Commission of the European Communities v Italian Republic.
Date: 2008-04-10
22. In that regard, it must be recalled that it is settled case-law that the proper conduct of the pre-litigation procedure constitutes an essential guarantee required by the EC Treaty not only in order to protect the rights of the Member State concerned, but also so as to ensure that any contentious procedure will have a clearly defined dispute as its subject-matter. It follows from that function that the purpose of the letter of formal notice is, first, to delimit the subject-matter of the dispute and to indicate to the Member State, which is invited to submit its observations, the factors enabling it to prepare its defence and, secondly, to enable the Member State to comply before proceedings are brought before the Court (Case C‑1/00 Commission  v France  [2001] ECR I-9989, paragraph 54, and Case C‑476/98 Commission  v Germany [2002] ECR I-9855, paragraphs 46 and 47).
30. As is apparent from the case-law of the Court, a Member State which has not transposed, within the period prescribed, a Community directive and against which infringement proceedings have been brought in respect not of the failure to transpose but of the failure to fulfil an obligation flowing from that directive cannot plead the fact that it has not taken the necessary measures to implement the directive in order to object to the admissibility of the action and hence to prevent the Court from examining the application for a declaration that it has failed to fulfil its obligations (Case C-431/92 Commission v Germany [1995] ECR I-2189, paragraph 23).
33. According to settled case-law, a Member State may not plead its late implementation of a directive as justification for failure to fulfil, or late fulfilment of, other obligations imposed by that directive (see Case C-274/98 Commission  v Spain  [2000] ECR I-2823, paragraph 22, and Case C-127/99 Commission  v Italy  [2001] ECR I-8305, paragraph 45). When a directive, such as that in question in the present case, lays down unequivocal obligations on the competent national authorities, Member States which have not transposed the directive cannot consider themselves relieved from compliance with those obligations after the period for transposition has expired and cannot exclude, by a transitional provision, the application of the provisions of the directive. To allow the State such a right would have the effect of allowing it to defer the time-limit for transposition by it (see, to that effect, Case C-396/92 Bund Naturschutz in Bayern and Others  [1994] ECR I-3717, paragraph 19).
42. Regarding the plea of inadmissibility put forward by the Italian Republic, it should be recalled that it is settled case-law that the question 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. Accordingly, even where the infringement has been remedied after that period has expired, there is still an interest in pursuing the action in order to establish the basis of liability which a Member State may incur, as a result of its infringement, to, amongst others, persons who derive rights from the infringement (see, to that effect, Case C-29/90 Commission  v Greece [1992] ECR I‑1971, paragraph 12, and Case C-519/03 Commission  v Luxembourg [2005] ECR I‑3067, paragraphs 18 and 19).