A. La Pergola, S. von Bahr, R. Silva de Lapuerta and K. Lenaerts (Rapporteur), Judges,

Advocate General: J. Kokott,

after hearing oral argument from the parties at the hearing on 13 November 2003 at which the Commission was represented by W. Wils, assisted by P. Gerard, expert, and the Kingdom of the Netherlands, by C. Wissels, acting as Agent, assisted by R.J.I. Dielemans, expert,

after hearing the Opinion of the Advocate General at the sitting on 29 January 2004,

gives the following

‘1.

2.

3.

4.

5.‘Member States shall ensure that there are transparent procedures governing the way in which a provider of a public telecommunications network and/or a publicly available telecommunications service may override the elimination of the presentation of calling line identification:

‘For the purpose referred to in Article 6(2) the following data may be processed:

Data containing the:

‘1.

2.

3.Grounds of complaint concerning incomplete transposition of Article 6 of Directive 97/66

Ground of complaint based on the incomplete transposition of Article 9 of Directive 97/66

On those grounds,

THE COURT (First Chamber)

hereby:

Jann

La Pergola

von Bahr

Silva de Lapuerta

Lenaerts

Delivered in open court in Luxembourg on 24 June 2004.

R. Grass

P. Jann

Registrar

President of the Chamber