Judgment of the Court of 12 October 1982.#Commission of the European Communities v Grand Duchy of Luxembourg.#Failure to implement Directive 77/91/EEC.#Case 149/81.

Parties

IN CASE 149/81

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , ANTHONY MCCLELLAN , ACTING AS AGENT , ASSISTED BY JACQUES DELMOLY , A MEMBER OF ITS LEGAL DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

APPLICANT ,

V

GRAND DUCHY OF LUXEMBOURG , REPRESENTED BY EUGENE MULLER , FIRST COUNSELLOR AT THE MINISTRY OF JUSTICE , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE MINISTRY OF JUSTICE , 16 BOULEVARD ROYAL ,

DEFENDANT ,

Subject of the case

APPLICATION FOR A DECLARATION THAT BY NOT ADOPTING , WITHIN THE PRESCRIBED PERIOD , THE PROVISIONS NEEDED TO COMPLY WITH DIRECTIVE 77/91 , THE SECOND COUNCIL DIRECTIVE OF 13 DECEMBER 1976 ON COORDINATION OF SAFEGUARDS WHICH , FOR THE PROTECTION OF THE INTERESTS OF MEMBERS AND OTHERS , ARE REQUIRED BY MEMBER STATES OF COMPANIES WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 58 OF THE TREATY , IN RESPECT OF THE FORMATION OF PUBLIC LIMITED LIABILITY COMPANIES AND THE MAINTENANCE AND ALTERATION OF THEIR CAPITAL , WITH A VIEW TO MAKING SUCH SAFEGUARDS EQUIVALENT , THE GRAND DUCHY OF LUXEMBOURG HAS FAILED TO FULFIL ONE OF ITS OBLIGATIONS UNDER THE EEC TREATY ,

Grounds

1 BY APPLICATION RECEIVED AT THE COURT REGISTRY ON 5 JUNE 1981 THE COMMISSION BROUGHT AN ACTION UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT BY NOT ADOPTING WITHIN THE PRESCRIBED PERIOD THE NATIONAL PROVISIONS NEEDED TO COMPLY WITH DIRECTIVE 77/91/EEC , THE SECOND COUNCIL DIRECTIVE OF 13 DECEMBER 1976 ON COORDINATION OF SAFEGUARDS WHICH , FOR THE PROTECTION OF THE INTERESTS OF MEMBERS AND OTHERS , ARE REQUIRED BY MEMBER STATES OF COMPANIES WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 58 OF THE TREATY , IN RESPECT OF THE FORMATION OF PUBLIC LIMITED LIABILITY COMPANIES AND THE MAINTENANCE AND ALTERATION OF THEIR CAPITAL , WITH A VIEW TO MAKING SUCH SAFEGUARDS EQUIVALENT , ( OFFICIAL JOURNAL , 1977 , L 26 , P . 1 ), THE GRAND DUCHY OF LUXEMBOURG HAD FAILED TO FULFIL ONE OF ITS OBLIGATIONS UNDER THE EEC TREATY .

2 PURSUANT TO ARTICLE 43 OF THE DIRECTIVE , MEMBER STATES WERE REQUIRED TO BRING INTO FORCE THE LAWS , REGULATIONS AND ADMINISTRATIVE PROVISIONS NEEDED IN ORDER TO COMPLY WITH THE DIRECTIVE WITHIN TWO YEARS OF ITS NOTIFICATION . IT WAS NOTIFIED TO THE GRAND DUCHY OF LUXEMBOURG ON 16 DECEMBER 1976 AND THE ABOVE-MENTIONED PERIOD ACCORDINGLY EXPIRED ON 16 DECEMBER 1978 .

3 THE LUXEMBOURG GOVERNMENT DOES NOT CONTEST THAT IT HAS NOT FULFILLED THAT OBLIGATION . IT NEVERTHELESS EMPHASIZES THAT ITS FAILURE TO DO SO MUST NOT BE INTERPRETED AS A RESULT OF NEGLIGENCE OR AS EXPRESSING A LACK OF GOOD WILL ON THE PART OF THE LUXEMBOURG AUTHORITIES BUT THAT IT IS DUE TO THE COMPLEXITY OF THE SUBJECT-MATTER AND THE DIFFICULTY OF HARMONIZING DRAFT PROVISIONS FOR PARTIAL REFORM WITH MORE EXTENSIVE AMENDMENTS WHICH MAY BE FORESEEN FOR THE FUTURE .

4 THOSE CIRCUMSTANCES CANNOT EXPUNGE THE FAILURE TO FULFIL ONE OF ITS OBLIGATIONS WITH WHICH THE GRAND DUCHY OF LUXEMBOURG IS CHARGED . ACCORDING TO WELL-ESTABLISHED CASE-LAW OF THE COURT , 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 .

5 ATTENTION SHOULD ALSO BE DRAWN TO THE FACT THAT THE GOVERNMENTS OF THE MEMBER STATES PARTICIPATE IN THE PREPARATORY WORK FOR DIRECTIVES AND MUST THEREFORE BE IN A POSITION TO PREPARE , WITHIN THE PERIOD PRESCRIBED , THE DRAFT LEGISLATIVE PROVISIONS NECESSARY FOR THEIR IMPLEMENTATION . IT APPEARS , HOWEVER , FROM INFORMATION PRODUCED IN THE COURSE OF THE PROCEEDINGS THAT NO DRAFT LAW HAD YET BEEN PLACED BEFORE THE LUXEMBOURG LEGISLATURE WITHIN THE PERIOD PRESCRIBED FOR IMPLEMENTATION OF THE DIRECTIVE .

6 IT MUST THEREFORE BE DECLARED THAT BY FAILING TO ADOPT WITHIN THE PRESCRIBED PERIOD THE PROVISIONS NEEDED IN ORDER TO COMPLY WITH COUNCIL DIRECTIVE 77/91 OF 13 DECEMBER 1976 , THE GRAND DUCHY OF LUXEMBOURG HAS FAILED TO FULFIL ONE OF ITS OBLIGATIONS UNDER THE TREATY .

Decision on costs

COSTS

7 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS , IT MUST BE ORDERED TO PAY THE COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT

HEREBY :

1 . DECLARES THAT , BY NOT ADOPTING WITHIN THE PRESCRIBED PERIOD THE PROVISIONS NEEDED IN ORDER TO COMPLY WITH COUNCIL DIRECTIVE 77/91/EEC , THE SECOND COUNCIL DIRECTIVE OF 13 DECEMBER 1976 ON COORDINATION OF SAFEGUARDS WHICH , FOR THE PROTECTION OF THE INTERESTS OF MEMBERS AND OTHERS , ARE REQUIRED BY MEMBER STATES OF COMPANIES WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 58 OF THE TREATY , IN RESPECT OF THE FORMATION OF PUBLIC LIMITED LIABILITY COMPANIES AND THE MAINTENANCE AND ALTERATION OF THEIR CAPITAL , WITH A VIEW TO MAKING SUCH SAFEGUARDS EQUIVALENT , THE GRAND DUCHY OF LUXEMBOURG HAS FAILED TO FULFIL ONE OF ITS OBLIGATIONS UNDER THE EEC TREATY ;

2.ORDERS THE GRAND DUCHY OF LUXEMBOURG TO PAY THE COSTS .