Opinion of the Advocate General — ECLI:EU:C:1997:448
Date: 1997-09-30
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - inadmissible
Origin: Italy

Summary of the J u d g m e n t 
1. Actions for failure to fulfil obligations — Pre-litigation procedure — Subject-matter— Rea­
soned opinion — Content — Delimitation of the subject-matter of the action 
(EC Treaty, Art. 169) 
2. Member States — Obligations — Failure to fulfil obligations — Retention of a national pro­
vision incompatible with Community Uw — Not permissible irrespective of whether or not 
the provision of Community law at issue is directly applicable 
3. Acts of the institutions — Directives — Implementation by the Member States — Directive 
intended to confer rights on individuals — Transposition without legislative action — Not 
permissible 
(EC Treaty, Art. 189, third para.) 
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SUMMARY — CASE C-207/96 
1. In the context of an action for failure to 
fulfil obligations, the purpose of the pre-
litigation procedure is to give the Mem­
ber State concerned an opportunity, on 
the one hand, to comply with its obliga­
tions under Community law and, on the 
other, effectively to put forward its 
defence to the complaints made by the 
Commission. 
The subject-matter of an action brought 
under Article 169 is therefore delimited 
by the pre-litigation procedure provided 
for by that article. Consequently, the 
action cannot be founded on any com­
plaints other than those formulated in the 
reasoned opinion, which must contain a 
cogent and detailed exposition of the rea­
sons which led the Commission to the 
conclusion that the Member State con­
cerned had failed to fulfil one of its obli­
gations under the Treaty. 
2. The incompatibility of national legislation 
with Community provisions, even provi­
sions which are direcdy applicable, can 
be finally remedied only by means of 
national provisions of a binding nature 
which have the same legal force as those 
which must be amended. 
3. The provisions of a directive must be 
implemented with unquestionable bind­
ing force and with the specificity, preci­
sion and clarity necessary to satisfy the 
need for legal certainty, which requires 
that, in the case of a directive intended to 
confer rights on individuals, the persons 
concerned must be enabled to ascertain 
the full extent of their rights. 
That is not the case where, because a 
statutory provision incompatible with a 
provision in a directive has been retained 
in a Member State, individuals are in a 
position of uncertainty as to their legal 
situation and exposed to unjustified 
criminal proceedings. The obligation on 
national courts to secure the full effect of 
the provision of the directive at issue by 
not applying any contrary national provi­
sion cannot have the effect of amending a 
statutory provision. 
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