C-323/97

OPINION OF MR COSMAS — CASE C-323/97

OPINION OF ADVOCATE GENERAL COSMAS delivered on 7 May 1998 *

I — Introduction shall have the right to vote and to stand as a candidate at municipal elections in the Mem- ber State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed 1. By the present action brought under arrangements to be adopted before Article 169 of the EC Treaty, the Commis- 31 December 1994 by the Council, acting sion has requested the Court to declare that, unanimously on a proposal from the Com- by failing to bring into force within the pre- mission and after consulting the European scribed period the laws, regulations and Parliament; these arrangements may provide administrative provisions necessary to com- for derogations where warranted by prob- ply with Council Directive 94/80/EC of lems specific to a Member State.' 19 December 1994 laying down detailed arrangements for the exercise of the right to vote and to stand as a candidate in municipal elections by citizens of the Union residing in a Member State of which they are not nationals ('the Directive'), 1the Kingdom of Belgium has failed to fulfil its obligations 3. It was on the basis of this enabling provi- under that directive. sion of primary law that the Council adopted Directive 94/80 on 19 December 1994.

II — Legal framework

The first paragraph of Article 14 of the 2. Article 8b(1) of the EC Treaty provides Directive provides: that:

'Every citizen of the Union residing in a Member State of which he is not a national 'Member States shall bring into force the laws, regulations and administrative provi- . sions necessary to comply with this Direc- * Original language: Greek. tive before 1 January 1996. They shall imme- 1 — OJ 1994 L 368, p. 38. diately inform the Commission thereof.'

4. Since it had not received any notification 5. The Commission points out that from the Kingdom of Belgium of measures Article 14 of the Directive provides expressly to implement the Directive in Belgium and and clearly that the Member States are to had no other information enabling it to con­ bring into force the provisions necessary to clude that that State had complied with its comply with the Directive before 1 January obligations under that legislation, the Com­ 1996 and that they are to inform the Com­ mission, pursuant to Article 169 of the mission thereof immediately. It is apparent Treaty, called upon the Kingdom of Belgium from the reply to the reasoned opinion that to submit its observations with regard to the the Kingdom of Belgium admits that it has presumed infringement within two months. not yet taken the appropriate measures to In the absence of a reply, the Commission comply with the Directive although the forwarded to the Kingdom of Belgium on time-limit expired one and a half years ago. 27 November 1996 the reasoned opinion The Commission does not accept that the whereby it advised it that, by not taking the Kingdom of Belgium is entitled to rely on measures necessary to implement all the pro­ difficulties relating to a revision of the Con­ visions of the Directive, it had failed to fulfil stitution, indispensable for the implementa­ its obligations under that legislation and tion of the Directive in the national legal sys­ called upon that State to take the necessary tem: it states, first, that the difficulties had implementing measures within a period of been known to the Belgian authorities since two months. 31 December 1994, when the Directive was published, if not since the signing of the Maastricht Treaty and, secondly, that, in any event, the Court has consistently held that a Member State may not plead circumstances existing in its internal legal system in order to justify a failure to comply with the obliga­ By letter of 28 March 1997 from the Perma­ tions and time-limits laid down in Commu­ nent Representative of Belgium, the Belgian nity directives. The elements which consti­ authorities informed the Commission that tute an infringement already exist and it the Belgian Government faced a number of matters little, in this regard, that the next difficulties relating to the transposition of the municipal elections are not to take place in Directive into national law, owing to the Belgium until the autumn of 2000. need to revise beforehand Article 8 of the Belgian Constitution.

VI — Conclusion

7. I therefore propose that the Court should:

— declare that, by failing to bring into force within the prescribed period the laws, regulations and administrative provisions necessary to comply with

2 — See, by way of illustration only, Case C-107/96 Commission ν Spain [1997] ECR1-3193, paragraph 10, and Case C-297/95 Commission ν Germany [1996] ECR I-6739, para­ graph 9.

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COMMISSION ν BELGIUM