Avis juridique important

61982J0160

European Court reports 1982 Page 04637

Summary

1 . 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 COMMUNITY DIRECTIVES .

2 . MERE ADMINISTRATIVE PRACTICES , WHICH BY THEIR NATURE MAY BE CHANGED ACCORDING TO THE WHIM OF THE AUTHORITIES AND WHICH LACK APPROPRIATE PUBLICITY CANNOT BE REGARDED AS CONSTITUTING A VALID IMPLEMENTATION OF THE DUTY IMPOSED ON MEMBER STATES BY THE THIRD PARAGRAPH OF ARTICLE 189 OF THE TREATY .

Parties

IN CASE 160/82 ,

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , ANTONINO ABATE , ACTING AS AGENT , ASSISTED BY PIETER JAN KUYPER , A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT , WITH AN ADDRESS FOR SERVICE AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF THE LEGAL DEPARTMENT OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , JEAN MONNET BUILDING , KIRCHBERG ,

APPLICANT ,

KINGDOM OF THE NETHERLANDS , REPRESENTED FOR THE PURPOSES OF THIS APPLICATION BY ADRIAAN BOS , ASSISTANT LEGAL ADVISER AT THE MINISTRY OF FOREIGN AFFAIRS , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE AT THE EMBASSY OF THE NETHERLANDS , 5 RUE C.-M.-SPOO , LUXEMBOURG ,

DEFENDANT ,

Subject of the case

APPLICATION FOR A DECLARATION THAT THE KINGDOM OF THE NETHERLANDS , BY NOT BRINGING INTO FORCE WITHIN THE PERIOD SPECIFIED THE PROVISIONS NECESSARY TO TRANSPOSE INTO NATIONAL LAW THE PROVISIONS OF COUNCIL DIRECTIVE 73/239/EEC OF 24 JULY 1973 ON THE COORDINATION OF LAWS , REGULATIONS AND ADMINISTRATIVE PROVISIONS RELATING TO THE TAKING UP AND PURSUIT OF THE BUSINESS OF DIRECT INSURANCE OTHER THAN LIFE ASSURANCE ( OFFICIAL JOURNAL L 228 , P . 3 ), HAS FAILED TO FULFIL ONE OF ITS OBLIGATIONS UNDER THE EEC TREATY.

Grounds

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 27 MAY 1982 THE COMMISSION OF THE EUROPEAN COMMUNITIES BROUGHT AN ACTION BEFORE THE COURT UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT BY NOT ADOPTING WITHIN THE SPECIFIED PERIOD THE PROVISIONS NEEDED TO COMPLY WITH DIRECTIVE 73/239/EEC OF 24 JULY 1973 ON THE COORDINATION OF LAWS , REGULATIONS AND ADMINISTRATIVE PROVISIONS RELATING TO THE TAKING UP AND PURSUIT OF THE BUSINESS OF DIRECT INSURANCE OTHER THAN LIFE ASSURANCE ( OFFICIAL JOURNAL L 228 , P . 3 ), THE KINGDOM OF THE NETHERLANDS HAD FAILED TO FULFIL ITS OBLIGATIONS UNDER THE THIRD PARAGRAPH OF ARTICLE 189 OF THE TREATY .

2 THE FIRST PARAGRAPH OF ARTICLE 35 OF THE DIRECTIVE REQUIRES MEMBER STATES TO AMEND THEIR NATIONAL PROVISIONS TO COMPLY WITH THE DIRECTIVE WITHIN 18 MONTHS OF ITS NOTIFICATION AND TO INFORM THE COMMISSION THEREOF FORTHWITH . THE PERIOD THUS SPECIFIED EXPIRED ON 31 JANUARY 1975 .

3 THE GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS DOES NOT DENY THAT IT HAS FAILED TO COMPLY WITH THAT OBLIGATION . IT EXPLAINS THAT THE DELAY IN IMPLEMENTING THE DIRECTIVE WAS DUE TO ITS NEED TO DRAFT NEW LEGISLATION COVERING ALSO A NUMBER OF QUESTIONS OUTSIDE THE SCOPE OF THE DIRECTIVE . IT ALSO STATES THAT THE DIRECTIVE IS ALREADY APPLIED WITHOUT RESTRICTION , IN PRACTICE , FOR ALL UNDERTAKINGS WHOSE HEAD OFFICES ARE IN THE NETHERLANDS OR IN ANOTHER MEMBER STATE OF THE EEC AND WHICH SEEK TO RELY UPON ITS PROVISIONS .

4 SUCH CIRCUMSTANCES CANNOT EXPUNGE THE FAILURE TO FULFIL ITS OBLIGATIONS WITH WHICH THE KINGDOM OF THE NETHERLANDS IS CHARGED . ACCORDING TO WELL-ESTABLISHED CASE-LAW FIRST , 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 COMMUNITY DIRECTIVES , AND SECONDLY MERE ADMINISTRATIVE PRACTICES , WHICH BY THEIR NATURE MAY BE CHANGED ACCORDING TO THE WHIM OF THE AUTHORITIES AND WHICH LACK APPROPRIATE PUBLICITY CANNOT BE REGARDED AS CONSTITUTING A VALID IMPLEMENTATION OF THE DUTY IMPOSED ON MEMBER STATES BY THE THIRD PARAGRAPH OF ARTICLE 189 OF THE TREATY .

5 THE COURT MUST THEREFORE DECLARE THAT BY FAILING TO ADOPT WITHIN THE SPECIFIED PERIOD THE PROVISIONS NECESSARY TO COMPLY WITH COUNCIL DIRECTIVE 73/239/EEC OF 24 JULY 1973 THE KINGDOM OF THE NETHERLANDS HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY .

Decision on costs

COSTS

6 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY ' S PLEADING . SINCE THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS IT MUST BE ORDERED TO PAY THE COSTS .

Operative part

ON THOSE GROUNDS ,

HEREBY :

1 . DECLARES THAT THE KINGDOM OF THE NETHERLANDS , BY FAILING TO ADOPT WITHIN THE SPECIFIED PERIOD THE PROVISIONS NECESSARY TO IMPLEMENT COUNCIL DIRECTIVE 73/239/EEC OF 24 JULY 1973 ON THE COORDINATION OF LAWS , REGULATIONS AND ADMINISTRATIVE PROVISIONS RELATING TO THE TAKING UP AND PURSUIT OF THE BUSINESS OF DIRECT INSURANCE OTHER THAN LIFE ASSURANCE , HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY ;