Opinion of the Advocate General — ECLI:EU:C:2002:503
Date: 2002-09-17
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Free movement of workers
Procedure: Action for failure to fulfil obligations - successful
Origin: Ireland

Summary of the Judgment 
1. Actions for failure to fulfil obligations — P re-litigation procedure — Subject-
matter — Delimitation of the subject-matter of the action 
(Art. 226 EC) 
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SUMMARY — CASE C-362/01 
2 Actions for failure to fulfil obligations — Pre-litigation procedure — Reasoned 
opinion not taking into account information provided in response to a letter of formal 
notice — Bearing on admissibility — Limits 
(Art. 226 EC) 
1. The purpose of the pre-litigation pro­
cedure laid down in Article 226 EC is 
to give the Member State concerned an 
opportunity to comply with its obli­
gations under Community law or to 
avail itself of its right to defend itself 
against the complaints made by the 
Commission. The proper conduct of 
the pre-litigation procedure constitutes 
an essential guarantee required by the 
Treaty not only in order to protect the 
rights of the Member State concerned, 
but also so as to ensure that the 
contentious procedure will have as its 
subject-matter a clearly defined dis­
pute. 
(see paras 16-17) 
2. So far as concerns an action for failure 
to fulfil obligations by having failed to 
transpose a directive, there being no 
provision of Community law penalis­
ing failure to respond to the letter of 
formal notice within the period fixed 
by the Commission by rendering the 
Member State's observations inadmiss­
ible, the Commission is required to set 
out, in its reasoned opinion, its assess­
ment of the observations received after 
that period had expired, before spec­
ifying which complaints it intended to 
pursue. 
Nevertheless, when a Member State 
does no more in its reply than 
announce the future adoption of imple­
menting measures, the fact that the 
Commission fails to take account of 
those observations has no effect on the 
definition of the subject-mater of the 
dispute and thus does not make it 
impossible for the Member State to 
put an end to its infringement and does 
not compromise its rights of defence. 
In those circumstances, the reasoned 
opinion cannot be regarded as vitiated 
by a substantive defect capable of 
rendering the action inadmissible. 
(see paras 19-21) 
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