62002CC0350_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I – Introduction
1. The Commission is pursuing the present infringement proceedings against the Kingdom of the Netherlands because it considers that the Netherlands has failed to bring into force the national laws, regulations and administrative provisions necessary to transpose Articles 6 and 9 of Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector (2) (hereinafter ‘Directive’ or ‘Directive 97/66’) completely and correctly within the time limit allowed. The Netherlands is of the opinion that the proceedings are in part inadmissible and in part unfounded, but does not, moreover, dispute that the transposition was inadequate.
II – Facts and pre-litigation procedure
2. Article 15 of Directive 97/66 obliges the Member States to bring into force the laws, regulations and administrative provisions necessary for them to transpose the Directive not later than 24 October 1998.
3. On 19 October 1998 the Netherlands enacted the Telecommunications Law (hereinafter ‘Telecommunications Law’ or ‘TL’), and by letter dated 7 January 1999 communicated it to the Commission as the measure transposing the Directive. Article 11.5 TL serves to transpose Article 6 of the Directive.
4. On examining the Netherlands Telecommunications Law, the Commission came to the view that it did not adequately transpose Articles 6, 9, 11 and 12 of the Directive. For that reason, on 6 November 2000 it sent a letter of formal notice to the Netherlands, in which it alleged inter alia a failure to transpose Article 6 of the Directive adequately (point 3.1) and a failure to transpose Article 9(a) of the Directive (point 3.2).
5. As regards Article 6 of the Directive, in point 3.1 of the letter of formal notice the Commission complained that
– Article 6(1) of the Directive required that all data not excluded by Article 6(2) to (4) of the Directive were to be erased or made anonymous; by contrast, Article 11.5(1) TL (the provision transposing it) required only that all data to be specified in a Royal Decree were to be erased. There would be complete transposition of the Directive only if the Decree contained a comprehensive list. Since the Commission had not received any supplementary provisions, it had therefore to conclude that Article 6(1) of the Directive had not been transposed completely;
– the terms in which Article 11.5(2) TL was couched were unclear, the provisions of paragraphs 2 to 5 of Article 6 of the Directive were each plainly treated as exceptions from Article 6(1) of the Directive, whereas on the Commission’s reading only paragraphs 2 and 3 provided for exceptions from paragraph 1 and the subsequent paragraphs related only to those exceptions;
– Article 11.5(3) TL provided that implementation of Article 11.5 TL would be provided for in a Royal Decree, which, however, had not been communicated to the Commission.
6. In point 3.2 of the letter of formal notice, the Commission complained that Article 9(a) of the Directive had not been transposed into national law at all.
7. By response dated 8 January 2001, the Netherlands replied to the Commission’s complaints concerning Article 6 of the Directive
– that Article 6(1) of the Directive had indeed not been correctly transposed by Article 11.5(1) TL, in particular because the Royal Decree provided for had not been enacted, but that an amendment to the Telecommunications Law in the process of being enacted would be supplemented by removing the reference in Article 11.5 TL to enactment of a Decree, thus achieving complete transposition of Article 6(1) of the Directive;
– that in its opinion, Article 11.5(2) TL correctly transposed Article 6(2) to (5) of the Directive as separate exceptions to Article 6(1) of the Directive, although the terms in which Article 6 of the Directive was couched were not wholly unambiguous; and
– that the Royal Decree had not yet been enacted, but that because of the amendment in the process of being enacted the need for such a decree would disappear.
8. As regards Article 9(a) of the Directive, the Netherlands stated in its response that this provision had indeed not yet been transposed, but that the current legislative process included a new Article 11.11 TL transposing it.
9. On 25 July 2001, the Commission sent the Netherlands a reasoned opinion in which it complained only of infringements of Articles 6 and 9(a) of the Directive – in one section relating to Article 6 of the Directive and another relating to Article 9(a) of the Directive. As regards the dispute as to whether paragraphs 4 and 5 of Article 6 of the Directive were to be interpreted as additional exceptions to Article 6(1) of the Directive, only the following passage in the paragraph relating to Article 6 of the Directive is of relevance:
‘… The only exceptions from the obligations in Article 6(1) are contained in Article 6(2), (3) and (4).
On examining the relevant transposition provisions, the Commission concluded that Article 6 had not been transposed in full. It so stated in its letter of formal notice dated 6 November 2000.’
Thus, in its letter of formal notice and in its reasoned opinion the Commission described paragraph 4 either as an exception from paragraph 1 or as relating only to paragraph 2.
10. The reasoned opinion concluded by stating that the Commission would bring proceedings before the Court of Justice of the European Communities unless the Netherlands brought the necessary transposition measures into force within two months of receipt of the letter.
11. In response to the reasoned opinion, by letter dated 29 October 2001 the Netherlands informed the Commission that the amendment to Article 11.5 TL would not be subject to further supplementary amendment of the bill already going through the legislative process, since that would give rise to appreciable procedural delays. Instead, full transposition of Articles 6 and 9 of the Directive, in light of the Commission’s criticisms, would henceforth be effected by a separate bill, which had already been transmitted to various authorities for expert opinions.
12. Pending completion of this separate legislative procedure, Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (3) was adopted. Article 17 of this Directive requires the Member States to bring into force the provisions necessary to comply with the Directive before 31 October 2003. Article 19 of the Directive repeals Directive 97/66 (in dispute in the present case) with effect from that date. Thus, Directive 2002/58 replaces Directive 97/66 with effect from November 2003; however, the wording of Article 6 of each Directive is essentially the same.
III – Forms of order sought by the parties
13. By a document dated 30 September 2002, registered at the Court of Justice on 1 October 2002, the Commission brought an action against the Netherlands under Article 226 EC for failure to fulfil its obligations, seeking,
1. a declaration that, by failing to adopt all the laws, regulations and administrative provisions necessary to transpose Articles 6 and 9 of Directive 97/66 into national law, or in any event by not communicating those provisions to the Commission, the Kingdom of the Netherlands has failed to fulfil its obligations under the EC Treaty;
2. an order for costs against the Kingdom of the Netherlands.
14. Conversely, the Kingdom of the Netherlands contends that the Court should:
– Dismiss the Commission’s action, first, in so far as it claims that Article 6(2), (3), (4) and (5) of Directive 97/66 had not been transposed correctly and, second, in so far as it claims that Article 6 of Directive 97/66 had not been completely transposed in that the supplementary provisions referred to in Article 11.5(3) TL had not been communicated to the Commission.
IV – Legal framework
A – Community law
15. Recital 17 of Directive 97/66 states:
‘(17) Whereas the data relating to subscribers processed to establish calls contain information on the private life of natural persons and concern the right to respect for their correspondence or concern the legitimate interests of legal persons; whereas such data may only be stored to the extent that is necessary for the provision of the service for the purpose of billing and for interconnection payments, and for a limited time; whereas any further processing which the provider of the publicly available telecommunications services may want to perform for the marketing of its own telecommunications services may only be allowed if the subscriber has agreed to this on the basis of accurate and full information given by the provider of the publicly available telecommunications services about the types of further processing he intends to perform.’
16. Article 6 of the Directive provides:
‘Article 6
Traffic and billing data
1. Traffic data relating to subscribers and users processed to establish calls and stored by the provider of a public telecommunications network and/or publicly available telecommunications service must be erased or made anonymous upon termination of the call without prejudice to the provisions of paragraphs 2, 3 and 4.
2. For the purpose of subscriber billing and interconnection payments, data indicated in the Annex may be processed. Such processing is permissible only up to the end of the period during which the bill may lawfully be challenged or payment may be pursued.
3. For the purpose of marketing its own telecommunications services, the provider of a publicly available telecommunications service may process the data referred to in paragraph 2, if the subscriber has given his consent.
4. Processing of traffic and billing data must be restricted to persons acting under the authority of providers of the public telecommunications networks and/or publicly available telecommunications services handling billing or traffic management, customer enquiries, fraud detection and marketing the provider’s own telecommunications services and it must be restricted to what is necessary for the purposes of such activities.
5. Paragraphs 1, 2, 3 and 4 shall apply without prejudice to the possibility for competent authorities to be informed of billing or traffic data in conformity with applicable legislation in view of settling disputes, in particular interconnection or billing disputes.’
17. Article 9(a) of the Directive provides:
‘Article 9
Exceptions
Member States shall ensure that there are transparent procedures governing the way in which a provider of a public telecommunications network and/or a publicly available telecommunications service may override the elimination of the presentation of calling line identification:
(a) on a temporary basis, upon application of a subscriber requesting the tracing of malicious or nuisance calls; in this case, in accordance with national law, the data containing the identification of the calling subscriber will be stored and be made available by the provider of a public telecommunications network and/or publicly available telecommunications service;’
18. The Annex to the Directive provides:
‘ANNEX
List of data
For the purpose referred to in Article 6(2) the following data may be processed:
Data containing the:
– number or identification of the subscriber station,
– address of the subscriber and the type of station,
– total number of units to be charged for the accounting period,
– called subscriber number,
– type, starting time and duration of the calls made and/or the data volume transmitted,
– date of the call/service,
– other information concerning payments such as advance payment, payments by instalments, disconnection and reminders.’
B – National law
19. Article 11.5 TL enshrines the principle that data is to be erased or made anonymous (paragraph 1), provides exceptions to this principle (paragraph 2) and directs that implementing provisions be enacted by Royal Decree (paragraph 3).
20. Article 11.5(1) TL provides that, for the protection of personal data and private life, upon termination of a call providers of public telecommunications networks or services must erase or make anonymous traffic data which relates to subscribers or users and is to be particularised more specifically in a Royal Decree.
21. Article 11.5(2) TL provides that by way of exception to paragraph 1, the processing of traffic data is lawful to the extent necessary in order:
(a) to calculate the bill of the subscriber or of the person who has undertaken in law to the provider to pay the bill, or for the purpose of payments for interconnection or other forms of access;
(b) to enable the provider to undertake market research or to market its own telecommunications services, if the subscriber has given his consent thereto;
(c) to determine disputes … or …;
(d) to manage traffic;
(e) to provide customers with information concerning traffic data provided that such data relate to such customers;
(f) to detect fraud; or
(g) if it is lawful by or under a law.
22. Under Article 11.5(3) TL provisions implementing this Article are to be enacted by Royal Decree. In that connection the possible regulatory content is specifically indicated. The Decree may refer only to data which may be processed in conjunction with traffic data; to the purposes for which processing may take place; to the time limit within which processing is lawful; and to the persons who may be entrusted with processing.
V – Submissions of the parties and assessment
A – Admissibility
23. The Netherlands is of the opinion that the Commission’s action is inadmissible in so far as the Commission claims that Article 6(2) to (5) of the Directive has been incorrectly transposed by Article 11.5(2) TL.
1. Views of the parties
24. The Netherlands submits that the subject-matter of the action comprised four grounds of complaint: first, incomplete transposition of Article 6(1) of the Directive by Article 11.5(1) TL; second, incorrect transposition by Article 11.5(2) TL of Article 6(2) to (5) of the Directive; third, incomplete transposition of Article 6 of the Directive, the implementing provisions required by Article 11.5(3) TL not having been enacted, or communicated to the Commission; and fourth, the failure to transpose Article 9(a) of the Directive. However, the Commission’s reasoned opinion does not refer to the second ground of complaint. Accordingly, the Commission’s statement of claim extended in that regard the subject-matter of the action by comparison with the pre-litigation procedure, and according to the settled case-law of the Court, the action is inadmissible to that extent.
25. Furthermore, the reasoned opinion contains no response to the explanations provided by the Netherlands in its reply of 8 January 2001 as regards the transposition of Article 6(2) to (5) of the Directive. The absence of any substantive indications in the reasoned opinion makes it impossible for the Netherlands to exercise its rights of defence. In addition, the Commission has to prove a specific breach by the Netherlands of its obligations, but complained only of a lack of clarity of the Netherlands legislation, not of any specific breach. Finally, it was only at the hearing and not in the pre-litigation procedure that the Commission claimed that Article 6(4) of the Directive related to the exceptions in paragraphs 2 and 3 of Article 6 of the Directive.
26. Conversely, the Commission is of the view that its action comprises only two grounds of complaint: first, that the provisions necessary to transpose Article 6 of the Directive into national law had not been enacted, or at least had not been communicated to it; and second, that the provisions necessary to transpose Article 9 of the Directive into national law had not been enacted, or at least had not been communicated to it. Both complaints were made throughout, and accordingly the action is wholly admissible.
27. The reasoned opinion is thus limited to an overall summary of the arguments concerning Article 6 of the Directive because it was drafted as an answer to the Netherlands’ response of 8 January 2001, and because in that letter the Netherlands had likewise addressed in general terms the transposition of Article 6 of the Directive. Thus, the reasoned opinion must be read with the letter of formal notice, to which the reasoned opinion in any event refers. In any event, all the specific points complained of in the letter of formal notice were comprised in the overall summary of the arguments concerning Article 6 of the Directive, and it cannot be inferred from the terms of the reasoned opinion that the Commission wished to abandon this complaint.
2. Assessment
28. In essence, the parties are at variance as to whether the subject-matter of the present proceedings exceeds the scope of the reasoned opinion, for under the Court’s settled case-law, any new submission in the action is inadmissible: the subject-matter of infringement proceedings is delimited by the pre-litigation procedure, with the consequence that although an action may be narrower in scope than the reasoned opinion, it may not be more extensive. (4)
29. The reason why the Netherlands considers that the subject-matter of the dispute has been unlawfully extended, but the Commission does not, is chiefly attributable to the differing perceptions of the parties concerning the concept of the ground of complaint, for if the Commission’s view were upheld – whereby in every case the ground of complaint is always incomplete transposition of an article of the directive – the action would be admissible without further problem. There is no dispute that in its reasoned opinion the Commission dealt with the transposition of Article 6 of the Directive, with the result that this ‘ground of complaint’ was constantly present. Conversely, if the view of the Netherlands were upheld – to the effect that each specific complaint constitutes a distinct ground of complaint, then given the wording of the reasoned opinion it is by no means clear that the ‘ground of complaint’ alleging incorrect transposition by Article 11.5(2) TL of Article 6(2) to (5) of the Directive was contained therein.
30. Accordingly, the initial question arises as to (a) how broadly or narrowly the concept of a ground of complaint is to be construed, that is to say whether in the present case there are two or four grounds of complaint. Thereafter, it may be appropriate to question (b) whether the complaint of an incorrect transposition by Article 11.5(2) TL of Article 6(2) to (5) of the Directive was in fact sufficiently raised in the reasoned opinion.
a) Concept of a ground of complaint
31. The concept of a ground of complaint must necessarily be determined by the structure as well as the meaning and purpose of infringement proceedings, together with the relevant pre-litigation procedure. In that connection the Court has consistently held that the pre-litigation procedure under Article 226 EC is intended to safeguard the rights of defence of Member States, in particular by guaranteeing a lawful hearing; it is intended to inform the Member State of the specific conduct alleged by the Commission to constitute a failure to fulfil Treaty obligations and to give the Member State the opportunity either to comply with its obligations or to dispute the Commission’s complaint. (5) For the Member State to have this opportunity, the Commission has to give a sufficiently clear and detailed explanation of its complaint in its letter of formal notice, or at the latest in its reasoned opinion. (6) The Commission must clearly identify what provisions of Community law it considers the Member State in question to have infringed, and the factual and legal particulars on which it bases its opinion. (7) It is not competent subsequently to extend the scope of the dispute as thus defined. (8)
32. Accordingly, given that the purpose of Article 226 EC is to bring to an end infringements of Treaty obligations, and that the pre-litigation procedure is intended to enable the Member State to bring the infringement to an end; it is a necessary precondition that the Member State should be apprised of the actual conduct which is infringing its obligations. For that reason – and also to protect the Member States’ rights of defence – the Court requires the Commission’s letters in the pre-litigation procedure not only to identify the provisions of Community law which the Commission considers the Member State to have infringed but also to give a detailed and consistent statement of the matters of fact and law on which it founds that view. (9) It is on the basis of these specific facts and the Commission’s individual, legally relevant complaints that the Court in infringement proceedings examines the conduct of the Member State in the light of the pleadings to ascertain whether it is compatible with Community law.
33. Accordingly, the subject-matter of infringement proceedings is not constituted solely by the Commission’s conclusions – that is to say ultimately its claims (in the present case, for a declaration of a failure to transpose Articles 6 and 9 of the Directive) – but also by the actual facts, the legal arguments and the conclusions which the Commission draws from them. The ground or grounds of complaint in proceedings are thus determined by the individual legal complaints formulated by the Commission on the basis of the facts. (10) The Court’s assessment of the complaints determines which and how many different measures the Member State must take in order to restore conformity with the Treaty. Therefore, it follows from the meaning and purpose of Article 226 EC that the concept of a ground of complaint must be understood narrowly, as meaning the individual legal complaint.
34. In the present case, as the Netherlands correctly stated, (11) the Commission raised four substantively different complaints which relate to different provisions of the Directive and different provisions of the national transposition measure; if the Court were to find an infringement of the Treaty in relation to each of these four points, the Netherlands would be required to respond with four separate measures. Therefore, in the present case there are four grounds of complaint, which the Commission has to maintain throughout the proceedings.
b) Sufficiently clear and detailed maintenance of the complaint
35. If there are therefore four grounds of complaint, the second question arises, namely whether in its reasoned opinion the Commission maintained with sufficient clarity and detail its complaint of an incorrect transposition of Article 6(2) to (5) of the Directive by Article 11.5(2) TL. If the Netherlands were correct in the view that the second ground of complaint was not maintained in the reasoned opinion, the Netherlands would have had to infer therefrom that the Commission had abandoned this complaint as it had abandoned its complaints that Articles 11 and 12 of the Directive had not been transposed. In that case the statement of claim would constitute an unlawful extension of the subject-matter of the action as opposed to the reasoned opinion. (12) The Netherlands makes ultimately the same complaint when it states that the Commission argued only at the hearing and not already in the pre-litigation procedure that Article 6(4) of the Directive related only to the application of Article 6(2) and (3) of the Directive.
36. The Netherlands submits further that that part of the action was inadmissible on the ground that the reasoned opinion complained only of unclear wording in the Telecommunications Law, without specifying any specific breaches, and did not respond at all to the Netherlands’ explanation in its letter dated 8 January 2001 as to the transposition of Article 6(2) to (5) of the Directive. The Netherlands considers these matters to have unfairly (13) curtailed its rights of defence.
37. The Court normally applies stricter requirements of precision to reasoned opinions than to letters of formal notice which, in most cases, can be no more than initial, brief summaries of the allegations. (14) Conversely, the Court has held that a brief reasoned opinion can suffice where the letter of formal notice makes the allegations in detail and the reasoned opinion refers to the letter. (15) None the less, any lack of clarity in a reasoned opinion is interpreted against the Commission and can render the action inadmissible in regard to the unclear point. (16) The decisive point is that the letter must explain the complaints with sufficient clarity and detail to enable the Member State concerned to exercise its rights of defence: it must be clear to the Member State what it has to defend itself against. (17)
38. The Commission concedes that its reasoned opinion contains merely an overall summary of the arguments concerning Article 6 of the Directive, but none the less considered that it covered all the individual complaints raised in the letter of formal notice. However, the only reference in the reasoned opinion to the disputed transposition of Article 6(2) to (5) of the Directive is the Commission’s statement that it considers that only paragraphs 2 to 4 of Article 6 of the Directive contain exceptions to Article 6(1) of the Directive. (18) In the two sentences of the following paragraph, it is possible to discern in addition a reference to the overall arguments concerning transposition of Article 6 of the Directive contained in the letter of formal notice and thus to the second ground of complaint. (19)
39. In this passage the Commission does indeed imply that, as before, it does not regard Article 6(5) of the Directive as containing an exception to Article 6(1) of the Directive, the Commission having alleged in the letter of formal notice that the Netherlands had transposed Article 6(5) of the Directive as if it were an exception to Article 6(1) of the Directive. It may also be said that, contrary to the view of the Netherlands, there was no need for a more detailed or specific explanation of the complaint, since in its response to the letter of formal notice the Netherlands took precisely the position anticipated by the Commission in the letter of formal notice and expressly stated therein to be incompatible with the Directive. It might thus be concluded that in the present case a reference to the letter of formal notice which in that regard was more detailed was sufficient.
40. However, as regards the complaint at issue there is no clear reference to the letter of formal notice: the Commission merely explained that it had stated in the letter of formal notice that Article 6 had not been transposed completely. The three specific complaints were not mentioned, nor was there at least an overall reference to the arguments in the letter of formal notice. Moreover, the individual elements in the reasoned opinion which, when taken together, might be regarded as a reference to the complaint at issue are split between two paragraphs, and thus do not appear in the same context. In addition, the Commission expressed very inconsistent views in the letter of formal notice and the reasoned opinion as to which of paragraphs 2 to 5 of Article 6 of the Directive were exceptions to paragraph 1: sometimes it states that only paragraph 2 is a true exception, at other times it states that paragraphs 2 and 3 are exceptions and, in the reasoned opinion, it says that paragraphs 2, 3 and 4 are exceptions. The Commission’s analysis thus did not give the Netherlands a clear picture, and the wording of the reasoned opinion rather indicated that the Commission too was discerning more exceptions than before and was thus inclining to the Netherlands’ view. Finally, in its reasoned opinion the Commission tacitly abandoned the complaints it had made in its letter of formal notice as regards Articles 11 and 12 of the Directive, with the consequence that the Netherlands was entitled to expect the same as regards Article 6 of the Directive.
41. Thus, with a certain amount of goodwill the Commission’s maintained position may indeed be deduced from the reasoned opinion. However, the Netherlands cannot be required to show that degree of indulgence in construing the reasoned opinion; nor do the requirements of Article 226 EC as interpreted by the Court allow such indulgence to be shown. Although the Commission was allowed to give only a brief analysis in its reasoned opinion in the present case, it was still required unambiguously to maintain its previous position and to make the substance of that position clear beyond peradventure. As the foregoing analysis shows, the reasoned opinion did not manage to achieve that with sufficient clarity. The Commission’s action is therefore inadmissible as to this ground of complaint.
42. If, on the other hand, the Court were to come to a different conclusion on this question, it should be noted that the Netherlands’ further submissions challenging the admissibility of this part of the action do not carry conviction. In that regard, it has already been shown that it was unnecessary to respond in detail to the Netherlands’ reply of 8 January 2001, and that a clear reference to the analysis in the letter of formal notice would have been sufficient. (20) Moreover, the Commission’s analysis in its letter of formal notice was clear enough to enable the Netherlands to exercise its rights of defence, as is immediately borne out by the Netherlands’ response in its letter of 8 January 2001. In its letter of formal notice, the Commission adequately specified what it considered the Netherlands’ infringement to be, but even a complaint as to the lack of clarity of the provisions would in itself have been sufficient, since the Court has consistently held that directives must be transposed sufficiently precisely, clearly and transparently. (21) In so far as the Commission finally stated at the hearing that it considered Article 6(4) of the Directive to relate to paragraphs 2 and 3, that was merely a more detailed exposition of the legal arguments hitherto deployed by the Commission and not a new ground of complaint: the Commission had already stated in its letter of formal notice that paragraph 4 referred to the previous paragraphs.
3. Conclusion
43. The action is inadmissible in so far as the Commission alleges that Article 11.5(2) TL transposed Article 6(2) to (5) of the Directive incorrectly. The remainder of the action is admissible.
B – Substance
44. The Commission is of the view that the Netherlands failed to observe its obligations under the EC Treaty and under the Directive in that at the material time it had, first, only partially transposed Article 6(1) of the Directive in Article 11.5(1) TL, second, had transposed Article 6(2) to (5) of the Directive incorrectly in Article 11.5(2) TL, third, in the absence of the enactment or notification of implementing provisions under Article 11.5(3) TL, had only partially transposed Article 6 of the Directive, and fourth had not transpos ed Article 9(a) of the Directive.
45. The obligation to transpose the Directive within the applicable time limit arises under Article 10(1) EC in conjunction with Article 249(3) EC, and under Article 15(1) of the Directive which provide that transposition into national law had to be effected by no later than 24 October 1998. The Court has consistently held that the question whether there has been a failure to fulfil a Treaty obligation must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion. (22)
1. Transposition of Article 6(1) and Article 9(a) of the Directive
46. The Netherlands does not challenge the Commission’s submission that the Netherlands failed to fulfil its obligations under the EC Treaty and under the Directive in question because, by the relevant time, Articles 6(1) and 9(a) of the Directive had not been transposed, or transposed completely, into national law. Whilst, according to those submissions, plainly no national provisions had been enacted to transpose Article 9(a) of the Directive, Article 11.5(1) TL had been enacted to transpose Article 6(1) of the Directive, but requires the erasure of only such data as would be specified in a Royal Decree. Since no such Decree has hitherto been enacted, there has to date been no obligation to erase data which would satisfy the requirements of Article 6(1) of the Directive.
47. Accordingly, there must be a finding of failures to fulfil Treaty obligations in regard to the transposition of Articles 6(1) and 9(a) of the Directive.
2. Transposition of Article 6(2) to (5) of the Directive by Article 11.5(2) TL
48. It is true that it has been established above that the action is inadmissible in regard to this ground of complaint. However, should the Court reach a different conclusion on the question of admissibility, an analysis is provided below of the relevant legal questions.
a) Submissions of the parties
49. The Commission submitted that only paragraphs 2 and 3 of Article 6 of the Directive constitute actual exceptions to the principle in Article 6(1) of the Directive that data is to be erased or made anonymous. Article 6(4) of the Directive merely provided guidelines for the application of paragraphs 2 and 3, but did not create further provisions for exceptions to the principle in paragraph 1. Otherwise, the ‘exceptions’ in paragraph 4 would have had to be formulated with far greater precision. In particular, the term ‘traffic management’ was so broad as to be all-encompassing. Nor was paragraph 5 intended to create further exceptions to paragraph 1. By contrast, Article 11.5(2) TL transposed each of Article 6(2) to (5) of the Directive as a distinct exception to Article 6(1) of the Directive. It followed that the transposition was not compatible with the Directive.
50. By contrast, the Netherlands submitted that each of paragraphs 2 to 5 of Article 6 of the Directive created distinct exceptions to Article 6(1) of the Directive, and that Article 11.5(2) TL was accordingly consonant with the Directive. In particular, Article 6(4) of the Directive contained exceptions to paragraph 1, since paragraph 4 laid down not only categories of persons (thus detailed rules) but, as also in paragraphs 2 and 3, stated purposes for which traffic data could be processed. These exceptions were moreover essential for example to eliminate interference in telecommunications or to enable prevention of billing fraud. It also pointed out that the Commission’s submission was inconsistent, since sometimes it stated that only Article 6(2) and (3) of the Directive were exceptions, but at other times that Article 6(4) of the Directive was also an exception. In any event, the wording of the Directive was unclear, which the Netherlands had pointed out when Article 6 of Directive 2002/58 was being drafted, and permitted of the Netherlands’ interpretation.
b) Assessment
51. Both parties regard Article 6(1) of the Directive as the basic provision, under which personal telecommunications data are to be erased or made anonymous upon termination of the connection. Likewise, both parties regard Article 11.5(1) TL as transposing the principle in Article 6(1) of the Directive, even if incompletely. Finally, it is also agreed that Article 11.5(2) TL provides exceptions to the principle in Article 11.5(1) TL and Article 6(1) of the Directive. The only point of dispute is the extent to which the exceptions in Article 11.5(2) TL are supported by Article 6(2) to (5) of the Directive. The dispute arises because the Commission is ultimately of the view that only Article 6(2) of the Directive actually constitutes an exception to Article 6(1) of the Directive, whereas the Netherlands regarded Article 6(2) to (5) of the Directive as actual exceptions to paragraph 1.
52. The degree of relevance of these differing views will become apparent when the exceptions in Article 11.5(2) TL set against the paragraphs in Article 6 of the Directive which, the Netherlands argues, support them. Where Article 11.5(2) TL provides that by way of exception to Article 11.5(1) TL, the processing of data
– is permitted for subscriber billing etc. (Article 11.5(2)(a) TL), this exception is plainly intended to correspond to Article 6(2) of the Directive, which provides that data may be processed ‘for the purpose of subscriber billing’;
– is permitted for marketing one’s own telecommunications services etc. (Article 11.5(2)(b) TL), this exception is plainly intended to correspond to Article 6(3) of the Directive, which permits a provider to process data ‘for the purpose of marketing its own telecommunications services’;
– is permitted for traffic management, giving customers information and fraud detection (Article 11.5(2)(d), (e) and (f) TL), this exception is plainly intended to correspond to Article 6(4) of the Directive, which permits the processing of data for ‘traffic management, customer enquiries, fraud detection’;
– is permitted in so far as is necessary to settle disputes (Article 11.5(2)(c) TL), this exception is plainly intended to correspond to Article 6(5) of the Directive, which is intended to allow a specified category of persons ‘to be informed of billing or traffic data … in view of settling disputes’;
– is permitted where authorised by or under a Law (Article 11.5(2)(g) TL), this exception has to be based on Article 6(2) to (5) of the Directive.
53. In order to consider the extent to which Article 6(2) to (5) of the Directive actually contains exceptions to the principle in Article 6(1) of the Directive which could support the exceptions in Article 11.5(2) TL, it is necessary to clarify the purport of the principle in Article 6(1) of the Directive. Article 6(1) of the Directive first defines a type of data, namely personal ‘traffic data’, and then provides that those traffic data must be erased or made anonymous upon termination of a connection.
54. Article 6(1) of the Directive provides that personal traffic data (hereinafter ‘traffic data’) are all data ‘relating to subscribers and users processed to establish calls and stored by the provider of a public telecommunications network and/or publicly available telecommunications services’. Put more simply, traffic data are all data arising from a communication, stored by a provider of telecommunications services and capable of being linked to individuals.
55. Article 6(1) of the Directive lays down the principle that all traffic data ‘must be erased or made anonymous upon termination of the call’. The data protection aims of the Directive, which may be found in the recitals, (23) and the permission granted by Article 6(2) of the Directive to store data for a limited time ‘for the purpose of subscriber billing’, make it clear that the words ‘upon termination’ may be understood as meaning ‘immediately upon termination’. In other words, the principle is that all traffic data must be erased or made anonymous immediately upon termination of the call.
56. As regards potential exceptions from this basic obligation to erase traffic data or make it anonymous, the words ‘without prejudice to the provisions of paragraphs 2, 3 and 4’ in Article 6(1) of the Directive immediately suggest that these paragraphs contain exceptions from that general principle. Indeed, the same applies to the introductory words in Article 6(5) of the Directive, namely, ‘Paragraphs 1, 2, 3 and 4 shall apply without prejudice to the possibility’: this too indicates an exception to the obligation in Article 6(1) of the Directive. At this juncture, it falls to consider in detail the extent to which the provisions of Article 6(2) to (5) of the Directive actually contain exceptions to the obligation in Article 6(1) of the Directive, and the extent to which these support the provisions in Article 11.5(2) TL.
i) Article 6(2) of the Directive and Article 11.5(2)(a) TL
57. In terms of structure, Article 6(2) of the Directive is similar to Article 6(1) of the Directive. It first defines a type of data, namely data, ‘for the purpose of subscriber billing … indicated in the Annex [to the Directive]’ (hereinafter, ‘Annex data’) and then allows such data to be processed during a limited period. Annex data (24) consists of two types of data of particular importance for billing subscribers for calls: first, some of the traffic data listed in Article 6(1), (25) and second, subscriber data and other payment information. (26)
58. In expressly permitting the processing of personal Annex data for subscriber billing during a limited period, Article 6(2) of the Directive presupposes that the data has been neither erased nor made anonymous upon termination of the call. It follows that Article 6(2) of the Directive undoubtedly contains a true exception from the basic obligation in Article 6(1) of the Directive, but only for traffic data referred to in the Annex, only for a limited period and only for a defined group of persons, as is apparent from Article 6(4) of the Directive, which in the present context has to be read in conjunction with Article 6(2) of the Directive. (27)
59. In terms of their purpose (namely, subscriber billing for various telecommunications services), the exceptions in Article 6(2) of the Directive and Article 11.5(2)(a) TL are identical. However, by contrast with Article 6(2) of the Directive, Article 11.5(2)(a) TL does not restrict the data that may be used to the Directive’s Annex data; nor does it specify a time limit for using it; nor does it restrict the category of persons entitled to use it to those identified in Article 6(4) of the Directive. Therefore, the wording of the Telecommunications Law creates a broader exception from the principle that data is to be erased or made anonymous than authorised by the Directive.
60. In this case, interpreting the provision by reference to the general restriction in Article 11.5(2) TL that data may be used only ‘to the extent necessary’, so that it is compatible with the Directive, does not assist. This is because the Court has consistently held that directives must be transposed sufficiently precisely, clearly and transparently, and that national law must ensure the full application of a directive in a sufficiently precise and clear manner to ensure legal certainty. (28) On its own, Article 11.5(2)(a) TL does not satisfy these requirements of clarity and precision. The provisions implementing Article 11.5(3) TL would certainly have enabled more specific restrictions than ‘to the extent necessary’ to satisfy the requirements of Article 6(2) of the Directive. However, those provisions have not been enacted.
61. In the result, Article 11.5(2)(a) TL does not constitute a correct transposition of Article 6(2) of the Directive.
ii) Article 6(3) of the Directive and Article 11.5(2)(b) TL
62. The wording of Article 6(3) of the Directive, which provides that for the purpose of market research or marketing its own telecommunications services ‘the data referred to in paragraph 2’ may be processed if the subscriber has given his consent, clearly refers only to the Annex data referred to in Article 6(2) of the Directive. It follows that paragraph 3 merely permits another use of Annex data which in any event are not erased or made anonymous until the end of the period specified in paragraph 2. However, it does not create a further exception to the category of traffic data subject to the obligation in Article 6(1) of the Directive of erasure or anonymity.
63. By contrast with Article 6(3) of the Directive, the wording of Article 11.5(2)(b) TL refers not only to Annex data, which may be used for a limited period, but to all traffic data falling within Article 11.5(1) TL and Article 6(1) of the Directive, and indeed without any time limit. Moreover, the categories of persons entitled to process the data are not restricted to those in Article 6(4) of the Directive, which is applicable in this connection as well. (29) Accordingly, although the purposes are identical and both provisions require the consent of the subscriber before data may be processed, on this point too the wording of the Telecommunications Law creates broader exceptions than the Directive from the obligation of erasure or anonymity. It follows that in the absence of supplementary provisions under Article 11.5(3) TL, the wording of Article 11.5(2)(b) TL does not satisfy the Court’s requirement that the transposition of directives be sufficiently clear and precise. (30)
64. In conclusion, Article 11.5(2)(b) TL does not transpose Article 6(3) of the Directive correctly.
iii) Article 6(4) of the Directive and Article 11.5(2)(d), (e) and (f) TL
65. The central point at issue between the parties is whether Article 6(4) of the Directive permits the use of all traffic data coming within paragraph 1, by specifying additional purposes for which data may be processed (namely traffic management, customer enquiries and fraud detection), or whether it merely defines the manner in which Annex data may be used. The wording of Article 11.5(2)(d), (e) and (f) TL authorises the use of traffic data coming within Article 11.5(1) TL, and Article 6(1) of the Directive, for the purposes specified, without further restrictions. That would constitute an infringement of the Directive if the Commission were right in its view that Article 6(4) of the Directive does not authorise any additional use of traffic data coming within Article 6(1) of the Directive, but instead lays down conditions for the use of Annex data.
66. In the first place, it must be observed that the wording of Article 6(4) of the Directive is unclear. Thus, it mentions the purposes on which the Netherlands bases its exceptions, but only in order to define the categories of persons authorised to process traffic and billing information. This supports the Commission’s interpretation that the provision relates to paragraphs 2 and 3. On the other hand, in referring to ‘traffic management’, ‘customer enquiries’ and ‘fraud detection’, paragraph 4 specifies purposes not mentioned in paragraphs 2 and 3. Furthermore, paragraph 4 also states that, ‘Processing … must be restricted to what is necessary for the purposes of such activities’, that is to say data may be processed for those purposes, but only to the extent necessary. This supports the Netherlands’ interpretation that these are additional exceptions. Since reference to those purposes, and restricting processing to what is necessary, would make no sense if the Commission’s interpretation were correct, paragraph 4 must be presumed, as the Netherlands submitted, to authorise processing data for these purposes too.
67. On that basis, contrary to the Commission’s assertion, paragraph 4 is not purely a supplementary provision, but is at least also an exception. However, the question arises as to what data paragraph 4 authorises to be processed: in other words, whether paragraph 4 – like paragraph 2 – is a ‘true exception’ to the obligation in paragraph 1 to erase data or make it anonymous or whether – like paragraph 3 – it is merely another quasi-exception. According to its wording, Article 6(4) of the Directive allows ‘traffic and billing data’ to be processed for the purposes specified, so the question depends on what is meant by ‘traffic data’ and ‘billing data’ in paragraph 4. There are two possible interpretations.
68. The first possibility is that ‘traffic data’ in paragraph 4 means the same as ‘traffic data’ in paragraph 1, and ‘billing data’ in paragraph 4 the same as data ‘for the purpose of subscriber billing’ in paragraph 2, that is Annex data. If so, then as the Netherlands submitted, paragraph 4 authorises the processing not only of Annex data but also of all traffic data coming within paragraph 1, and thus constitutes a ‘true exception’. In that case, Article 6(4) of the Directive would to that extent cover Article 11.5(2)(d),(e) and (f) TL.
69. The other possibility is that ‘traffic data’ and ‘billing data’ in paragraph 4 refer only to Annex data. This possibility arises because, as explained above, (31) Annex data consists partly of traffic data coming within paragraph 1 and partly of customer data and other payment information. In that case, ‘traffic data’ in paragraph 4 would mean traffic data coming within the Annex, and ‘billing data’ in paragraph 4 would encompass customer data and other payment information in the Annex. If so, paragraph 4 would be merely a ‘quasi-exception’ from the basic obligation in paragraph 1, since it would not exempt more traffic data from the obligation of erasure or anonymity, but would merely permit the Annex data already excepted to be processed for additional purposes. On that basis, Article 6(4) would not cover Article 11.5(2)(d), (e) and (f) TL.
70. The first point in favour of the first interpretation is the clear structure that Article 6 of the Directive would have if it were correct. In addition, at the hearing the Netherlands submitted that although, for example, traffic could normally be managed successfully using traffic data that had been made anonymous, it was necessary to use traffic data that had not been made anonymous where it was being searched because a subscriber had notified a disruption or a suspicion of fraud. This also supports the first interpretation.
71. However, the consequences of this interpretation occasion some doubt as to whether this really is the intended structure of Article 6 of the Directive. On this interpretation paragraph 4 – like paragraph 2 – would provide further ‘true exceptions’ to the obligation in paragraph 1 of erasure or anonymity. Yet by contrast with paragraph 2, paragraph 4 does not define the data that need not be erased or made anonymous, and – again in contrast to paragraph 2 – provides no time limit for
their processing. Furthermore, the terms ‘traffic management’, ‘customer enquiries’ and ‘fraud detection’ do not set any intelligible limits allowing identification of the data that need not be erased ‘in case’ they are needed for one of the purposes mentioned; thus, on that interpretation paragraph 4 would to a certain extent be a general provision which could render the principle in paragraph 1 nugatory. Given the Directive’s purpose of data protection, this makes it doubtful that the brief reference in paragraph 4 to traffic data should be taken as creating such a broad exception to the principle in paragraph 1.
72. In addition, in their submissions as to the necessity of using traffic data the Netherlands’ representatives referred only to subscriber numbers. However, the second interpretation too would allow the use of subscriber numbers and indeed the other data in the Annex to the Directive. The Netherlands could not demonstrate clearly that the use of other traffic data referred to in paragraph 1 – over and above the extensive list in the Annex to the Directive – would be necessary for the purposes of paragraph 4. On that basis, the second possible interpretation (a ‘quasi-exception’, and thus consistent with the Directive’s data protection objects) meets practical requirements and is therefore preferable. The final point in favour of this interpretation is the principle of construction according to which if possible the general rule (data protection under paragraph 1) is to be interpreted broadly, and the exceptions to it (the following paragraphs) narrowly.
73. In addition, for the purposes of paragraph 4 recourse to data rendered anonymous under paragraph 1 remains possible, as does, for example for fraud detection, the processing during the call of traffic data not rendered anonymous, since paragraph 1 provides that the obligation of erasure and anonymity arises only after termination of the call.
74. In conclusion, it follows that Article 6(4) of the Directive is to be interpreted as authorising the specified category of persons to process only Annex data for the purposes of traffic management, customer enquiries and fraud detection, as far as necessary for those purposes and within the time limit set by paragraph 2 for the use of Annex data in general. In so far as paragraph 4 also refers to the purposes in paragraphs 2 and 3, it is to be regarded as a uniform rule for all the purposes specified, and, as the Commission submitted, therefore defines the application of paragraphs 2 and 3 in more detail, by restricting the category of persons and the extent of the processing authorised.
75. By contrast, the wording of Article 11.5(2)(d), (e) and (f) TL does not confine processing to the data in the Annex to the Directive which may be used for a limited period of time only, but allows any use of all traffic data within Article 11.5(1) TL, or Article 6(1) of the Directive, for an unlimited period. Moreover, Article 11.5(2)(d), (e) and (f) TL did not restrict the use of data to the categories of persons specified in Article 6(4) of the Directive, since this restriction was to be contained in the implementing provisions under Article 11.5(3) TL. Thus, even if Article 6(4) of the Directive and Article 11.5(2)(d), (e) and (f) TL may be consistent in terms of the purposes and extent of authorised processing of data, the wording of the Telecommunications Law clearly goes beyond the use authorised by the Directive and does not satisfy the Court’s requirement that directives be transposed sufficiently clearly and precisely. (32)
76. In conclusion, Article 11.5(2)(d), (e) and (f) TL do not transpose Article 6(4) of the Directive correctly.
iv) Article 6(5) of the Directive and Article 11.5(2)(c) TL
77. The words ‘apply without prejudice’ in Article 6(5) of the Directive can be reasonably understood only as meaning that the subsequent text of paragraph 5 provides exceptions to paragraphs 1 to 4 of Article 6 of the Directive. Accordingly, by way of derogation from the previous paragraphs 1 to 4, paragraph 5 is intended to authorise the use of ‘billing or traffic data’ by a further category of persons (the competent authorities) for a particular purpose (settling disputes) in a particular form (for information only, not for processing).
78. By authorising the use of all traffic data for the purpose of settling disputes, Article 11.5(2)(c) TL corresponds to Article 6(5) of the Directive in terms of purpose, but its wording restricts neither the category of persons entitled to use the data nor the form of use in accordance with the Directive, and there are no implementing provisions in that regard. For those reasons, the Directive has not been transposed as clearly and precisely as the Court’s case-law requires. (33)
79. However, in relation to Article 6(5) of the Directive too, the parties’ principal dispute concerns essentially the interpretation of the reference in paragraph 5 to ‘billing or traffic data’ and the consequences of its interpretation for the Netherlands’ legislation. The reason is that Article 11.5(2)(c) TL also permits the use of all the data within Article 11.5(1) TL, or Article 6(1) of the Directive, which could constitute a further infringement of the Directive.
80. Thus, the same problem arises with paragraph 5 as arose with paragraph 4, and the same alternative interpretations are possible, namely first that paragraph 5 is a ‘true exception’ to paragraph 1, authorising the category of persons referred to in paragraph 5 to be comprehensively informed for the purpose of settling disputes, and second that paragraph 5 is to be interpreted as a ‘quasi-exception’ to paragraph 1, authorising the category of persons identified in paragraph 5 to be informed only of Annex data. (34)
81. Upon closer analysis of the first possible interpretation (that the provision is a true exception), then in comparison with Article 6(4) of the Directive the problems of certainty as to the data to be excluded from erasure or anonymity become more acute. The reference in paragraph 5 to ‘settling disputes’ is merely a ‘general objective’ to be implemented on a case-by-case basis. Only once a particular dispute arises will it become apparent what data are relevant to the decision. Given the diversity of disputes (the words ‘in particular’ indicate that the provision is not limited to ‘interconnection or billing disputes’), every piece of data could ultimately be material.
82. Accordingly, if Article 6(5) of the Directive were to be regarded as a true exception to Article 6(1) of the Directive, the principle in paragraph 1 that traffic data is to be erased or made anonymous would be negated: all data would have to be preserved for the purpose of settling any subsequent disputes. That interpretation would render the whole of Article 6 of the Directive nugatory, and would be compatible with neither the Directive’s data protection purpose nor the principles concerning the relationship between general rules and exceptions. It is therefore to be rejected.
83. Thus, in this regard also the only possible interpretation is the second one, according to which the purpose of the exception in Article 6(5) of the Directive is to enable employees of the competent authorities, in addition to the categories of persons mentioned in paragraph 4, to be informed of Annex data for the purpose of settling disputes, that is in addition to the purposes in paragraphs 2 to 4. On that approach there cannot be any conflicting time limits, since the period allowed by paragraph 2 for processing Annex data extends to the end of the period during which the bill may lawfully be challenged.
84. However, as explained above the wording of Article 11.5(2)(c) TL authorises access without limit as to time to all traffic data falling within Article 11.5(1) TL, or Article 6(1) of the Directive. Consequently, there is a further infringement of the provisions of the Directive.
85. In conclusion, Article 11.5(2)(c) TL does not constitute a correct transposition of Article 6(5) of the Directive.
v) Article 6(2) to (5) of the Directive and Article 11.5(2)(g) TL
86. The reference in Article 11.5(2)(g) TL to any other statutory authorisation to process traffic data is not covered by a corresponding provision in Article 6 of the Directive. However, since the Directive does not authorise any further exceptions from the fundamental obligation of erasure or anonymity of data other than those already discussed, the reference in Article 11.5(2)(g) TL would be compatible with the Directive only if it ensured that the statutory provisions to which it referred were also consonant with the exceptions in Article 6(2) to (5) of the Directive. However, the wording of the provision does not make this clear and precise enough to satisfy the Court’s requirements as to the transposition of Directives. (35)
87. In the result, therefore, Article 11.5(2)(g) TL does not constitute a correct transposition of Article 6(2) to (5) of the Directive.
3. Transposition of Article 6 of the Directive by Article 11.5(3) TL
a) Submissions of the parties
88. The Commission considers that the provision in Article 11.5(3) TL for the enactment of measures implementing Article 11.5 TL, coupled with the failure to enact such measures, or at least to notify them to the Commission, constitutes a failure to fulfil Treaty obligations.
89. The Netherlands concedes that the implementing provisions in question have not been enacted. It none the less submitted that this part of the action should be dismissed, since it has in the meantime become unnecessary to enact the measures. Directive 2002/58 had been enacted, to replace the disputed Directive 97/66 as from 31 October 2003, and could have been transposed by the Netherlands before that date. In those circumstances, the Government of the Netherlands had decided to use the bill already going through the legislative process – and initially intended to transpose Directive 97/66 – to transpose Directive 2002/58. In light particularly of Article 6 of each Directive, this caused no harm, since their wording was essentially identical, and indeed Article 6 of Directive 2002/58 afforded a greater level of protection than Article 6 of Directive 97/66. Transposing Article 6 of (the successor) Directive 2002/58 ipso facto relieved the Netherlands of its obligation to transpose Article 6 of Directive 97/66. Thus, the Commission’s complaint was devoid of purpose. It followed that this part of the action should be dismissed.
b) Assessment
90. It must first be observed that the Commission’s complaint in relation to Article 11.5(3) TL is an independent ground of complaint which does more than merely repeat the complaint made in relation to Article 11.5(1) TL. The reference to implementing provisions in Article 11.5(1) TL concerns solely the question as to the data to be erased under Article 6(1) of the Directive, whereas the implementing provisions referred to in Article 11.5(3) TL also include detailed provisions relating to Article 11.5(2) TL, in other words they relate to the entire scope of Article 6 of the Directive.
91. It is not disputed that by the material time the Netherlands had not enacted implementing provisions under Article 11.5(3) TL. That would have had no deleterious effect only if statutory provisions had already secured the adequate transposition of the Directive. However, as has been shown above, this is specifically not the case. In so far as the statutory provisions are capable of being interpreted, the implementing provisions which were not enacted could have altered this situation, at least in part, and would thus have been relevant to a definitive assessment. To that extent, as the Court has consistently held (36) the failure to enact implementing measures must also be regarded as a Treaty infringement.
92. The Netherlands’ submissions raise the question as to whether this basis assessment is altered by the enactment of the successor Directive 2002/58, in other words whether the prospective effects of Directive 2002/58 at least restrict the Netherlands’ obligation to transpose Article 6 of Directive 97/66 in full.
93. That is plainly not the case. The wording of Directive 2002/58 itself states that Directive 97/66 is not to cease to have effect until 31 October 2003, in other words remains applicable law until then. For that reason alone Directive 2002/58 does not abrogate the obligations under Directive 97/66 prior to the time limit for transposing it. Moreover, as indeed the Netherlands has rightly pointed out, Article 6 of the two Directives has essentially the same wording, so that transposing Article 6 of Directive 97/66 would have at the same time the effect of at least partially transposing Directive 2002/58. According to the case-law of the Court, even a new Directive which changes the law substantially does not affect obligations existing as at the end of the period prescribed in the reasoned opinion. (37) Accordingly, future Community law never entitles Member States to disregard applicable Community law.
94. It follows that the obligation as to complete transposition of Article 6 of Directive 97/66 subsisted until Directive 2002/58 entered into force. The Netherlands could have fulfilled this obligation either by legislative amendment or by enacting implementing provisions. Since there was no change at all in the legal situation, the conclusion that the Treaty was infringed cannot be altered.
95. In conclusion, the transposition of Article 6 of the Directive by Article 11.5(3) TL constituted a failure to fulfil obligations.
4. Summary of conclusions
96. Accordingly, it must be found that the Netherlands has not enacted any laws, regulations or administrative provisions transposing Article 9 of the Directive, that it has not transposed Article 6(1) completely and correctly and consequently that overall it has not completely transposed Article 6 of the Directive, in that it did not enact the implementing provisions referred to in Article 11.5(3) TL. To that extent, the Commission’s action is well-founded. Conversely, the action is inadmissible in so far as the Commission claims that the Netherlands transposed Article 6(2) to (5) of the Directive incorrectly in Article 11.5(2) TL; notwithstanding its supplementary opinion, the Commission did not maintain this ground of complaint with sufficient clarity in its reasoned opinion.
VI – Costs
97. Under Article 69(2) of the Rules of Procedure the unsuccessful party has to bear the costs, if the other party has applied for them in its pleadings. Under Article 69(3) of the Rules of Procedure, in case of partial success and partial failure, the Court may order that costs be shared or order each party to bear its own costs. Article 69(5) of the Rules of Procedure provides that if no application for costs is made, each party is to bear its own costs.
98. In the present case, the Commission applied for costs, within the meaning of Article 69(2) of the Rules of Procedure, and on the above analysis the submissions of the Kingdom of the Netherlands have failed in relation to three of the four grounds of complaint put forward by the Commission. The Kingdom of the Netherlands must therefore bear three quarters of the Commission’s costs. Since the Netherlands did not apply for costs, the parties must as to the remainder bear their own costs.
VII – Conclusion
99. On the basis of the foregoing considerations, I propose that the Court should:
(1) declare that, by failing to adopt the laws, regulations or administrative provisions necessary to transpose Article 9 of Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector, by failing to transpose Article 6(1) of that Directive completely and correctly into national law, and by failing to adopt the laws, regulations and administrative provisions necessary to transpose Article 6 of the Directive, the Kingdom of the Netherlands has failed to fulfil its obligations under the EC Treaty, and, as to the remainder, dismiss the action as inadmissible.
(2) order the Kingdom of the Netherlands to bear its own costs and three quarters of the costs of the Commission and, as to the remainder, order the Commission to bear its own costs.
(1) .
(2)
–	OJ 1998 L 24, p. 1.
(3)
–	OJ 2002 L 201, p. 37.
(4)
–	See Case C-152/98 Commission
v Netherlands
[2001] ECR I-3463, paragraph 23.
(5)
–	See Case C-439/99 Commission
v Italy
[2002] ECR I-305, paragraphs 10 to 12.
(6)
–	See Commission
v Italy
(cited above, note 5), paragraphs 10 to 12.
(7)
–	See Case C-52/90 Commission
v Denmark
[1992] ECR I-2187, paragraphs 17 to 18; Case C‑347/88 Commission
v Greece
[1990] ECR I-4747, paragraph 24; and Case 325/82 Commission
v Germany
[1984] ECR I-777, paragraphs 8 and 9. See in particular also the Opinion of Advocate General Lenz in Commission
v Denmark
(cited above), paragraphs 21 ff., 38 ff. and 42 to 45, and the Opinion of Advocate General Tesauro in Commission
v Greece
(cited above), paragraphs 8, 11 and 13 to 16.
(8)
–	See above, paragraph 28.
(9)
–	See above, paragraph 31.
(10)
–	See Joined Cases 19/60, 21/60, 2/61 and 3/61 Société Fives Lilles Cail and Others
v High Authority
[1961] ECR 281; the Judgments and Opinions cited above in note 7; and Werner Günther, Die Präklusion neuer Angriffs-, Verteidigungs- und Beweismittel im Verfahren vor dem Gerichtshof der Europäischen Gemeinschaften, Carl Heymanns, Cologne, 1970, pp. 21 ff.
(11)
–	See above, paragraph 24.
(12)
–	See above, paragraph 28.
(13)
–	See above, paragraph 31.
(14)
–	See Case C-279/94 Commission v Italy
[1997] ECR I‑4743, paragraph 4 of the rubic.
(15)
–	See Case C-287/00 Commission
v Germany
[2002] ECR I-5811, paragraph 21.
(16)
–	See Commission
v Italy
(cited above, note 5), paragraph 14.
(17)
–	See above, paragraph 31.
(18)
–	See above, paragraph 9.
(19)
–	See above, paragraph 9.
(20)
–	See above, paragraph 39.
(21)
–	See Case C-220/94 Commission
v Luxembourg
[1995] ECR I-1589, paragraph 1 of the rubric; Case C-217/97 Commission
v Germany
[1999] ECR I-5087, paragraph 32; and see also below, paragraph 60.
(22)
–	See, inter alia, Case C-147/00 Commission
v France
[2001] ECR I-2387, paragraph 26; Case C-364/00 Commission
v Netherlands
[2002] ECR I-4177, paragraph 8; and Case C-351/01 Commission
v France
[2002] ECR I-8101, paragraph 9.
(23)
–	See above, paragraph 15.
(24)
–	See above, paragraph 18.
(25)
–	They are, ‘the number or identification of the subscriber station’, ‘the total number of units to be charged for the accounting period’, ‘called subscriber number’, ‘type, starting time and duration of the calls made and/or the data volume transmitted’ and ‘date of the call/service’.
(26)
–	They are, ‘address of the subscriber and the type of station’ and ‘other information concerning payments such as advance payments, payments by instalments, disconnection and reminders’.
(27)
–	See below, paragraphs 65 ff., and in particular paragraph 74.
(28)
–	See Commission
v Luxembourg
(cited above, note 21), paragraph 1 of the rubric; and Commission
v Germany
(cited above, note 21), paragraph 32.
(29)
–	See below, paragraphs 65 ff., and in particular paragraph 74.
(30)
–	See above, paragraph 60.
(31)
–	See above, paragraph 57.
(32)
–	See above, paragraph 60.
(33)
–	See above, paragraph 60.
(34)
–	See above, paragraph 67 ff.
(35)
–	See above, paragraph 60.
(36)
–	See above, paragraph 45.
(37)
–	See Commission
v Netherlands
(cited above, note 4), paragraph 21.