C-242/94
ECLI:EU:C:1995:253
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COMMISSION v SPAIN
OPINION OF ADVOCATE GENERAL LENZ delivered on 13 July 1995 *
A — Introduction under the Treaty. The Commission also requests that the Kingdom of Spain be ordered to bear the costs of the proceedings.
1. Council Directive 90/619/EEC of 8 November 1990 on the coordination of laws, regulations and administrative provi- 3. The Kingdom of Spain does not dispute sions relating to direct life insurance, laying that it has not complied within the pre- down provisions to facilitate the effective scribed period with its obligation to adopt exercise of freedom to provide services and the measures necessary for the transposition amending Directive 79/267/EEC ' was to be of the said directive, in particular those transposed into national law by 20 Novem- needed to adapt the relevant legislative pro- ber 1992. 2 visions.
2. In the present Treaty infringement pro- 4. However, the Kingdom of Spain puts for- ceedings, the Commission seeks a declaration ward two arguments in its defence. First, a that, by failing within the prescribed period draft law for the transposition of the direc- to adopt, or in the alternative to communi- tive in question, introduced in good time, cate to the Commission, the laws, regula- was not passed because new elections inter- tions and administrative provisions necessary vened, entailing the dissolution of the Span- to comply with that directive, the Kingdom ish Parliament. A new legislative procedure of Spain has failed to fulfil its obligations for the transposition of the directive has been in preparation since January 1994. Sec- ondly, pending the completion of the legisla- tive procedure, there are administrative pro- * Original language: German. 1 — OJ 1990 L 330, p. 50. visions embodied in a 'Protocol' which make 2 — See the first paragraph of Article 30 of Directive 90/619. up de facto for the fact that the legislative
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OPINION OF MR LENZ — CASE C-242/94
provisions have not yet been adapted de jure. Kingdom of Spain argues in its defence that The Kingdom of Spain cannot, therefore, be the binding nature of the directive, as to the accused of failing to comply with its obliga- result to be achieved (third paragraph of t tions and the Commission's application is Article 189 of the EC Treaty), has been com- ungrounded. plied with, temporarily, by means of admin- istrative provisions — contained, here, in the 'Protocol'. Even if it were to be accepted that an infringement of the Treaty could be made good in that manner, it would be difficult for the Kingdom of Spain to successfully rely on that argument: according to the terms of Annex I to the defence, the 'Protocol' did not produce its effects until 1 July 1994. The Treaty infringement, however, should have been brought to an end at the latest by the expiry of the two-month period laid down B — Opinion by the Commission in its reasoned opinion of 15 February 1994. In any event, as inter- nal law not having direct effect, the 'Proto- col' would not meet the requirements as to the choice of form and means which the Member States must observe in accordance with the Court's established case-law. 5
5. The Kingdom of Spain's submission can- not be accepted. In view of the objective nature of Treaty infringement proceedings, in order to find an infringement it is suffi- cient to note that the Spanish Government does not dispute the infringement with which it is charged. 3 First, the Kingdom of Spain simply adduces the dissolution of its Parliament to justify the failure to transpose the directive within the prescribed period. The Court has consistently held that a Mem- 6. Since it is clear that the Kingdom of Spain ber State may not rely on internal difficulties has not transposed the directive in issue into of a technical, institutional or political nature national law in good time, the Court need in order to disregard its obligation to trans- not examine the Commission's alternative pose a directive in good time. 4 Secondly, the claim that the Kingdom of Spain has failed to notify the measures taken to transpose the directive. 3 — See, most recently, Case C-260/93 Commission v Belgium [1994] ECR 1-1611, paragraphs 7 and 8. 4 — See, already, Case 52/75 Commission v Italy [1976] ECR 277, paragraphs 10 and 14. 5 — Case C-361/88 Commission v Germany [1991] ECR 1-2567.
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COMMISSION v SPAIN
C — Conclusion
7. I propose that the Court should:
(1) declare that, by failing to adopt within the prescribed period the laws, regula- tions and administrative provisions necessary to comply with Directive 90/619/EEC, the Kingdom of Spain has failed to fulfil its obligations under the EC Treaty;
(2) order the Kingdom of Spain to bear the costs.
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