OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN

DELIVERED ON 22 JUNE 1982

My Lords,

This is an application by the Commission pursuant to Article 169 of the EEC Treaty for a declaration that the Grand Duchy of Luxembourg has failed to fulfil its obligations under the Treaty in that it has not brought into force the measures needed in order to comply with the second Council Directive on Company Law Harmonization (Directive 77/91 of December 13, 1976 OJ 1977, L 26, p. 1) within the period fixed for doing so by Article 43 of the latter. That period expired on 16 December 1978, two years after the date on which the directive was notified to the Member States.

The Grand Duchy of Luxembourg has not denied, either in the written procedure or in its oral submissions, that it has failed to comply with the directive. It contends, however, that its failure is due to the complexity of the subjectmatter and to the difficulty involved in reconciling the relatively limited amendment of harmonization law entailed by that directive with the more extensive changes foreseen for the future. On 9 February 1979 the Prime Minister presented to the Council of State a report on the subject; and on 21 January 1981 a bill, designed to implement the directive, was laid before the Chamber of Deputies. In June and in September 1981, members or representatives of the government impressed upon the Chamber the urgency in the matter. The bill remains under consideration.

It is well established, in my view, by the cases decided by the Court that a Member State is not entitled to rely on circumstances or practices existing in its own internal system to justify failing to comply with the obligations imposed on it by a directive.

In consequence, in my opinion, the declaration sought by the Commission should be granted in this case and the Grand Duchy of Luxembourg should be ordered to pay the costs.