JUDGMENT OF 4. 2. 1981 — CASE 44/80 COMMISSION í ITALY
In Case 44/80
THE COURT composed of: J. Mertens de Wilmars, President, P. Pescatore, Lord Mackenzie Stuart and T. Koopmans (Presidents of Chambers), A. O'Keeffe, G. Bosco, A. Touffait, O. Due and U. Everling, Judges, Advocate General: G. Reischl 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
Council Directive 76/116/EEC of 18 December 1975 (Official Journal 1976, L 24, p. 21), which was notified to the Member States on 19 December 1975, has as its object the approximation of the laws of the Member States relating to fertilizers. It concerns more particularly provisions relating to the designation and composition of straight and compound fertilizers, to the designation “EEC fertilizer” and also to the identification, packaging and labelling of those fertilizers. Under Article 12 of the Directive, the Member States were required to bring into force the provisions necessary to comply therewith within 24 months of its notification, that is, not later than 19 December 1977. Articles 9 to 11 of the Directive lay down a procedure for adjusting certain of its annexes to technical progress. In application of that procedure the Commission adopted Directive 77/535/EEC on 22 June 1977 (Official Journal 1977, L 213, p. 1). Under Article 2 of that Directive it lay with the Member States to bring into force not later than 19 December 1977 the provisions necessary in order to comply therewith.
Since none of the measures necessary in order to comply with Council Directive 76/116/EEC and Commission Directive 77/535/EEC had been adopted by the Italian Republic, the Commission invited the Italian Government by letter of 27 July 1978 to submit its observations pursuant to Article 169 of the Treaty within a period of two months.
No reply having been received, the Commission, after establishing the continued absence of national provisions for implementing the directives, delivered a reasoned opinion on 18 May 1979 and requested the Italian Government to comply therewith within a period of two months.
By a memorandum of 24 July 1979 from its Permanent Representation, the Italian Government informed the Commission that the complexity of the subject-matter, both from a technical point of view and from the standpoint of its economic complications, gave rise to the delay in drafting the legislative measure needed in order to comply with Directive 76/116/EEC. It is also claimed that implementation of Commission Directive 77/535/EEC was possible only on the entry into force of the legislative measure required by Council Directive 76/116/EEC.
By application registered at the Court Registry on 4 February 1980 the Commission brought this action concerning the failure of the State to fulfil its obligations. The defendant did not 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:
Declare that by failing to adopt, within the prescribed period, the provisions necessary in order to comply with Council Directive 76/116/EEC of 18 December 1975 on the approximation of the laws of the Member States relating to fertilizers and Commission Directive 77/535/EEC of 22 June 1977 on the approximation of the laws of the Member States relating to methods of sampling and analysis for fertilizers the Italian Republic has failed to fulfil one of its obligations under the Treaty;
Order the defendant to pay the costs.
The Italian Government did not put forward any conclusions.
III — Submissions and arguments of the parties
The Commission contends that the binding nature of directives implies that Member States are obliged to comply with the period prescribed for the adoption of the national legal provisions necessary for their implementation. In that regard it refers to the judgment of 26 February 1976 in Case 52/75, Commission of the European Communities v Italian Republic [1976] ECR 277 in which the Court also stated that it must be remembered that 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 such time-limits.
The Italian Government stresses that the incorporation of Council Directive 76/116/EEC into its national legal system requires a special legislative measure, which will lay down new rules for the entire fertilizer sector. A draft law has been laid before the chambers. Once adopted, it will incorporate Council Directive 76/116/EEC into the national legal system and will serve as the basis for a ministerial order which will ensure the implementation of Commission Directive 77/535/EEC. The Italian Government hopes that the draft law will be adopted very shortly.
In its reply the Commission points out that the Italian Government disputes neither in fact nor in law its alleged failure to fulfil its obligations and maintains its conclusions.
IV — Oral procedure
The parties presented oral argument at the sitting on 25 November 1980.
The Advocate General delivered his opinion at the sitting on 16 December 1980.
Decision
1. By application lodged at the Court Registry on 4 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 necessary in order to comply with Council Directive 76/116/EEC of 18 December 1975 on the approximation of the laws of the Member States relating to fertilizers (Official Journal 1976, L 24, p. 21) and Commission Directive 77/535/EEC of 22 June 1977 on the approximation of the laws of the Member States relating to methods of sampling and analysis for fertilizers (Official Journal 1977, L 213, p. 1) the Italian Republic has failed to fulfil its obligations under the third paragraph of Article 189 of the Treaty.
2. Under Article 12 of Council Directive 76/116/EEC in conjunction with Article 2 of Commission Directive 77/535/EEC, the Member States were obliged to bring into force the provisions necessary in order to comply with those directives within a period which expired on 19 December 1977.
3. The Italian Government does not dispute that it has not fulfilled those obligations. It explains the delay in the incorporation of the two directives into the national legal system by the need for the preparation and approval of a special legislative measure which will lay down new rules for the entire fertilizer sector. A draft law has been laid before the chambers and the parliamentary procedure is talcing its course. Once it has entered into force, that law will ensure the incorporation of Council Directive 77/535/EEC into the national legal system.
4. Those circumstances do not expunge the failure to fulfil its obligations with which the Italian Republic is charged. According to well-established case-law, 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 held that by failing to adopt, within the prescribed period, the provisions necessary in order to comply with Council Directive 76/116/EEC and Commission Directive 77/535/EEC, 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 must be ordered to pay the costs if they have been asked for in the successful party's pleading. 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 necessary in order to comply with Council Directive 76/116/EEC of 18 December 1975 on the approximation of the laws of the Member States relating to fertilizers (Official Journal 1976, L 24, p. 21) and Commission Directive 77/535/EEC of 22 June 1977 on the approximation of the laws of the Member States relating to methods of sampling and analysis for fertilizers (Official Journal 1977, L 213, p. 1) the Italian Republic has failed to fulfil one of its obligations under the Treaty;
2 Orders the defendant to pay the costs.