Court of Justice 23-04-2002 ECLI:EU:C:2002:250

Opinion of Advocate General

Mischo

delivered on 23 April 2002⁽¹⁾

1. In the infringement proceedings which are the subject of this Opinion the Commission seeks a declaration that, by failing to adopt and bring into force within the prescribed period the whole of the laws, regulations and administrative provisions, including any penalties, necessary to comply with Directive 98/10/EC of the European Parliament and of the Council of 26 February 1998 on the application of open network provision (ONP) to voice telephony and on universal service for telecommunications in a competitive environment,⁽²⁾ the French Republic has failed to fulfil its obligations under Article 32 of that directive and Article 249 EC.

2. The aim of that directive is the harmonisation of conditions for open and efficient access to and use of fixed public telephone networks and fixed public telephone services, in accordance with the principles of open network provision (ONP), and to ensure the availability throughout the Community of uniform, good quality fixed telephone services at an affordable price.

3. The Commission points out that Article 32 of the directive provides that Member States are to take the measures necessary to comply with the directive by 30 June 1998 and forthwith inform the Commission thereof.

4. It claims that the defendant has failed to take these measures.

5. The Commission is specifically alleging failure to transpose Article 6(3) and (4) and Articles 10, 21 and 26 of the directive.

6. However, the French Republic asks the Court to dismiss, in part, the action for infringement brought by the Commission. It contends that Articles 6(3) and 10(2) of the directive have been expressly transposed by Articles 17 and 19 of Order No 2001-670 of 25 July 2001 on the adaptation to Community law of the Intellectual Property Code and of the Post and Telecommunications Code,⁽³⁾ which was forwarded to the Commission with letters dated 1 August and 3 October 2001.

7. The defendant adds that Articles 10(1) and 21 of the directive have been transposed following the adoption of Decree No 2002-36 of 8 January 2002 relating to certain standard clauses in contract documents attached to authorisations issued under Article L 33-1 of the Post and Telecommunications Code,⁽⁴⁾ which was notified to the Commission on 31 January 2002.

8. It must be noted, however, as argued by the Commission, that it is settled case-law that failure to comply with obligations must be determined by reference to the situation at the end of the period laid down in the reasoned opinion.⁽⁵⁾ In the present case the reasoned opinion was sent to the French Government on 19 July 1999 and set a time-limit of two months.

9. The transposition measures referred to by the French Government, which, I would repeat, were notified to the Commission in August and October 2001 and in January 2002, were therefore taken after the period laid down in the reasoned opinion had expired, so that they do not have any bearing on the existence of the failure to comply with obligations which is alleged by the Commission.

10. As regards the other provisions at issue, namely Articles 6(4) and 26 of the directive, the defendant does not deny that the necessary transposition measures are still in the course of adoption.

11. It follows that it has failed to comply with its obligations, as alleged by the Commission.

Conclusion

12. For the above reasons I propose that the Court should:

• declare that, by failing to adopt and bring into force within the prescribed period the whole of the laws, regulations and administrative provisions necessary to transpose Directive 98/10/EC of the European Parliament and of the Council of 26 February 1998 on the application of open network provision (ONP) to voice telephony and on universal service for telecommunications in a competitive environment, and in particular Article 6(3) and (4) and Articles 10, 21 and 26, the French Republic has failed to fulfil its obligations under Article 32 of that directive;

• order the French Republic to pay the costs.