Keywords

Summary



Keywords

1. Acts of the institutions – Directives – Implementation by Member States – Need for full transposition into national law – An activity referred to in a directive not existing in one Member State – No effect – Exception – Geographical reasons

(Art. 249, third para., EC)

2. Acts of the institutions – Directives – Implementation by Member States – Need for full transposition into national law – Directive 2003/41 – Activities and supervision of institutions for occupational retirement provision

(Art. 137(4), EC; European Parliament and Council Directive 2003/41, Arts 8, 9, 13, 15 to 18 and 20(2) to (4))

Summary

1. The fact that an activity referred to in a directive does not yet exist in a Member State cannot release that State from its obligation to adopt laws or regulations in order to ensure that all the provisions of the directive are properly transposed.

Both the principle of legal certainty and the need to secure the full implementation of directives in law and not only in fact require that all Member States reproduce the rules of the directive concerned within a clear, precise and transparent framework providing for mandatory legal provisions.

Such an obligation applies to Member States in order to anticipate any change in the situation existing in them at a given point in time and in order to ensure that all legal persons in the Community, including those in Member States in which a particular activity referred to in a directive does not exist, may know with clarity and precision, what are, in all circumstances, their rights and obligations.

It is only where transposition of a directive is pointless for reasons of geography that it is not mandatory.

(see paras 39-42)

2. By failing to adopt, within the period prescribed, the laws, regulations and administrative provisions necessary to comply with Articles 8, 9, 13, 15 to 18 and 20(2) to (4) of Directive 2003/41 on the activities and supervision of institutions for occupational retirement provision which impose obligations on Member States in the territory of which institutions for occupational retirement provision are located, a Member State has failed to fulfil its obligations under Article 22(1) of that directive.

Even if, according to the applicable national legislation, no institution for occupational retirement provision may legally establish itself in the territory of that Member State in the absence of a second pillar in the national retirement pension system, the State is obliged to transpose fully the provisions of the directive, by adopting and bringing into force in its domestic law, the legislative, regulatory and administrative rules necessary to that end.

That obligation to transpose does not affect the State’s competence as regards the organisation of its national retirement pension system and maintenance of the financial equilibrium thereof by requiring the State to put in place, in the context of that transposition, such a second pillar, in disregard of the prerogatives which the first indent of Article 137(4) EC recognises it as enjoying. None of the provisions of Directive 2003/41 requires Member States to implement such legislation. That directive represents merely a first step on the way to an internal market for occupational retirement provision, by putting in place, on a European scale, minimum ‘prudent person’ rules. It is not, however, intended to harmonise, even partially, national retirement pension systems by requiring Member States to amend or abolish the rules of their national law which determine the actual organisation of those systems. In particular, Directive 2003/41, as such, does not require a Member State which prohibits, by reason of the lack of a second pillar in its national retirement pension system, the establishment in its territory of institutions for occupational retirement provision, to lift that prohibition so as to allow institutions for occupational retirement provision to establish themselves in its territory with a view to providing services which are covered by the second pillar of national retirement pension systems.

(see paras 48, 52-53, 57, 59, 62, 69, operative part)