OPINION OF ADVOCATE GENERAL COSMAS

delivered on 11 May 1995 (*1)

1.In this application brought under Article 169 of the EEC Treaty the Commission seeks a declaration by the Court that the Kingdom of Spain has failed to fulfil its obligation to transpose into national law the Twelfth Council Company Law Directive (89/667/EEC) of 21 December 1989 on single-member private limited-liability companies (1) (hereinafter ‘directive’).

Article 8 of the directive provides as follows:

‘1. Member States shall bring into force the laws, regulations and the administrative provisions necessary to comply with this Directive by 1 January 1992. They shall inform the Commission thereof.

2. (...).

3. Member States shall communicate to the Commission the texts of the main provisions of national law which they adopt in the field covered by this Directive.’

4.Following the expiry of the time-limit referred to above the Commission on 20 May 1992 addressed a formal letter to the Spanish Government drawing its attention to the fact that no information concerning the measures transposing the directive into national law, or any other information relating thereto, had been received and requesting it to submit its observations within a period of two months of receipt of the letter.

5.On 15 April 1993 the Commission issued a reasoned opinion in which the Kingdom of Spain was requested, within two months of receipt thereof, to adopt the measures necessary to comply with the directive.

6.On 18 March 1994 the Commission instituted these proceedings by application lodged at the Registry of the Court.

In its defence the Kingdom of Spain does not deny that it has not implemented the measures necessary in order to transpose the directive into national law. However, it contends that:

(i) efforts have been under way since 1989 to conduct a full review of the legal system applicable to limited-liability companies, in accordance with the relevant Community directives,

(ii) those efforts have not yet come to fruition on account of the parliamentary elections held on 6 June 1993, and

(iii) since the elections draft legislation has been submitted to Parliament. Chapter XI thereof reproduces the provisions of the directive in their entirety.

7.On 6 April 1995, after the conclusion of the written procedure, the Spanish Government communicated to the Court the text of Law No 2/1995 of 23 March 1995 entitled ‘de Sociedades de Responsibilidad Limitada’ (Official Gazette of the Kingdom of Spain, No 71, 24 March 1995), stating that that law reproduces the provisions of the Directive.

8.The Court has consistently held 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 obligations and time-limits resulting from the EC Treaty and Community directives. (2)

9.It is moreover clear that Law No 2/1995, which was enacted after completion of the written procedure, cannot be taken into account for the purposes of these proceedings. The Court has consistently held that in proceedings brought under Article 169 of the EC Treaty the relevant date is the expiry of the period imposed on the Member State by the Commission in its reasoned opinion for compliance with its opinion. (3) Legislative amendments occurring after the end of that period may not be taken into account. (4)

10.In the light of the foregoing, since the Kingdom of Spain has not transposed the directive into national law the infringement pleaded by the Commission is substantiated.

11.The opening part of the application appears also to refer to an infringement consisting in a failure to notify the Commission of the measures necessary to transpose the directive. Even if the application could be construed as seeking a declaration of an infringement in that respect too, it is otiose to examine that question since in any event the Kingdom of Spain has failed to adopt the necessary measures within the prescribed period. (5)

Conclusion

I therefore propose that the Court should:

(1)declare that, by omitting to adopt within the prescribed period the laws, regulations and administrative provisions necessary to transpose into national law the Twelfth Council Company Law Directive 89/667/EEC of 21 December 1989 on single-member private limited-liability companies, the Kingdom of Spain has failed to fulfil its obligations under the EC Treaty, and

(2)order the Kingdom of Spain to pay the costs.

(*1) Original language: Greek.

(1) OJ 1989 L 395, p. 40.

(2) See judgments in Case C-65/94 Commission v Belgium [1994] ECR I-4630, C-94/94 Commission v Spain [1994] ECR I-5777, C-66/94 Commission v Belgium [1995] ECR I-149, C-365/93 Commission v Greece [1995] ECR I-499 and C-147/94 Commission v Spain [1995] ECR I-1015.

(3) See e.g. judgment in Case C-118/92 Commission v Luxembourg [1994] ECR I-1891, paragraph 7.

Sec judgments in Case C-261/88 Commission ν Germany [1991] ECR Ι-2567 paragraph 31, Case C-59/89 Commission ν Germany [1991] ECR Ι-2607, paragraph 35, Case C-29/90 Commission ν Greece [1992] ECR Ι-1971, paragraph 12, and in Case C-280/89 Commission ν Ireland [1992] ECR Ι-6185, paragraph 7.

(5) See in this connection the judgments in Case C-303/93 Commission ν Italy [1994] ECR Ι-1905, paragraph 6, and Case C-365/93 Commission ν Greece, paragraph 12 and Case C-147/95 Commission ν Spain, paragraph 7.