Commission of the European Communities v Grand Duchy of Luxemburg.
Date: 2005-12-08
36. In accordance with settled case-law, the subject-matter of an action under Article 226 EC for failure to fulfil obligations is delimited by the pre-litigation procedure provided for by that provision, so that the application must be based on the same grounds and pleas as the reasoned opinion (see Case C-456/03 Commission  v Italy  [2005] ECR I-0000, paragraph 35 and case-law cited).
37. However, the requirement by which the subject-matter of an action brought under Article 226 EC is delimited by the pre-litigation procedure provided for by that provision cannot be stretched so far as to mean that in every case the statement of the complaints set out in the letter of formal notice, the operative part of the reasoned opinion and the form of order sought in the application must be exactly the same, provided that the subject-matter of the proceedings has not been extended or altered (see Case C‑456/03 Commission  v Italy , cited above, paragraph 39, and Case C-433/03 Commission  v Germany  [2005] ECR I-0000, paragraph 28).
42. The Luxembourg Government contends, first, that the present action is inadmissible because, at the expiry of the period fixed in the reasoned opinion of 11 July 2003, the alleged failure to fulfil obligations had ended because Directive 98/10 was no longer in force. As to Directive 97/33, the Community legislature had already adopted the NRF applicable to communications before sending the reasoned opinion of 21 March 2002. Moreover, on the day on which the present action was commenced, the alleged failure to fulfil obligations had already ended because, on that date, the period fixed for transposition of the NRF had expired. As for the line of case-law in which it has been held 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failed to fulfil obligations which were created in the initial version of a Community measure, subsequently amended or repealed, and which were maintained in force under the new provisions (Case C‑363/00 Commission  v Italy  [2003] ECR I-5767, paragraph 22), the Luxembourg Government contends that it is not applicable to the present case.
43. In that connection, the Court has held that, in the context of proceedings under Article 226 EC, the existence of a failure to fulfil obligations must be assessed in the light of the Community legislation in force at the close of the period prescribed by the Commission for the Member State concerned to comply with its reasoned opinion (see Case C-61/94 Commission  v Germany  [1996] ECR I-3989, paragraph 42; Case C‑365/97 Commission  v Italy  [1999] ECR I-7773, paragraph 32; and Case C‑363/00 Commission  v Italy , cited above, paragraph 21).
49. The Court notes, however, that, according to the case-law, although the claims as stated in the application cannot in principle be extended beyond the failures to fulfil obligations 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 Community act, subsequently amended or repealed, and which were maintained in force under the new provisions. Conversely, the subject-matter of the dispute cannot be extended to obligations arising under new provisions which do not correspond to those arising under the initial version of the act in question, as otherwise it would constitute a breach of the essential formal requirements of the infringement procedure (see Case 363/00 Commission  v Italy , cited above, paragraph 22).
64. Second, the Grand Duchy of Luxembourg contends that the action for failure to fulfil obligations brought against it is essentially only a purely formal infringement proceeding aimed at obtaining a judgment in principle against it. Moreover, the commencement of the action in Commission  v Luxembourg , referred to above, makes the continuation of the present action all the more pointless and demonstrates that the Commission’s action in bringing the present proceedings is motivated solely by its wish to obtain a judgment in principle from the Court for an infringement which has virtually come to an end.
65. Those arguments cannot be accepted. It is settled case-law that, when exercising its powers under Article 226 EC, the Commission does not have to show that there is a specific interest in bringing an action. The Commission’s function is to ensure, of its own motion and in the general interest, that the Member States give effect to Community law and to obtain a declaration of any failure to fulfil the obligations deriving therefrom with a view to bringing it to an end (see Case C‑333/99 Commission  v France  [2001] ECR I-1025, paragraph 23, and Case C‑394/02 Commission  v Greece  [2005] ECR I-0000, paragraphs 14 and 15 and case-law cited).
66. Furthermore, it is for the Commission to determine whether it is expedient to take action against a Member State, what provisions the Member State has infringed, and to choose the time at which it will bring an action for failure to fulfil obligations; the considerations which determine that choice cannot affect the admissibility of the action (Case C-317/92 Commission  v Germany  [1994] ECR I-2039, paragraph 4; Case C-35/96 Commission  v Italy  [1998] ECR I-3851, paragraph 27; and Commission  v France , cited above, paragraph 24).
67. Lastly, it should be borne in mind that the bringing and continuation of an infringement action is a matter for the Commission in its entire discretion and that the Court must consider whether or not there has been a failure to fulfil obligations as alleged, without its being part of its role to take a view on the Commission’s exercise of its discretion (see Case C‑474/99 Commission  v Spain  [2002] ECR I-5293, paragraph 25).
70. It should be borne in mind that the purpose of the pre-litigation procedure 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. The proper conduct of that procedure thus constitutes an essential guarantee required by the EC Treaty in order to protect the rights of the Member State concerned. It is only when that guarantee is observed that the contentious procedure before the Court can enable it to judge whether that State has in fact failed to fulfil the obligations which the Commission alleges it has breached (see Case C-145/01 Commission  v Italy  [2003] ECR I-5581, paragraph 17 and case-law cited).
76. Although it is true that the excessive duration of the pre-litigation procedure is capable of constituting a defect rendering an action for failure to fulfil obligations inadmissible, it is clear from the case-law that such a conclusion is inevitable only where the conduct of the Commission has made it difficult to refute its arguments, thus infringing the rights of the defence, and that it is for the Member State concerned to provide evidence of such a difficulty (see Case C-287/03 Commission  v Belgium  [2005] ECR I-3761, paragraph 14 and case-law cited).
87. Lastly, the Luxembourg Government contends that the Commission has not established that the Grand Duchy of Luxembourg disregarded its obligations of verification of the compliance of the cost accounting system and the publication of statements of compliance, as provided for by Directive 97/33 and Directive 98/10. In fact, the ILT and the ILR have approved the EPT’s reference interconnection offers for each year since 1998. That approval comprises, inter alia, verification by the ILR and the ILT of the EPT’s compliance with its obligation of cost orientation for tariffs. Accordingly, it follows that since the EPT’s reference interconnection offers have always been the subject of regular approvals and publications, including in 1998 and 1999, the Commission cannot criticise the Luxembourg authorities for having failed to fulfil their obligations under Article 7(5) of Directive 97/33 and Article 18(1) and (2) of Directive 98/10.