European Commission v Kingdom of Belgium.
Date: 2020-02-27
18


In order to establish the scope of the present action for failure to fulfil obligations, the question whether a Member State has failed to fulfil obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and the Court cannot take account of any subsequent changes (judgment of 26 June 2019, Commission v Greece, C‑729/17, EU:C:2019:534, paragraph 36 and the case-law cited).
19


Where the national legislation at issue in proceedings for failure to fulfil obligations is subsequently amended, the Commission does not alter the subject matter of its action by imputing its complaints against the earlier legislation to the legislation resulting from the amendment adopted, where the two versions of the national legislation are identical in content (judgment of 26 June 2019, Commission v Greece, C‑729/17, EU:C:2019:534, paragraph 37 and the case-law cited).
20


Conversely, the subject matter of the dispute cannot be extended to obligations arising under new provisions which do not correspond to those arising under the original version of the measure concerned, for otherwise it would constitute a breach of the essential procedural requirements of infringement proceedings (judgment of 26 June 2019, Commission v Greece, C‑729/17, EU:C:2019:534, paragraph 38 and the case-law cited).
48


In that regard, it must be borne in mind that a Member State which relies on an overriding reason relating to the public interest or, as in the present case, the exception laid down in point (a) of the second subparagraph of Article 25(1) of Directive 2006/123, in order to establish that the prohibition on multidisciplinary activities that it has introduced is necessary for the purposes of ensuring the independence and impartiality of IPCF accountants, must submit specific evidence substantiating its arguments (see, to that effect, judgment of 4 July 2019, Commission v Germany, C‑377/17, EU:C:2019:562, paragraph 74 and the case-law cited).
55


While it is settled case-law that the burden of proof on a Member State cannot extend to requiring the Member State to prove, positively, that no other conceivable measure could enable that objective to be attained under the same conditions (see, to that effect, judgment of 4 July 2019, Commission v Germany, C‑377/17, EU:C:2019:562, paragraph 64), the fact remains that that Member State must challenge in substance and in detail the information produced by the Commission and the inferences drawn (see, to that effect, judgments of 28 January 2016, Commission v Portugal, C‑398/14, EU:C:2016:61, paragraph 48, and of 24 January 2018, Commission v Italy, C‑433/15, EU:C:2018:31, paragraph 44).
58


Lastly, in so far as the Kingdom of Belgium relies on the practical difficulties of implementing alternative measures of the kind suggested by the Commission, it is common ground that a Member State cannot plead practical, administrative or financial difficulties in order to justify failure to observe obligations arising under EU law (see, to that effect, judgment of 17 July 2014, Commission v Greece, C‑600/12, not published, EU:C:2014:2086, paragraph 41 and the case-law cited).
74


In an action for failure to fulfil obligations, the Court is called upon to ascertain whether the national measure challenged by the Commission is, in general, capable of deterring operators from other Member States from making use of the fundamental freedom in question, irrespective, in that regard, of whether or not it is established that there is a cross-border element (see, to that effect, judgment of 15 November 2016, Ullens de Schooten, C‑268/15, EU:C:2016:874, paragraph 49).
75


As regards whether that complaint is well founded, it must be recalled that Article 49 TFEU precludes any national measure which, even though applicable without discrimination on grounds of nationality, is liable to hinder or render less attractive the exercise by EU citizens of the freedom of establishment guaranteed by the FEU Treaty (judgment of 11 December 2014, Commission v Spain, C‑576/13, not published, EU:C:2014:2430, paragraph 36 and the case-law cited).
78


According to well-established case-law of the Court, national measures which are liable to restrict or to make less attractive the exercise of the fundamental freedoms guaranteed by the FEU Treaty may nonetheless be permitted where they serve overriding reasons in the public interest, are appropriate for attaining their objective, and do not go beyond what is necessary to attain that objective (judgment of 18 May 2017, Lahorgue, C‑99/16, EU:C:2017:391, paragraph 31 and the case-law cited).