Opinion of the Advocate General — ECLI:EU:C:2010:514
Date: 2010-09-14
Language of the case: Portuguese
Subject matter: Right of establishment;Freedom to provide services;Free movement of workers
Procedure: Action for failure to fulfil obligations - unfounded
Origin: Portugal

Summary of the Judgment 1. Actions for failure to fulfil obligations – Subject-matter of the dispute – Determination during the pre-litigation procedure – Adjustment to a change in Union law – Lawfulness – Conditions (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 – Situation of uncertainty resulting from particular circumstances arising during the legislative procedure – No failure to fulfil obligations (Arts 43 EC, 45, first para., EC and 226 EC; European Parliament and Council Directive 2005/36) 1. In an action for failure to fulfil obligations, although the claims as stated in the application cannot as a rule be extended beyond the infringements alleged in the operative part of the reasoned opinion and in the letter of formal notice, the fact nevertheless remains that the Commission has standing to seek a declaration that a Member State has failed to fulfil obligations which were created in the original version of a Union measure, subsequently amended or repealed, and which were maintained in force under the provisions of a new Union measure. Conversely, the subject-matter of the dispute may not be extended to obligations arising under new provisions which do not correspond to those arising under the original version of the measure concerned, for otherwise it would constitute a breach of the essential procedural requirements of infringement proceedings. (see para. 42) 2. When, in the course of the legislative procedure, particular circumstances, such as the failure of the legislature to adopt a clear position or the failure clearly to determine the ambit of a provision of Union law, give rise to a situation of uncertainty, it is not possible to conclude that, at the end of the period prescribed in the reasoned opinion, there existed a sufficiently clear obligation for the Member States to transpose a directive. (see paras 54-56)