Opinion of Mr Advocate General Geelhoed delivered on 5 April 2001. - Commission of the European Communities v Grand Duchy of Luxemburg. - Failure by a Member State to fulfil its obligations - Failure to implement Directive 97/36/EC amending Directive 89/552/EEC - Coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities. - Case C-119/00.



European Court reports 2001 Page I-04795



Opinion of the Advocate-General

Facts

1. In this case the Commission of the European Communities requests the Court:

- to declare that, by not adopting the necessary laws, regulations and administrative measures to comply with Directive 97/36/EC amending Directive 89/552/EEC,

- or, in any event, by not informing the Commission of them,

the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive.

2. Article 2(1) of Directive 97/36 provides that the Member States are to bring into force the laws, regulations and administrative measures necessary to comply with that directive not later than 31 December 1998, and immediately inform the Commission of them.

3. Since it had not received any notification of the measures which the Grand Duchy of Luxembourg had taken to implement Directive 97/36 the Commission sent formal notice to the Grand Duchy of Luxembourg on 12 March 1999 to submit its observations. In reply to that formal notification, the Luxembourg Government stated, in a letter dated 27 May 1999, that it was in the process of preparing the necessary measures to comply with that directive. It attached to its letter a draft law, which was expected to come into force in November 1999. Following that, the Commission sent the Government a reasoned opinion on 9 July 1999. The Luxembourg Government replied on 8 November 1999. In that reply, it referred back to its earlier letter of 27 May.

4. On the basis of that information the Commission brought this case before the Court on 27 March 2000. In its defence, received at the Court on 6 June 2000, the Luxembourg Government does not contest the justification of the action so far as the lateness of the implementation of Directive 97/36 is concerned. However, it again relies on the abovementioned national draft law. It states that the delay in adopting the law is connected to its complex technical character and the necessary consultations. It expects that the law will now be adopted within a few months and that the proceedings before the Court for failure to fulfil its obligations will thus be deprived of purpose.

Failure to fulfil obligations

5. Let us remember that according to settled case-law, a Member State may not plead provisions, practices or circumstances in its internal legal order to justify its failure to comply with the obligations and time-limits laid down in a directive. That case-law was again recently confirmed by the Court in Commission v Greece.

6. The fact that it is expected that the national legislation intended to implement Directive 97/36 may meanwhile have been adopted when the Court considers the failure alters nothing.

Conclusion

7. Having regard to the facts and circumstances set out above, I suggest that the Court should:

(a) declare that:

- by not adopting the necessary laws, regulations and administrative measures to comply with Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 amending Directive 89/552/EEC of the Council on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities,

- or, in any event, by not informing the Commission of them,

the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

(b) order the Grand Duchy of Luxembourg to pay the costs, in accordance with Article 69(2) of the Rules of Procedure.