European Commission v Kingdom of Belgium.
Date: 2009-12-03
20. First of all, it should be recalled that since the letter of formal notice is intended, inter alia, to define the subject-matter of the dispute in order to enable the Member State concerned to prepare its defence, it is not subject to the same requirements of precision as the reasoned opinion (see, inter alia, Commission  v Italy , paragraphs 19 and 21).
30. It should be pointed out 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, inter alia, Case C-456/05 Commission  v Germany  [2007] ECR I-10517, paragraph 15). Accordingly, since the system operators have not been definitively designated within that period, it must be found that the complaint raised by the Commission is well founded.
41. In that connection, it should be borne in mind that the Court has consistently held that the transposition of a directive does not necessarily require legislative action in each Member State. In particular, the existence of general principles of constitutional or administrative law may render superfluous transposition by specific legislative or regulatory measures, provided, however, that those principles actually ensure the full application of the Directive by the national authorities and that, where the relevant provision of the Directive seeks to create rights for individuals, the legal situation arising from those principles is sufficiently precise and clear and that the persons concerned are put in a position to know the full extent of their rights and, where appropriate, to be able to rely on them before the national courts (see Case 29/84 Commission  v Germany  [1985] ECR 1661, paragraph 23, and Case C‑456/03 Commission  v Italy  [2005] ECR I‑5335, paragraph 51).
44. As regards the arguments put forward by the Kingdom of Belgium as to the absence of any obligation to transpose the provisions of the Directive concerning the requirement to consult with the Member States concerned beforehand in the case of an interconnector, and the requirement to notify exemption decisions to the Commission, it should be noted that, according to settled case-law, the effect of the third paragraph of Article 249 EC is that Community directives must be implemented by appropriate measures taken by the Member States. The fact that, in specific circumstances, where the implementing measures required have not been adopted or measures have been adopted which are not consistent with a directive, the persons affected thereby are entitled to rely in law on a directive as against a defaulting Member State cannot justify a Member State absolving itself from taking in due time implementing measures sufficient to meet the purpose of each directive (see, to that effect, Case 102/79 Commission  v Belgium  [1980] ECR 1473, paragraph 12; Case C-433/93 Commission  v Germany  [1995] ECR I‑2303, paragraph 24; and Case C-253/95 Commission  v Germany  [1996] ECR I-2423, paragraph 13). Similarly, and a fortiori, the fact that certain provisions of the Directive in question are directly applicable in the national legal system is not grounds for relieving the Member States of their obligations to transpose Community law.