Commission of the European Communities v Portuguese Republic.
Date: 2009-09-10
38. Although Article 228 EC does not specify the period within which a judgment of the Court establishing that a Member State has failed to fulfil its obligations must be complied with, it follows from settled case‑law that the importance of immediate and uniform application of Community law means that the process of compliance must be initiated at once and completed as soon as possible (see, inter alia, Case C‑121/07 Commission  v France  [2008] ECR I‑0000, paragraph 21 and the case-law cited).
39. In addition, the reference date for assessing whether there has been a failure to fulfil obligations under Article 228 EC is the date of expiry of the period prescribed in the reasoned opinion issued under that provision (see, inter alia, Case C-109/08 Commission  v Greece [2009] ECR I-0000, paragraph 15 and the case-law cited).
47. Since the procedure laid down in Article 228(2) EC must be regarded as a special judicial procedure for the enforcement of judgments, in other words as a method of enforcement (Case C-304/02 Commission  v France  [2005] ECR I-6263, paragraph 92) only a failure of a Member State to fulfil its obligations under the Treaty which the Court has declared, on the basis of Article 226 EC, to be well founded may be dealt with under that procedure.
55. It is settled case-law in that connection that, in an action under Article 226 EC, the letter of formal notice sent by the Commission to a Member State and the reasoned opinion issued by the Commission delimit the subject-matter of the dispute, so that it cannot thereafter be extended. The opportunity for the Member State concerned to submit its observations, even if it chooses not to avail itself thereof, constitutes an essential guarantee intended by the Treaty, adherence to which is an essential formal requirement of the procedure for finding that a Member State has failed to fulfil its obligations. Consequently, the reasoned opinion and the proceedings brought by the Commission must be based on the same complaints as those set out in the letter of formal notice initiating the pre-litigation procedure (see, in particular, Case C-422/05 Commission  v Belgium  [2007] ECR I-4749, paragraph 25, and Case C‑186/06 Commission  v Spain  [2007] ECR I-12093, paragraph 15).
56. The same is true of proceedings brought under Article 228(2) EC, the subject‑matter of which is circumscribed by the pre-litigation procedure provided for by that provision, meaning that the Commission, in its application, cannot extend the subject-matter of the dispute by putting forward new complaints which were not in the reasoned opinion in which the Commission specified the points on which the Member State concerned had not complied with the judgment of the Court finding a failure to fulfil obligations (see, to that effect, Case C-177/04 Commission  v France  [2006] ECR I-2461, paragraphs 37 to 39).
57. Admittedly, the requirement that the subject-matter of proceedings brought under Articles 226 EC and 228(2) EC be circumscribed by the pre-litigation procedure provided for by those provisions cannot be stretched so far as to mean that in every case 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, inter alia, regarding the application of Article 226 EC, Case C-147/03 Commission  v Austria  [2005] ECR I‑5969, para graph 24, and Case C-33/04 Commission  v Luxembourg  [2005] ECR I-10629, paragraph 37; and, as regards the application of Article 228(2) EC, Case C-177/04 Commission  v France , paragraph 37).
58. Thus, the Court has held that, where legislation is altered during the pre‑litigation procedure, the action may relate to provisions of national law which are not the same as those referred to in the reasoned opinion (see, inter alia, Case C-203/03 Commission  v Austria  [2005] ECR I-935, paragraph 29, and Case C-177/04 Commission  v France , paragraph 38). That is true in particular where, after the reasoned opinion is issued, a Member State amends the national provisions referred to in the reasoned opinion in order to address the complaints relating to the failure to comply with the judgment establishing the failure to fulfil obligations.
67. The purpose of the procedure under Article 228(2) EC, like that of the pre-litigation procedure under Article 226 EC, is to give the Member State concerned the opportunity to comply with its obligations under Community law or to put its case properly against the complaints set out by the Commission as regards its continued failure to fulfil its obligations (see, inter alia, by analogy, judgment of 23 April 2009 in Case C-331/07 Commission  v Greece , paragraph 26)..
68. The reasoned opinion and the action provided for in Article 228(2) EC must set out the Commission’s complaints coherently and precisely in order that the Member State and the Court may appreciate exactly the extent to which the judgment finding a failure to fulfil obligations has been complied with, a condition which is necessary in order to enable the Member State to avail itself of its right to defend itself and the Court to determine whether there is a continued failure to fulfil obligations (see, by analogy, Case C-199/04 Commission  v United Kingdom  [2007] ECR I-1221, paragraph 21).
78. The Commission’s complaint about the lack of precision as to the criteria to be taken into account in the approval procedure provided for in Article 17 of the RGEU also cannot be considered to be admissible simply because it relates to the criticism made by the Court in paragraph 50 of the judgment in Case C-432/03 Commission  v Portugal , concerning the lack of objective, non-discriminatory criteria known in advance to which the pipes were subject during that approval procedure.
90. Accordingly, the Commission’s complaint relating to the criteria which must be satisfied by the tests and inspections in other Member States cannot be regarded as admissible on the ground that it in fact relates to the criticism expressed by the Court in paragraph 51 of Case C-432/03 Commission  v Portugal , concerning the fact that the pipes at issue were not subject to objective and non-discriminatory criteria known in advance during the approval procedure provided for in Article 17 of the RGEU.
97. As regards, secondly, the examination of the merits of this complaint, it must be stated that the Commission merely reiterated the factual background to that judgment, without providing the Court with the information necessary to determine the extent to which the Member State had complied with the judgment establishing the failure to fulfil obligations (see, to that effect, Case C-387/97 Commission  v Greece  [2000] ECR I‑5047, paragraph 73, and Case C-369/07 Commission  v Greece  [2009] ECR I-0000, paragraph 74).