CELEX: 62002CJ0211
Failure by a Member State to fulfil obligations
Failure to transpose Directive 97/66/EC within the prescribed periods

By application lodged at the Court Registry on 4 June 2002, the Commission of the European Communities brought an action under
Article 226 EC seeking a declaration that, 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 (OJ 1998 L 24, p. 1) (
the Directive), the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive.
Legal framework
The Directive seeks to guarantee an equivalent level of protection of fundamental rights and freedoms, in particular the right
to privacy, in all Member States with respect to the processing of personal data in the telecommunications sector and to ensure
the free movement of such data and of telecommunications equipment and services in the Community.
Article 15 of the Directive required Member States to bring into force the laws, regulations and administrative provisions
necessary to comply with the provisions of the Directive, with the exception of Article 5 thereof, not later than 24 October
1998 and 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, and to inform the Commission accordingly.
Pre-litigation procedure
In accordance with the procedure set out in Article 226 EC, having given the Grand Duchy of Luxembourg an opportunity to submit
its observations, the Commission, by letters of 23 July 1999 and 25 July 2001, addressed two reasoned opinions to that Member
State, requesting it to adopt, within two months of notification of each of those opinions, the measures necessary to comply
with its obligations under the Directive, with the exception of Article 5 thereof, and with its obligations under Article 5
respectively.  In the absence of any reply to those reasoned opinions by the Grand Duchy of Luxembourg, the Commission brought
the present action.
The failure to fulfil obligations
The Luxembourg Government does not deny that it failed to transpose the provisions of the Directive within the periods prescribed
therein.  It points out that transposition is at present under way and sets out the reasons for that delay.
Suffice it in this regard to note that, according to settled case-law, the question whether a Member State has failed to fulfil
its obligations must be determined by reference to the situation prevailing in that Member State at the end of the period
laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see,
inter alia
, Case C-173/01
Commission
v
Greece
[2002] ECR I-6129, paragraph 7).
Likewise, it follows from settled case-law that a Member State may not plead provisions, practices or circumstances existing
in its internal legal order in order to justify a failure to comply with the obligations and time-limits laid down in a directive
(see,
inter alia
, Case C-286/01
Commission
v
France
[2002] ECR I-5463, paragraph 13).
It must accordingly be held that, by failing, within the prescribed periods, to adopt the laws, regulations and administrative
provisions necessary to comply with the Directive, the Grand Duchy of Luxembourg has failed to fulfil its obligations thereunder.
Costs
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.  As the Commission has applied for costs to be awarded against the Grand
Duchy of Luxembourg and as the latter has been unsuccessful, the Grand Duchy of Luxembourg must be ordered to pay the costs.
On those grounds,
THE COURT (Fourth Chamber)
hereby:
1.
Declares that, by failing, within the prescribed periods, 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;
2.
Orders the Grand Duchy of Luxembourg to pay the costs.
Timmermans
Edward
La Pergola
Delivered in open court in Luxembourg on 6 March 2003.
R. Grass
C.W.A. Timmermans
Registrar
President of the Fourth Chamber
–
Language of the case: French.