Opinion of Mr Advocate General Tesauro delivered on 16 February 1989

1 Original language: Italian.

2 Incidentally, as regards the moment at which the subject-matter of the dispute is definitively fixed, I consider it necessary to exclude any parallel between the administrative procedure envisaged by Anicie 90 of the Staff Regulations and the pre-litigation procedure under Anicie 169 of the EEC Treaty relating to the failure of a Member State to fulfil its obligations. The duty to define ine petition and the catita pelenai at the pre-litigation stage of such actions against a Member State flows from the very wording of Article 169, which expressly requires the Commission to deliver a reasoned opinion (emphasis added). This is reflected in successive judgments of the Court, according to which the scope of the dispute, in actions brought against Member States for failure to fulfil an obligation, is definitively fixed by the reasoned opinion — that is, during the pre-litigation procedure (see for example the judgment of 23 February 1988 in Case 353/85 Commimon v United Kingdom [1988] ECR 817). None of the above is to be found in Article 90 of the Staff Regulations concerning the conditions governing a complaint lodged by an official.