Case C-421/12 Commission v Belgium: Infringement proceedings and the role of the Member State

The Court of Justice’s recent judgment in Case C-421/12 Commission v Belgium EU:C:2014:2064 highlights a couple of interesting general points about infringement actions against Member States: the need for the states to cooperate, for one and what role national courts may have for another.

Belgium claimed it had implemented Directive 2005/29/EC of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market with its Law of 14 July 1991 as amended in 2007. The Commission brought proceedings against Belgium claiming that the Belgian law of 1991 wrongly excluded members of a profession and dentists and physiotherapists from its scope whereas Directive 2005/29/EC required that they be covered by the scope of the implementing legislation.

During the litigation, Belgium claimed for the first time that the Commission had failed to consider the law of 2 August 2002 on misleading advertising which partially transposes into national law certain provisions of Directive 2005/29. Consequently, Belgium submitted that the Commission’s application was inadmissible.

The Court dismissed Belgium’s claim and found the Commission’s action to be admissible.

The Court recalled that by virtue of the first paragraph of Article 21 of the Statute of the Court of Justice and Article 120(c) of the Court’s Rules of Procedure, the Commission must, in any application made under Article 258 TFEU, indicate the specific complaints on which the Court is asked to rule and, at the very least in summary form, the legal and factual particulars on which those complaints are based. It follows that the Commission’s action must contain a coherent and detailed statement of the reasons which have led it to conclude that the Member State in question has failed to fulfil one of its obligations under the Treaties (Commission v Belgium, C‑150/11, EU:C:2012:539, paragraphs 26 and 27).

It found that in the present case, the application lodged by the Commission contains a clear presentation of that complaint and the factual or legal material on which it is based.

Admittedly, it is common ground that in that application the Commission did not seek to show in what way the Law of 2 August 2002, which was in force at the time Directive 2005/29 was adopted and which prohibits the professions from engaging in misleading advertising, failed to comply with the provisions of that directive.

However, the Court went on, in proceedings under Article 258 TFEU for failure to fulfil obligations, it is for the Member States, under Article 4(3) TEU, to facilitate the achievement of the Commission’s tasks, which consist in particular, pursuant to Article 17(1) TEU, in ensuring that the provisions of the FEU Treaty and the measures taken by the institutions pursuant thereto are applied (Commission v Italy, C‑456/03, EU:C:2005:388, paragraph 26).

An application of the principle of sincere cooperation is provided for in Article 19 of Directive 2005/29 which, like other directives, requires Member States to provide clear and precise information. The Court has held that, in the absence of such information, the Commission is not in a position to ascertain whether the Member State has genuinely implemented the directive completely. The failure of a Member State to fulfil that obligation, whether by providing no information at all or by providing insufficiently clear and precise information, may of itself justify recourse to the procedure under Article 258 TFEU in order to establish the failure to fulfil the obligation (Commission v Italy, C-456/03, EU:C:2005:388, paragraph 27).

In the present case, moreover, it is undisputed that Belgium has relied on the argument that the Law of 2 August 2002 transposes Directive 2005/29 for the first time only at the stage of submitting its statement in defence to this Court. In its reply to the reasoned opinion, the Kingdom of Belgium’s entire defence on this point consisted in a mere reference to judgment No 55/2011 of the Constitutional Court, delivered on 6 April 2011, which held the exclusion of the professions from the scope of the Law of 6 April 2010 to be unconstitutional.  Belgium further stated that a legislative amendment would be introduced ‘in the coming weeks’ to comply with EU law.

The Court held that in those circumstances, Belgium cannot criticise the Commission for having merely set out in its application how the Law of 6 April 2011 does not transpose Directive 2005/29 correctly, without seeking to explain how the Law of 2 August 2002 has no bearing in that regard. In fact, the alleged lack of precision in the application results from the very conduct of the Belgian authorities during the pre-litigation procedure.

Belgium also claimed that the Commission’s action should be dismissed on the merits because its national Constitutional Court had, on two occasions held that certain provisions of national legislation that excluded members of a profession and dentists and physiotherapists from its scope whereas Directive 2005/29/EC were unconstitutional. Consequently, according to Belgium, the infringement of EU law had been corrected by its Constitutional Court.

The Court dismissed Belgium’s submission and found in favour of the Commission for four reasons.

  1.  In accordance with the Court’s settled case-law, 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 the obligations under rules of EU law (Commission v Luxembourg, C‑450/00, EU:C:2001:519, paragraph 8, and Commission v Luxembourg, C‑375/04, EU:C:2005:264, paragraph 11).
  2. The existence of remedies available through the national courts cannot in any way prejudice the bringing of an action under Article 258 TFEU, since the two procedures have different objectives and effects (Commission v Italy, C‑87/02, EU:C:2004:363, paragraph 39).
  3. The question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion (Commission v Spain, C‑168/03, EU:C:2004:525, paragraph 24; Commission v Germany, C‑152/05, EU:C:2008:17, paragraph 15; and Commission v Luxembourg, C‑282/08, EU:C:2009:55, paragraph 10). The Court cannot take account of any subsequent changes (Commission v Ireland, C‑482/03, EU:C:2004:733, paragraph 11, and Commission v Sweden, C‑185/09, EU:C:2010:59, paragraph 9). The Belgian Constitutional Court handed down its rulings after the deadline to comply with the Commission’s reasoned opinion had expired.
  4. The Court has also held that even where the settled case-law of a Member State interprets the provisions of national law in a manner deemed to satisfy the requirements of a directive, that cannot achieve the clarity and precision needed to meet the requirement of legal certainty, particularly in the field of consumer protection (Commission v Netherlands, C‑144/99, EU:C:2001:257, paragraph 21).

As a result, the Court held that the circumstances as relied on by Belgium are of no import as to the issue whether or not there has been a failure to fulfil obligations, which moreover it does not dispute.

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