Opinion of the Advocate General — ECLI:EU:C:2003:223
Date: 2003-04-10
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social Policy
Procedure: Action for failure to fulfil obligations - inadmissible
Origin: Italy

Summary of the Judgment 
1. Actions for failure to fulfil obligations — Examination of the merits by the Court — 
Situation to be taken into consideration — Situation on expiry of the period laid down 
by the reasoned opinion 
(Art. 226 EC) 
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SUMMARY — CASE C-145/01 
2. Actions for failure to fulfil obligations — Pre-litigation procedure — Letter of formal 
notice — Delimitation of the subject-matter of proceedings — Reasoned opinion 
referring to rules other than those cited in the letter of formal notice — Inadmissibility 
of the action 
(Art. 226 EC) 
1. In an action under Article 226 EC, the 
question whether a Member State has 
failed to fulfil its obligations must be 
determined by reference to the situ­
ation prevailing in the Member State at 
the end of the period laid down in the 
reasoned opinion and, in accordance 
with the second pa rag raph of 
Article 226 EC, if a Member State has 
put a stop to the infringement before 
the end of that period, the Commission 
may no longer bring an action before 
the Court of Justice. 
(see para. 15) 
2. In the system established by Article 226 
EC, the purpose of the pre-litigation 
procedure is to give the Member State 
concerned an opportunity 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. The proper 
conduct of that procedure thus con­
stitutes an essential guarantee required 
by the Treaty in order to protect the 
rights of the Member State concerned. 
It is only when that guarantee is 
observed that the contentious pro­
cedure before the Court can enable it 
to judge whether the Member State has 
in fact failed to fulfil the obligations 
which the Commission alleges it has 
breached. More specifically, the pur­
pose of the letter of formal notice in the 
pre-litigation procedure is 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. It follows that the reasoned 
opinion and the application made to 
the Court pursuant to the second 
paragraph of Article 226 EC are 
flawed, with regard to the rights of 
the defence, since they refer to rules of 
Community law other than those cited 
in the letter of formal notice and since 
the change in the legal situation is 
likely to have affected the assessment 
of the compatibility of the national 
legislation in question with Commu­
nity law. 
(see paras 17-18) 
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