61985J0390

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MEMBER STATES - OBLIGATIONS - IMPLEMENTATION OF DIRECTIVES - FAILURE TO COMPLY - JUSTIFICATION - NOT PERMISSIBLE

( EEC TREATY, ART . 169 )

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 OBLIGATIONS RESULTING FROM COMMUNITY DIRECTIVES

IN CASE 390/85

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ETIENNE LASNET, LEGAL ADVISER, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS, JEAN MONNET BUILDING, KIRCHBERG,

APPLICANT,

V

KINGDOM OF BELGIUM, REPRESENTED BY ITS MINISTER FOR EXTERNAL RELATIONS, WHOSE OFFICES ARE AT 2 RUE QUATRE-BRAS, B-1000 BRUSSELS, HAVING AS ITS AGENT R . HOEBAER, DIRECTOR IN THE MINISTRY OF FOREIGN AFFAIRS, EXTERNAL TRADE AND DEVELOPMENT COOPERATION, ASSISTED BY L . LEMPEREUR, A MEMBER OF THE BANKING COMMISSION, HAVING AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE BELGIAN EMBASSY, RESIDENCE CHAMPAGNE, 4 RUE DES GIRONDINS,

DEFENDANT,

APPLICATION FOR A DECLARATION THAT, BY FAILING TO ADOPT THE MEASURES NECESSARY TO COMPLY WITH THE PROVISIONS OF :

( A)*COUNCIL DIRECTIVE 79/279/EEC OF 5 MARCH 1979 COORDINATING THE CONDITIONS FOR THE ADMISSION OF SECURITIES TO OFFICIAL STOCK EXCHANGE LISTING,

( B )* COUNCIL DIRECTIVE 80/390/EEC OF 17 MARCH 1980 COORDINATING THE REQUIREMENTS FOR THE DRAWING UP, SCRUTINY AND DISTRIBUTION OF THE LISTING PARTICULARS TO BE PUBLISHED FOR THE ADMISSION OF SECURITIES TO OFFICIAL STOCK EXCHANGE LISTING, AND

( C )* COUNCIL DIRECTIVE 82/121/EEC OF 15 FEBRUARY 1982 ON INFORMATION TO BE PUBLISHED ON A REGULAR BASIS BY COMPANIES THE SHARES OF WHICH HAVE BEEN ADMITTED TO OFFICIAL STOCK EXCHANGE LISTING,

THE KINGDOM OF BELGIUM HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY,

THE COURT

COMPOSED OF : LORD MACKENZIE STUART, PRESIDENT, C . KAKOURIS AND F.*SCHOCKWEILER ( PRESIDENTS OF CHAMBERS ), G . BOSCO, T . KOOPMANS, K.*BAHLMANN AND R . JOLIET, JUDGES,

ADVOCATE GENERAL : J . MISCHO

REGISTRAR : H.A . RUEHL, PRINCIPAL ADMINISTRATOR,

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 15 JANUARY 1987,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 15 JANUARY 1987,

GIVES THE FOLLOWING

JUDGMENT

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 2 DECEMBER 1985 THE COMMISSION OF THE EUROPEAN COMMUNITIES BROUGHT AN ACTION, PURSUANT TO ARTICLE 169 OF THE EEC TREATY, FOR A DECLARATION THAT THE KINGDOM OF BELGIUM HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY BY FAILING TO TRANSPOSE INTO NATIONAL LAW COUNCIL DIRECTIVE 79/279/EEC OF 5*MARCH 1979 COORDINATING THE CONDITIONS FOR THE ADMISSION OF SECURITIES TO OFFICIAL STOCK EXCHANGE LISTING ( OFFICIAL JOURNAL 1979, L 66 P.*21 ), COUNCIL DIRECTIVE 80/390/EEC OF 17 MARCH 1980 COORDINATING THE REQUIREMENTS FOR THE DRAWING UP, SCRUTINY AND DISTRIBUTION OF THE LISTING PARTICULARS TO BE PUBLISHED FOR THE ADMISSION OF SECURITIES TO OFFICIAL STOCK EXCHANGE LISTING ( OFFICIAL JOURNAL 1980, L 100 P . 1 ), AND COUNCIL DIRECTIVE 82/121/EEC OF 15 FEBRUARY 1982 ON INFORMATION TO BE PUBLISHED ON A REGULAR BASIS BY COMPANIES THE SHARES OF WHICH HAVE BEEN ADMITTED TO OFFICIAL STOCK EXCHANGE LISTING ( OFFICIAL JOURNAL 1982, L*48, P . 26 ).

2 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR THE BACKGROUND TO THE CASE AND THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .

3 SINCE IT HAD NOT BEEN INFORMED BY THE BELGIAN GOVERNMENT OF THE PROVISONS ADOPTED IN ORDER TO COMPLY WITH THE THREE DIRECTIVES IN QUESTION WITHIN THE PERIOD LAID DOWN, WHICH, AS A RESULT OF COUNCIL DIRECTIVE 82/148/EEC OF 3 MARCH 1982 ( OFFICIAL JOURNAL 1982, L 62 P.*22 ), HAD BEEN EXTENDED TO 30 JUNE 1983 IN THE CASE OF MEMBER STATES' SIMULTANEOUSLY TRANSPOSING THE THREE DIRECTIVES INTO NATIONAL LAW, THE COMMISSION CONCLUDED THAT THE NECESSARY MEASURES HAD NOT BEEN ADOPTED AND INITIATED THE PROCEDURE PROVIDED FOR IN ARTICLE 169 OF THE EEC TREATY . AFTER GIVING THE BELGIAN GOVERNMENT FORMAL NOTICE TO SUBMIT OBSERVATIONS, BY LETTER OF 28 MARCH 1984, THE COMMISSION ISSUED A REASONED OPINION ON 16 APRIL 1985 . THIS APPLICATION WAS BROUGHT AS A RESULT OF THE FAILURE TO ADOPT THE MEASURES IMPLEMENTING THE DIRECTIVE PROMISED BY THE BELGIAN GOVERNMENT IN ITS REPLY OF 24 MAY 1985 TO THE REASONED OPINION .

4 IN ITS DEFENCE THE BELGIAN GOVERNMENT DID NOT CONTEST THE CHARGE THAT IT HAD FAILED TO TRANSPOSE THE THREE DIRECTIVES INTO NATIONAL LAW . IT REFERRED TO THE DIFFICULTIES WHICH IT HAD ENCOUNTERED IN CARRYING OUT THAT TRANSPOSITION OWING TO THE SHORT AMOUNT OF TIME GIVEN FOR THAT PURPOSE, THE LARGE NUMBER OF POINTS TO BE COVERED BY THE NATIONAL LEGISLATION, THE LACK OF PRECISION OF THE DIRECTIVES ( NECESSITATING THE ADOPTION BY THE MEMBER STATES OF PRECISE RULES ), THE NEED TO TAKE ACCOUNT OF THE EUROPEAN CAPITAL MARKET CURRENTLY IN THE PROCESS OF BEING ESTABLISHED AND, LASTLY, THE COMPLEXITY OF THE PROCEDURES TO BE FOLLOWED AT NATIONAL LEVEL AND DIFFICULTIES, DUE TO THE LACK OF PRECISION OF THE DIRECTIVES, IN CONNECTION WITH THE POWERS TO BE CONFERRED ON THE COMPETENT NATIONAL AUTHORITIES . LASTLY, THE BELGIAN GOVERNMENT STATED THAT ON 7 MARCH 1984 IT HAD CONSULTED THE CONSEIL D' ETAT (( STATE COUNCIL )) ON A BILL WHOSE ADOPTION WOULD SECURE THE TRANSPOSITION OF THE THREE DIRECTIVES INTO NATIONAL LAW BY LEGISLATION AND WHICH FORMED THE BASIS FOR THREE ROYAL IMPLEMENTING DECREES DRAWN UP WITH THE INTENTION OF BRINGING THEM INTO FORCE CONCURRENTLY WITH THE PROPOSED LAW .

5 THE COMMISSION CONSIDERED THAT THE INFRINGMENT WAS SUFFICIENTLY PROVED BY THE STATEMENTS MADE BY THE BELGIAN GOVERNMENT ITSELF IN ITS DEFENCE, AND DECIDED NOT TO SUBMIT A REPLY .

6 DURING THE ORAL PROCEDURE THE BELGIAN GOVERNMENT STATED THAT THE CONSEIL D' ETAT HAD DELIVERED ITS OPINION ON 11 FEBRUARY 1986 ON THE BILL WHICH HAD BEEN SUBMITTED TO IT ON 7 MARCH 1984 . AFTER RE-EXAMINATION, THE BILL WOULD BE LODGED WITH THE BUREAU OF THE LEGISLATIVE CHAMBERS IN EARLY APRIL 1987 . THE BILL WOULD BE CONSIDERED BY THE LEGISLATIVE CHAMBERS AS A MATTER OF PRIORITY AND COULD BE ADOPTED AND BE IN FORCE BY THE END OF THE YEAR . THE IMPLEMENTING DECREES WOULD ENTER INTO FORCE CONCURRENTLY WITH THAT LAW .

7 IT MUST BE HELD THAT THOSE CIRCUMSTANCES CANNOT EXPUNGE THE INFRINGEMENT WITH WHICH THE KINGDOM OF BELGIUM IS CHARGED . ACCORDING TO WELL-ESTABLISHED CASE-LAW OF THE COURT, 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 OBLIGATIONS RESULTING FROM COMMUNITY DIRECTIVES .

8 CONSEQUENTLY, IT MUST BE HELD THAT BY FAILING TO ADOPT, WITHIN THE PRESCRIBED PERIOD, THE PROVISIONS NECESSARY TO COMPLY WITH COUNCIL DIRECTIVES 79/279, 80/390 AND 82/121, THE KINGDOM OF BELGIUM HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY .

COSTS

9 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS, IT MUST BE ORDERED TO PAY THE COSTS .

On those grounds,

THE COURT

hereby :

( 1 ) Declares that, by failing to adopt within the prescribed period the provisions necessary to comply with Council Directive 79/279/EEC of 5 March 1979 coordinating the conditions for the admission of securities to official stock exchange listing, Council Directive 80/390/EEC of 17 March 1980 coordinating the requirements for the drawing up, scrutiny and distribution of the listing particulars to be published for the admission of securities to official stock exchange listing, and Council Directive 82/121/EEC of 15 February 1982 on information to be published on a regular basis by companies the shares of which have been admitted to official stock exchange listing, the Kingdom of Belgium has failed to fulfil its obligations under the EEC Treaty;

( 2 ) Orders the Kingdom of Belgium to pay the costs .