4.

The first aspea which must be examined concerns the objection of inadmissibiiity put forward by the Danish Government on the basis of an alleged discrepancy between the issues raised at the stage of the pre-contenuous, administrative phase of the procedure and those raised in the contentious phase before the Court. The Danish Government observes in particular that the Commission's letter giving forma notice is formulated in absolutely general terms whereas the Commission is required to define the alleged default and give the reasons on which the allegation is based in such a way as temake it possible for there to be a fruitful dialogue with the Member State. It then maintains that the grounds on which the Commission based its arguments in the reasoned opinion were amended in the application. Only in the latter did the Commission refer to framework Directive 71/316 and infer from it the obligations which, in its view, were binding on the Danish Government. That alteration of its line of argument ought to have led it to issue a fresh reasoned opinion. The Commissions conduct did not therefore comply with the duty of diligence which is incumbent on the Executive in initiating the procedure under Article 169 of the EEC Treaty and unacceptably restricted Denmark's rights of defence. It seems to me, however, that the Commission's conduct is in conformity with the Treaty. It is certainly true that the binding nature of the procedure under Article 169 involves a senes ot effettive procedural safeguards in favour of the Member Sutes. This Court itself has stressed the importance of the administrative stage and has affirmed that the opportunity for Member States to submit their own observations on a well-defined set of allegations “constitutes an essential guarantee required by the Treaty and amounts to an essential procedural requirement in proceedings relating to the finding of a failure on the part of a Member State” (judgment of the Court of 17 February 1970 in Case 31/69 Commission v Italy [1970] ECR 25 at paragraph 13). Thus it may be inferred that the specific function of the letter giving formal notice is to define once and for all the subject-matter of the dispute in such a way that it may not subsequently be altered and to enable the Member Sute to defend itself. Viewed in that light the whole administrative suge of the proceedings may be said to be intended to ensure respect for the well-known principle audietur et altera pars. But, granted that this is so, the fact remains that the Danish Government was placed by the Commission in a position to defend itself and that it did in fact defend itself. As I have already said the Danish Government criticizes the Commission for formulating its letter giving formal notice in very general terms. However, in my view, that letter contains the requirements which are essential for a correa formal notice ot default, namely a specific reference to the alleged infringement by the Member Sute (failure to implement the directive in due time), a warning that the Commission intends to inmate the procedure under Article 169 and the fixing of a period of time for submission by the Member Sute of its servauons. In that respea I would like to remind the Court of Mr Advocate General Gand s view in his Opinion in Case 45/64 Commission v Italy [1965] ECR 857 at page 871, namely that “the letter which begins that procedure constitutes a preliminary measure by which the Member Sute is informed of the alleged aa or omission and of the Community rules which, in the opinion of the Commission, were infringed by that State; its only purpose is to open a dialogue. The observations submitted by the Member State may weaken the view of the Commission or may confirm it, or may lead that institution to specify or amend the reasons upon which its original view was based. It is only then that the reasoned opinion is delivered setting out the definitive position of the institution on which your judgment will be based. But this preliminary procedure must not be enclosed in a rigid framework ...”. Also unfounded in my view is the criticism directed at the Commission to the effect that it did not state precisely, surting with its letter giving formal notice, the measures which it considered indispensable for the implementation of the directive at national level. The Commission, which moreover enjoys a wide discretion in this matter, is not required to indicate the speafic measures which are needed to put an end to failures to fulfil obligations. Since the present case involved the transposition into internal law of obligations deriving from a directive, the Commission was obliged under the third paragraph of Article 189 of the EEC Treaty to respect the reservation to Member States of the power to choose the forms and methods of implementation. Similarly, I consider that the Commission cannot be censured for having mentioned, only in the application and not also in the reasoned opinion, the correlation between the framework Directive 71/316 and the directive on electrical energy meters. It is true that to amend in the application the matters of fact and law set out in the reasoned opinion would be detrimental to the interests of the defence; but it is also true that the obligations stemming from Directive 76/891 must be seen against the background of the legislative context of which that directive forms part. Besides, the Commission's conduct may be explained by the need to reply to the observations of the Danish Government on the reasoned opinion. It is clearly apparent from the documents in the case that the Danish Government defended itself as from the pre-contentious stage by giving its own opinion on the specific question which is the subject-matter of these proceedings and that, at the same time, there was no doubt as regards the default alleged by the Commission. For the reasons set out above I consider that the Court should reject the objections raised against the admissibility of the application.