C-160/82

JUDGMENT OF THE COURT 15 DECEMBER 1982 ·

Commission of the European Communities v Kingdom of the Netherlands

(Failure of a Member State to fulfil its obligations — Directive 73/239/EEC)

Case 160/82

1. Member States — Obligations — Implementation of directives — Absence — Justi- fication on grounds based on the internal legal system — Not possible (EEC Treaty, Arts. 169 and 189, third paragraph)

2. Measures adopted by institutions — Directives — Implementation by the Member States — Implementation by means of administrative practices — Not sufficient (EEC Treaty, Art. 189, third paragraph)

APPLICATION for a declaration that the Kingdom of the Netherlands, by not bringing into force within the period specified the provisions necessary to transpose into national law the provisions of Council Directive 73/239/EEC of 24 July 1973 on the coordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of direct insurance other than life assurance (Official Journal L 228, p. 3), has failed to fulfil one of its obligations under the EEC Treaty.

THE COURT

composed of: J. Mertens de Wilma«, President, P. Pescatore, A. O'Keeffe and U. Everling (Presidents of Chambers), Lord Mackenzie Stuart, G. Bosco and T. Koopmans, Judges,

Advocate General: G. F. Mancini Registrar: H. A. Rühi, Principal Administrator

gives the following

JUDGMENT

their national provisions to comply with By letter of 8 February 1982 the the directive not later than 31 January Permanent Representation of the Kingdom of the Netherlands replied that 1975 and to inform the Commission the Government of the Netherlands thereof forthwith. regretted the delay which had occurred in transposing the directive into national Having noted that by that date the law, which it attributed to the need to Kingdom of the Netherlands had given it make a complete revision of its no information in that regard the legislation and to its desire to extend the Commission, by letter of 11 February revision of the law to include a certain 1977, initiated the procedure provided number of problems outside the scope of for by Article 169 of the Treaty. the directive. The Government of the Netherlands undertook to give the highest priority to expediting par- By letter of 12 May 1977 the Permanent liamentary consideration of the relevant Representation of the Netherlands draft law. submitted observations in which it stated, first, that some of the essential provisions of the directive, those having direct effect, were applied in practice in the The Commission found that the Netherlands, and secondly that the par- Kingdom of the Netherlands had failed liamentary procedure for approval of the to take the measures necessary to comply legislation necessary for the adoption of with the reasoned opinion within the the provisions of the directive was time allowed it, and therefore brought already at a relatively advanced stage. this action which was lodged at the Court Registry on 27 May 1982. The Commission therefore temporarily suspended the procedure for failure to Upon hearing the report of the Judge- adopt the provisions of the directive. Rapporteur and the views of the Since the results of the parliamentary Advocate General, the Court decided to procedure had still not been notified to it open the oral procedure without any in 1980 the Commission decided to re- preparatory inquiry. open the procedure and sent a letter to that effect to the Government of the Netherlands on 29 October 1980. II — Conclusions of the parties By letter of 30 January 1981 the Permanent Representation of the Netherlands confirmed that the measures necessary to adopt the provisions of the The Commission claims that the Court directive into national law had not yet should: been adopted and informed the Commission of the progress made in the relevant parliamentary procedure. "Declare that the Kingdom of the Netherlands, by not bringing into force On 18 November 1981 the Commission within the period specified in Article 35 issued the reasoned opinion referred to of the directive the laws, regulations and in the first paragraph of Article 169 of administrative provisions needed to comply with the provisions of Council the EEC Treaty and invited the Directive 73/239/EEC of 24 July 1973 Kingdom of the Netherlands to comply on the coordination of laws, regulations with its terms within 60 days.

Ill — Submissions and argu- ments of the parties Lastly, it points out once again that the directive is already implemented without restriction in practice as regards all undertakings which have their head In its application the Commission points offices either in the Netherlands or in out that since directives are binding another Member State of the EEC and Member States have an obligation to seek to rely on the provisions of the observe the time-limits laid down by directive. them for the adoption of national implementing provisions, and that the State concerned may not plead In its reply, the Commission notes that provisions, practices or circumstances the Government of the Kingdom of the existing in its internal legal system to Netherlands has acknowledged the justify the failure to observe such time- failure to implement its obligations under limits. Moreover, the implementation of Directive 73/239 by the date specified. It the provisions of a directive which are also lays emphasis on the fact that, on directly applicable cannot justify a the Netherlands' own admission, the Member State's failure to adopt in due current legislation will require numerous time the appropriate implementing amendments. measures required for the purposes of each directive. The Commission expresses disquiet as to the progress of the Netherlands draft law Those three principles are well- and urges the Netherlands Government established in the case-law of the Court. to expedite its procedure as much as possible.

In its defence, the Government of the Kingdom of the Netherlands concedes Finally, as regards the submission of the that Directive 73/239 was not Netherlands Government that the implemented by the date specified, 31 directive is applied, in practice, for all January 1975. It deeply regrets the delay, undertakings whose head offices are in

2 The first paragraph of Article 35 of the directive requires Member States to amend their national provisions to comply with the directive within

JUDGMENT OF 15. IJ. 1982 — CASE I60/Í2

18 months of its notification and to inform the Commission thereof forth- with. The period thus specified expired on 31 January 1975.

3 The Government of the Kingdom of the Netherlands does not deny that it has failed to comply with that obligation. It explains that the delay in implementing the directive was due to its need to draft new legislation covering also a number of questions outside the scope of the directive. It also states that the directive is already applied without restriction, in practice, for all undertakings whose head offices are in the Netherlands or in another Member State of the EEC and which seek to rely upon its provisions.

4 Such circumstances cannot expunge the failure to fulfil its obligations with which the Kingdom of the Netherlands is charged. According to well- established case-law first, a Member Sute 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, and secondly mere administrative practices, which by their nature may be changed according to the whim of the authorities and which lack appropriate publicity cannot be regarded as constituting a valid implementation of the duty imposed on Member Sutes by the third paragraph of Article 189 of the Treaty.

s The Court must therefore declare that by failing to adopt within the specified period the provisions necessary to comply with Council Directive 73/239/EEC of 24 July 1973 the Kingdom of the Netherlands has failed to fulfil its obligations under the EEC Treaty.

1. Declares that the Kingdom of the Netherlands, by failing to adopt within the specified period the provisions necessary to implement Council Directive 73/239/EEC of 24 July 1973 on the coordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of direct insurance other than life assurance, has failed to fulfil its obligations under the EEC Treaty;

2. Orders the Kingdom of the Netherlands to pay the costs.

Mertens de Wilmars Pescatore O'Keeffe

Everling Mackenzie Stuart Bosco Koopmans

Delivered in open court in Luxembourg on 15 December 1982.

J. A. Pompe J. Mertens de Wilmars Deputy Registrar President