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Opinion of Mr Advocate General Mischo delivered on 11 February 1999. # Commission of the European Communities v Hellenic Republic. # Failure by a Member State to fulfil its obligations - Failure to transpose Directive 92/101/EEC. # Case C-185/98.
ECLI:EU:C:1999:74
61998CC0185
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Important legal notice
61998C0185
European Court reports 1999 Page I-03047
Opinion of the Advocate-General
1 In this case which it has referred under the second paragraph of Article 169 of the EC Treaty, the Commission of the European Communities seeks a declaration by the Court that, by failing to adopt and, in the alternative, by failing to communicate to the Commission, within the period prescribed, the laws, regulations and administrative provisions necessary to comply with Council Directive 92/101/EEC of 23 November 1992 amending Directive 77/91/EEC on the formation of public limited-liability companies and the maintenance and alteration of their capital, (1) the Hellenic Republic has failed to fulfil its obligations under the EC Treaty and that directive.
2 Article 3 of that directive provides that `Member States shall adopt before 1 January 1994 the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith inform the Commission thereof'.
3 The Hellenic Republic admits that Directive 92/101 has not yet been transposed into its legal system. It does, however, point out that a draft Presidential Decree adapting national legislation to the directive is in the process of being adopted.
4 Since, therefore, it cannot be disputed, and has not been disputed, that Directive 92/101 was not transposed within the period prescribed therein, the Commission's application must be considered to be well founded. (2)
Conclusion
5 I accordingly propose that the Court uphold the Commission's application and:
(1) declare that, by failing to adopt, within the period prescribed, the laws, regulations and administrative provisions necessary to comply with Council Directive 92/101/EEC of 23 November 1992 amending Directive 77/91/EEC on the formation of public limited-liability companies and the maintenance and alteration of their capital, the Hellenic Republic has failed to fulfil its obligations under that directive;
(2) order the Hellenic Republic to pay the costs.
(1) - OJ 1992 L 347, p. 64.
(2) - See, along these lines, in particular, Case C-410/97 Commission v Luxembourg [1998] ECR I-6813.