Opinion of the Advocate General — ECLI:EU:C:2005:149
Date: 2005-03-10
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Freedom to provide services
Procedure: Action for failure to fulfil obligations - unfounded
Origin: Belgium

Summary of the Judgment 1. Actions for failure to fulfil obligations — Pre-litigation procedure — Excessive duration — Fact affecting the admissibility of the action only where the rights of the defence have been infringed — Burden of proof (Art. 226 EC) 2. Actions for failure to fulfil obligations — Proof of failure to fulfil obligations — Burden on the Commission — Presumptions — Not permissible — Action concerning not the content but the terms of a national provision — Particular requirements of proof (Art. 226 EC) 1. If, in an action for failure to fulfil obligations, the excessive duration of the pre-litigation procedure is capable of constituting a defect rendering the action inadmissible, it is clear from the case-law that such a conclusion is inevitable only where the conduct of the Commission has made it difficult to refute its arguments, thus infringing the rights of the defence. It is for the Member State concerned to provide evidence of such a difficulty. (see para. 14) 2. In proceedings for failure to fulfil obligations, it is for the Commission to prove the existence of the alleged infringement and to provide the Court with the information necessary for it to determine whether the infringement is made out, and the Commission may not rely on any presumption for that purpose. With regard in particular to an action concerning the implementation of a national provision, proof of a Member State’s failure to fulfil its obligations requires production of evidence different from that usually taken into account in an action for failure to fulfil obligations concerning solely the terms of a national provision. In those circumstances, the failure to fulfil obligations can be established only by means of sufficiently documented and detailed proof of the alleged practice of the national administration and/or courts, for which the Member State concerned is answerable. Furthermore, although a State’s action consisting in an administrative practice contrary to the requirements of Community law can amount to a failure to fulfil obligations for the purposes of Article 226 EC, that administrative practice must be, to some degree, of a consistent and general nature. (see paras 27-29)