C-374/89
ECLI:EU:C:1990:446
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COMMISSION v BELGIUM
OPINION OF MR ADVOCATE GENERAL MISCHO delivered on 6 December 1990 *
Mr President, them only while the various pre-litigation Members of the Court, procedures and proceedings before the Court commenced by the applicant were pending, cannot be considered to have facilitated the achievement of the Community's tasks, as the defendant was 1. The primary purpose of this action is to bound to do under the second paragraph of obtain a declaration that the defendant has Article 5 of the Treaty. infringed Article 1 of Council Directive 76/491/EEC of 4 May 1976 regarding a Community procedure for information and consultation on the prices of crude oil and petroleum products in the Community (OJ 1976 L 140, p. 4). 5. In the circumstances of this case, I propose that the Court should uphold the Commission's claim. Although the Court has, in the past, held that no purpose is 2. The Commission submits that between served by considering whether a Member the fourth quarter of 1980 and the third State which has failed to fulfil its obligations quarter of 1986 the Belgian authorities arising under specific provisions of a repeatedly failed to communicate to it, directive has thereby also failed to fulfil its within the prescribed time-limits, all the obligations under Article 5 of the EEC information required by Article 1 of Treaty, 1 I nevertheless take the view that Directive 76/491. The same failure recurred the situation here is different and that a from the end of 1988 onwards. Since the separate breach is in evidence. allegation is not denied by the Belgian Government, it is clear that it failed to fulfil its obligations under that directive.
6. The only conclusion to be drawn is that the defendant State fulfilled its obligations 3. However, the action also seeks a only when faced with the direct threat of declaration that there was an infringement legal proceedings or a judgment of the of Article 5 of the Treaty. Court, and that it disregarded them again once that threat appeared to have passed. In particular, it ceased communicating the information in the requisite manner very shortly after the Court had made the order 4. In that connection the Commission for the removal of the case from the submits that the conduct of the defendant, Register in the proceedings brought earlier which gave numerous undertakings to by the Commission on the same grounds as comply with its obligations but honoured 1 — Judgment in Case C-48/89 Commission v Italy [1990] * Translated from the French ECR I-2425, paragraph 14
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OPINION OF MR MISCHO — CASE C-374/89
in the present case, proceedings which it failure to observe the obligations arising discontinued after the defendant had given under Article 1 of the Directive. it the impression of putting an end to the infringement (Case 277/86). 8. I should also like to point cut that, in two recent judgments, the Court has held the consistent refusal of a Member State to supply the Commission with documents or further particulars in the course of legal 7. It is clear that such conduct is in breach proceedings or pre-litigation procedures to 3 of the duty of 'genuine cooperation and be contrary to Article 5. That demonstrates 2 that in some circumstances a failure to assistance' which, according to case-law, Article 5 imposes on the Member States, comply with Article 5 may constitute a and that it cannot be identified simply as a further infringement.
9. In conclusion, therefore, I propose that the Court should declare that, by repeatedly failing to notify within the prescribed time-limits all the information on the prices of crude oil and petroleum products required under Article 1 of Directive 76/491, in spite of the initiation of several pre-litigation procedures and the commencement of proceedings before the Court, Belgium has failed to fulfil its obligations under the said directive and Article 5 of the EEC Treaty; I further propose that the Court should order the defendant to pay the costs.
2 — See in particular the judgments in Case 230/81 3 — See the judgments in Case 272/86 Commission v Greece Luxembourg v Parliament [1983] ECR 255 and Case 44/84 [1988] ECR 4875 and Case 35/88 Commission v Greece Hurd v/ones [1986] ECR 29. [1990] ECR I-3125.
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