61981CJ0151_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 151/81
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, ANTHONY MCCLELLAN, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO, A MEMBER OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,
APPLICANT,
V
IRELAND, REPRESENTED BY LOUIS J . DOCKERY, CHIEF STATE SOLICITOR, ACTING AS AGENT, ASSISTED BY JAMES O ' REILLY, BARRISTER AT LAW, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE IRISH EMBASSY,
DEFENDANT,
Subject of the case
APPLICATION FOR A DECLARATION THAT BY NOT ADOPTING, WITHIN THE PRESCRIBED PERIOD, THE PROVISIONS NEEDED TO COMPLY WITH DIRECTIVE 77/91, THE SECOND COUNCIL DIRECTIVE OF 13 DECEMBER 1976 ON COORDINATION OF SAFEGUARDS WHICH, FOR THE PROTECTION OF THE INTERESTS OF MEMBERS AND OTHERS, ARE REQUIRED BY MEMBER STATES OF COMPANIES WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 58 OF THE TREATY, IN RESPECT OF THE FORMATION OF PUBLIC LIMITED LIABILITY COMPANIES AND THE MAINTENANCE AND ALTERATION OF THEIR CAPITAL, WITH A VIEW TO MAKING SUCH SAFEGUARDS EQUIVALENT, IRELAND HAS FAILED TO FULFIL ONE OF ITS OBLIGATIONS UNDER THE EEC TREATY,
Grounds
1 BY APPLICATION RECEIVED AT THE COURT REGISTRY ON 5 JUNE 1981 THE COMMISSION BROUGHT AN ACTION UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT BY NOT ADOPTING WITHIN THE PRESCRIBED PERIOD THE NATIONAL PROVISIONS NEEDED TO COMPLY WITH DIRECTIVE 77/91/EEC, THE SECOND COUNCIL DIRECTIVE OF 13 DECEMBER 1976 ON COORDINATION OF SAFEGUARDS WHICH, FOR THE PROTECTION OF THE INTERESTS OF MEMBERS AND OTHERS, ARE REQUIRED BY MEMBER STATES OF COMPANIES WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 58 OF THE TREATY, IN RESPECT OF THE FORMATION OF PUBLIC LIMITED LIABILITY COMPANIES AND THE MAINTENANCE AND ALTERATION OF THEIR CAPITAL, WITH A VIEW TO MAKING SUCH SAFEGUARDS EQUIVALENT, ( OFFICIAL JOURNAL, 1977, L 26, P . 1 ), IRELAND HAD FAILED TO FULFIL ONE OF ITS OBLIGATIONS UNDER THE EEC TREATY .
2 PURSUANT TO ARTICLE 43 OF THE DIRECTIVE, MEMBER STATES WERE REQUIRED TO BRING INTO FORCE THE LAWS, REGULATIONS AND ADMINISTRATIVE PROVISIONS NEEDED IN ORDER TO COMPLY WITH THE DIRECTIVE WITHIN TWO YEARS OF ITS NOTIFICATION . IT WAS NOTIFIED TO IRELAND ON 16 DECEMBER 1976 AND THE ABOVE-MENTIONED PERIOD ACCORDINGLY EXPIRED ON 16 DECEMBER 1978 .
3 THE IRISH GOVERNMENT DOES NOT CONTEST THAT IT HAS NOT FULFILLED THAT OBLIGATION . IT EMPHASIZES HOWEVER THAT THE DELAY IN IMPLEMENTING THE DIRECTIVE IS DUE NOT TO ANY LACK OF AWARENESS ON THE PART OF IRELAND OR THE COMPETENT IRISH AUTHORITIES OF THE NEED TO IMPLEMENT THE REQUIRED LEGISLATION BUT RATHER TO THE COMPLEXITY OF THE SUBJECT-MATTER, THE DIRECTIVE, MOREOVER, BEING ONLY ONE OF NUMEROUS COMPLEX MEASURES ADOPTED, AT THE COMMUNITY LEVEL, WITHIN THE FIELD OF COMPANY LAW . THE DIFFICULTIES ENCOUNTERED IN IMPLEMENTING THE DIRECTIVE IN IRELAND AND IN SEVERAL OTHER MEMBER STATES SHOW THAT THE PERIOD PRESCRIBED FOR IMPLEMENTATION OF THE DIRECTIVE WAS INSUFFICIENT .
4 THOSE CIRCUMSTANCES CANNOT EXPUNGE THE FAILURE TO FULFIL ONE OF ITS OBLIGATIONS WITH WHICH IRELAND IS CHARGED . ACCORDING TO WELL-ESTABLISHED CASE-LAW OF THE COURT, 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 OBLIGATIONS AND TIME-LIMITS RESULTING FROM COMMUNITY DIRECTIVES .
5 ATTENTION SHOULD ALSO BE DRAWN TO THE FACT THAT THE GOVERNMENTS OF THE MEMBER STATES PARTICIPATE IN THE PREPARATORY WORK FOR DIRECTIVES AND MUST THEREFORE BE IN A POSITION TO PREPARE WITHIN THE PERIOD PRESCRIBED, THE DRAFT LEGISLATIVE PROVISIONS NECESSARY FOR THEIR IMPLEMENTATION . IT APPEARS, HOWEVER, FROM INFORMATION PRODUCED IN THE COURSE OF THE PROCEEDINGS THAT NO DRAFT LAW HAD YET BEEN PLACED BEFORE THE IRISH PARLIAMENT WITHIN THE PERIOD PRESCRIBED FOR IMPLEMENTATION OF THE DIRECTIVE OR EVEN WHEN THE COMMISSION BROUGHT ITS ACTION .
6 IT MUST THEREFORE BE DECLARED THAT BY FAILING TO ADOPT WITHIN THE PRESCRIBED PERIOD THE PROVISIONS NEEDED IN ORDER TO COMPLY WITH COUNCIL DIRECTIVE 77/91 OF 13 DECEMBER 1976, IRELAND HAS FAILED TO FULFIL ONE OF ITS OBLIGATIONS UNDER THE TREATY .
Decision on costs
COSTS
7 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS, IT MUST BE ORDERED TO PAY THE COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT,
HEREBY :
1 . DECLARES THAT, BY NOT ADOPTING WITHIN THE PRESCRIBED PERIOD THE PROVISIONS NEEDED IN ORDER TO COMPLY WITH COUNCIL DIRECTIVE 77/91/EEC, THE SECOND COUNCIL DIRECTIVE OF 13 DECEMBER 1976 ON COORDINATION OF SAFEGUARDS WHICH, FOR THE PROTECTION OF THE INTERESTS OF MEMBERS AND OTHERS, ARE REQUIRED BY MEMBER STATES OF COMPANIES WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 58 OF THE
TREATY, IN RESPECT OF THE FORMATION OF PUBLIC LIMITED LIABILITY COMPANIES AND THE MAINTENANCE AND ALTERATION OF THEIR CAPITAL, WITH A VIEW TO MAKING SUCH SAFEGUARDS EQUIVALENT, IRELAND HAS FAILED TO FULFIL ONE OF ITS OBLIGATIONS UNDER THE EEC TREATY ;
2.ORDERS IRELAND TO PAY THE COSTS .