CELEX: 61979CC0102
Language: en
Date: 1980-03-27
Title: Opinion of Mr Advocate General Reischl delivered on 27 March 1980. # Commission of the European Communities v Kingdom of Belgium. # Non-implementation of directives on theharmonization of laws relating to motor vehicles and tractors. # Case 102/79.

OPINION OF MR ADVOCATE GENERAL REISCHL
      DELIVERED ON 27 MARCH 1980 (
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         Mr President,
      
      
         Members of the Court,
      
      These proceedings for a breach of the Treaty on which I am now giving my opinion have something in common with Case 69/77 (Commission of the European Communities ν Italian Republic) which led to the judgment of the Court of 21 September 1978 ([1978] ECR 1749).
      In those proceedings the Commission accused the Italian Republic of a breach of its obligations under the Treaty by not bringing into force within the prescribed periods the provisions to comply with the framework Council Directive No 74/150/EEC of 4 March 1974 on the approximation of the laws of the Member States relating to the type-approval of wheeled agricultural or forestry tractors (Official Journal L 85 of 28. 3. 1974, p. 10), and with a series of directives adopted pursuant to the said framework directive.
      In these proceedings the Commission accuses the Kingdom of Belgium of an infringement of the provisions of the Treaty for not adapting within the requisite time, its national laws to the said directive as well as to a further seven directives adopted pursuant thereto. The same accusation is made in regard to four directives adopted pursuant to Council Directive No 70/156/EEC of 6 February 1970 on the approximation of the laws of the Member States relating to the type-approval of motor vehicles and their trailers (Official Journal, English Special Edition, 1970 (I) p. 96). The scheme on the Community regulations on wheeled agricultural or forestry tractors which is practically the same as the scheme for motor vehicles and their trailers has already been described in detail in the facts of the judgment in Case 69/77 as well as in my opinion on the case; there is therefore no need for me to go into detail. The 12 separate directives which it is alleged have not been introduced into national law within the requisite period are listed in the report for the hearing in this case to which I refer.
      On the ground that the Kingdom of Belgium had not taken the necessary measures, in the periods laid down by the directives, in order to fulfil its obligations under the directives, the Commission started proceedings for a breach of the Treaty under Article 169 of the EEC Treaty by letters of 12 July 1974, 14 April 1976 and 21 April 1977 and, after the reasoned opinion of 21 June 1978 sent to the Kingdom of Belgium had had no effect either, finally brought this action claiming that the Court should:
      
               —
            
            
               Declare that by not adopting within the prescribed periods, the laws, regulations and administrative measures necessary to comply with Directives Nos. 70/221/EEC, 70/387/EEC, 74/60/EEC, 74/483/EEC, 74/150/EEC, 74/151/EEC, 74/152/EEC, 74/346/EEC, 74/347/EEC, 75/321/EEC, 75/322/EEC, 75/323/EEC on the approximation of the laws of the Member States relating to motor vehicles and agricultural or forestry tractors, the Kingdom of Belgium has failed to fulfil an obligation under the Treaty,
            
         
               —
            
            
               Order the Kingdom of Belgium to pay the costs.
            
         The Government of the Kingdom of Belgium regards the actions as unfounded. In its opinion the Commission wrongly assumes that the Kingdom of Belgium must necessarily take legal measures to achieve the objects of the directives in question. Under the third paragraph of Article 189 of the EEC Treaty a directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. The aim of the directives in question, namely the elimination of technical barriers to trade within the Community, is however achieved if they are actually applied to the competent authorities no later than the expiry date of the periods laid down. There is no difficulty in regard to the application of the directives in question since these are plain and precise, leave the Member States no discretion at all in the technical implementation of them and are thus directly applicable. The effect of the precedence of Community law is that national law in so far as it conflicts with Community law does not apply. In contrast to Case 69/77 there is therefore no question of there being any obstacle to trade within the Community. The Belgian rules remaining in force in the areas covered by the directives are less strict in their provisions than the Community rules. They are not therefore obstacles to the import into Belgium of motor vehicles and tractors conforming to Community rules. Nor do the Belgian rules conflict with Community provisions at the national level either, since the scheme of the directives comprising optional harmonization allows less strict rules to continue in force.
      This defence raises the fundamental question whether it is compatible with the binding effect of a directive for a Member State to apply the provisions thereof without introducing the directive into national law by a national legislative act.
      It should however be observed here that, under the scheme of the Treaty and under relevant case-law, directives in principle require only Member States to bring about a uniform legal position within the Community. According to the third paragraph of Article 189 of the EEC Treaty the choice of form and methods for implementing the directives is left to. the national authorities. In case-law emphasis is constantly placed on the observance of the time-limits laid down in directives (cf. for example, judgment of 22 September 1976, Commission of the European Communities ν Italian Republic, Case 10/76 [1976] ECR 1359. The fact that the time-limits laid down in the directives are not observed does not affect the obligation as such.
      In particular Member States may not, as the Belgian Government believes, rely on the direct effect of the directives in order to avoid their obligations under the Treaty. It is generally acknowledged that this essentially means that Member States who do not fulfil their obligations under a directive are prevented from relying on national provisions which are unlawful under Community law. Thus in exceptional cases an individual has the right to rely on the directive as against the State in default and derive rights from it which must be recognized by the national courts (cf. judgment of 6 October 1970, Franz Grad ν Finanzamt Traimstein, Case 9/70 [1970] ECR 825; judgment of 4 December 1974, Yvonne Van Diiyn ν Home Office; Case 41/74, [1974] ECR 1337; judgment of 1 February 1977, Verbond van Nederlandse Ondernemingen ν Inspecteur der Invoerrechten en Accijnzen, Case 51/76 [1977] ECR 113; judgment of 5 April 1979, Ratti, Case 148/78 [1979] ECR 1629). If Member States were permitted to avoid their obligations under the Treaty by relying on the direct effect of the directives and on the precedence of Community Law, directives would, contrary to the scheme of the Treaty, become the same as regulations which are of general application.
      The binding aim on the Member States can however clearly be seen in the second recital common to both framework Directives Nos 70/156/EEC and 74/150/EEC which say that hindrances to the establishment and proper functioning of the Common Market can be reduced, even eliminated, if all Member States adopt the same requirements, either in addition to or in place of their existing laws. Accordingly all the directives in question provide in the penultimate article that Member States shall put into force provisions containing the requirements necessary in order to comply with the directives within a certain period of their notification and shall forthwith inform the Commission thereof. In the second paragraph it is further implied that Member States shall ensure that the texts of the main provisions of national law which they adopt in the field covered by the directives are communicated to the Commission.
      It is apparent from the foregoing that the Kingdom of Belgium has not met this obligation even if the directives in question, which are undoubtedly capable of having direct effect in favour of individuals, are actually applied by the competent Belgian authorities.
      As we have particularly heard in the oral procedure, the Belgian provisions, which govern the issue for a certificate of conformity for motor vehicles and tractors, are not generally less strict, but differ from the corresponding provisions of Community law in so far as they attach different conditions to the issue of a certificate of conformity. However, the continuance of these national provisions leads to legal uncertainty among individuals who cannot know whether the directives in question are capable of having direct effect. Therefore, as the Commission rightly emphasizes, legal certainty and clarity require that the technical directives be introduced into national law by statutory measures of some form or other so that it is generally made known to those concerned that they are directly applicable in law. Furthermore, if the directives were not incorporated into national law, it would be very difficult, if not practically impossible, for the Commission to check whether the directives were actually being applied notwithstanding the different national provisions. Incidentally, this difficulty is not denied by the Belgian Government which admits that it has been trying since 1975 to incorporate the directives into national law for the purpose of achieving legal clarity.
      The obligation contained in the directives to incorporate them into national law is also not undermined, as the Belgian Government believes, by the possibility of “optional approximation” provided for by the directives since the Member States are obliged by all the directives in question to adopt the same requirements “either in addition to or in place of the existing laws”.
      Finally we should briefly look at the argument advanced by the Belgian Government that the slowness of its authorities in preparing the necessary measures to introduce the directives, the doubt cast by its Council of State in 1977 on the legal basis of the measures planned and, lastly, a Government crisis, had interrupted the normal Gourse of the legislative procedure. It is however clear from the established case-law of the Court, which I do not need to cite in detail here, that a State against whom proceedings are brought under Article 169 of the EEC Treaty is answerable for delays and difficulties arising out of national law. Moreover, I have already indicated that under the third paragraph of Article 189 of the EEC Treaty the choice of form and methods for the implementation of the directive is left to the national authorities. As the Commission too especially points out, it follows from this that the obligation contained in the directives in question would have been met if the competent body had directed the authorities responsible for the implementation of them by means of an official publication circulated to them to apply the directives for the issue of certificates of conformity for motor vehicles and tractors.
      Since this was not done either, there is no other choice but to grant the Commission's application.
      Consequently it should be held that the Kingdom of Belgium has failed to fulfil an obligation under the Treaty by not putting in force, within the prescribed periods, the laws, regulations and administrative measures necessary to comply with Directives Nos 70/221/EEC, 70/387/EEC, 74/60/EEC, 74/483/EEC, 74/150/EEC, 74/151/EEC, 74/152/EEC, 74/346/EEC, 74/347/EEC, 75/321/EEC, 75/322/EEC, 75/323/EEC on the approximation of the laws of the Member States relating to motor vehicles and agricultural or forestry tractors. Furthermore the defendant Kingdom of Belgium should pay the costs.
      (
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         )	Translated from the German.