JUDGMENT OF 18. 3. 1980 — CASE 91/79 COMMISSION v ITALY

In Case 91/79

THE COURT composed of H. Kutscher, President, A. O'Keeffe and A. Touffait (Presidents of Chambers), J. Mertens de Wilmars, P. Pescatore, Lord Mackenzie Stuart, G. Bosco, T. Koopmans and O. Due, Judges, Advocate General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

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

I — Facts and written procedure

Directive No 73/404/EEC is one of a number of directives adopted under the General Programme for the elimination of technical barriers to trade which result from the disparities between the provisions laid down by law, regulation or administrative action in the Member States, adopted by the Council on 28 May 1969 (Official Journal, English Special Edition, Second Series, IX, p. 25) as well as under the Programme of Action of the European Communities on the Environment (Official Journal C 112 of 20 December 1973, p. 1). Its aim is to abolish the disparities which exist in the provisions relating to the biodegradability of detergents. It has the further object of restricting the use of non-biodegradable detergents in order to reduce appreciably pollution of the natural environment in general, and, in particular, water pollution.

The requirements of the directive are meant to achieve total harmonization, that is to say, not only must Member States guarantee freedom of access to the Community market for detergents which satisfy the requirements of the directive, they must also prohibit the marketing of detergents not in keeping with them.

Under Article 2 of the directive the surfactants contained in detergents must have an average level of biodegradability of not less than 90% and use of them must not, under normal conditions of use, be harmful to human or animal health. Article 4 provides that compliance with the requirements of Article 2 shall be established by the methods of testing provided for in other Council directives.

Article 5 requires each Member State, should it find that a detergent does not comply with the requirements laid down in Article 2, to prohibit the placing on the market and use of that detergent in its territory. The same article also lays down a procedure whereby the Member States and the Commission are to supply each other with information and to consult one another in such cases. Article 7 stipulates that packaging for detergents must bear the name of the product and the name or trade-name and address or trademark of the party responsible for placing the product on the market.

As regards the action which Member States must take in relation to the directive, Article 8 provides for a period of 18 months from its notification for compliance with it and for informing the Commission of such compliance. The directive was notified on 27 November 1973, so that the prescribed period expired on 27 May 1975.

Italy did not comply with the provisions of the directive within the period laid down and the Commission, by letter of 23 December 1976, gave her an opportunity to submit her observations as provided under Article 169 of the Treaty.

It is apparent from the reply given to the Commission in a telex message of 17 February 1977 by the Permanent Representation for Italy that the Italian Ministry of Health had prepared a draft law to comply with the said directive which was submitted to the Council of Ministers. A copy of the draft law was sent to the Commission on 28 March 1977.

Not having received any information leading it to believe that the necessary measures had been taken, on 23 December 1977 the Commission sent the Italian Government a reasoned opinion. The Commission then extended the period prescribed for Italy to comply with the reasoned opinion in view of the fact that the legislative process had been suspended owing to a government crisis. By a telex message of 25 February 1978 the Permanent Representation for Italy informed the Commission that the draft law was before the Senate. Since that time no information has been received by the Commission.

These proceedings were begun on 22 May 1979 and the application was registered at the Court on 14 June 1979.

The Italian Republic has not submitted a rejoinder.

On 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 the Italian Republic, by failing to adopt within the prescribed periods the laws, regulations and administrative provisions needed in order to comply with Council Directive No 73/404/EEC of 22 November 1973 on the approximation of the laws of the Member States relating to detergents, has failed to fulfil its obligations under the Treaty:

Order the Italian Republic to pay the costs.

The Italian Government contends that the Court should:

Declare that the Commission's application is incomplete and inadmissible;

In the alternative, declare that the Italian Republic, for reasons not involving any lack of usual diligence, is only slow to adapt national legislation so as to conform to Directive No 73/404/EEC;

Order the parties to pay their own costs.

Ill — Submissions and arguments of the parties

In its application the Commission claims that the mandatory nature of the directive as regards the result to be achieved means that the Member States have a duty to observe the time-limits laid down. This is apparent from the case-law of the Court (cf. judgment in Case 10/76, Commission v Italian Republic [1977] ECR 1359).

Case-law (judgment in Case 100/77, Commission v Italian Republic [1978] ECR 879) clearly shows too that a Member State cannot rely upon domestic difficulties or provisions of its national legal system, even of a constitutional nature, for the purpose of justifying a failure to comply with obligations and time-limits resulting from Community directives.

In its defence the Italian Government points out that the directive corresponds to a number of national provisions which have to a large extent already achieved the objects of the directive. Thus, for example, the Italian Law No 125 of 3 March 1971 provides for a rate of biodegradability of not less than 80%, an obligation to give virtually the same information on packaging and labels as required under Article 7 of the directive and designates the controlling bodies for production of the trade in detergents.

The Italian Government states that it does not intend to raise the question whether the directive is valid in the light of the fact that combating pollution is not one of the tasks entrusted to the Community by the Treaty. Nevertheless it feels that the matter lies “on the fringe” of Community powers and that this is actually a convention drawn up in the form of a directive.

The Italian Government is not unaware that under the case-law of the Court “delay” is deemed to be “a refusal” and that both are classed under the general term “failure to fulfil an obligation”; however, it takes the view that it would be more correct to use the concept of the “substantial conflict” and to hold that there is such a conflict solely in the case of an express or implied refusal.

It asks the Court to examine whether, in order to settle this dispute, it is necessary to apply automatically a criterion of objective liability, or whether, on the contrary, it is possible and requisite to ascertain the actual circumstances behind this “delay”, namely the vicissitudes which were a feature of the brief existence of the seventh legislature of the Italian Parliament, and particularly its premature end.

The Italian Government hopes that the draft law, which will be laid before the new Parliament, will be passed within the shortest possible time so that these proceedings will lose their purpose.

In its reply the Commission contends that the provisions of the directive have a direct effect upon the establishment and the working of the Common Market. In its view it should be recognized that the directive in question does not on any view lie “on the fringe of Community powers”; there is no need to enter into the question whether a directive dealing only with a matter of environmental policy may be based on Article 100.

The duty to supply information designed to enable the Commission to check whether the laws of the Member States are in conformity with the directive relates to the provisions adopted after the directive is issued as well as those already in existence at that time. In its application the Commission does not complain that certain provisions of Italian law are not in conformity with the provisions of the directive but that there has been a failure to observe the obligation laid down in Article 8 of the directive to comply with it and to notify the measures taken; this failure is admitted by the Italian Government.

On the question whether an objective criterion should be applied to determine whether a Member State is guilty of an infringement or whether the factual circumstances giving rise to the failure to fulfil the obligation should be taken into account, the Commission takes the view that only an objective criterion may be used. The obligation laid down in Article 8 of the directive is clear, precise and objective. Domestic circumstances peculiar to one Member State cannot have any bearing on the nature of this obligation and cannot therefore determine whether there is a failure or not. That does not however preclude the Commission from taking account of such circumstances when the decision to commence or to continue the procedure laid down in Article 169 has to be taken.

In this case the Commission sent the reasoned opinion on 23 December 1977. However, the application commencing these proceedings was not sent until June 1979. The measures should have been adopted by 27 May 1975.

The Commission emphasizes that when adopting a directive Member States must take account of the problems which will arise when they have to transpose it into domestic law and that they must not give their agreement to a period with which they certainly cannot comply. It points out in this respect that directives based on Article 100 are adopted unanimously.

The Commission, represented by its Agent, A. Prozzillo, and the Italian Government, represented by F. Favara, Avvocato dello Stato, presented oral argument at the sitting of 8 January 1980.

The Advocate General delivered his opinion at the sitting on 5 February 1980.

Decision

1. By an application received at the Court Registry on 14 June 1979 the Commission applied to the Court under Article 169 of the EEC Treaty for a declaration that the Italian Republic had failed to fulfil an obligation under the Treaty by failing to adopt, within the prescribed period, the provision needed in order to comply with Council Directive No 73/404/EĖC of 22 November 1973 on the approximation of the laws of the Member States relating to detergents (Offical Journal L 347, p. 51).

2. According to Article 8 of the directive, Member States were required to put into force the measures needed to comply with it within eighteen months of its notification; the period expired in this case on 27 May 1975.

3. In its defence the Italian Government argues that its national legislation already contains provisions which to a large extent secure the realization of the objects of the directive.

4. It feels moreover that the subject-matter of the directive lies “at the fringe” of Community powers and that it is actually a convention drawn up in the form of a directive.

5. It argues that the delay in applying the directive in question arose from the fact that its efforts to fulfil its obligations under the said directives were thwarted by the vicissitudes which were a feature of the brief existence of the seventh legislature of the Italian Parliament, and particularly its premature end.

6. Even if it is true that Italian domestic law has to a large extent already secured the objectives of the directive, nevertheless the position remains that the Italian Republic has not completely complied with it, which moreover it does not deny, and it has not notified the Commission of the national measures adopted. It should be noted in this respect that the Member States are obliged to ensure the full and exact application of the provisions of any directive.

7. As regards the Italian Government's argument that the directive is actually a convention drawn up in this special form, it need only be recalled that the Court has already said in its judgment of 18 February 1970 (Case 38/69, Commission v Italy [1970] ECR 47) that a measure which has the features of a decision when viewed in the light of its objective and the institutional framework within which it has been drawn up, cannot be described as an “international agreement”. The same considerations apply where a Council directive is concerned.

8. As regards the observations of the Italian Government concerning the powers of the Community in the matter, it should be observed that the directive has been adopted not only within the Programme of Action of the Communities on the Environment; it also comes under the General Programme for the elimination of technical barriers to trade which result from disparities between the provisions laid down by law, regulation or administrative action in Member States, adopted by the Council on 28 May 1969. In this sense it is validly founded upon Article 100. Furthermore it is by no means ruled out that provisions on the environment may be based upon Article 100 of the Treaty. Provisions which are made necessary by considerations relating to the environment and health may be a burden upon the undertakings to which they apply and if there is no harmonization of national provisions on the matter, competition may be appreciably distorted.

9. Finally it should bė recalled that a Member State may not plead provisions, practices or circumstances existing in its internal system in order to justify a failure to comply with obligations and time-limits resulting from Community directives.

10. There are therefore grounds for declaring that by failing to adopt within the prescribed period the provisions necessary in order to comply with Council Directive No 73/404 of 22 November 1973, the Italian Republic has failed to fulfil an obligation under the Treaty.

Costs

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

12. Since the defendant has been unsuccessful it must be ordered to pay the costs.

On those grounds, THE COURT hereby:

1 Declares that the Italian Republic, by failing to adopt within the prescribed period the provisions needed in order to comply with Council Directive No 73/404/EEC of 22 November 1973 on the approximation of the laws of the Member States relating to detergents (Official Journal L 347, p. 51), has failed to fulfil an obligation under the Treaty;

2 Orders the defendant to pay the costs.