61981CJ0149_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 149/81
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, ANTHONY MCCLELLAN, ACTING AS AGENT, ASSISTED BY JACQUES DELMOLY, A MEMBER OF ITS LEGAL DEPARTMENT, 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
GRAND DUCHY OF LUXEMBOURG, REPRESENTED BY EUGENE MULLER, FIRST COUNSELLOR AT THE MINISTRY OF JUSTICE, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE MINISTRY OF JUSTICE, 16 BOULEVARD ROYAL,
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, THE GRAND DUCHY OF LUXEMBOURG 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 ), THE GRAND DUCHY OF LUXEMBOURG 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 THE GRAND DUCHY OF LUXEMBOURG ON 16 DECEMBER 1976 AND THE ABOVE-MENTIONED PERIOD ACCORDINGLY EXPIRED ON 16 DECEMBER 1978 .
3 THE LUXEMBOURG GOVERNMENT DOES NOT CONTEST THAT IT HAS NOT FULFILLED THAT OBLIGATION . IT NEVERTHELESS EMPHASIZES THAT ITS FAILURE TO DO SO MUST NOT BE INTERPRETED AS A RESULT OF NEGLIGENCE OR AS EXPRESSING A LACK OF GOOD WILL ON THE PART OF THE LUXEMBOURG AUTHORITIES BUT THAT IT IS DUE TO THE COMPLEXITY OF THE SUBJECT-MATTER AND THE DIFFICULTY OF HARMONIZING DRAFT PROVISIONS FOR PARTIAL REFORM WITH MORE EXTENSIVE AMENDMENTS WHICH MAY BE FORESEEN FOR THE FUTURE .
4 THOSE CIRCUMSTANCES CANNOT EXPUNGE THE FAILURE TO FULFIL ONE OF ITS OBLIGATIONS WITH WHICH THE GRAND DUCHY OF LUXEMBOURG 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 LUXEMBOURG LEGISLATURE WITHIN THE PERIOD PRESCRIBED FOR IMPLEMENTATION OF THE DIRECTIVE .
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, THE GRAND DUCHY OF LUXEMBOURG 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, THE GRAND DUCHY OF LUXEMBOURG HAS FAILED TO FULFIL ONE OF ITS OBLIGATIONS UNDER THE EEC TREATY ;
2.ORDERS THE GRAND DUCHY OF LUXEMBOURG TO PAY THE COSTS .