7As the Court has held, in order for a letter of formal notice to be issued, a prior failure by the Member State concerned to fulfil an obligation owed by it must be alleged (see Order in Case C-341/97 Commission v Netherlands [2000] ECR I-6611, paragraph 18, and Case C-230/99 Commission v France [2001] ECR I-1169, paragraph 32). Even if that Member State does not consider it necessary to avail itself of the opportunity to submit its observations, such an opportunity constitutes an essential guarantee required by the EC Treaty and amounts to an essential procedural requirement in proceedings relating to the finding of a failure on the part of a Member State. The letter of formal notice cannot therefore relate to failure to transpose a directive in respect of which the time-limit for implementation had not yet expired (see Case 31/69 Commission v Italy [1970] ECR 25, paragraphs 12 to 14).
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