C-102/79

JUDGMENT OF 6. 5. 1980 — CASE 102/79

has adopted measures which do not Member State's absolving itself from conform to a directive, has the Court taking in due time implementing of Justice recognized the right of measures sufficient to meet the persons affected thereby to rely in law purpose of each directive. on a directive as against a defaulting 3. A Member State cannot rely upon Member State. This minimum domestic difficulties or provisions of guarantee arising from the binding its national legal system, even its nature of the obligation imposed on constitutional system, for the purpose the Member States by the effect of the of justifying a failure to comply with directives under the third paragraph obligations and time-limits contained of Article 189 cannot justify a in Community directives.

In Case 102/79

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Advisers, Rolf Wagenbauer and Auke Haagsma, acting as Agents, with an address for service in Luxembourg at the office of its Legal Adviser, Mario Cervino, Jean Monnet Building, Kirchberg, applicant,

ν

KINGDOM OF BELGIUM, represented by Robert Hoebaer, Director at the Ministère des Affaires Etrangères, du Commerce Extérieur et de la Coopération au Développement [Ministry for Foreign Affairs, Foreign Trade and Cooperation with Developing Countries], acting as agent with an address for service in Luxembourg at the Belgian Embassy, defendant,

JUDGMENT

Facts and Issues

The facts of the case, the procedure, and of the programme by adopting a the submissions and arguments of the framework directive: Directive No parties may be summarized as follows: 70/156 of 6 February 1970 on the approximation of the laws of the Member States relating to the type- I — Summary of the facts approval of motor vehicles and their trailers (Official Journal, English Special Edition 1970 (I), p. 96) and Directive No By a resolution of 28 May 1969 the 74/150, of 4 March 1974 on the ap­ Council adopted a programme for the proximation of the laws of the Member elimination of technical barriers to trade States relating to the type-approval of in industrial products which result from wheeled agricultural or forestry tractors disparities between the provisions laid (Official Journal L 84, p. 10). down by law, regulation or administrative action in Member States (Official Journal, English Special These two framework directives Edition, Second Series, IX. Resolutions introduce a system of "EEC type- of the Council and of the Represen­ approval" based upon the principle of tatives of the Member States, p. 25). This the mutual recognition of the checks programme, which lays down an order carried out and of the certificates of of priorities for the elimination of most conformity issued by the competent of these barriers, provides, in three national authorities. stages, for the adoption of directives, inter alia in the field of motor vehicles "EEC type-approval", which must be and in the field of agricultural tractors distinguished from "national type- and machinery. approval", is the procedure by which a Member State establishes that a type of In eacli of these two fields the Council vehicle or tractor satisfies the technical has embarked upon the implementation requirements of the particular directives

to be issued in implementation of the Community requirements have already framework directives and the checks been laid down by means of directives. listed in the EEC type-approval certi- ficate (Article 2 (b) of the directives). As regards the motor vehicle sector the Council adopted 17 separate directives starting .in February 1970 and in the Before giving type-approval to a vehicle tractor sector 8 separate directives or tractor Member States are obliged to starting in March 1974. carry out a certain number of checks of a technical nature; whether production models conform to the approved Each of the separate directives contains a prototype may be verified by spot checks provision (Article 2) by which no (Article 4). Member States have an Member State may refuse to grant EEC obligation to give each other information type-approval or national type-approval on inter alia the vehicle or tractor types of a vehicle or tractor on grounds which they approve or refuse to approve relating to the individual parts of (Article 5 (1) ). The manufacturer must characteristics covered by the directive if complete, in the country of registration, they satisfy the requirements set out in a certificate of conformity for each that directive. vehicle or tractor manufactured in comformity with the approved prototype (Article 5 (2) ). No Member State may refuse to register or prohibit the sale, The various directives all contain a entry into service or use of any new provision by which the Member States vehicle on grounds relating to its con- must put into force the provisions struction or functioning where that necessary in order to comply with the vehicle is accompanied by a certificate of directive in question within 18 months of conformity (Article 7 ( 1 ) ) . Where vehicles its notification or by a specific date laid are found not to conform to the type down in the directive itself; Member approved, Member States are to take States are obliged forthwith to inform the necessary measures (Article 8 (1)); the Commission thereof. provision is made for co-ordination measures and collaboration between the competent national authorities (Article 8 Since the Kingdom of Belgium had not (2) and (3) ). adopted the necessary measures to introduce directives in the motor vehicle and tractor sectors into national law within the prescribed time-limits, on 12 July 1974, 14 April 1976 and 21 April The framework directives provide that 1977 respectively the Commission the harmonized technical requirements commenced three sets of proceedings applicable to individual parts and under Article 169 of the EEC Treaty characteristics of a vehicle or tractor against that Member State for a shall be specified in separate directives. declaration that it had failed to fulfil its These technical requirements must be obligations under the Treaty concerning observed for a vehicle to secure EEC three groups of directives. type-approval. Pending the adoption of all the separate directives a transitional system of "partial type-approval" has been set up limited to individual parts or Having taken cognizance of the obser- characteristics in respect of which vations submitted to it by the Belgian

Government, in particular by letters of trailers (Official Journal, English 6 July 1976 and of 18 January 1977, the Special Edition 1970 (II), p. 564); Commission acknowledged by letter of 26 June 1978 that certain of the (3) Directive No 74/60 of 17 December directives in question had in the 1973 on the approximation of the meantime been introduced into national laws of the Member States relating law by means of Royal Decrees. to the interior fittings of motor vehicles (interior parts of the passenger compartment other than On 21 June 1978 the Commission the interior rear-view mirrors, layout delivered a reasoned opinion, addressed of controls, the roof or sliding roof, to the Belgian Government on 22 June, the backrest and rear part of the in which it declared that by not adopting seats) (Official Journal 1974 L 38, p. the laws, regulations and administrative 2 and L 215, p. 20); provisions necessary to comply with 13 directives in the motor vehicle and (4) Directive No 74/483 of 17 Sep­ agricultural tractor sectors, the Kingdom tember 1974 on the approximation of of Belgium had failed to fulfil its the laws of the Member States obligations under those directives. relating to the external projections Pursuant to the second paragraph of of motor vehicles (Official Journal Article 169 of the Treaty the L 266, p. 4). Commission invited the Kingdom of Belgium to take the measures required to comply with the reasoned opinion within (b) in the tractor sector: a period of two months from its notification. (1) Directive No 74/150 of 4 March 1974 on the approximation of the laws of the Member States relating The reasoned opinion of the Commission to the type-approval of wheeled agri­ related in particular to the following cultural or forestry tractors 12 directives since in the meantime the [framework directive] (Official Commission had decided not to pursue Journal L 84, p. 10); proceedings in relation to one specific directive: (2) Directive No 74/151 of 4 March 1974 on the approximation of the laws of the Member States relating to certain parts and characteristics of (a) in the motor vehicle sector: wheeled agricultural or forestry tractors (Official Journal L 84, p. (1) Directive No 70/221 of 20 March 25). This directive concerns the 1970 on the approximation of the maximum permissible laden weight, laws of the Member States relating the location and method of fixing of to liquid fuel tanks and rear the rear registration plates, the liquid protective devices for motor vehicles fuel tanks, ballast weights, audible and their trailers (Official Journal, warning devices, external sound English Special Edition 1970 (I), p. level, and exhaust systems (silencer); 192); (3) Directive No 74/152 also of 4 March 1974 on the approximation (2) Directive No 70/387 of 27 July 1970 of the laws of the Member States on the approximation of the laws of relating to the maximum design the Member States relating to the speed and load platforms (Official doors of motor vehicles and their Journal L 84, p. 33);

(4) Directive .No 74/346 of 25 June proceedings before the Court of Justice 1974 on the approximation of the under the second paragraph of Article laws of the Member States relating 169 of the EEC Treaty concerning the to rear-view mirrors (Official alleged failure by the Kingdom of Journal L 191, p. 1); Belgium to implement four directives in the motor vehicle sector and eight (5) Directive No 74/347 also of 25 June directives in the sector of wheeled agri- 1974 relating to the field of vision cultural or forestry tractors. and windscreen wipers for tractors (Official Journal L 191, p. 5); The written procedure followed the normal course. . (6) Directive No 75/321 of 20 March 1975 relating to steering equipment (Official Journal L 147, p. 24); Upon hearing the report of the Judge- Rapporteur and the views of the (7) Directive No 75/322 also of 20 May Advocate General, the Court decided to 1975 relating to the suppression of open the oral procedure without any radio interference produced by preparatory inquiry. spark-ignition engines fitted to tractors (Official Journal L 147, p. 28); I l l — C o n c l u s i o n s of the p a r t i e s (8) Directive No 75/323 also of 20 May 1975 relating to the power connexion fitted on tractors for The Commission claims that the Court lighting and light-signalling devices on tools, machinery or trailers should: intended for agriculture or forestry (Official Journal L 147, p. 38). — Declare that by not adopting within the prescribed periods the laws, regu- lations and administrative provisions The periods for the implementation of necessary to comply with the those directives expired on 24 September provisions of Council Directives Nos 1971 for Directive No 70/221, on 70/221, 70/387, 74/60, 74/483, 29 January 1972 for Directive No 74/150, 74/151, 74/152, 74/346, 70/387, on 1 June 1975 for Directive No 74/347, 75/321, 75/322 and 75/323 74/483, on 21 June for Directive No on the approximation of the laws of 74/60, on 8 September 1975 for the Member States relating to motor Directives No 74/150, 74/151 and vehicles and agricultural and forestry 74/152, on 2 January 1976 for Directives tractors, the Kingdom of Belgium has No 74/346 and 74/347, on 22 failed to fulfil an obligation under the November 1976 for Directives No Treaty; 75/321, 75/322 and 75/323.

(c) Closer examination of the directives IV — S u b m i s s i o n s and a r g u m e n t s shows that, whilst they are addressed to of t h e p a r t i e s in the w r i t t e n the Member States, some of their procedure provisions indirectly concern the rights or duties of natural or legal persons. Consequently any person affected by them must be in a position to find easily The Commission considers that the the legal rules applicable. For this failure of the Belgian State to fulfil its purpose he must be able to take obligations under the directives is cognizance of legislative acts applicable unquestionable. to him and these must leave no room for legal uncertainty. However, the only legislative acts directed to the persons concerned are those containing the Belgian rules which are unquestionably (a) Under Article 189 of the EEC different from the rules laid down by the Treaty the directives shall be binding, as directives. to the result to be achieved, upon each Member State to which they are addressed, but shall leave to the national authorities the choice of form and methods. According to the case-law of Furthermore the Member States must the Court of Justice the binding nature adopt provisions which the persons of the directives means that all Member concerned may rely on in law. The States are obliged to observe the time- directives govern in particular the rights limits which the directives lay down for and duties of citizens vis-à-vis the State the adoption of the necessary measures and vice versa; individuals are therefore for their implementation. A Member entitled to have the rules laid down in State may not plead internal difficulties the directives applied to their products. or provisions of its own legal system, The Member States must adopt measures even of its constitution, to justify a enabling the persons concerned to rely in failure to comply with the obligations law on measures taken to implement a and time-limits imposed by Community directive. directives.

(d) To say that the object of the directives may be achieved simply because they have "direct effect" and The directives in question contain very "automatically" form part of national detailed requirements in regard to the law would amount to saying that there is technical aspects of the products with no distinction between a directly which they are concerned; these applicable legal instrument, such as a requirements do differ at least in part, regulation, and a directive with the from the Belgian requirements. The attribute of direct effect. Such a directive national provisions presently in force would itself achieve the result which it must therefore be adapted so as to envisages. The freedom of Member incorporate the rules laid down in the States to choose the form and methods directives as well. would be reduced to nothing. Such a view would completely distort the nature of each legal act of the Community as defined in Article 189 of the EEC Treaty. (f) The fact that the Belgian authorities decided on their own initiative to take harmonization further than was contemplated by the directives led to "procedural complications" and delays for which the Belgian authorities alone The fact that certain provisions of the are responsible. directives in question are recognized as having "direct effect" does not alter the obligation imposed on the Member State to adopt provisions to implement them. Under the case-law of the Court any The Government of the Kingdom of direct effect of a directive can only be Belgium considers that the Commission's taken into account in the event of the application is unfounded: the directives Member State's default. in question are in fact applied by the competent national authorities and therefore there is no obstacle to intra- Community trade; the incorporation of the content of the directives into national law is certainly not essential for the (e) The fact that "products complying purpose of implementing them, although with a directive" are allowed into it may possibly be desirable for reasons Belgium without any difficulty, that the of legal clarity; the incorporation of the directives are "optional" and that the directives, started in 1977, was delayed Belgian provisions are less strict, does by the Belgian Government's own not mean that the Belgian authorities do commitment to the progressive repeal of

(b) As regards the matters dealt with by the directives, the Belgian national rules A directive can be distinguished from a contain requirements which are less strict regulation in so far as a directive leaves than the Community requirements: they the States a degree of freedom in regard do not therefore act as an obstacle to the to the procedures to be used to entry into Belgium of vehicles and implement it. Such is the case whenever a tractors which comply with the directive is a general one with few details; on the other hand, like those in Community rules. At the national level, this case, many directives contain so the Belgian rules are not contrary to the much detail that they may be equated Community requirements either, since with a regulation. the optional system of the directives allows less strict rules.

The legal procedures by which directives are put into force vary from case to case; (c) The Community directives are they may consist of anything from a applied in full under Belgian statute down to a simple departmental

JUDGMENT OF 6. 5. 1980 — CASE 102/79

memorandum. The legal guarantees question override national law as well as provided by. the various procedures differ the national decree implementing them widely. A directive is a much surer legal and, since they are directly applicable, guarantee than a number of procedures they may be automatically incorporated undertaken to incorporate the directive into a national legal system. Such incor- into national law. Recognition, by the poration is really for the sole purpose of State to which the directive is addressed, legal certainty. that it is directly applicable is a rational and useful way of applying Community law.

The concept of direct applicability is basically used to safeguard the rights of (f) With the intention of securing two interested parties when they are simplification or legal clarity the Belgian confronted with a failure by a State to Government has shown its readiness to fulfil its obligations. There is nothing to satisfy the wishes of the Commission. It prevent a State which applies a has even gone further than required by Community rule from relying on the the Community law by agreeing to content of that rule in order to invoke replace existing national rules with those direct applicability. contained in the directives. This decision was, however, the cause of the delay in incorporating the 12 directives in question here into national law. They had been reproduced in the form of 12 draft Royal Decrees which, all being (e) The incorporation of the directives well, would have entered into force on 1 into national law is not therefore the January 1978. Following the refusal of same thing as the application of the some Belgian courts to apply regulations content of the directives: the rules in claimed to have been issued in circum-

COMMISSION ν BELGIUM

2 All the directives referred to were adopted on the basis of Article 100 of the EEC Treaty relating to the harmonization of the laws, regulations and administrative provisions of Member States which directly affect the establishment or functioning of the Common Market. The first set of directives referred to was adopted under Council Directive No 70/156 of

JUDGMENT OF 6. 5. 1980 — CASE 102/79

6 February 1970 on the approximation of the laws of the Member States relating to the type-approval of motor vehicles (Official Journal, English Special Edition 1970 (I), p. 96); the second set of directives was adopted under Council Directive No 74/150 of 4 March 1974 on the approximation of the laws of the Member States relating to the type-approval of agricultural tractors which is also alleged not to have been implemented.

3 The directives in question lay down periods for their implementation, usually 18 months, which expire at various dates from 24 September 1971 to 22 November 1976. It is not contested that during those periods Belgium has not taken any measures to implement the directives. However the Belgian Government considers that it has nevertheless not failed to fulfil its obligations under the Treaty. It advances two kinds of argument in support of this.

4 First, the défendent Government contends that the object of the directives, namely the elimination of certain barriers to intra-Community trade, has been fully achieved in Belgium by virtue of administrative practice; since Belgian requirements in this field are less strict than the Community rules there is no obstacle to the importation of vehicles and tractors which comply with those rules.

8 The particular directives which the Belgian State is accused of not implementing were adopted on the basis of two framework directives, Directives Nos 70/156 and 74/150 cited above, on the approximation of the laws of the Member States in the field under consideration, whilst the framework directive on tractors is itself the subject-matter of the action. The preamble to both these framework directives points out that the different technical requirements applied in this field by the Member States have the effect of hindering trade within the Community (first recital). It is for the purpose of eliminating these hindrances that the directives make provision for a system of "EEC type-approval" in regard to different types of vehicles which is put into effect by issuing "certificates of conformity" for each vehicle. These vehicles must then be treated by all the Member States as complying with their own legislation (sixth and seventh recitals in the preamble respectively). According to Article 7 (1) of both directives, no Member State may "refuse to register or prohibit the sale, entry into service or use of any new vehicle on grounds relating to its construction or functioning, where that vehicle is accompanied by a certificate of conformity". According to Article 14, which is still the same in both directives, all decisions taken pursuant to the directive, refusing or withdrawing type-approval, or refusing registration or prohibiting sale or use, "shall state in detail the reasons on which they are based"; a decision shall be notified to the party concerned, who shall at the same time be informed of the remedies available to him under the laws in force in the Member States. Finally, under Article 15 of both directives, the Member States "shall put into force provisions containing the requirements necessary

1 1 The argument of the Belgian Government based on the "optional" nature of the directives in question has no relevance since the binding effect of the directive from which Member States are not permitted to derogate is meant to abolish all obstacles to the freedom of movement likely to arise in regard to products originating from other Member States as a result of the application of technical rules which are different from Community rules. It is therefore essential in this regard that each Member State should implement the directives in question in a way which fully meets the requirements of clarity and certainty in legal situations which directives seek for the benefit of manufacturers established in other Member States. Mere administrative practices, which by their nature can be changed as and when the authorities please and which are not publicized widely enough cannot in these circum- stances be regarded as a proper fulfilment of the obligation imposed by Article 189 on Member States to which the directives are addressed.

COMMISSION ν BELGIUM

15 It need only be observed, as the Court has repeatedly stated, for example in its judgment of 11 April 1978 (Commission ν Italian Republic, Case 100/77 ECR 879), that a Member State cannot rely upon domestic difficulties or provisions of its national legal system, even its constitutional system, for the purpose of justifying a failure to comply with obligations and time-limits contained in Community directives.

JUDGMENT OF 6. 5. 1980 — CASE 102/79

16 Additional justification for judging the case in this manner is provided by Article 15 of both general directives, Nos 70/156 of 6 February 1970 and 74/150 of 4 March 1974 which provide in identical terms that "Member States shall put into force provisions containing the requirements 'necessary' in order to comply with this directive within 18 months of its notification and shall forthwith inform the Commission thereof". Since both directives are framework directives this provision may be read as meaning that Member States to which they are addressed have a duty to anticipate the steps needed under their respective legislative systems in order to put into force within the required time-limits the separate directives whose subject-matter is plainly identified in the annex to each of the said directives.

17 In these circumstances the arguments put forward by the Belgian Government concerning the problems which it encountered when implementing the directives in question cannot be accepted.

18 It follows from the foregoing that the Court must declare that the Kingdom of Belgium has failed in its obligations.

COMMISSION ν BELGIUM

— Directive No 70/221/EEC of 20 March 1970 on the approxi­ mation of the laws of the Member States relating to liquid fuel tanks and rear protective devices for motor vehicles and their trailers;

— Directive No 70/387/EEC of 27 July 1970 on the approximation of the laws of the Member States relating to the doors of motor vehicles and their trailers;

— Directive No 74/60/EEC of 17 December 1973 on the approxi­ mation of the laws of the Member States relating to the interior fittings of motor vehicles (interior parts of the passenger compartment other than the interior rear-view mirrors, layout of controls, the roof or sliding roof, the backrest and rear part of the seats);

— Directive No 74/483/EEC of 17 September 1974 on the approxi­ mation of the laws of the Member States relating to the external projections of motor vehicles;

— Directive No 74/150/EEC of 4 March 1974 on the approximation of the laws of the Member States relating to the type-approval of wheeled agricultural or forestry tractors;

— Directive No 75/322/EEC also of 20 May 1975 on the approxi­ mation of the laws of the Member States relating to the suppression of radio interference produced by spark-ignition engines fitted to tractors;

— Directive No 75/323/EEC also 20 May 1975 on the approxi­ mation of the laws of the Member States relating to the power connexion fitted on tractors for lighting and light-signalling devices on tools, machinery or trailers intended for agriculture or forestry.

2. The Kingdom of Belgium is ordered to pay the costs.

Kutscher O'Keeffe Touffait Mertens de Wilmars Pescatore

Mackenzie Stuart Bosco Koopmans Due

Delivered in open court in Luxembourg on 6 May 1980.