Judgment of the Court of 12 February 1987. - Commission of the European Communities v Kingdom of Belgium. - Failure of a Member State to fulfil its obligations - Non-implementation of Directives 75/362 and 75/363 - Freedom of establishment and freedom of movement for doctors. - Case 306/84.



European Court reports 1987 Page 00675



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

++++

MEMBER STATES - OBLIGATIONS - IMPLEMENTATION OF DIRECTIVES - FAILURE - JUSTIFICATION - NOT ACCEPTABLE

( EEC TREATY, ART . 169 )

Summary

THE FACT THAT A MEMBER STATE CHARGED WITH HAVING FAILED TO FULFIL AN OBLIGATION IMPOSED ON IT BY A DIRECTIVE HAS REQUESTED AN AMENDMENT OF THAT DIRECTIVE AND THAT THE COMMISSION HAS SENT TO THE COUNCIL A PROPOSAL TO THAT EFFECT BEFORE THE ADOPTION OF THAT PROPOSAL BY THE COUNCIL CANNOT EXPUNGE THE FAILURE IN QUESTION .

Parties

IN CASE 306/84

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY CLAIRE DURAND, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF G . KREMLIS, A MEMBER OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,

APPLICANT,

V

KINGDOM OF BELGIUM, REPRESENTED BY THE MINISTER FOR FOREIGN RELATIONS, REPRESENTED BY ROBERT HOEBAER, DIRECTOR AT THE MINISTRY FOR FOREIGN AFFAIRS, FOREIGN TRADE AND COOPERATION WITH DEVELOPING COUNTRIES, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE BELGIAN EMBASSY, RESIDENCE CHAMPAGNE, 4 RUE DES GIRONDINS,

DEFENDANT,

APPLICATION FOR A DECLARATION THAT, BY NOT ADOPTING WITHIN THE TIME PRESCRIBED ALL THE PROVISIONS NECESSARY TO COMPLY WITH COUNCIL DIRECTIVE NO 75/362 OF 16 JUNE 1975 CONCERNING THE MUTUAL RECOGNITION OF DIPLOMAS, CERTIFICATES AND OTHER EVIDENCE OF FORMAL QUALIFICATIONS IN MEDICINE, INCLUDING MEASURES TO FACILITATE THE EFFECTIVE EXERCISE OF THE RIGHT OF ESTABLISHMENT AND FREEDOM TO PROVIDE SERVICES ( OFFICIAL JOURNAL 1975, L*167, P.*1 ) AND COUNCIL DIRECTIVE NO 75/363 OF 16 JUNE 1975 CONCERNING THE COORDINATION OF PROVISIONS LAID DOWN BY LAW, REGULATION OR ADMINISTRATIVE ACTION IN RESPECT OF ACTIVITIES OF DOCTORS ( OFFICIAL JOURNAL 1975, L*167, P.*14 ), THE KINGDOM OF BELGIUM HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY,

THE COURT

COMPOSED OF :

LORD MACKENZIE STUART, PRESIDENT, T.F . O' HIGGINS, F . SCHOCKWEILER ( PRESIDENTS OF CHAMBERS ), G . BOSCO, T . KOOPMANS, K . BAHLMANN AND R.*JOLIET, JUDGES,

ADVOCATE GENERAL : M . DARMON

REGISTRAR : P . HEIM

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 27 NOVEMBER 1985,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON THE SAME DAY,

GIVES THE FOLLOWING

JUDGMENT

Grounds

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 21 DECEMBER 1984, THE COMMISSION OF THE EUROPEAN COMMUNITIES HAS BROUGHT AN ACTION UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT, BY NOT ADOPTING WITHIN THE TIME PRESCRIBED ALL THE PROVISIONS NECESSARY TO COMPLY WITH COUNCIL DIRECTIVE NO 75/362 OF 16 JUNE 1975, CONCERNING THE MUTUAL RECOGNITION OF DIPLOMAS, CERTIFICATES AND OTHER EVIDENCE OF FORMAL QUALIFICATIONS IN MEDICINE, INCLUDING MEASURES TO FACILITATE THE EFFECTIVE EXERCISE OF THE RIGHT OF ESTABLISHMENT AND FREEDOM TO PROVIDE SERVICES, AND COUNCIL DIRECTIVE NO 75/363 OF 16 JUNE 1975, CONCERNING THE COORDINATION OF PROVISIONS LAID DOWN BY LAW, REGULATION OR ADMINISTRATIVE ACTION IN RESPECT OF ACTIVITIES OF DOCTORS, THE KINGDOM OF BELGIUM HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY .

2 DURING THE COURSE OF THE PROCEEDINGS BEFORE THE COURT THE BELGIAN GOVERNMENT HAS ADOPTED THE MEASURES NECESSARY TO ENSURE THE TRANSPOSITION OF COUNCIL DIRECTIVE NO 75/362 INTO ITS NATIONAL LEGAL SYSTEM BY MEANS OF THREE ROYAL DECREES OF 26 DECEMBER 1985, A MINISTERIAL DECREE OF 27 DECEMBER 1985 AND A NOTICE ( MONITEUR BELGE OF 10 JANUARY 1986 ). AS A RESULT OF THOSE MEASURES, THE COMMISSION INFORMED THE COURT BY A LETTER DATED 28 FEBRUARY 1986 THAT IT WISHED TO DISCONTINUE THE ACTION IN SO FAR AS ITS OBJECT WAS TO OBTAIN A DECLARATION OF THE KINGDOM OF BELGIUM' S FAILURE TO FULFIL ITS OBLIGATIONS UNDER DIRECTIVE NO 75/362 AND TO PROCEED WITH IT ONLY IN SO FAR AS IT RELATES TO DIRECTIVE NO 75/363 .

3 IT SHOULD BE RECALLED THAT, IN ORDER TO BRING ABOUT THE CONDITIONS REQUIRED FOR THE MUTUAL RECOGNITION OF DIPLOMAS, CERTIFICATES AND OTHER EVIDENCE OF FORMAL QUALIFICATIONS IN MEDICINE IN ACCORDANCE WITH DIRECTIVE NO 75/362, DIRECTIVE NO 75/363, AS ITS TITLE INDICATES, PROVIDES FOR THE COORDINATION OF PROVISIONS LAID DOWN BY LAW, REGULATION OR ADMINISTRATIVE ACTION IN RESPECT OF THE ACTIVITIES OF DOCTORS . ARTICLE 5 OF DIRECTIVE NO 75/363 PROVIDES FOR A MINIMUM PERIOD OF SPECIALIZED TRAINING IN TROPICAL MEDICINE OF FOUR YEARS .

4 ARTICLE 7 OF DIRECTIVE NO 75/362 LIMITS THE MUTUAL RECOGNITION OF SPECIALIZED TRAINING IN TROPICAL MEDICINE TO CERTAIN MEMBER STATES INCLUDING BELGIUM . IN ORDER TO SATISFY THE REQUIREMENTS OF ARTICLE 5 OF DIRECTIVE NO 75/363, THE COMPETENT BELGIAN AUTHORITIES WERE THEREFORE REQUIRED TO PROVIDE FOR A PERIOD OF TRAINING IN THAT SPECIALTY OF AT LEAST FOUR YEARS .

5 IT IS COMMON GROUND THAT THE PERIOD OF SPECIALIZED TRAINING IN TROPICAL MEDICINE IN BELGIUM IS ONE YEAR . IN ORDER TO BE DISPENSED FROM THE OBLIGATION TO PROVIDE FOR A FOUR-YEAR TRAINING IN TROPICAL MEDICINE, THE BELGIAN GOVERNMENT REQUESTED, DURING THE WRITTEN PROCEDURE BEFORE THE COURT, THAT BELGIUM SHOULD BE REMOVED FROM THE LIST CONTAINED IN ARTICLE 7 OF DIRECTIVE NO 75/632 . ACCORDING TO THE BELGIAN GOVERNMENT THAT REQUEST TO THE COMMISSION PUT AN END TO THE INFRINGEMENT .

6 THE COMMISSION TAKES THE VIEW THAT A MERE REQUEST ON THE PART OF THE BELGIAN GOVERNMENT DOES NOT HAVE THE EFFECT OF TERMINATING THE INFRINGEMENT RESULTING FROM ITS FAILURE TO IMPLEMENT ARTICLE 5 OF DIRECTIVE NO 75/363 WITHIN THE PRESCRIBED PERIOD . ACCORDING TO THE COMMISSION, IT HAS INITIATED THE PROCEDURE FOR AMENDING THAT DIRECTIVE IN ACCORDANCE WITH THE BELGIAN GOVERNMENT' S REQUEST, BUT THE FINAL DECISION ON THAT POINT RESTS WITH THE COUNCIL . CONSEQUENTLY THE KINGDOM OF BELGIUM IS STILL BOUND BY THE OBLIGATION LAID DOWN BY ARTICLE 5 OF THAT DIRECTIVE AND HAS NOT COMPLIED WITH IT .

7 THE COMMISSION' S ARGUMENT MUST BE ACCEPTED . THE COMMISSION' S PROPOSAL FOR AN AMENDMENT TO THE DIRECTIVE FOLLOWING THE BELGIAN GOVERNMENT' S REQUEST CANNOT EXPUNGE THE FAILURE TO FULFIL OBLIGATIONS WITH WHICH IT CHARGES THE KINGDOM OF BELGIUM AND WHICH WILL SUBSIST AS LONG AS THE COUNCIL HAS NOT ADOPTED THAT PROPOSAL .

8 IT MUST THEREFORE BE DECLARED THAT, BY FAILING TO ADOPT WITHIN THE TIME PRESCRIBED THE PROVISIONS NECESSARY IN ORDER TO COMPLY WITH DIRECTIVE NO 75/363 CONCERNING THE COORDINATION OF PROVISIONS LAID DOWN BY LAW, REGULATION OR ADMINISTRATIVE ACTION IN RESPECT OF ACTIVITIES OF DOCTORS, THE KINGDOM OF BELGIUM HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE COMBINED PROVISIONS OF THE EEC TREATY AND THE AFORESAID DIRECTIVE .

Decision on costs

COSTS

9 UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS .

10 BY VIRTUE OF ARTICLE 69 ( 4 ), A PARTY WHO DISCONTINUES OR WITHDRAWS FROM PROCEEDINGS IS TO BE ORDERED TO PAY THE COSTS UNLESS THE DISCONTINUANCE OR WITHDRAWAL IS JUSTIFIED BY THE CONDUCT OF THE OPPOSITE PARTY .

11 THE COMMISSION HAS ABANDONED CERTAIN CLAIMS IN ITS APPLICATION AS A RESULT OF THE BELGIAN GOVERNMENT' S HAVING TAKEN THE REQUIRED ACTION ON THOSE POINTS AFTER THE COMMENCEMENT OF THESE PROCEEDINGS .

12 HENCE THE COMMISSION' S PARTIAL DISCONTINUANCE OF THE PROCEEDINGS IS JUSTIFIED BY THE CONDUCT OF THE KINGDOM OF BELGIUM . MOREOVER, THE KINGDOM OF BELGIUM HAS FAILED IN THE REMAINDER OF ITS SUBMISSIONS .

13 THE KINGDOM OF BELGIUM MUST THEREFORE BE ORDERED TO BEAR THE COSTS .

Operative part

On those grounds,

THE COURT

hereby :

( 1 ) Declares that, by failing to adopt within the time prescribed the provisions necessary in order to comply with Directive No 75/363 concerning the coordination of provisions laid down by law, regulation or administrative action in respect of activities of doctors, the Kingdom of Belgium has failed to fulfil its obligations under the combined provisions of the EEC Treaty and the aforesaid directive .

( 2 ) Orders the Kingdom of Belgium to pay the costs .