Report for the Hearing delivered in Case 283/86

I — Facts and procedure

The objective of Council Directive 82/470/EEC of 29 June 1982 is to facilitate the effective exercise of freedom of establishment and freedom to provide services in respect of activities of self-employed persons in certain services incidental to transport and travel agencies and in storage and warehousing.

Article 8 of the directive provides that the Member States are to adopt the measures necessary to comply with the directive within 18 months of its notification and must forthwith inform the Commission thereof. Since the directive was notified on 2 July 1982 the period for implementing its provisions in Belgian law expired on 2 January 1984.

Since it received no communication from the Belgian Government within the prescribed period concerning implementation measures and since it had no information from which it could be inferred that the Kingdom of Belgium had fulfilled its obligation to adopt the necessary provisions, by letter of 16 April 1985 the Commission found that there was an infringement and gave the Belgian Government notice to submit its observations on the infringement within a period of two months. By letters dated respectively 2 August and 28 August 1985 the Permanent Representation of Belgium submitted its observations.

The first letter stated that since the implementation of the directive in Belgian law in relation to services incidental to the transport of goods required an amendment to the Law of 26 June 1967 laying down the rules governing persons engaged in services incidental to transport and such an amendment required the intervention of the Belgian Parliament, no solution was possible in the short term. The second letter informed the Commission that the only amendment needed to the Belgian national legislation concerning travel agents related to the duration of the validity of the certificate of good conduct and that it would be the subject of a Royal Decree a draft of which had been submitted for the opinion of the Belgian Conseil d'État on 10 June 1985.

Since it considered that the reply from the Belgian Government was unsatisfactory and that the measures needed to implement the directive had not been adopted, the Commission delivered a reasoned opinion on 11 April 1986 under the second paragraph of Article 169 of the EEC Treaty, giving the Belgian Government a period of two months from its notification to comply therewith.

By letter dated 4 September 1986 the Permanent Representation of Belgium informed the Commission that as regards travel agents the question of the definition of the respective responsibilities of the national and community (regional) authorities on the subject had been put to the Belgian cour d'arbitrage and that appropriate measures could be adopted as soon as a decision had been reached; as regards services incidental to transport a draft lawintended to bring the Belgian legislation into line with the directive was under negotiation with the industry. On completion of those negotiations it would be possible to initiate the procedure for submitting the draft for parliamentary approval.

The Commission found that the Kingdom of Belgium had not adopted the provisions needed to comply with the directive; it therefore brought the present action for failure to fulfil obligations before the Court.

The Commission's application was received at the Court Registry on 19 November 1986.

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.

II — Conclusions of the parties

The Commission claims that the Court should:

Declare that by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with Council Directive 82/470/EEC of 29 June 1982 on measures to facilitate the effective exercise of freedom of establishment and freedom to provide services in respect of activities of self-employed persons in certain services incidental to transport and travel agencies (ISIC Group 718) and in storage and warehousing (ISIC Group 720) the Kingdom of Belgium has failed to fulfil its obligations under the directive and under the third paragraph of Article 189 and the first paragraph of Article 5 of the EEC Treaty;

Order the Kingdom of Belgium to pay the costs.

The Belgian Government did not deny the infringement with which it is charged.

III — Submissions and arguments of the parties

1. The Commission states that under the third paragraph of Article 189 of the EEC Treaty directives are binding, as to the result to be achieved, upon each Member State to which they are addressed and that according to the first paragraph of Article 5 of the Treaty Member States must take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of the Treaty or resulting from action taken by the institutions of the Community. It goes on to observe that the Court has consistently held that the abovementioned provisions of the Treaty mean that Member States to which directives are addressed are under an obligation to bring their legislation into conformity with the directives within the periods laid down and that a Member State cannot rely on provisions, practices or situations in its internal legal system to justify failure to observe the obligations and time-limits under Community directives.

2. The Belgian Government does not deny that the necessary measures have not been adopted in Belgium to comply with the directive. It states that in relation to travel agencies the necessary measures will be adopted as soon as the Belgian cour d'arbitrage, to which the question of the definition of the respective responsibilities of the national and community authorities has been referred, has given its judgment. As regards services incidental to transport it observes that since the negotiations with the industry. have been terminated a draft law will soon be forwarded for the opinion of the Belgian Conseil d'État and subsequently submitted for parliamentary approval.

J. C. Moitinho de Almeida

Judge-Rapporteur

1 Language of the Case: French.