CELEX: 61981CJ0148
Language: en
Date: 1982-10-12 00:00:00
Title: Judgment of the Court of 12 October 1982. # Commission of the European Communities v Kingdom of Belgium. # Failure to implement Directive 77/91/EEC. # Case 148/81.

Avis juridique important

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61981J0148

Judgment of the Court of 12 October 1982.  -  Commission of the European Communities v Kingdom of Belgium.  -  Failure to implement Directive 77/91/EEC.  -  Case 148/81.  

European Court reports 1982 Page 03555

SummaryPartiesSubject of the caseGroundsDecision on costsOperative part
Keywords

MEMBER STATES - OBLIGATIONS - IMPLEMENTATION OF DIRECTIVES - FAILURE TO COMPLY WITH TIME-LIMITS FOR THEIR IMPLEMENTATION - JUSTIFICATION FOR FAILURE - NOT POSSIBLE  ( EEC TREATY , ART . 169 )    

Summary

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 OBLIGATIONS RESULTING FROM COMMUNITY DIRECTIVES .    SINCE THE GOVERNMENTS OF THE MEMBER STATES PARTICIPATE IN THE PREPARATORY WORK FOR DIRECTIVES THEY MUST BE IN A POSITION TO PREPARE , WITHIN THE PERIOD PRESCRIBED , THE DRAFT LEGISLATIVE PROVISIONS NECESSARY FOR THEIR IMPLEMENTATION .    

Parties

IN CASE 148/81 COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , ANTHONY MCCLELLAN , ACTING AS AGENT , ASSISTED BY JACQUES DELMOLY , A MEMBER OF ITS LEGAL DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,   APPLICANT ,   V      KINGDOM OF BELGIUM , REPRESENTED BY ROBERT HOEBAER , DIRECTOR AT THE MINISTRY OF FOREIGN AFFAIRS , FOREIGN TRADE AND COOPERATION WITH THE DEVELOPING COUNTRIES , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE BELGIAN EMBASSY ,   DEFENDANT ,    

Subject of the case

APPLICATION FOR A DECLARATION THAT BY NOT ADOPTING , WITHIN THE PRESCRIBED PERIOD , THE PROVISIONS NEEDED TO COMPLY WITH DIRECTIVE 77/91 , THE SECOND COUNCIL DIRECTIVE OF 13 DECEMBER 1976 ON COORDINATION OF SAFEGUARDS WHICH , FOR THE PROTECTION OF THE INTERESTS OF MEMBERS AND OTHERS , ARE REQUIRED BY MEMBER STATES OF COMPANIES WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 58 OF THE TREATY , IN RESPECT OF THE FORMATION OF PUBLIC LIMITED LIABILITY COMPANIES AND THE MAINTENANCE AND ALTERATION OF THEIR CAPITAL , WITH A VIEW TO MAKING SUCH SAFEGUARDS EQUIVALENT , THE KINGDOM OF BELGIUM HAS FAILED TO FULFIL ONE OF ITS OBLIGATIONS UNDER THE EEC TREATY ,  

Grounds

1 BY APPLICATION RECEIVED AT THE COURT REGISTRY ON 5 JUNE 1981 THE COMMISSION BROUGHT AN ACTION UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT BY NOT ADOPTING WITHIN THE PRESCRIBED PERIOD THE NATIONAL PROVISIONS NEEDED TO COMPLY WITH DIRECTIVE 77/91/EEC , THE SECOND COUNCIL DIRECTIVE OF 13 DECEMBER 1976 ON COORDINATION OF SAFEGUARDS WHICH , FOR THE PROTECTION OF THE INTERESTS OF MEMBERS AND OTHERS , ARE REQUIRED BY MEM-  BER STATES OF COMPANIES WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 58 OF THE TREATY , IN RESPECT OF THE FORMATION OF PUBLIC LIMITED LIABILITY COMPANIES AND THE MAINTENANCE AND ALTERATION OF THEIR CAPITAL , WITH  A VIEW TO MAKING SUCH SAFEGUARDS EQUIVALENT , ( OFFICIAL JOURNAL , 1977 , L 26 ,  P . 1 ), THE KINGDOM OF BELGIUM HAD FAILED TO FULFIL ONE OF ITS OBLIGATIONS UNDER THE EEC TREATY .    2 PURSUANT TO ARTICLE 43 OF THE DIRECTIVE , MEMBER STATES WERE REQUIRED TO BRING INTO FORCE THE LAWS , REGULATIONS AND ADMINISTRATIVE PROVISIONS NEEDED IN ORDER TO COMPLY WITH THE DIRECTIVE WITHIN TWO YEARS OF ITS NOTIFICATION . IT WAS NOTIFIED TO THE KINGDOM OF BELGIUM ON 16 DECEMBER 1976 AND THE ABOVE-MENTIONED PERIOD ACCORDINGLY EXPIRED ON 16 DECEMBER 1978 .    3 THE BELGIAN GOVERNMENT DOES NOT CONTEST THAT IT HAS NOT FULFILLED THAT OBLIGATION . IT NEVERTHELESS POINTS OUT THE SPECIAL COMPLEXITY OF THE DIRECTIVE IN QUESTION , THE LENGTH OF THE LEGISLATIVE PROCEDURES AND THE POLITICAL CRISES WHICH BELGIUM HAS UNDERGONE IN RECENT YEARS , WHICH FURTHER RETARDED THE LEGISLATIVE PROCEDURE . IT OBSERVES IN THIS CONNECTION THAT THE PERIODS PRESCRIBED BY THE DIRECTIVES ON COMPANIES HAVING A SHARE CAPITAL ARE TOO SHORT IN VIEW OF THE IMPORTANCE OF THE LEGISLATION REQUIRED .    4 THOSE CIRCUMSTANCES CANNOT EXPUNGE THE FAILURE TO FULFIL ONE OF ITS OBLIGATIONS WITH WHICH THE KINGDOM OF BELGIUM IS CHARGED . ACCORDING TO WELL-ESTABLISHED CASE-LAW OF THE COURT , 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 OBLIGATIONS AND TIME-LIMITS RESULTING FROM COMMUNITY DIRECTIVES .        5 ATTENTION SHOULD ALSO BE DRAWN TO THE FACT THAT THE GOVERNMENTS OF THE MEMBER STATES PARTICIPATE IN THE PREPARATORY WORK FOR DIRECTIVES AND MUST THEREFORE BE IN A POSITION TO PREPARE , WITHIN THE PERIOD PRESCRIBED , THE DRAFT LEGISLATIVE PROVISIONS NECESSARY FOR THEIR IMPLEMENTATION . IT APPEARS , HOWEVER , FROM INFORMATION PRODUCED IN THE COURSE OF THE PROCEEDINGS THAT NO DRAFT LAW HAD YET BEEN PLACED BEFORE THE BELGIAN PARLIAMENT WITHIN THE PERIOD PRESCRIBED FOR IMPLEMENTATION OF THE DIRECTIVE .    6 IT MUST THEREFORE BE DECLARED THAT BY FAILING TO ADOPT WITHIN THE PRESCRIBED PERIOD THE PROVISIONS NEEDED IN ORDER TO COMPLY WITH COUNCIL DIRECTIVE 77/91 OF 13 DECEMBER 1976 , THE KINGDOM OF BELGIUM HAS FAILED TO FULFIL ONE OF ITS OBLIGATIONS UNDER THE TREATY .    

Decision on costs

COSTS  7 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS , IT MUST BE ORDERED TO PAY THE COSTS .    

Operative part

ON THOSE GROUNDS , THE COURT  HEREBY :   1 . DECLARES THAT , BY NOT ADOPTING WITHIN THE PRESCRIBED PERIOD THE PROVISIONS NEEDED IN ORDER TO COMPLY WITH COUNCIL DIRECTIVE 77/91/EEC , THE SECOND COUNCIL DIRECTIVE OF 13 DECEMBER 1976 ON COORDINATION OF SAFEGUARDS WHICH , FOR THE PROTECTION OF THE INTERESTS OF MEMBERS AND OTHERS , ARE REQUIRED BY MEMBER STATES OF COMPANIES WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLES 58 OF THE TREATY , IN RESPECT OF THE FORMATION OF PUBLIC LIMITED LIABILITY     COMPANIES AND THE MAINTENANCE AND ALTERATION OF THEIR CAPITAL , WITH A VIEW TO MAKING SUCH SAFEGUARDS EQUIVALENT , THE KINGDOM OF BELGIUM HAS FAILED TO FULFIL ONE OF ITS OBLIGATIONS UNDER THE EEC TREATY ;   2 . ORDERS THE KINGDOM OF BELGIUM TO PAY THE COSTS .