European Commission v Kingdom of Belgium.
Date: 2014-07-10
30. By virtue of the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union and Article 120(c) of the Court’s Rules of Procedure, the Commission must, in any application made under Article 258 TFEU, indicate the specific complaints on which the Court is asked to rule and, at the very least in summary form, the legal and factual particulars on which those complaints are based. It follows that the Commission’s action must contain a coherent and detailed statement of the reasons which have led it to conclude that the Member State in question has failed to fulfil one of its obligations under the Treaties (see, inter alia, Commission  v Belgium , C‑150/11, EU:C:2012:539, paragraphs 26 and 27 and the case-law cited).
33. However, it should be remembered that, in proceedings under Article 258 TFEU for failure to fulfil obligations, it is for the Member States, under Article 4(3) TEU, to facilitate the achievement of the Commission’s tasks, which consist in particular, pursuant to Article 17(1) TEU, in ensuring that the provisions of the FEU Treaty and the measures taken by the institutions pursuant thereto are applied (see, to that effect, Commission  v Italy , C‑456/03, EU:C:2005:388, paragraph 26 and the case-law cited).
34. An application of the principle of sincere cooperation is provided for in Article 19 of Directive 2005/29 which, like other directives, requires Member States to provide clear and precise information. The Court has held that, in the absence of such information, the Commission is not in a position to ascertain whether the Member State has genuinely implemented the directive completely. The failure of a Member State to fulfil that obligation, whether by providing no information at all or by providing insufficiently clear and precise information, may of itself justify recourse to the procedure under Article 258 TFEU in order to establish the failure to fulfil the obligation ( Commission  v Italy , EU:C:2005:388, paragraph 27 and the case-law cited).
43. It should be remembered, however, in accordance with the Court’s settled case-law, that 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 the obligations under rules of EU law (see, inter alia, Commission  v Luxembourg , C‑450/00, EU:C:2001:519, paragraph 8, and Commission  v Luxembourg , C‑375/04, EU:C:2005:264, paragraph 11).
45. It is equally settled case-law of the Court that the question whether a Member State has failed to fulfil its 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 (see Commission  v Spain , C‑168/03, EU:C:2004:525, paragraph 24; Commission  v Germany , C‑152/05, EU:C:2008:17, paragraph 15; and Commission  v Luxembourg , C‑282/08, EU:C:2009:55, paragraph 10). The Court cannot take account of any subsequent changes (see, inter alia, Commission  v Ireland , C‑482/03, EU:C:2004:733, paragraph 11, and Commission  v Sweden , C‑185/09, EU:C:2010:59, paragraph 9).
46. Moreover, the Court has also held that even where the settled case-law of a Member State interprets the provisions of national law in a manner deemed to satisfy the requirements of a directive, that cannot achieve the clarity and precision needed to meet the requirement of legal certainty, particularly in the field of consumer protection (see Commission  v Netherlands , C‑144/99, EU:C:2001:257, paragraph 21).
55. The Court has held that Directive 2005/29 carries out a complete harmonisation at EU level of the rules concerning unfair commercial practices of undertakings vis-à-vis consumers. Accordingly, as expressly provided for by Article 4 thereof, Member States may not maintain or adopt more restrictive national measures than those laid down in that directive, even where such measures are designed to ensure a higher level of consumer protection (see Plus Warenhandelsgesellschaft , C‑304/08, EU:C:2010:12, paragraph 41, and Mediaprint Zeitungs- und Zeitschriftenverlag , C‑540/08, EU:C:2010:660, paragraph 37).
56. Moreover, Directive 2005/29 establishes, in its Annex I, an exhaustive list of 31 commercial practices which, in accordance with Article 5(5) of that directive, are regarded as unfair ‘in all circumstances’. Consequently, as recital 17 in the preamble to that directive expressly states, only these commercial practices can be deemed to be unfair without proceeding to a case-by-case assessment pursuant to the provisions of Articles 5 to 9 of Directive 2005/29 (see Plus Warenhandelsgesellschaft , EU:C:2010:12, paragraph 45).
59. It should be remembered, however, that, as observed by the Advocate General in point 58 et seq. of his Opinion, the purpose of Directive 98/6 is not to protect consumers in relation to the indication of prices, in general or with regard to the economic reality of announcements of price reductions, but specifically in relation to the indication of the prices of products by reference to different units of quantity.
61. Consequently, national rules of this nature, which place a general prohibition on practices not referred to in Annex I to Directive 2005/29, without providing for an individual analysis as to whether the practices are ‘unfair’ in the light of the criteria laid down in Articles 5 to 9 of that directive, are not permitted under Article 4 thereof and run counter to the complete harmonisation objective pursued by that directive, even where they seek to achieve a higher level of consumer protection (see, to that effect, Plus Warenhandelsgesellschaft , EU:C:2010:12, paragraphs 41, 45 and 53).
63. However, in accordance with settled case-law, a national measure in an area which has been the subject of exhaustive harmonisation at EU level must be assessed in the light of the provisions of that harmonising measure and not those of the Treaty (see Gysbrechts and Santurel Inter , C‑205/07, EU:C:2008:730, paragraph 33 and the case-law cited).