JUDGMENT OF CASE 102/79

Transcription

1 JUDGMENT OF CASE 102/79 has adopted measures which do not conform to a directive, has the Court of Justice recognized the right of persons affected thereby to rely in law on a directive as against a defaulting Member State. This minimum guarantee arising from the binding nature of the obligation imposed on the Member States by the effect of the directives under the third paragraph of Article 189 cannot justify a Member State's absolving itself from taking in due time implementing measures sufficient to meet the purpose of each directive. 3. A Member State cannot rely upon domestic difficulties or provisions of its national legal system, even its constitutional system, for the purpose of justifying a failure to comply with obligations and time-limits contained in Community directives. In Case 102/79 COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Advisers, Rolf Wagenbauer and Auke Haagsma, acting as Agents, with an address for service in Luxembourg at the office of its Legal Adviser, Mario Cervino, Jean Monnet Building, Kirchberg, ν applicant, KINGDOM OF BELGIUM, represented by Robert Hoebaer, Director at the Ministère des Affaires Etrangères, du Commerce Extérieur et de la Coopération au Développement [Ministry for Foreign Affairs, Foreign Trade and Cooperation with Developing Countries], acting as agent with an address for service in Luxembourg at the Belgian Embassy, defendant, APPLICATION for a declaration that the Kingdom of Belgium has failed to fulfil an obligation under the EEC Treaty by not putting into force, within the prescribed periods, the laws, regulations and administrative measures necessary to comply with 12 Council directives on the approximation of the laws of the Member States relating to motor vehicles and agricultural or forestry tractors, 1474

2 COMMISSION ν BELGIUM THE COURT composed of: H. Kutscher, President, A. O'Keeffe and A. Touffait (Presidents of Chambers), J. Mertens de Wilmars, P. Pescatore, Lord Mackenzie Stuart, G. Bosco, T. Koopmans and O. Due, Judges, Advocate General: G. ReischI Registrar: A. Van Houtte gives the following JUDGMENT Facts and Issues The facts of the case, the procedure, and the submissions and arguments of the parties may be summarized as follows: I Summary of the facts By a resolution of 28 May 1969 the Council adopted a programme for the elimination of technical barriers to trade in industrial products which result from disparities between the provisions laid down by law, regulation or administrative action in Member States (Official Journal, English Special Edition, Second Series, IX. Resolutions of the Council and of the Representatives of the Member States, p. 25). This programme, which lays down an order of priorities for the elimination of most of these barriers, provides, in three stages, for the adoption of directives, inter alia in the field of motor vehicles and in the field of agricultural tractors and machinery. In eacli of these two fields the Council has embarked upon the implementation of the programme by adopting a framework directive: Directive No 70/156 of 6 February 1970 on the approximation of the laws of the Member States relating to the typeapproval of motor vehicles and their trailers (Official Journal, English Special Edition 1970 (I), p. 96) and Directive No 74/150, of 4 March 1974 on the approximation of the laws of the Member States relating to the type-approval of wheeled agricultural or forestry tractors (Official Journal L 84, p. 10). These two framework directives introduce a system of "EEC typeapproval" based upon the principle of the mutual recognition of the checks carried out and of the certificates of conformity issued by the competent national authorities. "EEC type-approval", which must be distinguished from "national typeapproval", is the procedure by which a Member State establishes that a type of vehicle or tractor satisfies the technical requirements of the particular directives 1475

3 JUDGMENT OF CASE 102/79 to be issued in implementation of the framework directives and the checks listed in the EEC type-approval certificate (Article 2 (b) of the directives). Before giving type-approval to a vehicle or tractor Member States are obliged to carry out a certain number of checks of a technical nature; whether production models conform to the approved prototype may be verified by spot checks (Article 4). Member States have an obligation to give each other information on inter alia the vehicle or tractor types which they approve or refuse to approve (Article 5 (1) ). The manufacturer must complete, in the country of registration, a certificate of conformity for each vehicle or tractor manufactured in comformity with the approved prototype (Article 5 (2) ). No Member State may refuse to register or prohibit the sale, entry into service or use of any new vehicle on grounds relating to its construction or functioning where that vehicle is accompanied by a certificate of conformity (Article 7(1)). Where vehicles are found not to conform to the type approved, Member States are to take the necessary measures (Article 8 (1)); provision is made for co-ordination measures and collaboration between the competent national authorities (Article 8 (2) and (3) ). The framework directives provide that the harmonized technical requirements applicable to individual parts and characteristics of a vehicle or tractor shall be specified in separate directives. These technical requirements must be observed for a vehicle to secure EEC type-approval. Pending the adoption of all the separate directives a transitional system of "partial type-approval" has been set up limited to individual parts or characteristics in respect of which Community requirements have already been laid down by means of directives. As regards the motor vehicle sector the Council adopted 17 separate directives starting.in February 1970 and in the tractor sector 8 separate directives starting in March Each of the separate directives contains a provision (Article 2) by which no Member State may refuse to grant EEC type-approval or national type-approval of a vehicle or tractor on grounds relating to the individual parts of characteristics covered by the directive if they satisfy the requirements set out in that directive. The various directives all contain a provision by which the Member States must put into force the provisions necessary in order to comply with the directive in question within 18 months of its notification or by a specific date laid down in the directive itself; Member States are obliged forthwith to inform the Commission thereof. Since the Kingdom of Belgium had not adopted the necessary measures to introduce directives in the motor vehicle and tractor sectors into national law within the prescribed time-limits, on 12 July 1974, 14 April 1976 and 21 April 1977 respectively the Commission commenced three sets of proceedings under Article 169 of the EEC Treaty against that Member State for a declaration that it had failed to fulfil its obligations under the Treaty concerning three groups of directives. Having taken cognizance of the observations submitted to it by the Belgian 1476

4 COMMISSION ν BELGIUM Government, in particular by letters of 6 July 1976 and of 18 January 1977, the Commission acknowledged by letter of 26 June 1978 that certain of the directives in question had in the meantime been introduced into national law by means of Royal Decrees. On 21 June 1978 the Commission delivered a reasoned opinion, addressed to the Belgian Government on 22 June, in which it declared that by not adopting the laws, regulations and administrative provisions necessary to comply with 13 directives in the motor vehicle and agricultural tractor sectors, the Kingdom of Belgium had failed to fulfil its obligations under those directives. Pursuant to the second paragraph of Article 169 of the Treaty the Commission invited the Kingdom of Belgium to take the measures required to comply with the reasoned opinion within a period of two months from its notification. The reasoned opinion of the Commission related in particular to the following 12 directives since in the meantime the Commission had decided not to pursue proceedings in relation to one specific directive: (a) in the motor vehicle sector: (1) Directive No 70/221 of 20 March 1970 on the approximation of the laws of the Member States relating to liquid fuel tanks and rear protective devices for motor vehicles and their trailers (Official Journal, English Special Edition 1970 (I), p. 192); (2) Directive No 70/387 of 27 July 1970 on the approximation of the laws of the Member States relating to the doors of motor vehicles and their trailers (Official Journal, English Special Edition 1970 (II), p. 564); (3) Directive No 74/60 of 17 December 1973 on the approximation of the laws of the Member States relating to the interior fittings of motor vehicles (interior parts of the passenger compartment other than the interior rear-view mirrors, layout of controls, the roof or sliding roof, the backrest and rear part of the seats) (Official Journal 1974 L 38, p. 2 and L 215, p. 20); (4) Directive No 74/483 of 17 September 1974 on the approximation of the laws of the Member States relating to the external projections of motor vehicles (Official Journal L 266, p. 4). (b) in the tractor sector: (1) Directive No 74/150 of 4 March 1974 on the approximation of the laws of the Member States relating to the type-approval of wheeled agricultural or forestry tractors [framework directive] (Official Journal L 84, p. 10); (2) Directive No 74/151 of 4 March 1974 on the approximation of the laws of the Member States relating to certain parts and characteristics of wheeled agricultural or forestry tractors (Official Journal L 84, p. 25). This directive concerns the maximum permissible laden weight, the location and method of fixing of the rear registration plates, the liquid fuel tanks, ballast weights, audible warning devices, external sound level, and exhaust systems (silencer); (3) Directive No 74/152 also of 4 March 1974 on the approximation of the laws of the Member States relating to the maximum design speed and load platforms (Official Journal L 84, p. 33); 1477

5 JUDGMENT OF CASE 102/79 (4) Directive.No 74/346 of 25 June 1974 on the approximation of the laws of the Member States relating to rear-view mirrors (Official Journal L 191, p. 1); (5) Directive No 74/347 also of 25 June 1974 relating to the field of vision and windscreen wipers for tractors (Official Journal L 191, p. 5);. (6) Directive No 75/321 of 20 March 1975 relating to steering equipment (Official Journal L 147, p. 24); (7) Directive No 75/322 also of 20 May 1975 relating to the suppression of radio interference produced by spark-ignition engines fitted to tractors (Official Journal L 147, p. 28); (8) Directive No 75/323 also of 20 May 1975 relating to the power connexion fitted on tractors for lighting and light-signalling devices on tools, machinery or trailers intended for agriculture or forestry (Official Journal L 147, p. 38). The periods for the implementation of those directives expired on 24 September 1971 for Directive No 70/221, on 29 January 1972 for Directive No 70/387, on 1 June 1975 for Directive No 74/483, on 21 June for Directive No 74/60, on 8 September 1975 for Directives No 74/150, 74/151 and 74/152, on 2 January 1976 for Directives No 74/346 and 74/347, on 22 November 1976 for Directives No 75/321, 75/322 and 75/323. II Written procedure proceedings before the Court of Justice under the second paragraph of Article 169 of the EEC Treaty concerning the alleged failure by the Kingdom of Belgium to implement four directives in the motor vehicle sector and eight directives in the sector of wheeled agricultural or forestry tractors. The written procedure followed the normal course. Upon hearing the report of the Judge- Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry. Ill Conclusions of the parties The Commission claims that the Court should: Declare that by not adopting within the prescribed periods the laws, regulations and administrative provisions necessary to comply with the provisions of Council Directives Nos 70/221, 70/387, 74/60, 74/483, 74/150, 74/151, 74/152, 74/346, 74/347, 75/321, 75/322 and 75/323 on the approximation of the laws of the Member States relating to motor vehicles and agricultural and forestry tractors, the Kingdom of Belgium has failed to fulfil an obligation under the Treaty; Order the Kingdom of Belgium to pay the costs. By an application lodged on 25 June 1979 the Commission brought The Government of the Kingdom of Belgium claims that the Court should: 1478

6 COMMISSION ν BELGIUM Declare that the Commission's application is unfounded; Order the Commission to pay the costs. with the positive result contemplated by each particular directive which must be achieved by each Member State. This "result" is the establishment of a specific legal situation from which certain material consequences flow. IV Submissions and arguments of the parties in the written procedure The Commission considers that the failure of the Belgian State to fulfil its obligations under the directives is unquestionable. (a) Under Article 189 of the EEC Treaty the directives shall be binding, as to the result to be achieved, upon each Member State to which they are addressed, but shall leave to the national authorities the choice of form and methods. According to the case-law of the Court of Justice the binding nature of the directives means that all Member States are obliged to observe the timelimits which the directives lay down for the adoption of the necessary measures for their implementation. A Member State may not plead internal difficulties or provisions of its own legal system, even of its constitution, to justify a failure to comply with the obligations and time-limits imposed by Community directives. (c) Closer examination of the directives shows that, whilst they are addressed to the Member States, some of their provisions indirectly concern the rights or duties of natural or legal persons. Consequently any person affected by them must be in a position to find easily the legal rules applicable. For this purpose he must be able to take cognizance of legislative acts applicable to him and these must leave no room for legal uncertainty. However, the only legislative acts directed to the persons concerned are those containing the Belgian rules which are unquestionably different from the rules laid down by the directives. Furthermore the Member States must adopt provisions which the persons concerned may rely on in law. The directives govern in particular the rights and duties of citizens vis-à-vis the State and vice versa; individuals are therefore entitled to have the rules laid down in the directives applied to their products. The Member States must adopt measures enabling the persons concerned to rely in law on measures taken to implement a directive. (b) The directives in question in this case are indeed designed to abolish certain technical obstacles to intra- Community trade; but this ultimate, general objective should not be confused The result envisaged by the directives will not be achieved until a legal situation is created at the national level, either by the introduction of "new" measures or by the application of measures conforming to the directive and 1479

7 JUDGMENT OF CASE 102/79 in force at the date of its adoption, the actual effect of which is that products complying with the directive may marketed and used in each Member State. In the absence of the appropriate legal "infrastructure" the mere fact that the directives are applied in practice is not enough. not have to take any measure to implement the directive. In the case of "optional harmonization" Member States are obliged to allow products onto their markets which satisfy the requirements of the directive and they have the further option of admitting other products as well which do not comply with the directive. (d) To say that the object of the directives may be achieved simply because they have "direct effect" and "automatically" form part of national law would amount to saying that there is no distinction between a directly applicable legal instrument, such as a regulation, and a directive with the attribute of direct effect. Such a directive would itself achieve the result which it envisages. The freedom of Member States to choose the form and methods would be reduced to nothing. Such a view would completely distort the nature of each legal act of the Community as defined in Article 189 of the EEC Treaty. The fact that certain provisions of the directives in question are recognized as having "direct effect" does not alter the obligation imposed on the Member State to adopt provisions to implement them. Under the case-law of the Court any direct effect of a directive can only be taken into account in the event of the Member State's default. (e) The fact that "products complying with a directive" are allowed into Belgium without any difficulty, that the directives are "optional" and that the Belgian provisions are less strict, does not mean that the Belgian authorities do The directives in question contain very detailed requirements in regard to the technical aspects of the products with which they are concerned; these requirements do differ at least in part, from the Belgian requirements. The national provisions presently in force must therefore be adapted so as to incorporate the rules laid down in the directives as well. (f) The fact that the Belgian authorities decided on their own initiative to take harmonization further than was contemplated by the directives led to "procedural complications" and delays for which the Belgian authorities alone are responsible. The Government of the Kingdom of Belgium considers that the Commission's application is unfounded: the directives in question are in fact applied by the competent national authorities and therefore there is no obstacle to intra- Community trade; the incorporation of the content of the directives into national law is certainly not essential for the purpose of implementing them, although it may possibly be desirable for reasons of legal clarity; the incorporation of the directives, started in 1977, was delayed by the Belgian Government's own commitment to the progressive repeal of 1480

8 COMMISSION ν BELGIUM existing national rules in order to replace them with the rules contained in the directives. (a) The Commission's application is based on the erroneous view that the Belgian Government must necessarily take supplementary legislative measures in order to attain the objectives of the directives in question. A distinction must be made between the result to be achieved and the methods to be used for this purpose; this follows from the third paragraph of Article 189 of the EEC Treaty and from the very nature of the directives themselves. The object of the directives the elimination of barriers to intra- Community trade which result from disparities between the provisions laid down by law, regulation or administrative action in the Member States and make the marketing and use of goods subject to the observance of certain technical conditions has been achieved and moreover within the periods allowed. administrative practice. The competent authority recognizes partial typeapprovals from other Member States instead of the national rules where these apply, and issues partial type-approvals whenever manufacturers request them. (d) The directives in question have not caused any problems in their implementation. They undoubtedly come under that category of provisions which are directly applicable: the rules laid down by the directives are plain and precise and do not leave any margin of discretion to Member States as to the technical methods of implementing them. The objective of the directives has been attained and the implementation of them by the Belgian authorities has not in any way been dependent on their incorporation into Royal Decrees. In this context it is appropriate to bear in mind, on a general level, that Member States enjoy a degree of flexibility in regard to the methods to be used to attain the objectives of the directive; in particular they cannot be compelled to take national measures if these do not seem absolutely necessary to fulfil the purpose of the directive. (b) As regards the matters dealt with by the directives, the Belgian national rules contain requirements which are less strict than the Community requirements: they do not therefore act as an obstacle to the entry into Belgium of vehicles and tractors which comply with the Community rules. At the national level, the Belgian rules are not contrary to the Community requirements either, since the optional system of the directives allows less strict rules. (c) The Community directives are applied in full under Belgian A directive can be distinguished from a regulation in so far as a directive leaves the States a degree of freedom in regard to the procedures to be used to implement it. Such is the case whenever a directive is a general one with few details; on the other hand, like those in this case, many directives contain so much detail that they may be equated with a regulation. The legal procedures by which directives are put into force vary from case to case; they may consist of anything from a statute down to a simple departmental 1481

9 JUDGMENT OF CASE 102/79 memorandum. The legal guarantees provided by. the various procedures differ widely. A directive is a much surer legal guarantee than a number of procedures undertaken to incorporate the directive into national law. Recognition, by the State to which the directive is addressed, that it is directly applicable is a rational and useful way of applying Community law. Thus a State may not plead the absence of internal measures for incorporating a directive into national law as an excuse to justify delay in implementing the directive. The procedures for incorporating a directive into national law may be long and complex particularly in States which have a federal or regional structure. Finally, with incorporation into national law there is the likelihood of differing interpretations, either between the Community organ and the Member States, between Member States, or between federated States or regions. question override national law as well as the national decree implementing them and, since they are directly applicable, they may be automatically incorporated into a national legal system. Such incorporation is really for the sole purpose of legal certainty. For the purpose of legal certainty it is definitely not desirable that the same subject-matter be governed both by national and Community rules. In this respect it is however appropriate to observe that the publication of directives in the Official Journal of the Communities contributes to legal certainty. Moreover, directives, which constitute binding Community law, take precedence over national law in the hierarchy of legal rules. Finally, this is not a case of the same situation being governed by two different sets of legal rules; because of the optional system adopted by the Community the Belgian rules may continue to exist, since the directives only deal with freedom of movement between Member States. The concept of direct applicability is basically used to safeguard the rights of two interested parties when they are confronted with a failure by a State to fulfil its obligations. There is nothing to prevent a State which applies a Community rule from relying on the content of that rule in order to invoke direct applicability. (e) The incorporation of the directives into national law is not therefore the same thing as the application of the content of the directives: the rules in (f) With the intention of securing simplification or legal clarity the Belgian Government has shown its readiness to satisfy the wishes of the Commission. It has even gone further than required by the Community law by agreeing to replace existing national rules with those contained in the directives. This decision was, however, the cause of the delay in incorporating the 12 directives in question here into national law. They had been reproduced in the form of 12 draft Royal Decrees which, all being well, would have entered into force on 1 January Following the refusal of some Belgian courts to apply regulations claimed to have been issued in circum- 1482

10 COMMISSION ν BELGIUM stances of urgency, the Transport Department decided, as from the beginning of 1977 thereafter, to submit all draft decrees to the Council of State for its opinion. This body thought that the draft Royal Decrees submitted to it went beyond the obligation to grant type-approval contained in the directives because they no longer simply sought to ensure the implementation of an international measure but imposed obligations of a national character, on manufacturers in particular, which went further than the directives required; it was therefore necessary to draft a law authorizing the executive to take the appropriate regulatory measures. A draft law was approved by the Council of Ministers on 9 November National political developments have still not allowed the procedure to be concluded. V Oral procedure The Commission, represented by Auke Haagsma, and the Government of the Kingdom of Belgium, represented by Robert Hoebaer, presented oral argument and answered questions put by the Court at the sitting on 5 February The Advocate General delivered his opinion at the sitting on 17 March Decision 1 By an application of 25 June 1979 the Commission brought an action under Article 169 of the EEC Treaty for a declaration that the Kingdom of Belgium had failed to fulfil its obligations under the Treaty by failing to take within the prescribed periods the measures necessary to comply with Council Directives Nos 70/221, 70/387, 74/60 and 74/483 on the approximation of the laws of the Member States relating to motor vehicles (Official Journal, English Special Edition 1970 (I), p. 192; 1970 (II), p. 564; 1974 L 38, p. 2; and L 266, p. 4 respectively) and with Council Directives Nos 74/150, 74/151, 74/152, 74/346, 74/347, 75/321, 75/322 and 75/323 on the approximation of the laws of the Member States relating to agricultural or forestry tractors (Official Journal 1974 L 84, pp. 10, 25 and 33; L 191, pp. 1 and 5; 1975 L 147, pp. 24, 28 and 38, respectively). 2 All the directives referred to were adopted on the basis of Article 100 of the EEC Treaty relating to the harmonization of the laws, regulations and administrative provisions of Member States which directly affect the establishment or functioning of the Common Market. The first set of directives referred to was adopted under Council Directive No 70/156 of 1483

11 JUDGMENT OF CASE 102/79 6 February 1970 on the approximation of the laws of the Member States relating to the type-approval of motor vehicles (Official Journal, English Special Edition 1970 (I), p. 96); the second set of directives was adopted under Council Directive No 74/150 of 4 March 1974 on the approximation of the laws of the Member States relating to the type-approval of agricultural tractors which is also alleged not to have been implemented. 3 The directives in question lay down periods for their implementation, usually 18 months, which expire at various dates from 24 September 1971 to 22 November It is not contested that during those periods Belgium has not taken any measures to implement the directives. However the Belgian Government considers that it has nevertheless not failed to fulfil its obligations under the Treaty. It advances two kinds of argument in support of this. 4 First, the défendent Government contends that the object of the directives, namely the elimination of certain barriers to intra-community trade, has been fully achieved in Belgium by virtue of administrative practice; since Belgian requirements in this field are less strict than the Community rules there is no obstacle to the importation of vehicles and tractors which comply with those rules. 5 The Belgian Government thinks that this way' of viewing the implementation of the directives is fully in accord with the requirements of Article. 189, the third paragraph of which confers on Member States "the choice of form and methods" in regard to the implementation of the directives. The legal procedures by which directives are put into force therefore vary from case to case and may consist of "anything from a statute down to a simple departmental memorandum". 6 The Belgian Government further contends that the directives in question undoubtedly fall into the category of provisions regarded as "directly applicable" : the rules laid down by the Council are plain and precise and no 1484

12 COMMISSION ν BELGIUM margin of discretion in regard to the technical methods of implementing them is left to Member States. In these circumstances, it was really only because the Belgian Government was anxious to provide legal certainty that, under pressure from the Commission, it subsequently commenced legislative procedures for the purpose of implementing the directives in question but they are still not finished. 7 These arguments advanced by the Belgian Government call for a restatement of, on the one hand, the scope of the obligation imposed on the Member States by the third paragraph of Article 189 and, on the other, of the use of the freedom given to them in regard to the choice of form and methods, bearing in mind the objective of the directives in question. 8 The particular directives which the Belgian State is accused of not implementing were adopted on the basis of two framework directives, Directives Nos 70/156 and 74/150 cited above, on the approximation of the laws of the Member States in the field under consideration, whilst the framework directive on tractors is itself the subject-matter of the action. The preamble to both these framework directives points out that the different technical requirements applied in this field by the Member States have the effect of hindering trade within the Community (first recital). It is for the purpose of eliminating these hindrances that the directives make provision for a system of "EEC type-approval" in regard to different types of vehicles which is put into effect by issuing "certificates of conformity" for each vehicle. These vehicles must then be treated by all the Member States as complying with their own legislation (sixth and seventh recitals in the preamble respectively). According to Article 7 (1) of both directives, no Member State may "refuse to register or prohibit the sale, entry into service or use of any new vehicle on grounds relating to its construction or functioning, where that vehicle is accompanied by a certificate of conformity". According to Article 14, which is still the same in both directives, all decisions taken pursuant to the directive, refusing or withdrawing type-approval, or refusing registration or prohibiting sale or use, "shall state in detail the reasons on which they are based"; a decision shall be notified to the party concerned, who shall at the same time be informed of the remedies available to him under the laws in force in the Member States. Finally, under Article 15 of both directives, the Member States "shall put into force provisions containing the requirements necessary 1485

13 JUDGMENT OF CASE 102/79 in order to comply" with the directive and shall communicate to the Commission "the texts of the main provisions of national law" which they adopt in the field covered by the directive. 9 The 11 specific directives which Belgium is accused of not implementing were adopted under the two general directives just examined. Their object is to enable the "EEC type-approval procedure" laid down by the two framework directives to be established through partial and specific measures and they therefore form part of the legal system set up by those two directives. Like the framework directives, each separate directive has a provision in the final article requiring Member States to take the appropriate implementing measures under their national law. 10 It is apparent from the whole of these provisions and from the nature of the measures which they prescribe that the directives in question are meant to be turned into provisions of national law which have the same legal force as those which apply in the Member States in regard to the checking and typeapproval of motor vehicles or tractors. Consequently a Member State has not discharged the obligation imposed upon it by the third paragraph of Article 189 of the Treaty if, for the purpose of fulfilling the requirements under the directives in question, it simply relies on existing practices or even just the tolerance which is exercised by the administration. 11 The argument of the Belgian Government based on the "optional" nature of the directives in question has no relevance since the binding effect of the directive from which Member States are not permitted to derogate is meant to abolish all obstacles to the freedom of movement likely to arise in regard to products originating from other Member States as a result of the application of technical rules which are different from Community rules. It is therefore essential in this regard that each Member State should implement the directives in question in a way which fully meets the requirements of clarity and certainty in legal situations which directives seek for the benefit of manufacturers established in other Member States. Mere administrative practices, which by their nature can be changed as and when the authorities please and which are not publicized widely enough cannot in these circumstances be regarded as a proper fulfilment of the obligation imposed by Article 189 on Member States to which the directives are addressed. 1486

14 COMMISSION ν BELGIUM 12 The justification based on the "direct applicability" of the directives in question cannot be accepted either. The effect of the third paragraph of Article 189 is that Community directives must be implemented by appropriate implementing measures carried out by the Member States. Only in specific circumstances, in particular where a Member State has failed to take the implementing measures required or has adopted measures which do not conform to a directive, has the Court of Justice recognized the right of persons affected thereby to rely in law on a directive as against a defaulting Member State (cf. on this subject, the judgment of 5 April 1979, Ratti, Case 148/78 ECR 1629). This minimum guarantee arising from the binding nature of the obligation imposed on the Member States by the effect of the directives under the third paragraph of Article 189 cannot justify a Member State's absolving itself from taking in due time implementing measures sufficient to meet the purpose of each directive. As stated above, these measures must consist in this case in provisions equivalent to those which are applied under the national legal system for the purpose of securing observance of requirements which are described as "mandatory" in the preamble to the two framework directives (cf. the first recital). 13 It follows that the arguments advanced by the Belgian Government must be dismissed. 14 The Belgian Government secondly argues that, being anxious to ensure legal clarity, it has in the meantime commenced the procedures necessary to incorporate the directives into national rules but the completion of these procedures has been delayed owing to legal arguments about the legislative or regulatory procedure applicable and, furthermore, by internal political problems. 15 It need only be observed, as the Court has repeatedly stated, for example in its judgment of 11 April 1978 (Commission ν Italian Republic, Case 100/77 ECR 879), that a Member State cannot rely upon domestic difficulties or provisions of its national legal system, even its constitutional system, for the purpose of justifying a failure to comply with obligations and time-limits contained in Community directives. 1487

15 JUDGMENT OF CASE 102/79 16 Additional justification for judging the case in this manner is provided by Article 15 of both general directives, Nos 70/156 of 6 February 1970 and 74/150 of 4 March 1974 which provide in identical terms that "Member States shall put into force provisions containing the requirements 'necessary' in order to comply with this directive within 18 months of its notification and shall forthwith inform the Commission thereof". Since both directives are framework directives this provision may be read as meaning that Member States to which they are addressed have a duty to anticipate the steps needed under their respective legislative systems in order to put into force within the required time-limits the separate directives whose subject-matter is plainly identified in the annex to each of the said directives. 17 In these circumstances the arguments put forward by the Belgian Government concerning the problems which it encountered when implementing the directives in question cannot be accepted. 18 It follows from the foregoing that the Court must declare that the Kingdom of Belgium has failed in its obligations. Costs 19 Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs. Since the defendant has failed in its submissions it should be ordered to pay the costs. On those grounds, THE COURT hereby rules: The Kingdom of Belgium has failed to fulfil its obligations under the Treaty establishing the European Economic Community by failing to put into force within the time-limits laid down the provisions necessary to implement the following directives :

16 COMMISSION ν BELGIUM Directive No 70/221/EEC of 20 March 1970 on the approximation of the laws of the Member States relating to liquid fuel tanks and rear protective devices for motor vehicles and their trailers; Directive No 70/387/EEC of 27 July 1970 on the approximation of the laws of the Member States relating to the doors of motor vehicles and their trailers; Directive No 74/60/EEC of 17 December 1973 on the approximation of the laws of the Member States relating to the interior fittings of motor vehicles (interior parts of the passenger compartment other than the interior rear-view mirrors, layout of controls, the roof or sliding roof, the backrest and rear part of the seats); Directive No 74/483/EEC of 17 September 1974 on the approximation of the laws of the Member States relating to the external projections of motor vehicles; Directive No 74/150/EEC of 4 March 1974 on the approximation of the laws of the Member States relating to the type-approval of wheeled agricultural or forestry tractors; Directive No 74/151/EEC of 4 March 1974 on the approximation of the laws of the Member States relating to certain parts and characteristics of wheeled agricultural or forestry tractors; Directive No 74/152/EEC also of 4 March 1974 on the approximation of the laws of the Member States relating to maximum design speed and load platforms; Directive No 74/346/EEC of 25 June 1974 on the approximation of the laws of the Member States relating to rear-view mirrors; Directive No 74/347/EEC also of 25 June 1974 on the approximation of the laws of the Member States relating to the field of vision and windscreen wipers for tractors; 1489

17 OPINION OF MR REISCHL CASE 102/79 Directive No 75/321/EEC of 20 May 1975 on the approximation of the laws of the Member States relating to steering equipment; Directive No 75/322/EEC also of 20 May 1975 on the approximation of the laws of the Member States relating to the suppression of radio interference produced by spark-ignition engines fitted to tractors; Directive No 75/323/EEC also 20 May 1975 on the approximation of the laws of the Member States relating to the power connexion fitted on tractors for lighting and light-signalling devices on tools, machinery or trailers intended for agriculture or forestry. 2. The Kingdom of Belgium is ordered to pay the costs. Kutscher O'Keeffe Touffait Mertens de Wilmars Pescatore Mackenzie Stuart Bosco Koopmans Due Delivered in open court in Luxembourg on 6 May A. Van Houtte Registrar H. Kutscher President OPINION OF MR ADVOCATE GENERAL REISCHL DELIVERED ON 27 MARCH Mr President, Members of the Court, These proceedings for a breach of the Treaty on which I am now giving my opinion have something in common with Case 69/77 (Commission of the European Communities ν Italian Republic) which led to the judgment of the Court of 21 September 1978 ([1978] ECR 1749). 1 Translated from the German. 1490