OPINION OF ADVOCATE GENERAL

ALBER delivered on 10 December 2002 (1)

Grand Duchy of Luxembourg

((Failure to fulfil obligations – Failure to transpose – Directive 97/66/EC))

In the present proceedings against the Grand Duchy of Luxembourg for failure to fulfil Treaty obligations, the Commission requests the Court to:

(1) declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector, (2) the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

(2) order the Grand Duchy of Luxembourg to pay the costs of the proceedings.

Article 15(1) of the Directive required Member States to bring into force the laws, regulations and administrative provisions necessary to comply with the provisions of the Directive not later than 24 October 1998. By way of derogation from this time-limit, Member States were required under the second subparagraph of Article 15(1) to bring into force the laws, regulations and administrative provisions necessary to comply with Article 5 of the Directive not later than 24 October 2000. Under Article 15(4) Member States were required to communicate to the Commission the text of the provisions of national law adopted by them in the field covered by the Directive.

No legal provisions for the implementation of the Directive were forwarded to the Commission either by 24 October 1998 or by 24 October 2000. The Commission for that reason first sent to the Luxembourg Government a letter of formal notice on 3 February 1999. By letter of 31 March 1999 draft legislation was sent to the Commission by the Office of the Permanent Representative of Luxembourg but without any indication of the date on which such legislation was likely to enter into force. The Commission subsequently sent to that Member State, by letter of 23 July 1999, a reasoned opinion calling for implementation within two months. No reply to that letter was received. In view of the expiry on 24 October 2000 of the implementation period under the second subparagraph of Article 15(1), the Commission also sent a letter of formal notice to the Grand Duchy of Luxembourg on 5 December 2000. As Luxembourg did not dispute its failure to fulfil its obligations, the Commission sent to it on 25 July 2001 a reasoned opinion which likewise called for implementation within two months. This reasoned opinion also remained unanswered.

In the proceedings before the Court, the Luxembourg Government stated inter alia, by way of explanation for its failure to transpose, that extensive studies had initially been carried out to determine the appropriate legal form of transposition and that Directive 97/66 had subsequently been amended by Article 19 of Directive 2002/58/EC, (3) with the result that it had been intended also to take account of the amendment when the Directive was being transposed.

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 that Member State at the end of the period laid down in the reasoned opinion. (4) Nor can a Member State plead provisions, practices or circumstances existing in its internal legal order in order to justify a failure to comply with the obligations and time-limits laid down in a directive. (5)

As it is common ground that the Directive had not yet been transposed into Luxembourg law by the relevant date, it must be held that there has been a failure to fulfil obligations.

Costs

Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. As the Commission has applied for costs to be awarded against the Grand Duchy of Luxembourg and as the latter will be unsuccessful on the basis of the views set out above, the Grand Duchy of Luxembourg should be ordered to pay the costs.

Conclusion

I propose that the Court rule as follows:

(1) By failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive.

(2) The Grand Duchy of Luxembourg shall pay the costs of the proceedings.

1 – Original language: German.

2 – OJ 1998 L 24, p. 1.

3 – Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ 2002 L 201, p. 37).

4 – See, inter alia, Case C-147/00 Commission v France [2001] ECR I-2387, paragraph 26; Case C-364/00 Commission v Netherlands [2002] ECR I-4177, paragraph 8; and Case C-351/01 Commission v France [2002] ECR I-8101, paragraph 9.

5 – See, inter alia, Case C-78/00 Commission v Italy [2001] ECR I-8195, paragraph 38, and Case C-351/01, cited in footnote 4, paragraph 9.