61981C0148
OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN
DELIVERED ON 22 JUNE 1982
My Lords,
This is an application by the Commission pursuant to Article 169 of the EEC Treaty, for a declaration that the Kingdom of Belgium has failed to fulfil its obligations under the Treaty in that it has not brought into force the measures needed in order to comply with the second Council Directive on Company Law Harmonization (Directive 77/91 of December 13, 1976, OJ 1977, L 26 p. 1) within the period fixed for doing so by Article 43 of the latter. That period expired on 16 December, 1978, two years after the date on which the directive was notified to the Member States.
The Kingdom of Belgium has not denied, either in the written procedure or in its oral submissions, that it has failed to comply with the directive. It contends that its failure is due in part to the particular problems arising in Belgium by reason of its legislative procedures, coupled with its political crisis, and in part to the fact that the timelimits set in the directive were, in the view of the Belgian Government, too short. A bill designed to implement the directive was approved by the Council of Ministers on 15 September 1978. It was then transmitted to the Council of State, which gave an opinion thereon on 29 January 1979. It was then revised, submitted again to the Council of Ministers and presented to the Chamber of Representatives on 5 December 1979. Despite the government's insistence on the urgency of the matter, the bill remains under consideration by a special committee of the Chamber concerned with company law, but approval of the bill by one of the Chambers, the Court was told at the oral hearing, could only be expected “within six weeks or two months” and that the bill would be adopted before the end of the current year.
It is well established, in my view, by the cases decided by the Court that a Member State is not entitled to rely on circumstances or practices existing in its own internal system to justify failing to comply with the obligations imposed on it by a directive.
In consequence, in my opinion, the declaration sought by the Commission should be granted in this case and the Kingdom of Belgium should be ordered to pay the costs.