C-336/93
ECLI:EU:C:1993:939
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OPINION OF MR LENZ — CASE C-336/93
OPINION OF MR ADVOCATE GENERAL LENZ delivered on 15 December 1993 *
Mr President, on 1 January 1989 at the latest. 3Article 7 (2) Members of the Court, obliges Member States to communicate to the Commission their laws, regulations and administrative provisions concerning the application of the directive.
1. In these proceedings for failure to fulfil a Treaty obligation, the Commission alleges 3. In the pre-litigation procedure the Belgian that the Kingdom of Belgium has not within Government maintained the point of view the prescribed period transposed that no separate transposition was necessary, Directive 88/599/EEC 1 into national law 4 since the law enacted on 18 February 1969 and/or not informed the Commission of the in the relevant field did not prevent imple text of the transposing provisions. That mentation of the directive, and gave the com directive contains the minimum require petent official bodies extensive investigative ments as to checks carried out by the Mem powers. Internal administrative measures ber States to ensure compliance with Com were therefore all that was needed. munity social legislation relating to road transport.
4. The Commission challenged that opinion in the pre-litigation procedure and in its application to the Court. In the defence the Belgian Government no longer maintained 2. Under Article 7 (1) of the directive, Mem 2 ber States were to bring into force the laws, regulations and administrative provisions necessary to comply with the directive 3 — It may be noted in passing that the period of about six weeks for transposition appears remarkably short. The defendant Member State has not, however, objected to this. In this con nection the judgment in Case C-74/91 Commission v Ger- many [1992] ECR I-5437 should be noted, according to which a Member State, in the context of an action for failure * Original language: German. to fulfil its obligations by reason of an infringement of a 1 — Council Directive of 23 November 1988 on standard check directive, cannot argue that the directive is unlawful, but ing procedures for the implementation of Regulation (EEC) only that it is legally non-existent (paragraphs 10 and 11) . In No 3820/85 on the harmonization of certain social legisla any event, if it wishes to plead that implementation of the tion relating to road transport and Regulation (EEC) directive is absolutely impossible, it must substantiate that No 3821/85 on recording equipment in road transport assertion (paragraph 12). (OJ 1988 L 325, p. 55). 4 — This is the Law on measures for implementation of interna 2 — With the exception of Portugal, for which the time-limit tional treaties and acts relating to road, railway or waterway was 1 January 1990. transport (Moniteur Belge, 4 August 1969).
I-534
COMMISSION v BELGIUM
the above opinion. Instead it merely drew scribed period fulfilled its obligation to attention to a draft Royal Decree which con transpose the directive, and the Commis tained the necessary transposing provisions sion's application must consequently be and which was currently before the Council upheld to that extent. On the other hand, the of Ministers for approval. Court should not make any finding on the point of failure to communicate the provis 5. It is therefore established that the defen ions, since there were no provisions which dant Member State has not within the pre could and should have been communicated.
6. I therefore propose that the Court :
(1) declare that, by not adopting within the prescribed period the laws, regulations and administrative provisions necessary for compliance with Directive 88 / 599 / EEC , the Kingdom of Belgium has failed to fulfil its obligations under the EEC Treaty;
(2) order the Kingdom of Belgium to pay the costs, in accordance with the appli cation.
I-535