European Commission v Republic of Lithuania.
Date: 2010-10-28
30. In that regard, it must be borne in mind, firstly, that, in accordance with established case-law, the subject-matter of an action for failure to fulfil obligations is determined by the Commission’s reasoned opinion (Case 39/72 Commission  v Italy  [1973] ECR 101, paragraph 9, and Case C‑236/05 Commission  v United Kingdom  [2006] ECR I‑10819, paragraph 10 and the case-law cited). Consequently, 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 the Court cannot take account of any subsequent changes (Case C‑161/02 Commission  v France  [2003] ECR I‑6567, paragraph 6, and Case C‑158/09 Commission  v Spain  [2010] ECR I‑0000, paragraph 7).
33. Next, with regard to the alleged delay in bringing the proceedings under Article 258 TFEU, the rules of that provision must be applied without any obligation on the Commission to act within a specific period (Case 324/82 Commission  v Belgium  [1984] ECR 1861, paragraph 12, and Case C‑333/99 Commission  v France  [2001] ECR I‑1025, paragraph 25) and it is for the Commission to choose when it will bring an action for failure to fulfil obligations before the Court; the considerations which determine its choice of time cannot affect the admissibility of the action (Case C‑317/92 Commission  v Germany  [1994] ECR I‑2039, paragraph 4, and Case C‑40/00 Commission  v France  [2001] ECR I‑4539, paragraph 23).
34. Indeed, in certain situations, the excessive duration of the pre-litigation procedure is capable of making it more difficult for the Member State concerned to refute the Commission’s arguments and of thus infringing the rights of defence of that Member State. Nevertheless, it is for the Member State concerned to show that it has been so affected (Case C‑96/89 Commission  v Netherlands  [1991] ECR I‑2461, paragraph 16, and Case C‑546/07 Commission  v Germany  [2010] ECR I‑0000, paragraph 22).
55. In that regard, it is apparent from Articles 2 and 10 of the 2003 Act of Accession that the Act is based on the principle that the provisions of European Union law apply ab initio  and in toto  to new Member States, derogations being allowed only in so far as they are expressly provided for by transitional provisions (see, by analogy, Case 258/81 Metallurgiki Halyps  v Commission  [1982] ECR 4261, paragraph 8; Case C‑233/97 KappAhl  [1998] ECR I‑8069, paragraph 15; and Case C‑420/07 Apostolides  [2009] ECR I‑3571, paragraph 33).
71. Once the 2003 Treaty of Accession was signed, and subject to the application of the particular procedures provided for in that Treaty for deciding on certain types of transitional measures, such as, for example, those established by Articles 41 or 42 of the 2003 Act of Accession, there is no objection in principle to secondary legislation adopted after that signature and before the entry into force of the 2003 Treaty of Accession containing temporary derogations in favour of a future Member State being adopted directly on the basis of the provisions of the EC Treaty (Case C-413/04 Parliament  v Council  [2006] ECR I-11221, paragraph 62).
72. Consequently, as regards measures that must be thus adopted during the period between the date of signature of the Treaty of Accession and the date when the accession takes effect, the institutions are fully aware of the imminent accession of new Member States, and the latter have the opportunity to assert their interests where necessary, in particular through the information and consultation procedure (see, to that effect, Joined Cases 39/81, 43/81, 85/81 and 88/81 Halyvourgiki and Helleniki Halyvourgia  v Commission  [1982] ECR 593, paragraph 10, and Parliament  v Council , paragraph 66).
73. It is therefore, in principle, in the framework of that procedure and by making use of their observer status in the Council of the European Union, with the opportunities for dialogue and cooperation which those special mechanisms afford them, that the future Member States may, once informed of the future adoption of new measures of secondary legislation, assert their interest in obtaining the necessary transitional derogations, having regard, for example, to the fact that it would be impossible to ensure immediate application of those measures on accession, or to major socio-economic problems to which such application might give rise ( Parliament  v Council , paragraph 67).
78. Finally, with regard to the approach adopted by the Court in the case of Commission  v Austria , it is sufficient to note that that approach was justified in particular by the fact, described in paragraph 60 of that judgment, that the Act of Accession did not provide, with respect to the Republic of Austria, for any derogation or transitional period in respect of the directives in question in the case which gave rise to that judgment.