Scope of requirements for establishment of breach of community law by a member state

The decision follows an action of the Commission against Belgium for breach of Article 49 of the EC Treaty providing for the free movement of services. The Commission alleged that the way in which the prohibition of a “linked offer” under Belgian law was applied constituted an obstacle to free movement. In particular the Commission claimed that owing to application of the rules it was more difficult for foreign undertakings to enter the Belgian market. The action of the Commission focused on the way these rules were applied, rather than the actual provisions of Belgian law.

The decision of the European Court of Justice (hereinafter the “ECJ”) is particularly interesting, since it outlines the requirements which the Commission must meet in order to establish a breach of Community law by a Member State.

The ECJ first reiterated existing case law, whereunder the burden of proof is with the Commission when alleging a breach of Community law by Member States. Furthermore, the ECJ established a distinction between a case where a breach of Community law occurs due as a result of existing national legal provisions, and circumstances where the breach arises from the implementation of national provisions. In the latter case, “the failure to fulfil obligations can be established only by means of sufficiently documented and detailed proof of the alleged practice of the national administration and/or courts for which the Member State concerned is answerable” (paragraph 28).

The ECJ also confirmed that an administrative practice may constitute a breach of Community law, but only if it is “to some degree, of a consistent and general nature”. In the present case, the ECJ held that the Commission had relied on only one complaint and had not demonstrated that the application of Belgian rules was “discriminatory and disproportionate”. In particular, the Belgian court decisions referred to in the Commission application were not quoted.

At this stage, although it is difficult to determine the effect of this decision on future actions of the Commission, there is some evidence to show that it has led the Commission to review its pending cases with reference to the number of complaints and the evidence on which these are based.