Commission of the European Communities v Kingdom of Belgium.
Date: 2007-06-14
25. It must be recalled that, according to settled case-law, the letter of formal notice sent by the Commission to a Member State and the reasoned opinion issued by the Commission delimit the subject-matter of the dispute, so that it cannot thereafter be extended. The opportunity for the State concerned to submit its observations, even if it chooses not to avail itself thereof, constitutes an essential guarantee intended by the EC Treaty, adherence to which is an essential formal requirement of the procedure for finding that a Member State has failed to fulfil its obligations. Consequently, the reasoned opinion and the proceedings brought by the Commission must be based on the same complaints as those set out in the letter of formal notice initiating the pre-litigation procedure (see, in particular, Case C‑191/95 Commission v Germany  [1998] ECR I-5449, paragraph 55, and Case C‑340/96 Commission  v United Kingdom  [1999] ECR I-2023, paragraph 36).
38. It is clear from recital (10) in the preamble to the Directive that the balanced approach constitutes a policy approach to address aeroplane noise, including international guidance for the introduction of operating restrictions on an airport-by-airport basis. The ‘balanced approach’ to aircraft noise management, defined in Resolution A 33-7, adopted by the 33 rd  ICAO Assembly, comprises four principal elements and requires careful assessment of all different options to mitigate noise, including reduction of aeroplane noise at source, land-use planning and management measures, noise abatement operational procedures and operating restrictions, without prejudice to relevant legal obligations, existing agreements, current laws and established policies.
48. It must be recalled, in that connection, that a Member State cannot plead provisions, practices or situations prevailing in its domestic legal order to justify failure to observe obligations arising under Community law (see, inter alia, Case C-212/99 Commission  v Italy  [2001] ECR I-4923, paragraph 34, Case C-195/02 Commission  v Spain  [2004] ECR I-7857, paragraph 82, and Case C-119/04 Commission  v Italy  [2006] ECR I-6885, paragraph 25).
59. In that connection, it must be observed that, according to settled case-law, the fact that an activity referred to in a directive does not yet exist in a Member State cannot release that State from its obligation to adopt laws or regulations in order to ensure that all the provisions of the directive are properly transposed (Case C‑339/87 Commission  v Netherlands  [1990] ECR I-851, paragraph 22; Case C‑214/98 Commission  v Greece [2000] ECR I-9601, paragraph 22; Case C‑372/00 Commission  v Ireland  [2001] ECR I-10303, paragraph 11; and Case C‑441/00 Commission  v United Kingdom  [2002] ECR I-4699, paragraph 15).
62. It must be recalled in that regard that, according to the case-law of the Court, although the Member States are not obliged to adopt measures to transpose a directive before the end of the period prescribed for transposition, it follows from the second paragraph of Article 10 EC in conjunction with the third paragraph of Article 249 EC and from that directive itself that during that period they must refrain from taking any measures liable seriously to compromise the result prescribed by that directive (see, inter alia, Case C-129/96 Inter-Environnement Wallonie  [1997] ECR I-7411, paragraph 45, and Case C-138/05 Stichting Zuid-Hollandse Milieufederatie  [2006] ECR I-8339, paragraph 42).