European Commission v Portuguese Republic.
Date: 2014-09-11
43. In order to rule on the present action, it should be recalled that the provisions of a directive must be implemented with unquestionable binding force and with the specificity, precision and clarity necessary to satisfy the requirements of legal certainty (judgment in Dillenkofer and Others , C‑178/94, C‑179/94, C‑188/94, C‑189/94 and C‑190/94, EU:C:1996:375, paragraph 48 and the case-law cited).
44. In addition, by providing, in essence, that the Member States were required to bring into force the measures necessary to comply with Directive 96/67 by 25 October 1997 at the latest, Article 23 of that directive imposed an obligation on the Member States to adopt all the measures necessary to ensure that the provisions of Directive 96/67 were fully effective and so guarantee achievement of the prescribed result (see, by analogy, judgment in Dillenkofer and Others , EU:C:1996:375, paragraph 49).
45. Accordingly, the fact that Directive 96/67 makes no mention of the possibility for Member States to introduce a transitional regime does not allow the conclusion to be drawn, as the Portuguese Republic claims, that that directive contains a lacuna and that Member States are free to introduce such a transitional regime, after, moreover, the expiry of the transposition period, as occurred in the present case. That would, in effect, allow a Member State to grant itself a new transposition period.
52. It should be noted, in this regard, that the Court has already held that, whilst Member States retain the power to ensure an adequate level of social protection for the staff of undertakings providing groundhandling services, it is also true that that power does not confer an unlimited jurisdiction and must be exercised in a manner that does not prejudice the effectiveness of that directive and the objectives which it pursues (see judgment in Commission  v Germany , C‑386/03, EU:C:2005:461, paragraph 28 and the case-law cited).
55. Second, it is not disputed that an obligation imposed on undertakings to take over the staff of the previous supplier places potential new competitors at a disadvantage in relation to established undertakings and jeopardises the opening‑up of the groundhandling markets, thereby undermining the effectiveness of Directive 96/67 (see, inter alia, judgment in Commission  v Italy , C‑460/02, EU:C:2004:780, paragraph 34).
56. As regards the other arguments raised by the Portuguese Republic, to the effect that the regime was put in place to protect the legitimate legal expectations of the bodies which were already engaged in groundhandling activities and to ensure the continuity and quality of the services in those airports, it must be recalled that, according to settled case-law, the right to rely on the principle of the protection of legitimate expectations extends to any person in a situation in which a European Union authority has caused him to entertain expectations which are justified, and a person may not plead infringement of that principle unless he has been given precise assurances by the administration (see judgment in Belgium and Forum 187  v Commission , C‑182/03 and C‑217/03, EU:C:2006:416, paragraph 147 and the case-law cited).
59. With regard to the grounds of justification put forward by the Portuguese Republic in relation to the fact that the procedures for the selection of suppliers of groundhandling services organised during 2011 have not been completed, it need only be pointed out that it follows from settled case‑law that a Member State cannot plead provisions, practices or internal situations to justify a failure to comply with the obligations and time-limits arising under EU law (see judgments in Commission  v Portugal , C‑150/97, EU:C:1999:15, paragraph 21; Commission  v Luxembourg , C‑69/05, EU:C:2006:32, paragraph 10; and Commission  v Italy , C‑161/05, EU:C:2006:762, paragraph 12).
60. So far as concerns the Portuguese Republic’s argument that the potential changes to the legislation at issue could render the selection of a second supplier superfluous, it should be recalled that the Court has repeatedly held that the existence of a failure to fulfil obligations must be assessed in the light of the EU legislation in force at the close of the period prescribed by the Commission for the Member State concerned to comply with its reasoned opinion (see, inter alia, judgments in Commission  v Belgium , C‑377/03, EU:C:2006:638, paragraph 33 and the case-law cited, and Commission  v France , C‑170/09, EU:C:2010:97, paragraph 6 and the case-law cited). Therefore, the possibility that legislation might be amended does not relieve a Member State of its obligation to transpose the directive in force into its national legal order within the period prescribed for that transposition.