JUDGMENT OF 2. 12. 1980 — CASE 42/80 COMMISSION v ITALY

In Case 42/80

THE COURT composed of: J. Mertens de Wilmars, President, P. Pescatore (President of Chamber), Lord Mackenzie Stuart, A. O'Keeffe, G. Bosco, A. Touffait and O. Due, Judges, Advocate General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

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

I — Facts and written procedure

Directive No 73/361 is one of the numerous Community measures which, pursuant to Article 100 of the Treaty, are designed to eliminate technical obstacles to intra-Community trade resulting from the differences between national provisions which subject the marketing or use of certain products to particular technical specifications. It seeks to approximate the laws of Member States relating to the certification and marking of wire-ropes, round steel chains, and hooks to be used for lifting and handling. Lifting equipment which is not new and lifting equipment used on board ships and for railways, funicular railways and cableways are excluded from the scope of the directive.

The annex to the directive contains detailed provisions, both general and special, for the different types of equipment, concerning the information which is required to be contained on the certificates and marks within the Community.

As far as the action to be taken by the Member States under the directive is concerned, Article 6 provides for a period of 18 months from its notification within which to comply with it and to inform the Commission thereof.

In accordance with the procedure laid down in Articles 4 and 5 of the Council directive, the Commission, by Directive No 76/434, undertook the adaptation of Directive No 73/361 to technical progress. The annex to the latter directive was replaced by new technical specifications.

As far as the implementation of the Commission directive is concerned, Article 2 provides that the Member States must comply with it within a period of nine months following its notification and must inform the Commission thereof.

Directive No 73/361 was notified to the Member States on 25 November 1973 and Directive No 76/434 on 13 April 1976 so that the periods for implementation expired on 25 May 1975 and 13 January 1977 respectively. As Italy did not comply with the provisions of the two directives, the Commission, by a letter of 7 June 1977, gave it the opportunity to submit its observations in accordance with the first paragraph of Article 169 of the Treaty. In the absence of any reply from the Italian Government, the Commission, on establishing the continued absence of national legal provisions for implementing the directives, delivered a reasoned opinion dated 30 June 1978, which was addressed to the Italian Government by letter of 3 July 1978.

The Italian Government informed the Commission by telex on 4 September 1978 that a draft law had been approved by the Italian Council of Ministers on 30 June 1978 and submitted for examination by the relevant Senate committee. The Commission did not receive any further communication from the Italian authorities concerning the implementation of the directives.

This action was brought on 28 January 1980 and registered at the Court on I February 1980. Italy waived its right to lodge a rejoinder.

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.

II — Conclusions of the parties

The Commission claims that the Court should:

a) Declare that the Italian Republic, by failing to adopt within the period prescribed the provisions needed in order to comply with Council Directive No 73/361/EEC of 19 November 1973, and with Commission Directive No 76/434/EEC of 13 April 1976, on the approximation of the laws of the Member States relating to the certification and marking of wire-ropes, chains and hooks, has failed to fulfil one of its obligations under the Treaty;

b) Order the defendant to pay the costs.

The Italian Government did not put forward any conclusions.

III — Submissions and arguments of the parties In its application, the Commission claims that the binding nature of the directives, as to the result to be achieved, implies an obligation on the Member States to comply with the periods prescribed for the adoption of the national legal provisions, which are needed for their implementation.

The Court has stated this on several occasions. In this connexion it emphasized in Case 52/75 (Commission v Italy, [1976] ECR 277) that:

“The correct application of a directive is particularly important since the implementing measures are left to the discretion of the Member States and would be ineffective if the desired aims are not achieved within the prescribed time-limits. Although the provisions of a directive are no less binding on the Member States to which they are addressed than the provisions of any other rule of Community law, such an effect attaches a fortiori to the provisions relating to the periods allowed for implementing the measures prescribed, in particular since the existence of differences in the rules applied in the Member States after these periods have expired might result in. discrimination.”

Moreover, the Court pointed out that there was an infringement of Community law by a Member State, no matter which organ of the State it was whose act or omission was responsible for the failure, and stressed a Member State might 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 under Community directives.

In its defence the Italian Government points out that with a view to the implementation of the two directives, Draft Law No 1313 was tabled before the Italian Parliament, but lapsed owing to the early dissolution of that Parliament. The directives cited above have been included in Draft Law No 554, at present under examination by both Chambers, which delegates power to the Government to incorporate a series of Community directives into the internal legal system.

The Italian Government hopes that the parliamentary procedure regarding this draft law will be completed very shortly so that in this case it may be considered that the object of the action has been eliminated in substance.

In its reply, the Commission observes that the Italian Government does not give any details of the period required for the adoption of the draft law in question; consequently, the Commission maintains its conclusions.

The Commission, represented by its Agent, G. P. Alessi, and the Italian Republic, represented by the Avvocato dello Stato, I. M. Braguglia, presented oral argument at the sitting on 21 October 1980.

The Advocate General delivered his opinion during the same sitting.

Decision

1. By application lodged at the Court Registry on 1 February 1980 the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that by failing to adopt within the prescribed period the provisions needed in order to comply with Council Directive No 73/361 of 19 November 1973 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the certification and marking of wire-ropes, chains and hooks (Official Journal L 335, p. 51), and with Commission Directive No 76/434 of 13 April 1976, adapting the said Council Directive to technical progress (Official Journal L 122, p. 20), the Italian Republic has failed to fulfil one of its obligations under Article 189 (3) of the Treaty.

2. Pursuant to Article 6 of Council Directive No 73/361, Member States were obliged to put into force the measures needed in order to comply with that directive within 18 months of its notification, the period having expired in this case on 25 May 1975. Pursuant to Article 2 of Commission Directive No 76/434, Member States were obliged to put into force the measures needed in order to comply with that directive within nine months of its notification, the period having expired in this case on 13 January 1977.

3. The Italian Government does not dispute the fact that it has not satisfied that obligation. It merely states that the delay in applying the directives in question is due to the fact that its attempts to fulfil its obligations under the said directives have not succeeded owing to political and parliamentary events. A draft law was tabled before the Italian Parliament during the previous session but lapsed owing to the early dissolution of that Parliament.. In order to adapt the internal legal system more rapidly to Community directives, the Italian Government has subsequently asked the Parliament for the delegation of legislative powers, as provided for in Article 76 of the Constitution, in order that provisions having the force and status of law, which were necessary for the implementation of a body of Community directives including those in question, might be adopted by decree. Such delegation was approved by the Senate on 16 July 1980, by the adoption of an appropriate draft law, which is at present under examination by the Chamber of Deputies.

4. These circumstances do not expunge the failure to fulfil its obligations, with which the Italian Republic is charged. According to the well-established caselaw, 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. It must therefore be declared that by failing to adopt, within the prescribed periods, the provisions needed in order to comply with Council Directive No 73/361 of 19 November 1973 and Commission Directive No 76/434 of 13 April 1976, the Italian Republic has failed to fulfil one of its obligations under the Treaty.

Costs

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

7. Since the defendant has failed in its submissions, it must be ordered to pay the costs.

On those grounds, THE COURT hereby:

1 Declares that, by failing to adopt, within the prescribed period, the provisions needed in order to comply with Council Directive No 73/361 of 19 November 1973, on the approximation of the laws, regulations and administrative provisions of the Member States relating to the certification and marking of wire-ropes, chains and hooks (Official Journal L 335, p. 51) and with Commission Directive No 76/434 of 13 April 1976 adapting the said Council directive to technical progress (Official Journal L 122, p. 20), the Italian Republic has failed to fulfil one of its obligations under the Treaty;

2 Orders the defendant to pay the costs.