C-274/01
ECLI:EU:C:2002:269
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OPINION OF MR ALBER — CASE C-274/01
OPINION OF ADVOCATE GENERAL ALBER delivered on 25 April 2002 1
1. The Commission is seeking a declaration They shall forthwith inform the Commis- that, by failing to adopt the laws, regu- sion thereof. lations and administrative provisions necessary to comply with Council Directive 98/76/EC of 1 October 1998 amending Directive 96/26/EC on admission to the occupation of road haulage operator and road passenger transport operator and mutual recognition of diplomas, certificates and other evidence of formal qualifications intended to facilitate for these operators the right to freedom of establishment in national and international transport oper- ations, 2 the Kingdom of Belgium has failed to fulfil its obligations under that directive. 3. Since it had received no information concerning the implementation of Directive 98/76/EC, the Commission initiated the procedure under Article 226 EC and, by letter of 18 February 2000, gave the King- dom of Belgium formal notice to submit its observations within two months. 2. Article 2 of the directive provides:
4. In its reply of 21 April 2000, the Belgian Government stated that implementing measures were being prepared. '(1) Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this directive no later than 1 October 1999.
1 — Original language: German. 5. On 7 September 2000 the Commission 2 — OJ 1998 L 277, p. 17. sent the Kingdom of Belgium a reasoned
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opinion, giving it a two-month period in the directive were stated in a law which which to transpose Directive 98/76/EC. entered into force on 30 June 1999. It admits, however, that for transposition it is necessary to adopt a royal decree and a ministerial implementing order. It explains that the delay in transposition is due to difficulties arising from the involvement of the regions and various governmental auth- orities. However, the provisions should be 6. In its observations of 3 October 2000, adopted before the end of 2001. Belgium stated that the directive would be implemented by orders, which would be published in the Moniteur belge early in 2001.
10. As regards the legislation necessary in relation to admission to the occupation of road passenger transport operator, for 7. Since the Commission had subsequently which a royal decree and a ministerial received no information about adoption of order are required, the Belgian Government the measures, it commenced proceedings on again refers to the consultation with the 12 July 2001. It complains that the King- regions, which is still in progress. The dom of Belgium, by failing to fulfil its relevant provisions should be published by obligations under Directive 98/76/EC January 2002 at the latest. before 1 October 1999, has infringed Article 249(3) EC and Article 10 EC.
8. The Kingdom of Belgium does not dis- Analysis pute that it has failed to fulfil its obli- gations.
11. Under the first paragraph of Article 10 EC, the Member States are to take all appropriate measures to ensure fulfilment 9. The Belgian Government contends, first, of the obligations resulting from action that as regards admission to the occupation taken by the institutions of the Community. of road haulage operator, the principles of Such action includes directives which, pur-
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suant to the third paragraph of Article 249 prescribed by the reasoned opinion.5 Even EC, are binding, as to the result to be the fact that appropriate legislation may achieved, upon each Member State to have been adopted in the meantime does which they are addressed. That obligation not preclude a declaration that there has involves, for each Member State to which a been a failure to fulfil obligations. directive is addressed, the adoption, within the framework of its national legal system and within the prescribed period, of all the measures necessary to ensure that the directive is fully effective, in accordance with the objective which it pursues.3
14. Finally, it should also be pointed out that a Member State cannot rely on prac- tices or circumstances existing in its inter- nal legal order to justify its failure to comply with the obligations and time-limits laid down by Community directives, nor 12. The mere initiation of the procedure for therefore the late transposition of a direc- adoption of a law designed to transpose a tive. 6 directive into national law does not fulfil that requirement.4
15. The Commission has also claimed that the Kingdom of Belgium should be ordered to pay the costs. Under Article 69(2) of the 13. It is settled case-law that the merits of Rules of Procedure, the unsuccessful party an action are not affected by the fact that must pay the costs if they have been applied the default concerned may have been for in the successful party's pleadings. remedied after the expiry of the time-limit
5 — See Case C-365/97 Commission v Italy [1999] ECR I-7773, 3 — See Case C-119/00 Commission v Luxembourg [2001] ECR paragraph 45, and Case C-147/00 Commission v France I-4795, paragraph 12, and Case C-29/01 Commission v [2001] ECR I-2387, paragraph 16. Spain [2002] ECR I-2503, paragraph 9. 6 — See Case C-303/92 Commission v Netherlands [1993] ECR 4 — See Case C-29/01 (Commission v Spain, cited in footnote 3, I-4739, paragraph 9; and Case C-139/97 Commission v paragraph 10). Italy [1998] ECR I-605, paragraphs 9 to 11.
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Conclusion
16. In the light of the foregoing considerations, I propose that the Court:
(1) declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 98/76/EC of 1 Oc- tober 1998 amending Directive 96/26/EC on admission to the occupation of road haulage operator and road passenger transport operator and mutual recognition of diplomas, certificates and other evidence of formal qualifi- cations intended to facilitate for these operators the right to freedom of establishment in national and international transport operations, the Kingdom of Belgium has failed to fulfil its obligations under that directive;
(2) order the Kingdom of Belgium to pay the costs.
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