Commission of the European Communities v Kingdom of Belgium.
Date: 1986-01-15
13 THE COURT HAS CONSISTENTLY HELD , MOST RECENTLY IN ITS JUDGMENT OF 15 NOVEMBER 1983 ( CASE 52/83 COMMISSION V FRENCH REPUBLIC ( 1983 ) ECR 3707 ), THAT AFTER THE EXPIRY OF THE PERIOD LAID DOWN IN THE THIRD PARAGRAPH OF ARTICLE 173 OF THE TREATY A MEMBER STATE WHICH IS THE ADDRESSEE OF A DECISION ADOPTED UNDER THE FIRST SUBPARAGRAPH OF ARTICLE 93 ( 2 ) MAY NOT CALL IN QUESTION THE VALIDITY OF THAT DECISION IN THE COURSE OF LEGAL PROCEEDINGS COMMENCED PURSUANT TO THE SECOND SUBPARAGRAPH OF THAT ARTICLE . IT MUST BE CONCLUDED THAT SUCH IS INDEED THE SITUATION IN THE PRESENT CASE .
14 IN THOSE CIRCUMSTANCES THE ONLY DEFENCE LEFT TO THE BELGIAN GOVERNMENT IN OPPOSING THE COMMISSION ' S APPLICATION FOR A DECLARATION THAT IT FAILED TO FULFIL ITS TREATY OBLIGATIONS WOULD BE TO PLEAD THAT IT WAS ABSOLUTELY IMPOSSIBLE FOR IT TO IMPLEMENT THE DECISION PROPERLY . IN THIS CONNECTION IT SHOULD BE NOTED THAT THE DECISION DEMANDS THE WITHDRAWAL FROM THE UNDERTAKING OF A CAPITAL HOLDING OF BFR 475 MILLION , THE ACQUISITION OF WHICH WAS DECIDED UPON BY THE REGIONAL AUTHORITIES ON 3 AUGUST 1981 AND EFFECTED BY A PUBLIC REGIONAL HOLDING COMPANY ; THAT DEMAND IS SUFFICIENTLY PRECISE TO BE COMPLIED WITH . THE FACT THAT , ON ACCOUNT OF THE UNDERTAKING ' S FINANCIAL POSITION , THE BELGIAN AUTHORITIES COULD NOT RECOVER THE SUM PAID DOES NOT CONSTITUTE PROOF THAT IMPLEMENTATION WAS IMPOSSIBLE , BECAUSE THE COMMISSION ' S OBJECTIVE WAS TO ABOLISH THE AID , AND , AS THE BELGIAN GOVERNMENT ITSELF ADMITS , THAT OBJECTIVE COULD BE ATTAINED BY PROCEEDINGS FOR WINDING UP THE COMPANY , WHICH THE BELGIAN AUTHORITIES COULD INSTITUTE IN THEIR CAPACITY AS SHAREHOLDER OR CREDITOR .
16 IT SHOULD BE ADDED THAT THE FACT THAT THE ONLY DEFENCE WHICH A MEMBER STATE TO WHICH A DECISION HAS BEEN ADDRESSED CAN RAISE IN LEGAL PROCEEDINGS SUCH AS THESE IS THAT IMPLEMENTATION OF THE DECISION IS ABSOLUTELY IMPOSSIBLE DOES NOT PREVENT THAT STATE - IF , IN GIVING EFFECT TO THE DECISION , IT ENCOUNTERS UNFORESEEN OR UNFORESEEABLE DIFFICULTIES OR PERCEIVES CONSEQUENCES OVERLOOKED BY THE COMMISSION - FROM SUBMITTING THOSE PROBLEMS FOR CONSIDERATION BY THE COMMISSION , TOGETHER WITH PROPOSALS FOR SUITABLE AMENDMENTS . IN SUCH A CASE THE COMMISSION AND THE MEMBER STATE CONCERNED MUST RESPECT THE PRINCIPLE UNDERLYING ARTICLE 5 OF THE TREATY , WHICH IMPOSES A DUTY OF GENUINE COOPERATION ON THE MEMBER STATES AND COMMUNITY INSTITUTIONS ; ACCORDINGLY , THEY MUST WORK TOGETHER IN GOOD FAITH WITH A VIEW TO OVERCOMING DIFFICULTIES WHILST FULLY OBSERVING THE TREATY PROVISIONS , AND IN PARTICULAR THE PROVISIONS ON AID . HOWEVER , IN THE PRESENT INSTANCE , NONE OF THE DIFFICULTIES REFERRED TO BY THE BELGIAN GOVERNMENT IS OF THAT NATURE , AND THAT GOVERNMENT MADE NO PROPOSALS WHATEVER TO THE COMMISSION FOR THE ADOPTION OF OTHER SUITABLE MEASURES ; INSTEAD , ACTING THROUGH ITS PERMANENT REPRESENTATIVE AND AFTER EXPIRY OF THE PERIOD PRESCRIBED FOR COMPLIANCE , IT CONFINED ITSELF TO CONTESTING THE ACCURACY OF THE REASONS RECITED BY THE DECISION , TO PLEADING THAT IT WAS IMPOSSIBLE TO REDEEM THE CAPITAL HOLDING ON ACCOUNT OF BELGIAN LEGAL PROVISIONS , AND TO REQUESTING THE COMMISSION TO CLARIFY WHAT IT MEANT BY ' WITHDRAWAL OF THE AID ' . SUCH AN ATTITUDE CANNOT BE REGARDED AS CONSISTENT WITH THE DUTY OF COOPERATION MENTIONED ABOVE .