C-172/98
ECLI:EU:C:1999:43
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COMMISSION V BELGIUM
OPINION OF ADVOCATE GENERAL COSMAS delivered on 28 January 1999 *
I — Introduction 3. Under Article 26 of the Law of 27 June 1921 'conferring legal personality on non- profit-making associations...', an associa- tion may not rely on its legal personality against third parties unless three fifths of 1. In this action under Article 169 of the the members have Belgian nationality. EC Treaty, the Commission asks the Court for a declaration that, by retaining national legislation under which there must be a member of Belgian nationality on the governing board of an association or a minimum number of members of that nationality in order for the legal personality 4. By letter of 25 March 1996, the Com- of an association to be recognised, the mission pointed out to the Kingdom of Kingdom of Belgium has failed to fulfil its Belgium that the two abovementioned obligations under Article 6 of the EC Laws appeared to be inconsistent with Treaty. Article 6 of the EC Treaty and asked it to submit its observations within two months.
5. By letter of 9 August 1996, the Kingdom II — National provisions at issue and of Belgium informed the Commission that procedure it intended to amend the Laws at issue and to conform with the Commission's obser- vations. For that purpose it forwarded to the Commission on 26 February 1997 two 2. Under the Belgian Law of 25 October preliminary draft Laws containing such 1919 'conferring legal personality on inter- amendments. national associations which pursue philan- thropic, religious, scientific, artistic or pedagogical objectives', legal personality may be granted to such associations where at least one member of their governing body is a Belgian national. 6. On 19 June 1997 the Commission, hav- ing established that the national provisions at issue were still in force, sent a reasoned * Original language: Greek. opinion to the Kingdom of Belgium, calling
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on it to adopt, within a period of two acknowledges that the national legislation months from notification thereof, the mea in force is contrary to Community law. sures necessary in order to comply with Article 6 of the EC Treaty.
7. On 11 August 1997 the Kingdom of Belgium forwarded to the Commission a draft Law to amend the Law of 1921 and ΙΠ — Merits of the action on 27 February 1998 it forwarded a pre liminary draft Law for the amendment of the Law of 1919.
11. First of all, as the Commission correctly states, the national legislation at issue 8. Since the Commission had no specific clearly falls within the scope of the EC information as to whether provisions Treaty even though it relates to non-profit- amending the abovementioned Laws of making associations. While those associa 1919 and 1921 had finally been adopted, tions do not have the objective of maximis it brought this action in which it asks the ing or redistributing profits, they may Court, first, to find that the Kingdom of provide services in return for payment or Belgium has committed the above infringe receive income, thus participating in eco ment, and, secondly, to order that State to nomic life. They are therefore governed by pay the costs. the Community rules on freedom of estab lishment.
9. The Kingdom of Belgium observes in its defence that the procedure for the adoption of the amending Laws, which will bring national legislation into line with the 12. The second paragraph of Article 58 of requirements of Community law, is still in the EC Treaty could be set against the progress; it also undertakes to inform the above approach. Under that provision, the Court once that procedure has been com companies or firms covered by the right of pleted. establishment, which is set out in Arti cle 52, are not to be understood as includ ing those which 'are non-profit-making'. However, in accordance with the prevailing view in Community law, the notion of a profit-making objective, as a purely Com 10. The Commission points out in its reply munity law concept, must be construed that the Belgian Government indirectly broadly. Even legal persons whose main
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objective is not to increase their profits are ality under national law. 5 The Belgian covered by the right of establishment in so legislation at issue therefore falls within far as they participate in economic life. the scope of Community law.
15. It need only be added that, in accor- dance with settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by 13. That view was also expressed by the reference to the internal legal order of that Court in Walrave and Koch, 1in Dona 2 State as it stood at the end of the period laid and in Steymann. 3 Furthermore, the Court down in the reasoned opinion. 6It has also has frequently been called on to apply provisions of Community law in cases been consistently held that a Member State where non-profit-making organisations may not rely on provisions, practices or have been pursuing an economic activity.4 circumstances existing in its internal legal order in order to justify a failure to observe the obligations and time-limits laid down by a directive. 7
16. In this case, the Kingdom of Belgium 14. Of course, it does not follow from the does not dispute that, notwithstanding the above that all the associations concerned by expiry of the time-limit laid down in the the Belgian Laws of 1919 and 1921 — reasoned opinion, it failed to take the which may potentially participate in eco- appropriate measures to comply with the nomic life — fall within the scope of Commission's advice and thus failed to Community law and are entitled to free- fulfil its obligations under Article 6 of the dom of establishment. However, a number EC Treaty. I accordingly consider it proven of them present the relevant characteristics that the Kingdom of Belgium has commit- and therefore, from the point of view of ted the infringement upon which the Com- Community law, are discriminated against mission relies. as regards recognition of their legal person-
5 — In Joined Cases C-92/92 and C-326/92 Phil Collins and Others [1993] ECR I-5145, the Court expressly stated that 1 — Case 36/74 Walrave and Koch v Union Cycliste Internatio- the fundamental principle of equal treatment applies to nale [1974] ECR 1405. every person in a situation governed by Community law. 2 — Case 13/76 Donà v Montero [1976] ECR 1333. 6 — See, for example, Case C-361/95 Commission v Spain 3 — Case 196/87 Steymann v Staatssecretaris van Justitie [1988] [1997] ECR I-7351, paragraph 13, and Case C-364/97 ECR 6159. Commission v Ireland [1998] ECR I-6593, paragraph 8. 4 — Case 221/85 Commission v Belgium [1987] ECR 719 and 7 — See, for example, Case C-208/96 Commission v Belgium Case C-70/95 Sodemare and Others v Regione Lombardia [1997] ECR 1-5375, paragraph 9, and Case C-8/97 Com- [1997] ECR I-3395. mission v Greece [1998] ECR I-823, paragraph 8.
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IV — Conclusion
17. I accordingly propose that the Court should:
— declare that, by retaining national legislation under which, in order for the legal personality of a non-profit-making association to be recognised, there must be a member of Belgian nationality on the governing body of that association or three fifths of the members must be of Belgian nationality, the Kingdom of Belgium has failed to fulfil its obligations under Article 6 of the EC Treaty;
— order the Kingdom of Belgium to pay the costs.
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