Opinion of the Advocate General — ECLI:EU:C:2013:769
Date: 2013-11-26
Language of the case: French
Subject matter: Consumer protection;Approximation of laws
Procedure: Action for failure to fulfil obligations - successful
Origin: Belgium

summary form, the legal and factual particulars on which those complaints are based. It follows that the Commission’s action must contain a coherent and detailed statement of the reasons which have led it to conclude that the Member State in question has failed to fulfil one of its obligations under the Treaties (see, inter alia, Commission v Belgium, C‑150/11, EU:C:2012:539, paragraphs 26 and 27 and the case-law cited). 31 In the present case, the application lodged by the Commission, in which it in essence criticises the Kingdom of Belgium for having, contrary to Articles 3(1) and 2(b) and (d) of Directive 2005/29, excluded the professions, dentists and physiotherapists from the scope of the national legislation transposing that directive, namely the Law of 6 April 2010, contains a clear presentation of that complaint and the factual or legal material on which it is based. 32 Admittedly, it is common ground that in that application the Commission did not seek to show in what way the Law of 2 August 2002, which was in force at the time Directive 2005/29 was adopted and which prohibits the professions from engaging in misleading advertising, failed to comply with the provisions of that directive. 33 However, it should be remembered that, in proceedings under Article 258 TFEU for failure to fulfil obligations, it is for the Member States, under Article 4(3) TEU, to facilitate the achievement of the Commission’s tasks, which consist in particular, pursuant to Article 17(1) TEU, in ensuring that the provisions of the FEU Treaty and the measures taken by the institutions pursuant thereto are applied (see, to that effect, Commission v Italy, C‑456/03, EU:C:2005:388, paragraph 26 and the case-law cited). 34 An application of the principle of sincere cooperation is provided for in Article 19 of Directive 2005/29 which, like other directives, requires Member States to provide clear and precise information. The Court has held that, in the absence of such information, the Commission is not in a position to ascertain whether the Member State has genuinely implemented the directive completely. The failure of a Member State to fulfil that obligation, whether by providing no information at all or by providing insufficiently clear and precise information, may of itself justify recourse to the procedure under Article 258 TFEU in order to establish the failure to fulfil the obligation (Commission v Italy, EU:C:2005:388, paragraph 27 and the case-law cited). 35 In the present case, moreover, it is undisputed that the Kingdom of Belgium has relied on the argument that the Law of 2 August 2002 transposes Directive 2005/29 for the first time only at the stage of submitting its statement in defence to this Court. In its reply to the reasoned opinion, the Kingdom of Belgium’s entire defence on this point consisted in a mere reference to judgment No 55/2011 of the Constitutional Court, delivered on 6 April 2011, which held the exclusion of the professions from the scope of the Law of 6 April 2010 to be unconstitutional. The Kingdom of Belgium further stated that a legislative amendment would be introduced ‘in the coming weeks’ in order to ensure compliance with EU law. 36 In those circumstances, the Kingdom of Belgium cannot criticise the Commission for having merely set out in its application how the Law of 6 April 2011 does not transpose Directive 2005/29 correctly, without seeking to explain how the Law of 2 August 2002 has no bearing in that regard. In fact, the alleged lack of precision in the application results from the very conduct of the Belgian authorities during the pre-litigation procedure. 37 It follows from the foregoing that the Commission’s first complaint put forward in support of its action must be admissible. Substance of the first complaint – Arguments of the parties 38 Relying on the wording of Articles 2(b) and 3(1) of Directive 2005/29, which refers specifically to the professions, the Commission submits that that directive applies to the commercial practices of all traders, irrespective of their legal status or the sector in which they operate. Consequently, the specific exclusion of members of a profession, dentists and physiotherapists from the scope of the Law of 6 April 2010 infringes Article 3 of Directive 2005/29, read in conjunction with Article 2(b) thereof. 39 During the pre-litigation phase, the Kingdom of Belgium argued that, in its judgment No 55/2011 of 6 April 2011, the Constitutional Court had held to be contrary to the Constitution precisely those provisions of the Law of 6 April 2010 which excluded those professions from its scope and that such a finding of unconstitutionality opened the door to an action for annulment being brought against that law within six months, which could lead to retroactive annulment of the disputed legislative provisions. The Commission observes in that regard, first of all, that, by that line of argument, the Kingdom of Belgium recognises that the infringement alleged against it, including the expiry date of the time period prescribed in the reasoned opinion, is well founded. Secondly, the Commission submits that any hypothetical retroactive annulment which the Constitutional Court might effect cannot remedy the infringement alleged and runs counter to the Court’s case-law on the need for clarity and legal certainty in the transposition of the rules of EU law relating to consumer protection, since that regularisation is not such as to eliminate the infringement which was ongoing when the time-limit laid down in the reasoned opinion expired. 40 Regarding the substance, the Kingdom of Belgium does not dispute that certain professions are excluded from the scope of the Law of 6 April 2010. It points out, however, that the Constitutional Court held that exclusion to be unconstitutional by its judgments No 55/2011 of 6 April 2011 and No 192/2011 of 15 December 2011. It submits that the Court must assess the transposition in question having regard to those judgments, as they had the effect of rendering the relevant provisions of the Law of 6 April 2010 inapplicable in the Belgian courts, with the result that the exclusion provided for therein was rendered nugatory as from the time of delivery of those judgments and before the expiry of the time-limit prescribed in the reasoned opinion. 41 In its statement in defence, the Kingdom of Belgium adds that, on the date when it lodged that statement, an action for annulment was also brought before the Constitutional Court which, if successful, will have the effect of annulling, retroactively, Articles 2(2) and 3(2) of the Law of 6 April 2010. It follows that those national legal provisions will be deemed never to have been part of the Belgian legal order, with the result that the infringement alleged against the Kingdom of Belgium will never have existed. – Findings of the Court 42 It should be observed that, whilst acknowledging that the first complaint is well founded, the Kingdom of Belgium argues that, in reality, the infringement alleged by the Commission has been ‘corrected’ by the effect of the judgments No 55/2011 of 6 April 2011 and No 192/2011 of 15 December 2011 of the Constitutional Court, which held Articles 2(1) and (2) and 3(2) of the Law of 6 April 2010 to be unconstitutional. 43 It should be remembered, however, in accordance with the Court’s settled case-law, that a Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with the obligations under rules of EU law (see, inter alia, Commission v Luxembourg, C‑450/00, EU:C:2001:519, paragraph 8, and Commission v Luxembourg, C‑375/04, EU:C:2005:264, paragraph 11). 44 Moreover, the existence of remedies available through the national courts cannot in any way prejudice the bringing of an action under Article 258 TFEU, since the two procedures have different objectives and effects (see Commission v Italy, C‑87/02, EU:C:2004:363, paragraph 39 and the case-law cited). 45 It is equally settled case-law of the Court that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion (see Commission v Spain, C‑168/03, EU:C:2004:525, paragraph 24; Commission v Germany, C‑152/05, EU:C:2008:17, paragraph 15; and Commission v Luxembourg, C‑282/08, EU:C:2009:55, paragraph 10). The Court cannot take account of any subsequent changes (see, inter alia, Commission v Ireland, C‑482/03, EU:C:2004:733, paragraph 11, and Commission v Sweden, C‑185/09, EU:C:2010:59, paragraph 9). 46 Moreover, the Court has also held that even where the settled case-law of a Member State interprets the provisions of national law in a manner deemed to satisfy the requirements of a directive, that cannot achieve the clarity and precision needed to meet the requirement of legal certainty, particularly in the field of consumer protection (see Commission v Netherlands, C‑144/99, EU:C:2001:257, paragraph 21). 47 It follows that the circumstances as relied on by the Kingdom of Belgium are of no import as to the issue whether or not there has been a failure to fulfil obligations, which moreover it does not dispute. 48 In the light of the foregoing, the Court finds that the first complaint put forward by the Commission is well founded. The second complaint Arguments of the parties 49 The Commission observes that Articles 20, 21 and 29 of the Law of 6 April 2010 provide that any announcement of a price reduction must refer to a price defined by law, in this case, the lowest price applied throughout the month prior to the announcement of the price reduction. Those provisions further prohibit a price reduction from lasting for more than a month and provide that announcements of price reductions may not last for less than a day. 50 However, as Directive 2005/29 has fully harmonised the rules governing unfair commercial practices, Article 4 thereof precludes more restrictive national provisions such as those referred to in the preceding paragraph. 51 Annex I to Directive 2005/29 contains an exhaustive list of 31 commercial practices which are deemed to be unfair in all circumstances, which does not include the practices referred to in the Belgian legislation relating to price reductions. Such practices should thus be assessed on a case-by-case basis in order to determine whether they are unfair. However, the Belgian legislation has the effect of prohibiting the announcement of price reductions where the strict conditions contained in that legislation are not met, even where such practices may not, when examined individually, be considered misleading or unfair within the meaning of Directive 2005/29. 52 The Kingdom of Belgium contends, first, that although Directive 2005/29 effects complete harmonisation, it does not contain harmonised rules which allow the economic reality of price reduction announcements to be ascertained and, secondly, that Directive 98/6 was not amended by Directive 2005/29. Moreover, Article 10 of Directive 98/6 does not prevent Member States from adopting or maintaining provisions which are more favourable as regards consumer information and comparison of prices. 53 Furthermore, the Court, in GB-INNO-BM, C‑362/88, EU:C:1990:102, laid down the principle of the consumer’s right to information; consequently, Articles 20, 21 and 29 of the Law of 6 April 2010 must be examined solely in the light of Article 28 TFEU. Findings of the Court 54 It should be observed, as a preliminary point, that Articles 20, 21 and 29 of the Law of 6 April 2010 concern announcements of price reductions, which are commercial practices within the meaning of Article 2(d) of Directive 2005/29 and therefore come within the scope of that directive (see, to that effect, order in INNO, C‑126/11, EU:C:2011:851, paragraph 30 and the case-law cited). 55 The Court has held that Directive 2005/29 carries out a complete harmonisation at EU level of the rules concerning unfair commercial practices of undertakings vis-à-vis consumers. Accordingly, as expressly provided for by Article 4 thereof, Member States may not maintain or adopt more restrictive national measures than those laid down in that directive, even where such measures are designed to ensure a higher level of consumer protection (see Plus Warenhandelsgesellschaft, C‑304/08, EU:C:2010:12, paragraph 41, and Mediaprint Zeitungs- und Zeitschriftenverlag, C‑540/08, EU:C:2010:660, paragraph 37). 56 Moreover, Directive 2005/29 establishes, in its Annex I, an exhaustive list of 31 commercial practices which, in accordance with Article 5(5) of that directive, are regarded as unfair ‘in all circumstances’. Consequently, as recital 17 in the preamble to that directive expressly states, only these commercial practices can be deemed to be unfair without proceeding to a case-by-case assessment pursuant to the provisions of Articles 5 to 9 of Directive 2005/29 (see Plus Warenhandelsgesellschaft, EU:C:2010:12, paragraph 45). 57 The Kingdom of Belgium submits, in essence, that more restrictive measures, such as those provided for by Articles 20, 21 and 29 of the Law of 6 April 2010, remain permissible under the minimum harmonisation clause in Article 10 of Directive 98/6, under which Member States may adopt or maintain provisions which are more favourable as regards consumer information and comparison of prices. 58 It is common ground in that regard that, under Article 3(5) of Directive 2005/29, for a period of six years from 12 June 2007, Member States were able to continue to apply national provisions within the field approximated by that directive which were more restrictive or prescriptive than that directive and which implemented directives containing minimum harmonisation clauses. 59 It should be remembered, however, that, as observed by the Advocate General in point 58 et seq. of his Opinion, the purpose of Directive 98/6 is not to protect consumers in relation to the indication of prices, in general or with regard to the economic reality of announcements of price reductions, but specifically in relation to the indication of the prices of products by reference to different units of quantity. 60 It cannot, therefore, be validly argued that Article 10 of Directive 98/6 can justify maintaining in force more restrictive national provisions on the economic reality of announcements of price reductions, such as Articles 20, 21 and 29 of the Law of 6 April 2010, since those provisions do not come within the scope of Directive 98/6. 61 Consequently, national rules of this nature, which place a general prohibition on practices not referred to in Annex I to Directive 2005/29, without providing for an individual analysis as to whether the practices are ‘unfair’ in the light of the criteria laid down in Articles 5 to 9 of that directive, are not permitted under Article 4 thereof and run counter to the complete harmonisation objective pursued by that directive, even where they seek to achieve a higher level of consumer protection (see, to that effect, Plus Warenhandelsgesellschaft, EU:C:2010:12, paragraphs 41, 45 and 53). 62 With regard to the argument concerning the effects of the judgment in GB-INNO-BM (EU:C:1990:102), suffice it to observe that, as rightly pointed out by the Commission, the circumstances which gave rise to that judgment are different from the facts which led to the present proceedings being brought. In that case, the Court held that the free movement of goods precludes, in principle, national legislation refusing consumers access to certain information, whilst the purpose of Directive 2005/29, as evidenced by Article 1 thereof, is ‘to contribute to the proper functioning of the internal market and achieve a high level of consumer protection’. 63 However, in accordance with settled case-law, a national measure in an area which has been the subject of exhaustive harmonisation at EU level must be assessed in the light of the provisions of that harmonising measure and not those of the Treaty (see Gysbrechts and Santurel Inter, C‑205/07, EU:C:2008:730, paragraph 33 and the case-law cited). 64 Since, as observed in paragraph 55 above, Directive 2005/29 has effected a complete harmonisation of the rules concerning unfair commercial practices, the national measures at issue must therefore be assessed solely in the light of the provisions of that directive and not of Article 28 TFEU. 65 The judgment in GB-INNO-BM (EU:C:1990:102), relied on by the Kingdom of Belgium, is of no import in that regard, as it concerned an area which had not yet, at that time, been so harmonised. 66 It follows from the foregoing that the Commission’s second complaint is well founded. The third complaint Arguments of the parties 67 The Commission notes, first, that Article 4(3) of the Law of 25 June 1993 amounts to a prohibition, save for certain goods and services, of all door-to-door selling at the home of the consumer for products or services exceeding EUR 250 for each consumer. It states, secondly, that Article 5(1) of the Royal Decree of 24 September 2006 prohibits itinerant trading in certain products, including precious metals and stones and fine pearls. 68 Observing that Directive 2005/29 effects a complete harmonisation and that the list of unfair practices in Annex I to that directive is exhaustive, the Commission adds that the prohibitions provided for in the relevant national provisions are not included in that list, concluding that an absolute prohibition is therefore not permissible and that practices must be assessed on a case-by-case basis in order to determine whether they are abusive practices which must be prohibited. 69 The Kingdom of Belgium contends, in essence, that both Article 5(1) of the Royal Decree of 24 September 2006 and Article 4(3) of the Law of 25 June 1993 come within the scope of Directive 85/577 and are more stringent national measures which are permitted under that directive. It argues, in particular, that Directive 2005/29 supplements the existing EU law provisions on consumer protection, without amending or restricting the scope of Directive 85/577, which complements the scope of Directive 2005/29. 70 Moreover, the national measures are part of the measures transposing Directive 2011/83 which the Kingdom of Belgium was required to enact by 13 December 2013. Findings of the Court 71 It should be observed, by way of preliminary point, that, as pointed out by the Advocate General in point 79 of his Opinion, it is beyond doubt, firstly, that the national measures in question prohibiting certain forms of itinerant trading come within the scope of Directive 2005/29 because they are commercial practices within the meaning of Article 2(d) of that directive and that, secondly, they comply with Directive 85/577 to protect the consumer in respect of contracts negotiated away from business premises, the minimum harmonisation clause of which in Article 8 allows Member States to adopt or maintain ‘more favourable provisions to protect consumers in the field which it covers’. 72 Article 4 of Directive 2005/29 precludes the maintenance in force of more restrictive national measures of this nature, subject to Article 3(5) thereof, under which ‘[f]or a period of six years from 12 June 2007, Member States shall be able to continue to apply national provisions within the field approximated by [that directive] which are more restrictive or prescriptive than [that same directive] and which implement directives containing minimum harmonisation clauses’. 73 Consequently, it is clear from Article 3(5) of Directive 2005/29 that the Member States may continue to apply only those more restrictive or prescriptive national measures which were in place on the date of entry into force of Directive 2005/29. 74 Yet Article 4(3) of the Law of 25 June 1993 and Article 5(1) of the Royal Decree of 24 September 2006 entered into force on 4 July 2005 and 24 September 2006 respectively, that is, after the entry into force of Directive 2005/29. It follows that the Kingdom of Belgium did not continue to apply legislation which was already in place on the date of entry into force of that directive. 75 Consequently, it follows from Article 3(5) of Directive 2005/29 that that directive precludes the national legislation in question. 76 With regard to the Kingdom of Belgium’s argument that the national rules at issue are based on Directive 2011/83, suffice it to note that that directive was not in force at the time of expiry of the time-limit prescribed in the reasoned opinion, which was 15 May 2011, with the result that this argument cannot be upheld in the light of the principles outlined in paragraph 45 above. 77 In the light of the foregoing considerations, the third complaint asserted by the Commission must be upheld. 78 It follows from all the foregoing considerations that, by excluding members of a profession and dentists and physiotherapists from the scope of the Law of 14 July 1991, transposing in national law Directive 2005/29; by maintaining in force Articles 20, 21 and 29 of the Law of 6 April 2010; and by maintaining in force Article 4(3) of the Law of 25 June 1993 and Article 5(1) of the Royal Decree of 24 September 2006, the Kingdom of Belgium has failed to fulfil its obligations under Articles 2(b) and (d), 3 and 4 of Directive 2005/29. Costs 79 Under Article 138(1) of the Rules of Procedure of the Court of Justice, the unsuccessful party must be ordered to pay the costs if they have been applied for in the other party’s pleadings. Since the Commission has applied for costs and the Kingdom of Belgium has been unsuccessful, the latter must be ordered to pay the costs. On those grounds, the Court (Third Chamber) hereby 1. Declares that: – by excluding members of a profession and dentists and physiotherapists from the scope of the Law of 14 July 1991 on commercial practices, consumer information and consumer protection, as amended by the Law of 5 June 2007, transposing in national law Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘the Unfair Commercial Practices Directive’), – by maintaining in force Articles 20, 21 and 29 of the Law of 6 April 2010 on market practices and consumer protection, and – by maintaining in force Article 4(3) of the Law of 25 June 1993 on the exercise and organisation of travelling trading and fairground activities, as amended by the Law of 4 July 2005 and Article 5(1) of the Royal Decree of 24 September 2006 concerning the exercise and organisation of travelling trading activities, the Kingdom of Belgium has failed to fulfil its obligations under Articles 2(b) and (d), 3 and 4 of Directive 2005/29; 2. Orders the Kingdom of Belgium to pay the costs. [Signatures] * Language of the case: French.