Opinion of the Advocate General — ECLI:EU:C:2004:404
Date: 2004-07-01
Language of the case: French
Based on: Treaty establishing the European Atomic Energy Community (1957)
Subject matter: Health and safety;Euratom matters
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: France

Summary of the Judgment 1. Actions for failure to fulfil obligations – Right of the Commission to bring judicial proceedings – To be exercised at its discretion – Limits (Art. 141 EA) 2. Actions for failure to fulfil obligations – Subject-matter of the proceedings – Specification in the pre-litigation procedure – Fundamental change in the national provisions between the expiry of the period laid down for compliance with the reasoned opinion and the lodging of the application – New reasoned opinion (Art. 141 EA) 1. Under the system established by Article 141 EA, the Commission enjoys a discretion as to whether to bring proceedings for failure to fulfil obligations and it is not for the Court to consider whether the exercise of that discretion is appropriate. By contrast, it is incumbent on the Court to consider, if appropriate, whether an action under that article is inadmissible as having been brought out of time or as constituting a misuse of procedure. (see paras 16-17) 2. The proper conduct of the pre-litigation procedure provided for in Article 141 EA constitutes an essential guarantee required by the Treaty not only in order to protect the rights of the Member State concerned but also to ensure that any contentious procedure will have a clearly defined dispute as its subject-matter. Thus, where the relevant national provisions have fundamentally changed between the expiry of the period laid down for compliance with the reasoned opinion and the lodging of the application, that change in circumstances may render the judgment to be given by the Court otiose. In such situations, it may be preferable for the Commission not to bring an action but to issue a new reasoned opinion precisely identifying the complaints which it intends pursuing, having regard to the changed circumstances. (see paras 20-21)