Judgment of the Court of 21 September 1978 Commission of the European Communities v Italian Republic

In Case 69/77

THE COURT composed of: H. Kutscher, President, M. Sørensen and G. Bosco, Presidents of Chambers, A M. Donner, P. Pescatore, Lord Mackenzie Stuart and A. O'Keeffe, Judges, Advocate General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

The facts, the procedure, the conclusions and the arguments and submissions of the parties may be summarized as follows:

I — Facts

The Council by a resolution dated 28 May 1969 adopted a programme for the elimination of technical barriers to trade in industrial products which result from disparities between the provisions laid down by law, regulation or administrative action in the Member States (Official Journal, English Special Edition, Second Series, IX (Resolutions of the Council and of the Representatives of the Member States), p. 25). This programme laid down an order of priorities for the elimination of the majority of these barriers; in particular the second of the three stages provided for includes the adoption of directives relating to agricultural tractors and machines.

The Council began to implement this programme in 1974 by adopting an outline directive and several special directives.

The outline Directive No 74/150/EEC of 4 March 1974 on the approximation of the laws of the Member States relating to the type-approval of wheeled agricultural or forestry tractors (Official Journal L 84 of 28 March 1974, p. 10) introduced a system of ‘EEC type-approval’, based on the principle of the mutual recognition of checks carried out and of certificates of conformity issued by the competent national authorities for tractors fitted with pneumatic tyres and having a maximum design speed of between 6 and 26 km/h.

‘EEC type-approval’, to distinguish it from ‘national type-approval’ is ‘the procedure whereby a Member State certifies that a tractor type satisfies the technical requirements of the special directives and the checks listed in the EEC type-approval certificate …’ (Article 2 (b) of the directive).

Before the Member States approve any tractor type they are required to carry out a number of technical checks; they may verify by spot checks that production models conform to the approved prototype (Article 4). The Member States are under an obligation to supply each other with information, especially particulars of each tractor type which they approve or refuse to approve (Article 5 (1)). The manufacturer in the country of registration must complete a certificate of conformity for each tractor manufactured in conformity with the approved prototype (Article 5 (2)). ‘No Member State may refuse the registration or may prohibit the sale, entry into service or use of any new tractor on grounds relating to its construction or operation where that tractor is accompanied by a certificate of conformity’ (Article 7 (1)). If any Member State finds that any such tractor does not conform to the type which it has approved it must take the necessary measures (Article 8 (1)); rules are laid down for co-ordination and cooperation between the competent national authorities (Article 8).

As far as concerns the various parts or characteristics of a tractor which are of importance from the standpoint of safety the special directives specify the technical requirements to be complied with so that the vehicle may be granted EEC type-approval. The intention is to adopt some 40 directives; until all of them have been adopted transitional arrangements for ‘partial type-approval’ are being made, restricted to the parts or characteristics in respect of which Community requirements have already been specified by means of directives.

Each of the special directives contains a provision (Article 2) which forbids Member States to refuse to grant EEC type-approval or national type-approval of a tractor on grounds relating to the parts or characteristics which are dealt with in the directive if they satisfy the technical requirements set out in the directive.

Council Directive No 74/151/EEC of 4 March 1974 on the approximation of the laws of the Member States relating to certain parts and characteristics of wheeled agricultural or forestry tractors (Official Journal L 84 of 28 March 1974, p. 25) covers the maximum permissible laden weight, the location and fitting of the rear registration plates, fuel tanks, ballast weights, audible warning devices, the permissible sound level and exhaust system (silencer). Directive No 74/152/EEC, also of 4 March 1974, relates to the approximation of the laws of the Member States on maximum design speed and load platforms (Official Journal L 84 of 28 March 1974, p. 33). Directive No 74/346/EEC of 25 June 1974 relates to the approximation of the laws of the Member States on rear-view mirrors (Official Journal L 191 of 15 July 1974, p. 1); Directive No 74/347/EEC, also of 25 June 1974, relates to the field of vision and windscreen wipers (Official Journal L 191 of 15 July 1974. p. 5).

The implementation of the outline directive and the four special directives makes it necessary for the various national rules, expecially the Italian ones, to be amended. The sole purpose of the latter, consisting at the time principally of Decree No 547 of 27 April 1955 of the President of the Republic relating to the requirements for safety guarantees (Gazzetta Ufficiale No 158 of 12 July 1955) and Decree No 93 of 15 June 1959 of the President of the Republic containing the consolidated text of the provisions governing road traffic (Supplement to Gazzeta Ufficiale No 147 of 23 June 1959), was the national type-approval of tractors and agricultural machines in general.

These directives require the Member States to bring the requisite provisions into force within 18 months of the notification of the directive; the prescribed period for Italy expired on 8 September 1975 in the case of Directives Nos 74/150 and 74/151 and 74/152 on 2 January 1976 in the case of Directives Nos 74/346 and. 74/347.

The Commission on 14 April 1976, in pursuance of Article 169 of the EEC Treaty, drew the attention of the Italian Government to the fact that, since the Italian Republic had not at that date taken the requisite steps for the adoption into domestic law of the directives on the approximation of the laws of the Member States relating to wheeled agricultural or forestry tractors, it had failed to fulfil its obligations under the Treaty and invited it to submit its observations within two months.

On 5 July 1976 the Italian Government sent the Commission the text of a preliminary draft of a law drawn up by the Ministry for Transport with a view to implementing Directive No 74/150.

The Commission on 1 October 1976 delivered a reasoned opinion in which it found that the Italian Republic was failing to fulfil its obligations and invited it to adopt within one month the necessary provisions for implementing the directives.

On 15 November 1976 the Government of the Italian Republic informed the Commission that the draft law drawn up by the Ministry for Transport must be regarded as having lapsed because of the premature end of the legislative session and that an extension of time appeared to be necessary for the adoption of a new draft.

On 20 April 1977 the Commission gave notice to the Government of the Italian Republic that it was unable to grant this application for an extension of time.

By a telex message of 20 May 1977 the Italian Permanent Representation accredited to the Communities informed the Commission that the outline of a draft law on measures for the implementation of the directives relating to the type-approval of agricultural tractors had been approved by the Council of Ministers and forwarded to the Senate on 19 April 1977.

II — Written procedure

The Commission, by an application lodged at the Court Registry on 6 June 1977, pursuant to the second paragraph of Article 169 of the EEC Treaty, brought before the Court of Justice the alleged failures on the part of the Italian Republic to implement the directives relating to wheeled agricultural or forestry tractors.

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.

On the application of the Government of the Italian Republic and with the assent of the Commission the Court decided to postpone the opening of the oral procedure, first until 1 March 1978 and then until 1 June 1978.

When the date for the opening of the oral procedure had been finally determined the Court invited the Commission to give at the hearing particulars of the progress achieved by Member States other than Italy in implementing the directives, the non-implementation whereof is the subject-matter of the dispute.

III — Conclusions of the parties

The Commission claims that the Court should:

Declare that the Italian Republic, by not bringing into force within the prescribed periods the necessary provisions to comply with Council Directives Nos 74/150/EEC, 74/151/EEC, 74/152/EEC, 74/346/EEC and 74/347/EEC on the approximation of the laws of the Member States relating to wheeled agricultural or forestry tractors, has failed to fulfil its obligations under the Treaty;

Order the Italian Republic to pay the costs.

The Government of the Italian Republic does not put forward any formal conclusions.

IV — Submissions and arguments of the parties during the written procedure

The Commission points out that by virtue 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, but leave to the national authorities the choice of form and methods. The fact that directives are binding implies, as the case-law of the Court has clearly established, that all the Member States must comply with the time-limits which the directives lay down for the adoption of implementing measures. A Member State cannot rely on the provisions, practices or situations prevailing in its domestic system to justify a failure to comply with duties and time-limits resulting from Community directives. The complexities and delays of national parliamentary proceedings cannot therefore justify the failure to meet the time-limit of 18 months prescribed by the directives in the case in point.

On the substance of the case it is advisable to point out that Italian rules include a number of provisions which sometimes differ from and sometimes conflict with Community requirements. Thus Italy does not yet have parallel provisions corresponding to the introduction of EEC type-approval of tractors; the transitional arrangements for partial EEC type-approval provided by Article 10 of Directive No 74/150 for parts and characteristics of tractors which have already been dealt with in a special directive cannot be applied. Tractors coming from other Member States can therefore be marketed in Italy only if they comply with Italian technical standards, when these tractors are type-approved they are also subjected to conformity checks even though they have already undergone such checks in the Member State of origin.

Furthermore the Italian technical requirements in some respects differ from Community requirements and are stricter than the latter. For example, whereas Directive No 74/151 fixes the maximum permissible laden weight at 14 tonnes, Italian law does not accept a weight of more than ten tonnes. With regard to the inclination of the rear registration plates Directive No 74/151 provides that it may be inclined at not more than 30o (if the plate is inclined upwards) or 15o (if the plate is inclined downwards), whereas under Italian law the angles may not be more than 36o and 10oC respectively. Directive No 74/151 does not contain any technical requirement as far as concerns angles of visibility and the illumination of the registration plate; in Italy these matters are regulated by specific binding rules.

These findings confirm the existence of barriers to trade in Italy; the effect of the latter is that the manufacturers of the other Member States, in order to have access to the Italian market, are forced to make their production of tractors conform to Italian technical standards. This is the opposite result from those aimed at by the Community directives for harmonization.

By not bringing into force, within the prescribed periods, the necesary provisions to comply with Directives Nos 74/150, 74/151, 74/152, 74/346 and 74/347 the Italian Republic has failed to fulfil its obligations under the Treaty.

The Government of the Italian Republic stresses that the delay in giving effect to the directives is due to objective difficulties and not to an intention to delay the approximation of national laws in this sector. Difficulties arose because the subject-matter of the directives under the national legal system is the responsibility of several ministries; the necessary contacts and co-ordination between the latter caused some delay in the preparation of the outline of a draft law relating to the incorporation of the outline directive and the special directives.

An outline was prepared at the beginning of the summer of 1976 by the Ministry for Transport which could not be dealt with owing to the premature end of the legislative session. During the new legislative session a new outline draft law, which was more comprehensive and had been prepared by the various ministries concerned, was submitted to the Senate for its approval on 19 April 1977, approved by the latter on 22 June and sent to the Chamber of Deputies on 29 June 1977. The text of Law No 572 of 8 August 1977 containing ‘rules for the implementation of directives of the European Communities on the approximation of the laws of the Member States relating to type-approval of wheeled agricultural or forestry tractors’ was published on 25 August 1977 in the Gazzetta Ufficiale (No 231, p. 6239). This law, which entered into force on 26 August 1977, incorporates outline Directive No 74/150 into the Italian legal system and lays down the detailed rules for the implementation of the special directives which have been and are to be adopted. Article 3 of the law provides that the technical requirements upon the observation of which EEC type-approval depends shall be adopted by one or more decrees of the President of the Republic on a proposal by the Minister for Transport with the assent of the other ministers concerned in each case; these requirements must correspond to the technical provisions approved by the competent authorities of the Communities.

The drafts of measures for the adoption of technical requirements corresponding to those adopted by the special directives have already been prepared by the Ministry for Transport; they are being discussed with the Minister for Agriculture and Forestry. It should be possible to dispose within a short time of the formalities which these measures involve and they will then become fully effective in the national legal system.

When Law No 572 entered into force the subject-matter of the action ceased to exist in so far as concerns the most serious of the infringements alleged by the Commission, that is the failure to incorporate outline Directive No 74/150.

In any case no substantial infringement of the principle of free movement and marketing of the products in the sector in question has been established.

V — Oral procedure

At the hearing on 4 July 1978 the Commission of the European Communities, represented by its Legal Adviser, Antonino Abate, and the Government of the Italian Republic, represented by Ivo Maria Braguglia, Deputy State Advocate, submitted oral argument and their replies to questions raised by the Court.

The Commission accepts that by the operation of Law No 572 of 8 August 1977 outline Directive No 74/150 has been incorporated in the Italian legal system. However this fan does not alter the purpose of the application: the passing of the law did not take place until well after the expiry of the period prescribed for the Italian Republic.

The Italian Republic's default cannot be invoked against importers of tractors manufactured in other Member States which have been issued with a Community certificate of conformity. The fact that in the case of exports the Italian authorities refuse to grant Community type-approval to vehicles manufactured in Italy in accordance with Community technical requirements is tantamount to the introduction of a measure having an effect equivalent to a quantitative restriction on exports, which is prohibited under Article 34 of the EEC Treaty.

As far as concerns the implementation of the directives in the other Member States it should be recorded that, on the one hand, in the field of agricultural and forestry tractors altogether 13 directives have been issued and, on the other hand, that in the case of ten of them the time-limits for their implementation have expired and that procedures are in progress against the Member States concerned, in particular Belgium, Ireland and Luxembourg, which have not yet implemented them within their domestic systems.

The Government of the Italian Republic points out that, if the argument put forward by the Commission regarding the direct effect of the special directives were correct, the default alleged against the Italian Republic could only be of an entirely abstract and formal kind. The argument is moreover inconsistent with the actual aim of the Commission's application.

The Advocate General delivered his opinion at the hearing on 5 July 1978.

Decision

1. The Commission by an application dated 6 June 1977 has brought an action, in pursuance of Article 169 of the EEC Treaty, for a declaration that the Italian Republic, by neglecting to adopt within the prescribed periods the necessary provisions to comply with Council Directives Nos 74/150, 74/151, 74/152 of 4 March 1973 and Nos 74/346 and 74/347 of 25 June 1974 on the approximation of the laws of the Member States relating to wheeled agricultural or forestry tractors (Official Journal L 84 of 28 March 1974, pp. 10, 25 and 33 and L 191 of 15 July 1974, pp. 1 and 5 respectively), has failed to fulfil its obligations under the Treaty.

2. The Government of the Italian Republic submits that the delay in giving effect to the directives in question is due to an objective difficulty and not to an intention to delay the approximation of national laws in this sector.

3. These difficulties are said to be derived from the fact that, on the one hand, the subject-matter of the directives under the national legal system is the responsibility of several ministries and that, on the other hand, the passing of the draft law by Parliament for the purpose of giving effect to outline Directive No 74/150 was delayed by the premature end of the legislative session.

4. Finally it is stated that even in the absence of any implementing measures for giving effect to the directives in question it has been impossible to establish any substantial infringement of the principle of the free movement and marketing of the products in question.

5. The Italian Government in its rejoinder disclosed that in the meantime the draft law in question had been adopted and that Law No 572 of 8 August 1977, published in the Gazzetta Ufficiale of the Italian Republic of 25 August 1977, had given effect within the Italian legal system to the outline Directive No 74/150 and at the same time brought into force enabling provisions as a basis for the implementation of the special directives by decrees of the President of the Republic

6. It is thus claimed that the subject-matter of the action has ceased to exist as far as concerns the most serious of the infringements alleged by the Commission, namely the failure to incorporate outline Directive No 74/150.

7. It is appropriate to record that the bringing into force of Law No 572 has eliminated the substance of the default and has furthermore created a basis for the implementation of the special directives by administrative measures; nevertheless the fact remains that the period of 18 months laid down by Article 15 of outline Directive No 74/150 has been exceeded and that the four implementing directives have still not been adopted in the Italian Republic.

8. It follows that the Italian Republic has failed to fulfil its obligations under the Treaty.

Costs

9. Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.

10. The defendant has failed in its submissions.

On those grounds, THE COURT hereby:

1 Declares that the Italian Republic, by neglecting to bring into force within the prescribed periods the necessary provisions for giving effect to Council Directives No 74/150 of 4 March 1974 on the approximation of the laws of the Member States relating to the type-approval of wheeled agricultural or forestry tractors, No 74/151 of 4 March 1974 on the approximation of the laws of the Member States relating to certain parts and characteristics of wheeled agricultural or forestry tractors, No 74/152 of 4 March 1974 on the approximation of the laws of the Member States relating to maximum design speed of and load platforms for wheeled agricultural or forestry tractors No 74/346 of 25 June 1974 on the approximation of the laws of the Member States relating to rear-view mirrors for wheeled agricultural or forestry tractors and No 74/347 of 25 June 1974 on the approximation of the laws of the Member States relating to the field of vision and windscreen wipers for wheeled agricultural or forestry tractors, has failed to fulfil its obligations under the Treaty establishing the European Economic Community;

2 Orders the Italian Republic to pay the costs.

1 Language of the Case: Italian.