Attachment order — ECLI:EU:C:2001:296
Date: 2001-05-29
Language of the case: French
Court formation: Full Court
Based on: Merger Treaty (1965)
Subject matter: Privileges and immunities
Concepts: Privileges and immunities
Procedure: Request concerning immunities - unfounded

Summary of the Judgment 
1. Actions for failure to fulfil obligations — Pre-litigation procedure — Letter of formal 
notice — Purpose 
(Art. 226 EC) 
2. Actions for failure to fulfil obligations — Pre-litigation procedure — Purpose — 
Time granted to the Member State concerned — Requirement that a reasonable length 
of time be allowed — Criteria for assessment 
(Art. 226 EC) 
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SUMMARY — CASE C-1/00 
3. Actions for failure to fulfil obligations — Commission decision to bring an action 
before the Court — Application of the principle of collegiality — Effect — Delib­
eration required of the college 
(Art. 226 EC) 
4. Actions for failure to fulfil obligations — Non-compliance with Commission deci­
sions — Grounds of defence — Challenge to the decisions' legality — Inadmissible 
(Arts 226 EC, 227 EC, 230 EC and 232 EC) 
5. Member States — Obligations — Failure to fulfil obligations — Justification based 
on its internal legal system — Not permissible — Force majeure — Lack of clarity and 
precision in the obligations imposed — Conditions 
(Art. 226 EC) 
1. The proper conduct of the pre-litiga-
tion procedure laid down in Arti­
cle 226 EC 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 any contentious proce­
dure will have a clearly defined dispute 
as its subject-matter. 
It follows from that function that the 
purpose of the letter of formal notice is, 
first, to delimit the subject-matter of 
the dispute and to indicate to the 
Member State, which is invited to 
submit its observations, the factors 
enabling it to prepare its defence and, 
second, to enable the Member State to 
comply before proceedings are brought 
before the Court. 
(see paras 53-54) 
2. In the context of an action for failure to 
fulfil obligations, the purpose of the 
pre-litigation procedure is to give the 
Member State concerned an opportu­
nity to comply with its obligations 
under Community law or to avail itself 
of its right to defend itself against the 
complaints made by the Commission. 
That dual purpose requires the Com­
mission to allow Member States a 
reasonable period to reply to letters of 
formal notice and to comply with 
reasoned opinions, or, where appropri­
ate, to prepare their defence. In order 
to determine whether the period 
allowed is reasonable, account must 
be taken of all the circumstances of the 
case. Thus, very short periods may be 
justified in particular circumstances, 
especially where there is an urgent 
need to remedy a breach or where the 
Member State concerned is fully aware 
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COMMISSION v FRANCE 
of the Commission's views long before 
the procedure starts. 
(see paras 64-65) 
3. The principle of collegiality is based on 
the equal participation of the Commis­
sioners in the adoption of decisions, 
from which it follows in particular that 
decisions should be the subject of 
collective deliberation and that all the 
members of the college of Commis­
sioners should bear collective responsi­
bility at the political level for all 
decisions adopted. Accordingly, a deci­
sion by the Commission to bring 
infringement proceedings against a 
Member State must be the subject of 
collective deliberation by the college of 
Commissioners and all the information 
on which that decision is based must be 
available to the members of the college. 
(see paras 79-80) 
4. The system of remedies set up by the 
Treaty distinguishes between actions 
under Articles 226 EC and 227 EC, 
which are directed to obtaining a 
declaration that a Member State has 
failed to fulfil its obligations, and those 
under Articles 230 EC and 232 EC, 
which are directed to obtaining judicial 
review of measures adopted by the 
Community institutions or of failure to 
act on their part. Those remedies have 
different objectives and are subject to 
different rules. In the absence of a 
provision of the Treaty expressly per­
mitting it to do so, a Member State 
cannot, therefore, properly plead the 
unlawfulness of decisions addressed to 
it as a defence to infringement proceed­
ings arising out of its failure to imple­
ment those decisions. 
(see para. 101) 
5. It is settled case-law that a Member 
State may not plead provisions, prac­
tices or circumstances existing in its 
internal legal system in order to justify 
a failure to comply with its obligations 
under Community law. 
Furthermore, a Member State which 
encounters temporarily insuperable dif­
ficulties preventing it from complying 
with its obligations under Community 
law may plead force majeure only for 
the period necessary in order to resolve 
those difficulties. 
Where there are difficulties in inter­
preting and consequently in imple­
menting a decision since the require­
ments imposed on all the Member 
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SUMMARY — CASE C-1/00 
States are neither clear nor precise, a 
Member State may, however, no longer 
plead force majeure once it has been 
fully informed by the Commission of 
the extent of its obligations under the 
decision and has had a reasonable 
period for implementing the decision, 
as interpreted and clarified. 
(see paras 130-131, 134-136) 
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