Opinion of Mr Advocate General Cosmas delivered on 7 May 1998. - Commission of the European Communities v Kingdom of Belgium. - Right to vote and to stand as a candidate in municipal elections. - Case C-323/97.



European Court reports 1998 Page I-04281



Opinion of the Advocate-General

I - Introduction

1 By the present action brought under Article 169 of the EC Treaty, the Commission has requested the Court to declare that, by failing to bring into force within the prescribed period the laws, regulations and administrative provisions necessary to comply with Council Directive 94/80/EC of 19 December 1994 laying down detailed arrangements for the exercise of the right to vote and to stand as a candidate in municipal elections by citizens of the Union residing in a Member State of which they are not nationals (`the Directive'), (1) the Kingdom of Belgium has failed to fulfil its obligations under that directive.

II - Legal framework

2 Article 8b(1) of the EC Treaty provides that:

`Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements to be adopted before 31 December 1994 by the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.'

3 It was on the basis of this enabling provision of primary law that the Council adopted Directive 94/80 on 19 December 1994.

The first paragraph of Article 14 of the Directive provides:

`Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 1 January 1996. They shall immediately inform the Commission thereof.'

III - Procedure

4 Since it had not received any notification from the Kingdom of Belgium of measures to implement the Directive in Belgium and had no other information enabling it to conclude that that State had complied with its obligations under that legislation, the Commission, pursuant to Article 169 of the Treaty, called upon the Kingdom of Belgium to submit its observations with regard to the presumed infringement within two months. In the absence of a reply, the Commission forwarded to the Kingdom of Belgium on 27 November 1996 the reasoned opinion whereby it advised it that, by not taking the measures necessary to implement all the provisions of the Directive, it had failed to fulfil its obligations under that legislation and called upon that State to take the necessary implementing measures within a period of two months.

By letter of 28 March 1997 from the Permanent Representative of Belgium, the Belgian authorities informed the Commission that the Belgian Government faced a number of difficulties relating to the transposition of the Directive into national law, owing to the need to revise beforehand Article 8 of the Belgian Constitution.

In the light of the foregoing, the Commission decided to bring the present action before the Court.

IV - The views of the parties

5 The Commission points out that Article 14 of the Directive provides expressly and clearly that the Member States are to bring into force the provisions necessary to comply with the Directive before 1 January 1996 and that they are to inform the Commission thereof immediately. It is apparent from the reply to the reasoned opinion that the Kingdom of Belgium admits that it has not yet taken the appropriate measures to comply with the Directive although the time-limit expired one and a half years ago. The Commission does not accept that the Kingdom of Belgium is entitled to rely on difficulties relating to a revision of the Constitution, indispensable for the implementation of the Directive in the national legal system: it states, first, that the difficulties had been known to the Belgian authorities since 31 December 1994, when the Directive was published, if not since the signing of the Maastricht Treaty and, secondly, that, in any event, the Court has consistently held that a Member State may not plead circumstances existing in its internal legal system in order to justify a failure to comply with the obligations and time-limits laid down in Community directives. The elements which constitute an infringement already exist and it matters little, in this regard, that the next municipal elections are not to take place in Belgium until the autumn of 2000.

The Kingdom of Belgium points out the difficulties related to a revision of the Constitution and observes that the procedure for the revision of Article 8 of the Belgian Constitution was put in motion in April 1995; the Belgian Government further states that it expects the legislation transposing the Directive into Belgian law to be adopted during the second quarter of 1998 and that it will be published, at the same time as the implementing measures to be adopted in the matter, during the last quarter of 1998. The Belgian Government finally states that it has the intention of respecting that timetable and undertakes to inform the Court as soon as the necessary implementing measures have been adopted.

V - My view on the application

6 In view of the foregoing, it is, I think, undeniable that the elements constituting the infringement alleged by the Commission in the present proceedings against the Kingdom of Belgium do indeed exist. Despite the expiry of the period prescribed in Article 14 of the Directive, which is binding on the Member States, and although, both by its letter of formal notice and its reasoned opinion, the Commission called upon the Kingdom of Belgium to fulfil its obligations under the Directive, that Member State has not, to date, adopted the measures necessary to transpose the Directive into its domestic legal system.

In that regard, I should point out that the infringement is not eradicated by the fact that implementation of the Directive in Belgium runs up against a number of difficulties precisely on account of the need to revise the Constitution beforehand. It is sufficient to draw attention to the settled case-law of the Court, according to which 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 the obligations and time-limits laid down in a directive. (2)

VI - Conclusion

7 I therefore propose that the Court should:

- declare that, by failing to bring into force within the prescribed period the laws, regulations and administrative provisions necessary to comply with Council Directive 94/80/EC of 19 December 1994 laying down detailed arrangements for the exercise of the right to vote and to stand as a candidate in municipal elections by citizens of the Union residing in a Member State of which they are not nationals, the Kingdom of Belgium has failed to fulfil its obligations under that directive; and

- order the Kingdom of Belgium to pay the costs.

(1) - OJ 1994 L 368, p. 38.

(2) - See, by way of illustration only, Case C-107/96 Commission v Spain [1997] ECR I-3193, paragraph 10, and Case C-297/95 Commission v Germany [1996] ECR I-6739, paragraph 9.