CELEX: 62008CC0343
Language: en
Date: 2009-10-06
Title: Opinion of Mr Advocate General Bot delivered on 6 October 2009. # European Commission v Czech Republic. # Failure of a Member State to fulfil obligations - Directive 2003/41/EC - Activities and supervision of institutions for occupational retirement provision - Partial failure to transpose within the prescribed time-limit - No institutions for occupational retirement provision located in the national territory - Competence of Member States to organise their own national retirement pension system. # Case C-343/08.

OPINION OF ADVOCATE GENERAL
      BOT
      delivered on 6 October 2009 1(1)
      
      Case C‑343/08
      Commission of the European Communities
      v
      Czech Republic
      
      (Failure to fulfil obligations – Transposition of Directive 2003/41/EC on institutions for occupational retirement provision – Failure to transpose the provisions of the directive imposing obligations on the State where the institutions for occupational
         retirement provision are located – Competence of the Member States to organise freely their retirement systems)
      1.        These infringement proceedings concern the Czech Republic’s transposition of Directive 2003/41/EC of the European Parliament
         and of the Council. (2)
      
      2.        Directive 2003/41 seeks to facilitate the pursuit by institutions for occupational retirement provision of their activities
         in Member States other than those in which they are located. To that effect, it lays down strict prudential rules to protect
         the beneficiaries of retirement benefits payable by those institutions. However, Directive 2003/41 does not call into question
         the competence of the Member States to organise freely their retirement systems.
      
      3.        In order to comply with the requirements of that directive, the Czech Republic adopted provisions authorising institutions
         for occupational retirement provision located in other Member States to provide their services within its territory and permitting
         undertakings located in the Czech Republic to use such services. However, it did not transpose the provisions of the directive
         which impose obligations on the home Member State of those institutions because there are no institutions for occupational
         retirement provision in its territory and such a transposition would call the organisation of its retirement system into question.
      
      4.        The Commission of the European Communities is of the view that the Czech Republic’s reasoning is unfounded and seeks a declaration
         by the Court that that Member State, by not transposing various provisions of Directive 2003/41, has thereby failed to fulfil
         its obligations.
      
      5.        I am of the view that the Commission’s action is well founded. In this Opinion, I shall show that the provisions of Directive
         2003/41 which impose obligations on the Member States as home Member States of institutions for occupational retirement provision
         do not govern the role and functions of such institutions in the system of those States. I shall conclude from this that full
         transposition of that directive does not affect the organisation by the Czech Republic of its retirement system. I shall then
         point out that, according to the case‑law, the fact that an activity referred to by a directive does not exist in a Member
         State does not release that State from the obligation to transpose it and I shall maintain that that case‑law is applicable
         in the present case.
      
      I –  Directive 2003/41
      6.        The institutions for occupational retirement provision are part of what is called ‘the second pillar’ in the method of organising
         retirement systems by the Member States. (3)
      
      7.        Directive 2003/41 seeks to allow those institutions to provide their services in other Member States. (4) According to recital 6 in its preamble, that directive represents a first step towards the creation of an internal market
         for occupational retirement provision. To that end, it lays down strict prudential rules with respect to the activities and
         conditions of operation of institutions for occupational retirement provision in order to guarantee a high degree of security
         for future pensioners entitled to benefit from retirement benefits paid by the institutions. (5)
      
      8.        However, it is stated in recital 9 in the preamble to Directive 2003/41 that that directive does not call into question the
         organisation by the Member States of their pension systems and, with regard in particular to the second pillar, the definition,
         by each State, of the role and functions of the institutions providing occupational retirement benefits. (6)
      
      9.        The provisions of Directive 2003/41 relevant to this case concern the scope of that directive, the conditions under which
         institutions for occupational retirement provision pursue their activities and the special rules governing their cross‑border
         activities.
      
      1.      The scope of Directive 2003/41
      10.      Articles 2, 3 and 6 of Directive 2003/41 define in mandatory terms the institutions which fall within the scope of that directive
         and those which fall outside it.
      
      11.      It thus follows from those provisions that they apply to institutions for retirement provision which, irrespective of their
         legal form and name, operate on a funded basis, (7) are not first pillar social security schemes and aim to provide retirement benefits in the context of an occupational activity
         on the basis of a contract or collective agreement.
      
      12.      In particular, the following are excluded: institutions managing social-security schemes covered by the Community coordination
         rules; financial institutions which are already covered by a Community measure (insurance, undertakings for collective investment
         in transferable securities, investment services undertakings); and institutions for occupational retirement provision which
         operate on a pay‑as‑you‑go basis.
      
      13.      Directive 2003/41 also lays down optional provisions.
      
      14.      Accordingly, under Article 4 of that directive, home Member States (8) may choose to apply the provisions of the directive to the occupational‑retirement‑provision business of insurance undertakings.
         Likewise, pursuant to Article 5 of Directive 2003/41, Member States may choose not to apply the directive in whole or in part
         to institutions located in their territories which operate pension schemes which together have less than 100 members in total,
         and to institutions where occupational retirement provision is made under statute, pursuant to legislation, and is guaranteed
         by a public authority.
      
      2.      The conditions under which institutions for occupational retirement provision pursue their activities
      15.      Directive 2003/41 lays down that the Member States are to impose various obligations on institutions for occupational retirement
         provision located in their territory.
      
      16.      Each Member State is thus to require them to limit their activities to the provision of retirement benefits (Article 7) and
         to be legally separate from sponsoring undertakings (9) (Article 8). It must also ensure, pursuant to Article 9, that any institution located in its territory is registered in a
         national register, is effectively run by persons of good repute and is subject to appropriate rules.
      
      17.      Each Member State is also to ensure that every institution located in its territory provides annual accounts (Article 10)
         and communicates the information listed in Article 11 of Directive 2003/41 to members and beneficiaries. It must also create
         a competent authority with sufficient powers to supervise effectively the activities of such institutions (Article 13).
      
      18.      Lastly, each Member State is required to ensure that every institution located in its territory states at regular intervals
         the principles guiding its investment policy (Article 12), has sufficient reserves to cover its liabilities (Articles 15 to
         17) and invests its assets in accordance with the ‘prudent person’ rule (Article 18).
      
      3.      The special regime for cross‑border activities
      19.      Under Article 20(1) of Directive 2003/41, the Member States are to allow undertakings located within their territories to
         sponsor institutions for occupational retirement provision authorised in other Member States. They are also to allow institutions
         for occupational retirement provision authorised in their territories to accept sponsorship by undertakings located within
         the territories of other Member States.
      
      20.      An institution which wishes to provide cross‑border services must obtain a prior authorisation from the home Member State
         (Article 9(5)).
      
      21.      For that purpose, according to Article 20(3) of Directive 2003/41, it must indicate to the competent authority of that State
         the Member State or Member States in which it has decided to provide services, the name of the sponsoring undertaking and
         the main characteristics of the pension scheme to be operated. In accordance with Article 20(4) of Directive 2003/41, except
         where it is of the view that the institution in question is not in a position to provide the service envisaged, the competent
         authority of the home Member State is to inform the competent authority of the host Member State within a period of three
         months.
      
      22.      Article 20(5) to (10) of Directive 2003/41 lays down the detailed rules for the exchanges between the competent authorities
         of the Member States concerned as well as their respective powers in order to ensure, in particular, that the provision of
         services is carried out in compliance with the social and labour law of the host Member State.
      
      23.      Under Article 22(1) of Directive 2003/41, the Member States were to implement the provisions necessary in order to comply
         with that directive before 23 September 2005 and inform the Commission thereof. According to Article 22(3) and (4), Member
         States could postpone until 23 September 2010 the application of Article 17(1) and (2) and Article 18(1)(f) under the conditions
         set out in those subparagraphs.
      
      II –  Pre-litigation procedure
      24.      On 11 July 2006, the Czech Republic informed the Commission that it had transposed Directive 2003/41 into its domestic law
         by means of Law No 340/2006 on the activities of the institutions for occupational retirement provision of the Member States
         of the European Union in the territory of the Czech Republic.
      
      25.      By letter of 18 October 2006, the Commission sent that Member State a letter of formal notice in which it stated that Articles 1
         to 5, 8, 9, 13 and 15 to 21 had not been transposed or had been transposed only in part.
      
      26.      The Czech Republic replied by letter of 18 December 2006, in which it indicated, essentially, that, as its social security
         system has no second pillar and there are no institutions for occupational retirement provision within its territory, it was
         not required to transpose the articles of Directive 2003/41 which presuppose the presence of such institutions.
      
      27.      By letter of 23 March 2007, the Commission sent a reasoned opinion to the Czech Republic in which it complained that that
         Member State had failed to transpose in full Directive 2003/41, and in particular Articles 8, 9, 13, 15 to 18 and 20(2) and
         (4).
      
      28.      The Czech Republic replied by letter of 24 July 2007, in which it maintained its position and denied the failure to transpose
         complained of.
      
      III –  Forms of order sought and arguments of the parties
      29.      By application of 18 July 2007, the Commission brought the present infringement action, in which it claims that the Court
         should:
      
      ‘(1)      declare that, by failing to transpose fully into its domestic legal system [Directive 2003/41], and, in particular, in failing
         to transpose Article 8, Article 9 in its entirety and Articles 13, 15 to 18 and 20(2) to (4) of that directive, the Czech
         Republic has failed to fulfil its obligations under the directive and in particular Article 22(1) thereof;
      
      (2)      order the Czech Republic to pay the costs.’
      30.      The Czech Republic contends that the Court should dismiss the action and order the Commission to pay the costs.
      
      31.      The Commission claims that the limited nature of Community powers in the field of pensions in no way authorises the Czech
         Republic not to transpose certain provisions of Directive 2003/41. The fact that an activity referred to in a directive does
         not exist in a Member State cannot release that State from its obligation to adopt laws or regulations to ensure that all
         the provisions of that directive are properly transposed. Non-transposition of a directive is only permissible where the transposition
         proves pointless for geographical reasons. (10)
      
      32.      The Commission is of the view that the partial failure to transpose Directive 2003/41 seriously prejudices the effectiveness
         of that directive. The Czech Republic is thereby hindering the establishment of institutions for occupational retirement provision
         in its territory. It would to a considerable extent compromise the objective of creating an internal market for occupational
         retirement provision if every Member State could decide not to comply with the requirement to create the conditions necessary
         for the activities of institutions for occupational retirement provision in its territory.
      
      33.      The Commission states, in that regard, that Directive 2003/41 does not require Member States to alter the organisation of
         their retirement systems. It merely requires them, in fixing the rules relating to the taking-up and pursuit of activities
         carried out by institutions for occupational retirement provision, to create the legal framework necessary for those activities.
      
      34.      In addition, the Commission states that institutions for occupational retirement provision, which are defined in Article 6(a)
         of Directive 2003/41, are not to be confused with the second pillar of the pension scheme. The possibility cannot be excluded
         that some institutions pursuing activities on Czech territory and having their registered office or main administration in
         that territory satisfy the definition set out in Article 6(a).
      
      35.      Moreover, the Commission points out that, according to the information available to it, Czech law does not preclude the creation
         of institutions for occupational retirement provision.
      
      36.      Lastly, the Commission is of the view that in any event, in the light of the case‑law, the fact that, currently there is no
         retirement provision institution which falls within the scope of Directive 2003/41 in the Czech Republic does not release
         that Member State from the obligation to transpose the directive in full. It is of little account, in that regard, that primary
         law confers on Member States the right to define the fundamental principles of the retirement system at issue. The obligation
         on the Member States to transpose a directive does not depend on the legal basis upon which it was adopted or on the field
         to which it relates, as that obligation arises from Article 10 EC and the third paragraph of Article 249 EC, as well as the
         terms of the directive.
      
      37.      The Czech Republic considers that it is not required to transpose into its domestic law the provisions of Directive 2003/41
         which are the subject of this action, since, in doing so, it would be obliged to introduce an occupational pension scheme
         falling under the second pillar and thus to alter the fundamental principles of its social security system, the organisation
         of which falls fully within the competence of the Member States.
      
      38.      The Czech Republic explains, in that regard, that its pension system has no second pillar. It is solely based, first, on a
         mandatory legal scheme laid down, for all insured persons, by the Law on pension insurance, falling under the first pillar,
         and, second, on supplementary pension insurance, falling under the third pillar. Under the current national legislation, an
         institution for occupational retirement provision cannot establish itself on Czech territory in order to pursue that activity,
         as it would be in contravention of the legislation governing the occupational activities that may be pursued on the financial
         market and could thus be the object of administrative or criminal law proceedings. In addition, there is insufficient political
         will or economic potential to introduce an occupational pension insurance scheme.
      
      39.      According to the Czech Republic, since the first indent of Article 137(4) EC, which constitutes one of the implied legal bases
         of Directive 2003/41, leaves competence to determine the basic structure of their social security system to the Member States,
         no transposition of that directive which would affect the effective exercise of the right guaranteed by primary law can be
         required. As the provisions referred to in the present action impose obligations on Member States in whose territory institutions
         for occupational retirement provision are located, their transposition would lead inevitably to the creation of a legal framework
         necessary for the operation of such undertakings in the territory of the Czech Republic and, thus, to the establishment of
         a second pillar in that Member State, which would seriously affect the overall financial equilibrium of its national retirement
         system.
      
      40.      By way of example, the Czech Republic refers to Article 9(1)(a) of Directive 2003/41, which lays down the obligation to register
         institutions in a national register or to authorise them. The creation of the appropriate register or the establishment of
         an appropriate system of authorisation would necessarily require the adoption of corresponding legislation. Adopting such
         legislation in isolation, without the introduction of occupation retirement provision as a complex system, that is to say,
         without defining, for example, the rights and the obligations of the contracting parties, would not be possible.
      
      41.      The Czech Republic states that it is aware of the fact that, generally, institutions for occupational retirement provision
         should not be confused with the second pillar system. Nevertheless, those institutions are an essential element of retirement
         schemes and the creation of a framework for their establishment would necessarily lead to changes to the national retirement
         system itself.
      
      42.      The Czech Republic contends, moreover, that the transposition carried out by Law No 340/2006 attains the objective pursued
         by Directive 2003/41. That law transposes all the provisions concerning the cross-border provision of occupational pension
         services by companies established in other Member States, thus allowing undertakings located in its territory to contribute
         to retirement schemes offered by those companies and, at the same time, allowing those companies to offer appropriate services
         in the Czech Republic.
      
      43.      In answer to the Court’s question requesting it to specify how that authorisation to use the services of institutions for
         occupational retirement provision located in other Member States could be reconciled with the absence of a second pillar,
         the Czech Republic replied that such provision of services was not tantamount to the creation of a second pillar, inasmuch
         as those institutions carried out their activities under the responsibility of their home Member State, and that the Czech
         Republic did not have to take it into account in its assessment of whether the needs of its nationals were satisfied.
      
      44.      Lastly, according to the Czech Republic, as its domestic law does not provide for a second pillar, the situation in dispute
         in the present case is not analogous to that referred to in the case‑law referred to by the Commission concerning the inexistence
         of an activity in a Member State. Thus, in the present case, the implementation of the Community legislation is not precluded
         by an obstacle de facto arising from circumstances capable of changing at any moment but de iure, being linked to the competence of Member States to organise the basic structure of their social security system.
      
      IV –  Assessment
      45.      At the outset, I note that the Commission, in its application, alleges that the Czech Republic failed to transpose in full
         Directive 2003/41 and, in particular, the articles which it lists.
      
      46.      I consider that the present action is only admissible and should be examined in so far as it concerns the provisions of Directive
         2003/41 which are referred to expressly in the application. It follows from Article 38(1)(c) of the Rules of Procedure of
         the Court of Justice and from the case‑law (11) that the forms of order sought in the application initiating proceedings must be formulated clearly and precisely so that
         the Court does not rule ultra petita and fail to rule on an objection.
      
      47.      The Czech Republic expressly admits that it has not transposed Articles 8, 9, 13, 15 to 18 and 20(2) to (4) of Directive 2003/41.
         However, the measures imposed by those provisions are expressed in mandatory terms, such as ‘[e]ach Member State shall ensure
         that …’, (12) ‘[t]he home Member State shall ensure that …’, (13) or ‘[t]he competent authorities/[t]he host Member State/[t]he home Member State shall require that…’. (14)
      
      48.      Moreover, Directive 2003/41 does not provide for any derogation from the obligation to transpose the articles concerned, apart
         from those, very limited and temporary, which are set out in Article 22(3) and (4) thereof. (15)
      
      49.      The Commission’s complaint against the Czech Republic that it has failed to transpose in full Articles 8, 9, 13, 15 to 18
         and 20(2) to(4) of Directive 2003/41 is thus well founded.
      
      50.      The question at the centre of the present dispute is whether the Czech Republic could legitimately refrain from carrying out
         such a transposition. The special feature of the present case rests in the fact that, according to that Member State, the
         transposition of the relevant provisions of Directive 2003/41, which impose obligations on Member States in their capacity
         as home Member State, would oblige it to alter its retirement system and affect its competence in that field.
      
      51.      According to the Czech Republic, the transposition of the provisions concerned would lead inevitably to the creation of the
         legal framework necessary for the operation of such institutions in its territory and, thus, to the establishment of a second
         pillar, which would seriously affect the overall financial equilibrium of its national retirement system.
      
      52.      Like the Commission, I am of the view that that reasoning cannot be supported for the following reasons.
      
      53.      It is of course common ground that Member States have retained competence to organise freely their national retirement systems.
         The Community, which, according to Article 5 EC enjoys only conferred powers, has not been invested with the power to legislate
         in or harmonise that field. Article 137 EC, which defines Community competences in matters of social policy, precludes any
         power to harmonise in the social security field, of which old age pensions form a part. Moreover, under Article 137(4) EC,
         the provisions adopted by the Community on the basis of that article must not affect the right of Member States to define
         the fundamental principles of their social security systems or affect the financial equilibrium thereof.
      
      54.      It follows that the Member States may freely determine the role of each of the three pillars in their retirement system and,
         with regard to the second pillar, the role and functions of institutions for occupational retirement provision, as stated
         expressly in recital 9 in the preamble to Directive 2003/41. Those States may thus provide for the extent to and the conditions
         under which undertakings located in their territory may sponsor an institution for occupational retirement provision in order
         to guarantee such provision for their employees.
      
      55.      In exercising that reserved competence, the States must, of course, respect the commitments which they have given in the context
         of the EC Treaty, which implies that, if the retirement system of a Member State restricts freedom of movement, that State
         must be in a position to show that the restriction is justified on legitimate grounds and is proportionate to the objective
         pursued.
      
      56.      In that regard, it is should be borne in mind that the necessity, for a Member State to preserve the financial equilibrium
         of its retirement system constitutes a legitimate ground for restricting freedom of movement, as is made expressly clear in
         Article 137(4) EC and the case‑law. (16) Moreover, the Court has accepted that the Member States have a wide discretion in the organisation of their retirement systems
         where that organisation involves complex evaluations of financial data.(17)
      
      57.      It thus appears conceivable, in my view, for a Member State, without undermining Community law, to base its retirement system
         exclusively on the first and third pillars and thus to decide that institutions for occupational retirement provision should
         not play any role in that system. I note that the Commission is not challenging the compliance of the Czech retirement system
         with Community law as regards the fact that the Czech Republic decided to base that system exclusively on the first and third
         pillars.
      
      58.      However, that reserved competence of the Member States cannot justify the Czech Republic’s position, because the provisions
         of Directive 2003/41 concerned do not determine the role and functions of institutions for occupational retirement provision
         under national retirement systems. They are not intended to harmonise the extent to and the conditions under which undertakings
         located in the territory of the Member States may sponsor such institutions.
      
      59.      Those provisions seek to enable institutions located in the territory of a Member State to provide their services in the other
         Member States. Accordingly, they require all Member States to make institutions for occupational retirement provision located
         in their territory subject to various strict prudential rules designed to guarantee a high degree of security for the future
         pensioners who are to benefit from their services.
      
      60.      Those rules consist, as we have seen, in the legal separation between institutions for occupational retirement provision and
         sponsoring undertakings in order that, in the event of the bankruptcy of those undertakings, the assets of the institution
         are safeguarded (Article 8); in conditions of operation designed to guarantee the reliability of institutions for occupational
         retirement provision (registration in a national register or authorisation, management by persons of good repute, appropriate
         rules, technical provisions certified by a specialist, information to members) (Article 9); in a list of information to be
         provided to the competent authorities (Article 13); and in the presentation and management of sufficient funds to cover their
         commitments (Articles 15 to 18).
      
      61.      Article 20(2) to (4) of Directive 2003/41 lays down, lastly, the procedure that an institution for occupational retirement
         provision is to follow where it wishes to provide services in another Member State, and the role of the competent authorities
         of the Member State within the territory of which it is located.
      
      62.      I am of the view that such rules are not capable of calling into question the role and functions of institutions for occupational
         retirement provision in the retirement system of each Member State.
      
      63.      I would also cite as evidence the fact that all those rules are expressed in mandatory terms although other provisions of
         Directive 2003/41, such as Articles 4 and 5 thereof, are expressly optional in nature and that Article 22 of that directive
         made no provision for derogation from the obligation to transpose the rules, apart from the very limited and temporary exceptions
         set out in Article 22(3) and (4) thereof.
      
      64.      Moreover, we have already seen that the Community legislature took care to mention, in recital 9 in the preamble to Directive
         2003/41, that that directive was not to interfere with the reserved competence of the Member States to organise their pension
         systems and, in particular, to define the place of the second pillar. The wording, in mandatory terms of the articles concerned,
         in the light of that statement, confirms that the legislature, that is to say, inter alia, the Member States themselves, took
         the view that transposition of those articles would not call that competence into question.
      
      65.      The transposition, by the Czech Republic, of the provisions of Directive 2003/41 concerned should therefore not require it
         to alter the role and functions of institutions for occupational retirement provision in its retirement system and to create
         a second pillar, contrary to what the Member State maintains. That transposition might, however, force it to change the rules
         by which it has sought to limit that role and those functions.
      
      66.      The Czech Republic has contended, in effect, that, pursuant to its legislation, an institution for occupational retirement
         provision would not be able to establish itself within Czech territory and pursue its activities there on pain of administrative
         or criminal proceedings. On the other hand, according to that Member State, undertakings located within its territory are
         entitled to become members of institutions for occupational retirement provision established in other Member States. Accordingly,
         that Member State sought to limit the role of institutions for occupational retirement provision by prohibiting their establishment
         within its territory rather than by regulating the right of national undertakings to become members of such institutions.
      
      67.      The transposition of the legal framework provided for by Directive 2003/41 should thus lead the Czech Republic to change its
         legislation, in so far as it prohibits the establishment of such institutions within its territory. However, that adaptation,
         which is necessary for the implementation of that directive, does not, in my view, affect the reserved competence of the Czech
         Republic since that competence, as I have indicated, comprises of determining the role and functions of those institutions
         in its retirement system. Expressed differently, the reserved competence of the Czech Republic to define the role and functions
         of institutions for occupational retirement provision in its national system must be exercised in accordance with Community
         law and, in particular, with the requirements of Directive 2003/41.
      
      68.      Accordingly, in my view, that Member State must introduce the legal framework for which the provisions of Directive 2003/41
         concerned provide, if need be by lifting the prohibition against institutions for occupational retirement provision establishing
         themselves within its territory, without however having to alter the role and the functions which it wishes to see those institutions
         perform in its national retirement system or calling into question the fact that that system rests on the first and third
         pillars. The Czech Republic would thus be able to lay down the extent to which and under what conditions national undertakings
         could become members of such institutions.
      
      69.      In that regard, I would, however, point out that, in its reply to the Court’s questions, the Czech Republic claimed that the
         possibility for undertakings established in its territory of becoming members of the institutions for occupational retirement
         provision established in other Member States does not affect the financial equilibrium of its pension scheme. I do not understand,
         from the explanations provided by the Czech Republic, why the situation would be different if such institutions were located
         within its territory.
      
      70.      At this stage of the analysis, the question which remains to be dealt with is only whether a Member State is required to transpose
         the provisions in question of Directive 2003/41 even though, as its retirement system is at present organised, institutions
         for occupational retirement provision would not play any role or play only a very limited role in that system. In other words,
         the question is whether a Member State is bound to establish such a legal framework, although it is possible that it will
         remain an empty shell to the extent that, being unable to pursue their activities effectively or in adequate conditions in
         that State, institutions for occupational retirement provision will not in fact seek to establish themselves there.
      
      71.      The answer to that question can, in my view, be deduced easily from the case‑law.
      
      72.      It is settled case‑law that the fact that an activity referred to by a directive does not exist in a Member State does not
         release that Member State from the obligation to transpose it.
      
      73.      Thus, in the judgment in Case 339/87 Commission v Netherlands, (18) the Court held that the fact that practices incompatible with or prohibited by a directive do not exist in a Member State
         (the case concerned means of hunting under Council Directive 79/409/EEC) (19) cannot release that Member State from its obligation to ensure the transposition of that directive. Likewise, in accordance
         with the judgment in Commission v Greece, above, (20) the fact that no abattoir had been authorised in Greece for the slaughter of solipeds did not free that Member State from
         mentioning those animals in its legislation for the purposes of the application of the fee charged under Council Directive
         93/118/EC. (21)
      
      74.      Lastly, in the judgments in Commission v Ireland, (22) and Commission v United Kingdom, above, it was held that the fact that there were no high speed trains in Ireland and Northern Ireland did not release Ireland
         and the United Kingdom of Great Britain and Northern Ireland from the obligation to transpose Council Directive 96/48/EC. (23)
      
      75.      The fact that the situation covered by those directives did not exist was held not to be relevant because, according to the
         Court, it is important not only to anticipate a change to that factual state, but above all to guarantee in all circumstances
         their effective application. (24) In other words, the Court considered that the Member States were obliged to adopt the legal framework permitting them to
         ensure the effective application of the directive concerned within the period prescribed therein, even if, on the facts, that
         legal framework did not fall to be applied immediately.
      
      76.      It is only in a case where such a factual situation will not evolve for geographical reasons that transposition is not mandatory. (25)
      
      77.      It follows that, once the factual situation that renders the directive inoperative may evolve and, accordingly, the directive
         may effectively be applied, it must be transposed so that its effectiveness and effective application are not delayed when
         the circumstances which render it inoperative have disappeared.
      
      78.      That case‑law is, in my view, applicable a fortiori to a situation such as that in the present case, in which the fact that a directive is inoperative does not arise from a
         purely factual situation which does not necessarily depend on the Member State concerned, but from a legal context falling
         entirely within that Member State’s power of decision.
      
      79.      First, in the latter situation, that legal context may itself evolve. It is therefore also important that the directive concerned
         should be capable of producing all its effects immediately if the Member State decides to alter that context.
      
      80.      Second, in so far as alteration of the legal context which renders the directive concerned inoperative falls within the competence
         of that Member State, it is necessary to preclude a situation in which that Member State could be tempted to maintain that
         context as it stands with the sole aim of avoiding the obligations imposed by that directive.
      
      81.      In view of all the foregoing considerations, I am of the view that the Court should declare the Commission’s action well founded
         in so far as it concerns Articles 8, 9, 13, 15 to 18 and 20(2) to (4) of Directive 2003/41 and order the Czech Republic to
         pay the costs.
      
      V –  Conclusion
      82.      In the light of the foregoing considerations, I propose that the Court declare the present infringement proceedings admissible
         and well founded in so far as they refer to Articles 8, 9, 13, 15 to 18 and 20(2) to (4) of Directive 2003/41/EC of the European
         Parliament and of the Council of 3 June 2003 on the activities and supervision of institutions for occupational retirement
         provision, and order the Czech Republic to pay the costs.
      
      1 –	Original language: French.
      
      2 –	Directive of 3 June 2003 on the activities and supervision of institutions for occupational retirement provision (OJ 2003 L 235,
         p. 10).
      
      3 –	The first pillar comprises mandatory pay‑as‑you‑go schemes. The third pillar comprises individual contracts of a life assurance
         nature.
      
      4 –	Recitals 6, 8 and 36.
      
      5 –	Recitals 7 and 20.
      
      6 –	Recital 9 is worded as follows:
      
      	‘In accordance with the principle of subsidiarity, Member States should retain full responsibility for the organisation of
         their pension systems as well as for the decision on the role of each of the three “pillars” of the retirement system in individual
         Member States. In the context of the second pillar, they should also retain full responsibility for the role and functions
         of the various institutions providing occupational retirement benefits, such as industry-wide pension funds, company pension
         funds and life-assurance companies. This Directive is not intended to call this prerogative into question.’
      
      7 –	Funded schemes are characterised by the fact that pensions are prefinanced and their payment is guaranteed by reserves.
         They differ from pay‑as‑you‑go schemes, in which contributions are used directly in order to pay benefits due.
      
      8 –	‘Home Member State’ is defined in Article 6(i) of Directive 2003/41 as the Member State in which the institution has its
         registered office and its main administration or, if it does not have a registered office, its main administration.
      
      9 –	‘Sponsoring undertaking’ is defined in Article 6(c) of Directive 2003/41 as any undertaking or other body consisting of
         one or more legal or natural persons which pays contributions into an institution for occupational retirement provision.
      
      10 –	The Commission cites Case C‑214/98 Commission v Greece [2000] ECR I‑9601, paragraph 22, and Case C‑441/00 Commission v United Kingdom [2002] ECR I‑4699, paragraphs 15 and 17.
      
      11 –	See, in particular, Case C‑412/04 Commission v Italy [2008] ECR I‑619, paragraphs 103 to 105.
      
      12 –	Articles 8, 9 and 13.
      
      13 –	Articles 15 and 17.
      
      14 –	Articles 14, 16 and 18.
      
      15 –	According to Article 22(3) of Directive 2003/41, ‘Member States may postpone until 23 September 2010 the application of
         Article 17(1) and (2) to institutions located in their territory which at the date specified in paragraph 1 of this Article
         do not have the minimum level of regulatory own funds required pursuant to Article 17(1) and (2)’. Under Article 22(4), ‘Member
         States may postpone until 23 September 2010 the application of Article 18(1)(f) to institutions located in their territory’.
      
      16 –	See, in particular, Case C‑303/02 Haackert [2004] ECR I‑2195, paragraph 30 and the case‑law cited.
      
      17 –	Case C‑67/96 Albany [1999] ECR I‑5751, paragraph 119.
      
      18 –	Case C-339/87 [1990] ECR I‑851, paragraphs 22, 25 and 32.
      
      19 –	Directive of 2 April 1979 on the conservation of wild birds (OJ 1979 L 103, p. 1).
      
      20 –	Paragraph 26.
      
      21 –	Directive of 22 December 1993 amending Directive 85/73/EEC on the financing of health inspections and controls of fresh
         meat and poultrymeat (OJ 1993 L 340, p. 15).
      
      22 –	C‑372/00, [2001] ECR I‑10303.
      
      23 –	Directive of 23 July 1996 on the interoperability of the trans-European high-speed rail system (OJ 1996 L 235, p. 6).
      
      24 –	Commission v Netherlands (paragraphs 22 and 25), and Commission v Greece, paragraphs 23 and 27.
      
      25 –	Commission v United Kingdom, cited above, paragraph 17.