C-148/81
ECLI:EU:C:1982:348
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JUDGMENT OF THE COURT 12 OCTOBER 1982 1
Commission of the European Communities v Kingdom of Belgium
(Failure to implement Directive 77/91/EEC)
Case 148/81
Member States — Obligations — Implementation of directives — Failure to comply with time-limits for their implementation —Justification forfailure — Not possible (EEC Treaty, Art. 169)
A Member State may not plead Since the governments of the Member provisions, practices or circumstances States participate in the preparatory existing in its internal legal system in work for directives they must be in a order to justify a failure to comply with position to prepare, within the period obligations resulting from Community prescribed, the draft legislative provisions directives. necessary for their implementation.
In Case 148/81
COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, Anthony McClellan, acting as Agent, assisted by Jacques Delmoly, a member of its Legal Department, with an address for service in Luxembourg at the office of Oreste Montalto, a member of its Legal Department, Jean Monnet Building, Kirchberg,
applicant, v
1 — Language of the Case: French
JUDGMENT OF 12. 10. 1982 — CASE 148/81
KINGDOM OF BELGIUM, represented by Robert Hoebaer, director at the Ministry of Foreign Affairs, Foreign Trade and Cooperation with the Developing Countries, acting as Agent, with an address for service in Luxembourg, at the Belgian Embassy, defendant,
APPLICATION for a declaration that by not adopting, within the prescribed period, the provisions needed to-comply with Directive 77/91, the Second Council Directive of 13 December 1976 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent, the Kingdom of Belgium has failed to fulfil one of its obligations under the EEC Treaty,
THE COURT,
composed of: J. Mertens de Wilmars, President, A. O'Keeffe, U. Everling and A. Chloros (Presidents of Chambers), P. Pescatore, Lord Mackenzie Stuart and T. Koopmans, Judges,
Advocate General : Sir Gordon Slynn Registrar: P. Heim
gives the following
JUDGMENT
Facts and Issues
The facts of the case, the course of the I Summary of the facts procedure, the conclusions and the submissions and arguments of the parties article 54 (3) (g) of the EEC Treaty may be summarized as follows: provides that the Council and the
COMMISSION v BELGIUM
Commission are to carry out the duties Directive 77/91 was notified to the devolving upon them regarding the right Member States on 16 December 1976. In of establishment, in particular by coordi accordance with Article 43 thereof, the nating to the necessary extent the safe Member States were required to bring guards which, for the protection of the into force the laws, regulations and interests of members and others, are administrative provisions needed in order required by Member States of companies to comply with the directive within two or firms within the meaning of the years of its notification, that is to say by second paragraph of Article 58 16 December 1978, and forthwith to (companies or firms constituted under inform the Commission that they had civil or commercial law, including done so. cooperative societies, and other legal persons governed by public or private law, save for those which are non-profit- making) with a view to making such Since it appeared that the Kingdom of safeguards equivalent throughout the Belgium had not, within the prescribed Community. period, adopted the necessary measures for implementation of the directive and that in any case the Commission had been given no information with regard On 18 December 1961 the Council drew thereto, the Commission, by letter of 8 up a General Programme for the January 1980, commenced the procedure abolition of restrictions on freedom of provided for in Article 169 of the EEC establishment (Official Journal, English Treaty against Belgium. Special Edition, Second Series, IX, p. 7). In Title VI of that programme it is stated that the safeguards required by Member States of companies and firms for the In its letter the Commission stated that protection of the interests of members by failing to adopt the measures and others should, to the extent necessary to incorporate the directive necessary and with a view to making into its national law, the Kingdom of such safeguards equivalent, be co Belgium had failed to fulfil its ordinated before the end of the second year of the second stage of the obligations and invited the Belgian transitional period. Government to submit its observations within a period of two months.
To give effect to those provisions, the Council, after issuing a first directive, By letters of 29 February and 17 March Directive 68/151 of 9 March 1968, 1980 the Permanent Representation of adopted a second directive on 13 Belgium to the Communities notified the December 1976, Directive 77/91, on Commission that the adaptation of coordination of safeguards which, for Belgian law to the directive was a matter the protection of the interests of of such complexity and involved such members and others, are required by technical difficulties that it had given rise Member States of companies within the to much argument and had created meaning of the second paragraph of certain problems. The preliminary draft Article 58 of the Treaty, in respect of the of a bill adapting national law to the formation of public limited liability directive was submitted for the opinion companies and the maintenance and of the Conseil d'Etat [State Council] on alteration of their capital, with a view to 5 October 1978; it was amended on the making such safeguards equivalent basis of the opinion delivered on 2 (Official Journal 1977, L 26, p. 1). January 1979 by the Conseil d'Etat; the
JUDGMENT OF 12. 10. 1982 — CASE 148/81
bill could not be approved by the Conseil On hearing the report of the Judge- des Ministres [Council of Ministers] Rapporteur and the views of the before 9 November 1979 because of the Advocate General, the Court decided to government crisis, elections in the month open the oral procedure without any of December 1978 and the period preparatory inquiry. However, it invited required for setting up the government; the Belgian Government to state, in the bill amending the laws, consolidated writing, the exact date on which it had on 30 November 1935, on commercial commenced the legislative procedure companies was laid before the Chamber with a view to implementation of the of Representatives on 5 December 1979. directive; that invitation was complied with within the prescribed period.
The Commission, pursuant to the first paragraph of Article 169 of the EEC Treaty, issued a reasoned opinion on 29 III — Conclusions of the parties September 1980, which was notified on 8 October 1980, recording the failure of the Kingdom of Belgium to fulfil its The Commission claims that the Court obligations and inviting it to adopt, should: within a period of two months from notification of the opinion, the measures (a) Declare that the Kingdom of needed to implement the directive. Belgium, by not adopting within the prescribed period the provisions necessary to conform with the On 29 January 1981 the Permanent second Council Directive 77 / 91 / Representation of Belgium informed the EEC, of 13 December 1976, has Commission that the Commission failed to fulfil one of its obligations Spéciale [Special Commission] of the under the Treaty; Chamber of Representatives had begun discussion of the bill and that the (b) Order the Kingdom of Belgium to government would emphasize the urgent pay the costs. need for the work on the bill to be pursued and a vote taken. The Government of the Kingdom of Belgium refrains from submitting any formal conclusions. II — Written procedure
IV — Submissions and arguments By application lodged on 12 June 1981, of the parties during the the Commission, pursuant to the second written procedure paragraph of Article 169 of the EEC Treaty, brought before the Court the matter of the alleged failure of the The Commission observes that according Kingdom of Belgium to fulfil one of its to the third paragraph of Article 189 of obligations by not giving effect to the EEC Treaty directives are binding, as Directive 77/91. to the results to be achieved, upon the Member States to which they are addressed, whilst leaving to the national The written procedure followed the authorities the choice of form and normal course; the Commission waived methods. The mandatory nature of its right to submit a reply. directives imposes upon Member States
COMMISSION v BELGIUM
the obligation to observe the periods The periods prescribed by the directives which they prescribe for the adoption of on companies having a share capital are national implementing provisions. too short: the first Directive, of 9 March 1968, could not be adopted in Belgium before March 1973; the third Directive, of 9 October 1978 concerning mergers Infringement of the Treaty by a Member of public limited liability companies State exists no matter which organ of the granted the Member States a period of State it is whose act or omission is three years within which to introduce responsible for the failure. The Member these provisions into their national legal State in question may not plead system. That tendency to extend the provisions or practices existing in its time-limits recurs thereafter in many internal legal system or special circum draft directives which are under stances at national level in order to discussion within the EEC. justify its failure to fulfil an obligation.
The delay also arises from the amendment of the consolidated laws on Those principles are well established in commercial companies in accordance the case-law of the court. with the fourth Directive, of 25 July 1978, on the annual accounts of certain types of companies. The adaptation of Belgian law to the fourth Directive is By failing to adopt within the prescribed being effected by means of amendments periods the measures needed for to the bill adapting the law to the second implementation of Directive 77/91, the Directive so that the two directives may Kingdom of Belgium has incontestably be incorporated simultaneously into failed to fulfil one of its obligations national law. under the Treaty.
The Government of the Kingdom of Belgium observes that the implementation of the directive within the prescribed V — Oral procedure period entails particular difficulty by reason of the length of legislative pro cedures in Belgium; the political crisis which Belgium has undergone in recent years has further retarded the procedure. At the sitting on 28 April 1982 brief oral argument was presented by Mr Delmoly for the Commission and by Mr Hoebaer for the Government of the Kingdom of Furthermore, in view of the complexity Belgium. of the subject-matter of the directives concerning companies having a share capital and the repercussions both in civil law and commercial law, a special delegation of powers in favour of the The Advocate General delivered his executive was ruled out. opinion at the sitting on 22 June 1982.
JUDGMENT OF 12. 10. 1982 — CASE 148/81
Decision
1 By application received at the Court Registry on 5 June 1981 the Commission brought an action under Article 169 of the EEC Treaty for a declaration that by not adopting within the prescribed period the national provisions needed to comply with Directive 77/91 / EEC , the second Council Directive of 13 December 1976 on coordination of safeguards which, for the protection of the interests of members and others, are required by Mem ber States of companies within the meaning of the second paragraph of Article 58 of the Treaty, in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent, (Official Journal, 1977, L 26, p. 1), the Kingdom of Belgium had failed to fulfil one of its obligations under the EEC Treaty.
2 Pursuant to Article 43 of the directive, Member States were required to bring into force the laws, regulations and administrative provisions needed in order to comply with the directive within two years of its notification. It was notified to the Kingdom of Belgium on 16 December 1976 and the above- mentioned period accordingly expired on 16 December 1978.
3 The Belgian Government does not contest that it has not fulfilled that obligation. It nevertheless points out the special complexity of the directive in question, the length of the legislative procedures and the political crises which Belgium has undergone in recent years, which further retarded the legislative procedure. It observes in this connection that the periods pre scribed by the directives on companies having a share capital are too short in view of the importance of the legislation required.
4 Those circumstances cannot expunge the failure to fulfil one of its obligations with which the Kingdom of Belgium is charged. According to well-established case-law of the Court, a Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with obligations and time-limits resulting from Community directives.
COMMISSION v BELGIUM
5 Attention should also be drawn to the fact that the governments of the Member States participate in the preparatory work for directives and must therefore be in a position to prepare, within the period prescribed, the draft legislative provisions necessary for their implementation. It appears, however, from information produced in the course of the proceedings that no draft law had yet been placed before the Belgian Parliament within the period prescribed for implementation of the directive.
6 It must therefore be declared that by failing to adopt within the prescribed period the provisions needed in order to comply with Council Directive 77/91 of 13 December 1976, the Kingdom of Belgium has failed to fulfil one of its obligations under the Treaty.
Costs
7 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the defendant has failed in its submissions, it must be ordered to pay the costs.
On those grounds,
THE COURT
hereby:
1. Declares that, by not adopting within the prescribed period the provisions needed in order to comply with Council Directive 77/91/ EEC, the second Council Directive of 13 December 1976 on coordi- nation of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Articles 58 of the Treaty, in respect of the formation of public limited liability
OPINION OF SIR GORDON SLYNN — CASE 148/81
companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent, the Kingdom of Belgium has failed to fulfil one of its obligations under the EEC Treaty;
2. Orders the Kingdom of Belgium to pay the costs.
Mertens de Wilmars O'Keeffe Everling
Chloros Pescatore Mackenzie Stuart Koopmans
Delivered in open court in Luxembourg on 12.October 1982.
P. Heim J. Mertens de "Wilmars Registrar President
OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN DELIVERED ON 22 JUNE 1982
My Lords, years after the date on which the directive was notified to the Member States.
This is an application by the Commission pursuant to Article 169 of the EEC Treaty, for a declaration that the The Kingdom of Belgium has not Kingdom of Belgium has failed to fulfil denied, either in the written procedure its obligations under the Treaty in that it or in its oral submissions, that it has has not brought into force the measures failed to comply with the directive. It needed in order to comply with the contends that its failure is due in part to second Council Directive on Company the particular problems arising in Law Harmonization (Directive 77/91 of Belgium by reason of its legislative pro December 13, 1976, OJ 1977, L 26 p. 1) cedures, coupled with its political crisis, within the period fixed for doing so by and in part to the fact that the time- Article 43 of the latter. That period limits set in the directive were, in the expired on 16 December, 1978, two view of the Belgian Government, too