Opinion of Mr Advocate General Saggio delivered on 20 June 2000. - Commission of the European Communities v French Republic. - Failure by a Member State to fulfil its obligations - Failure to transpose Directive 95/47/EC. - Case C-319/99.



European Court reports 2000 Page I-10439



Opinion of the Advocate-General

1. On 23 August 1999 the Commission brought an action against the French Republic under Article 169 of the EC Treaty (now Article 226 EC) for failure to fulfil obligations. It sought a declaration that, by failing to communicate within the prescribed time-limit the laws, regulations and administrative measures necessary in order to comply with Directive 95/47/EC of the European Parliament and of the Council of 24 October 1995 on the use of standards for the transmission of television signals, alternatively by failing to adopt the measures necessary in order to comply therewith, the French Republic had failed to fulfil its obligations under that directive. The Commission also asked the Court to order France to pay the costs.

The relevant Community legislation

2. Directive 95/47/EC of 24 October 1995 (hereinafter the directive) relates to standards for the transmission of television signals. Under Article 8(1), Member States shall bring into force the laws, regulations and administrative provisions necessary for them to comply with this Directive within nine months of its entry into force and they shall forthwith inform the Commission thereof. The directive came into force on the day of its publication, 23 November 1995. Thus, the deadline for its transposition into national law was 23 August 1996.

3. It should to be noted that Article 7 of the directive repeals Council Directive 92/38/EEC of 11 May 1992 on the adoption of standards for satellite broadcasting of television signals. This repeal took effect upon expiry of the period within which Member States had to transpose the 1995 directive.

The infringement procedure and submissions of the parties

4. On 16 January 1997, not having received any communication from the French Government regarding implementing measures and having no information from which it might infer that the French Republic had adopted all measures necessary for that purpose, the Commission sent it a letter of formal notice in accordance with the first paragraph of Article 169 of the EC Treaty (now Article 226 EC), in which it requested, inter alia, that the French Government submit its observations within two months.

5. The French Government did not reply to this letter within the period specified. As a consequence, the Commission, again under the first paragraph of Article 169 of the EC Treaty (now Article 226 EC), proceeded on 14 October 1998 to deliver a reasoned opinion to France, stating that, by not communicating the laws, regulations and administrative provisions necessary to comply with the directive, France had failed to fulfil its obligations under both the directive and the EC Treaty. The Commission therefore called upon the French Government to adopt the measures necessary to comply with the reasoned opinion, within two months of receipt of notification.

6. The French authorities responded to the reasoned opinion initially by letter of 15 December 1998. In that letter, they acknowledged the delay in transposing the directive; by way of justification, however, they pointed out that there had been a change of government in France, which had slowed down the normal legislative process and asked the Commission to grant them a further period of two months so that they could draw up a precise timetable for transposition. The French authorities also requested a meeting with the competent departments of the Commission, in order to show them the draft implementing legislation. As shown by the statements submitted by both the Commission and France, this meeting took place on 22 January 1999.

On 8 June 1999, the French authorities sent the Commission a second letter; in this, among other things, they reported that the procedure for transposing the directive was in hand and that, in order to complete this rapidly, the Government had secured the presentation of an amendment - as part of the first-reading debate on the draft law on broadcasting - specifically regarding implementation of the directive. They added that this draft law would be examined by the Senate in the autumn of 1999.

7. However, the Commission received no communication regarding the final adoption of that draft law. It therefore reached the conclusion that the directive had not been transposed into French law and consequently decided to bring the present action against France under the second paragraph of Article 169 of the EC Treaty (now Article 226 EC). In its application, the Commission pointed out that the Court has consistently held that the Member States are required to adapt their national legislation to accommodate the provisions of directives within the period specified therein and that they may not invoke rules, practices or circumstances arising in their own legal arrangements to justify failure to act. In the light of that case-law, it was clear that France had not met the obligations incumbent upon it since, at the end of the period specified in the directive, it had adopted no provisions to implement it.

8. In its defence, the French Government did not dispute the failure to adopt the national provisions necessary for implementation. It merely repeated that the transposition procedures were in hand and these would culminate in final adoption of the legislation described in the letter of 8 June 1999 replying to the reasoned opinion and of a series of regulatory instruments. However, the French Government gave an assurance that all possible efforts were being made to complete implementation by June 2000.

The French Government also observed in its defence that the period of nine months prescribed in Article 8 of the directive for its implementation by the Member States was particularly short, especially since, as provided for in Article 7, the directive repeals and replaces the directive of 1992. This gives rise to a situation which, in terms of legal certainty, is not of the simplest, making transposition of the directive into national law particularly complex. The French Government explicitly acknowledges, however, that the fact that Member States have been allowed only a limited period of time to implement the directive is not an acceptable justification for its own delay in adopting the national implementing measures necessary.

Whether there has been a failure to fulfil obligations

9. In my view, this action is well founded. There can be no question but that France has failed to comply with the obligations incumbent upon it under the directive and the EC Treaty. As the French Government itself acknowledges, the transposition procedure has not yet been completed; thus, even now France has not yet implemented the directive. The fact that the procedure for adoption of the national implementing measures necessary is in hand and that the French authorities are taking action to bring it to completion by June 2000 cannot - now or in the future - cure the failure to fulfil the obligation. As is clear from the case-law of the Court, ... the question whether a Member State has failed to fulfil its obligations 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, and subsequent changes cannot be taken into account.

10. It is worth adding that France's failure to fulfil obligations cannot be justified either on the basis of the alleged brevity of the period allowed in Article 8 of the directive for transposition by the Member States. On that point, too, the case-law clearly states that ... the governments of the Member States participate in the preparatory work for directives and must therefore be in a position to prepare within the period prescribed the legislative provisions necessary for their implementation ....

Costs

11. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs, if this has been requested. As the Commission has applied for costs, I propose that the French Republic - which, in my view, has been unsuccessful - be ordered to pay the costs.

Conclusion

12. On the basis of the foregoing considerations, I propose that the Court should rule as follows:

(1) By failing to adopt the laws, regulations and administrative measures necessary in order to comply with Directive 95/47/EC of the European Parliament and of the Council of 24 October 1995 on the use of standards for the transmission of television signals, the French Republic has failed to fulfil its obligations under that directive.

(2) The French Republic is ordered to pay the costs.