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Cite as: [1997] EUECJ C-205/96

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61996J0205
Judgment of the Court (Fifth Chamber) of 6 February 1997.
Commission of the European Communities v Kingdom of Belgium.
Directive 92/42/EEC on efficiency requirements for new hot-water boilers fired with liquid or gaseous fuels - Non-transposition.
Case C-205/96.
European Court reports 1997 Page I-00795

Member States - Obligations - Implementation of directives - Failure to fulfil obligations - Justification - Not permissible
(EC Treaty, Art. 169)

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 and time-limits laid down by a directive.

In Case C-205/96,
Commission of the European Communities, represented by Richard Wainwright, Principal Legal Adviser, and Jean-Francis Pasquier, a national civil servant on secondment to the Legal Service, with an address for service in Luxembourg at the office of Carlos Goméz de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,
applicant,
v
Kingdom of Belgium, represented by Raymonde Foucart, Director General in the Legal Service of the Ministry of Foreign Affairs, External Trade and Development Co-operation, with an address for service in Luxembourg at the Belgian Embassy, 4 Rue des Girondins,
defendant,
APPLICATION for a declaration that, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with Council Directive 92/42/EEC of 21 May 1992 on efficiency requirements for new hot-water boilers fired with liquid or gaseous fuels (OJ 1992 L 167, p. 17), the Kingdom of Belgium has failed to fulfil its obligations under the EC Treaty,
THE COURT
(Fifth Chamber),
composed of: J.C. Moitinho de Almeida (Rapporteur), President of the Chamber, C. Gulmann and D.A.O. Edward, Judges,
Advocate General: N. Fennelly,
Registrar: R. Grass,
having regard to the report of the Judge-Rapporteur,
after hearing the Opinion of the Advocate General at the sitting on 5 December 1996,
gives the following
Judgment

1 By application lodged at the Court Registry on 18 June 1996, the Commission of the European Communities brought an action under Article 169 of the EC Treaty for a declaration that, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with Council Directive 92/42/EEC of 21 May 1992 on efficiency requirements for new hot-water boilers fired with liquid or gaseous fuels (OJ 1992 L 167, p. 17), the Kingdom of Belgium has failed to fulfil its obligations under the EC Treaty.
2 Article 9(1) of the directive required Member States to adopt the provisions necessary to comply with the directive by 1 January 1993. They were to inform the Commission forthwith and to apply the transposition measures with effect from 1 January 1994.
3 Since the Commission had not been notified of any transposition measures adopted by the Kingdom of Belgium and had no other evidence that Belgium had complied with its obligation to bring the necessary provisions into force, the Commission put the Belgian Government on notice, by letter dated 3 March 1993, to submit its observations within a period of two months in accordance with the first paragraph of Article 169 of the Treaty.
4 By letter dated 23 February 1994 the Belgian authorities informed the Commission that they were in the process of drawing up the measures necessary to comply with the directive, but that the Belgian institutional system was such that the period prescribed for transposition could not be observed.
5 Since it had not had notification of the adoption of any such transposition measures, the Commission addressed a reasoned opinion to the Kingdom of Belgium by letter of 28 June 1995, requesting it to adopt the measures necessary for compliance with the directive within a period of two months.
6 By letter dated 11 March 1996 the Belgian authorities informed the Commission that draft Royal and Ministerial Decrees transposing the directive had been entirely finalized but that it had not been possible to adopt them, owing to circumstances connected with the Belgian institutional system.
7 On receiving no further communication from the Belgian authorities, the Commission brought these proceedings, in support of which it maintains that, under the third paragraph of Article 189 of the Treaty, directives are binding upon each Member State as to the result to be achieved.
8 In its defence, the Kingdom of Belgium points out that the texts of the draft Royal and Ministerial Decrees are ready but that the delays in their entry into force are attributable to the complexity of the applicable institutional rules. Some aspects of the directive come under the jurisdiction of the regions, whereas others come under the sphere of responsibility of the Federal State.
9 It is noted in the first place that the Belgian Government does not dispute that the measures necessary to transpose the directive into national law have not yet entered into force.
10 Secondly, the Court has consistently held that a 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 and time-limits laid down by a directive (see, for example, Case C-262/95 Commission v Germany [1996] ECR I-5729, paragraph 17).
11 In those circumstances the action brought by the Commission must be regarded as well founded.
12 Accordingly, it must be held that, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with the directive, the Kingdom of Belgium has failed to fulfil its obligations under Article 9(1) of that Directive.

Costs
13 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has applied for costs and the Kingdom of Belgium has been unsuccessful, the Kingdom of Belgium must be ordered to pay the costs.

On those grounds,
THE COURT
(Fifth Chamber)
hereby:
1. Declares that, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with Council Directive 92/42/EEC of 21 May 1992 on efficiency requirements for new hot-water boilers fired with liquid or gaseous fuels, the Kingdom of Belgium has failed to fulfil its obligations under Article 9(1) of that directive;
2. Orders the Kingdom of Belgium to pay the costs.