# C_2004273EN.01001901.xml

| 6.11.2004 | EN | Official Journal of the European Union | C 273/19 |
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6.11.2004

EN

Official Journal of the European Union

C 273/19

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Action brought on 10 September 2004 by the Commission of the European Communities against the French Republic

(Case C-389/04)

(2004/C 273/32)

An action against the French Republic was brought before the Court of Justice of the European Communities on 10 September 2004 by the Commission of the European Communities, represented by A. Bordes and K. Simonssen, acting as Agents, with an address for service in Luxembourg.

The Commission of the European Communities claims that the Court should declare:

| — | that firstly, by failing to transpose correctly the first paragraph of Article 22 of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service (1), concerning the requirement of operational independence as between the national regulatory authority and postal operators, and by maintaining in force legislation which does not guarantee the regulatory body of the postal sector sufficient operational independence vis-à-vis the public postal operator, La Poste, |
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that firstly, by failing to transpose correctly the first paragraph of Article 22 of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service (1), concerning the requirement of operational independence as between the national regulatory authority and postal operators, and by maintaining in force legislation which does not guarantee the regulatory body of the postal sector sufficient operational independence vis-à-vis the public postal operator, La Poste,

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| — | and that secondly, by failing to transpose within the period prescribed Directive 2002/39/EC of the European Parliament and of the Council of 10 June 2002 amending Directive 97/67/EC with regard to the further opening to competition of Community postal services (2), |
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and that secondly, by failing to transpose within the period prescribed Directive 2002/39/EC of the European Parliament and of the Council of 10 June 2002 amending Directive 97/67/EC with regard to the further opening to competition of Community postal services (2),

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| — | the French Republic has failed to fulfil its obligations under the first paragraph of Article 22 and Article 24 of Directive 97/67/EC, and Article 2 of Directive 2002/39/EC. |
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the French Republic has failed to fulfil its obligations under the first paragraph of Article 22 and Article 24 of Directive 97/67/EC, and Article 2 of Directive 2002/39/EC.

order the French Republic to pay the costs.

Pleas in law and main arguments:

Pursuant to Article 22 of Directive 97/67/EC, the French Republic has designated the Minister for Economic Affairs, Finance and Industry, who is the minister responsible for postal services, as the national regulatory authority for the postal sector. At the same time, this minister is head of the directorates-general for industry, information technology and postal services (DIGITIP) set up within the Ministry of Economic Affairs, Finance and Industry, which performs the duties of supervising La Poste through its subdirectorate for postal services. In the context of a public undertaking, the concept of supervision encompasses certain tasks and responsibilities, connected with the exercise of the right to property and with the economic and financial performance of La Poste, such as the establishment of strategic guidelines, the services to be offered in addition to the universal service and pricing policy in relation to such services, involvement in the selection of board members of the undertaking, acquisition of an interest in other undertakings etc., whose performance should be kept separate from regulatory tasks in order to comply with the requirement of operational independence as laid down by the Postal Directive. This requirement aims to preclude any risk of a conflict of interests arising between the national regulatory authority responsible for adopting legislation applicable to the postal sector and for verifying its implementation, and undertakings offering goods and services in this sector. In the case in question such a conflict of interests exists, since the two tasks are carried out within the same ministry. Consequently, the effectiveness of Article 22, first paragraph, of Directive 97/67/EC is not guaranteed.

Furthermore, the time-limit for transposition of Directive 2002/39/EC expired on 31 December 2002.

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(1)  OJ L 15, 21.1.1998, p. 14.

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(2)  OJ L 176, 5.7.2002, p. 21.

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