Opinion of the Advocate General — ECLI:EU:C:2001:194
Date: 2001-03-29
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Freedom to provide services
Procedure: Action for failure to fulfil obligations - successful
Origin: Italy

summary concerning the transposition of the provisions of Directive 97/36 into Italian law on 22 November 1999. This list confirms the letter of 29 March 1999, according to which Draft Law d.d.l. A.S. No 1138 is intended to transpose certain provisions of the directive including the proposed amendments formulated by the Government. Even after the lodging of the defence on 14 September 1999, that transposition has yet to take place. Accordingly, the Italian Republic does not contest the charge, made in the application, that it has not transposed the directive within the prescribed period. 5. The Court has consistently held that any remedying of the failure to fulfil obligations after the action is brought does not affect the merits of the action. The subject-matter of the action is determined by the Commission's reasoned opinion. Even where the default has been remedied after the time-limit prescribed by the second paragraph of Article 226 EC has expired, there is still an interest in pursuing the action in order to establish the basis of liability which a Member State may incur, as a result of its default, towards other Member States, the Community or private parties. (4) Therefore, the fact that Draft Law d.d.l. A.S. No 1138 has since been enacted does not affect the merits of the present action. Consequently, judgment must be given in the terms sought by the Commission. 6. The Commission also claims that the Court should order the Italian Republic to pay the 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. Conclusion 7. In the light of the foregoing considerations, I propose that the Court should: (1) declare that, by failing to transpose, within the prescribed period, Article 1(1), (2), (3), (4), (12), (14), (15) and (18) of Council Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, the Italian Republic has failed to fulfil its obligations under Article 10 EC, read in conjunction with Article 2 of the said directive. (2) order the Italian Republic to pay the costs. 1: - Original language: German. 2: - OJ 1997 L 202, p. 60. 3: - D.d.l. A.S. = disegno di legge Atto Senato, draft law - act of the Senate. 4: - Case C-365/97 Commission v Italy [1999] ECR I-7773, paragraph 45; Case C-361/88 Commission v Germany [1991] ECR I-2567, paragraph 31.