Commission of the European Communities v Portuguese Republic.
Date: 2003-04-10
80.  Second, while the Court has held that transposition of a directive into national law does not necessarily require its provisions to be reproduced verbatim in a specific, express law or regulation and a general legal context may be sufficient, that is so only if that context effectively ensures the full application of the directive in a sufficiently clear and precise manner. The Court has pointed out that it is particularly important, in order to satisfy the requirement of legal certainty, that the provisions of a directive be implemented with unquestionable binding force, so that individuals have the benefit of a clear and precise legal situation enabling them to ascertain the full extent of their rights and duties (see, to that effect, Case C-197/96   Commission   v   France   [1997] ECR I-1489, paragraph 15, and Case C-49/00   Commission   v   Italy   [2001] ECR I-8575, paragraph 21).
87.  Finally, so far as concerns the provisions of Implementing Order No 961/98 relied upon by the Portuguese Government, suffice it to state that, in accordance with settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation in the Member State as it stood at the end of the period laid down in the reasoned opinion, and that the Court may not take account of any subsequent changes (see,   inter alia  , Case C-473/99   Commission   v   Austria   [2001] ECR I-4527, paragraph 13).
132.  It is settled case-law that the purpose of the pre-litigation procedure laid down in Article 226 EC is to give the Member State concerned an opportunity to comply with its obligations under Community law or to avail itself of its right to defend itself against the complaints made by the Commission (see,   inter alia  , Case C-1/00   Commission   v   France   [2001] ECR I-9989, paragraph 53).
133.  It is also settled case-law that the proper conduct of that pre-litigation procedure constitutes an essential guarantee required by the Treaty not only in order to protect the rights of the Member State concerned, but also to ensure that any contentious procedure will have a clearly defined dispute as its subject-matter. It is only on the basis of a properly conducted pre-litigation procedure that the contentious procedure before the Court will enable the latter to judge whether the Member State has in fact failed to fulfil the specific obligations which the Commission alleges it has breached (see,   inter alia  , the order in Case C-266/94   Commission   v   Spain   [1995] ECR I-1975, paragraphs 17 and 18, and Case C-365/97   Commission   v   Italy  , cited above, paragraph 35).
134.  Thus, although the claims as stated in the application cannot in principle be extended beyond the infringements alleged in the letter of formal notice and in the operative part of the reasoned opinion, it is none the less the case that, where Community law is amended during the course of the pre-litigation procedure, the Commission has standing to seek a declaration that a Member State has failed to fulfil obligations which were created in the initial version of a directive, subsequently amended or repealed, and which were maintained in force under the new provisions (see Case C-365/97   Commission   v   Italy  , paragraph 36).
135.  Conversely, the subject-matter of the dispute cannot be extended to obligations arising under the new version of a directive which do not correspond to those arising under the previous version of that directive, as otherwise it would constitute a breach of the essential procedural requirements of infringement proceedings (see, to that effect, Case C-365/97   Commission   v   Italy  , paragraph 39).