JUDGMENT OF 17. 2. 1981 — CASE 171/80 COMMISSION v ITALY

In Case 171/80

THE COURT, composed of: J. Mertens de Wilmars, President, P. Pescatore and T. Koopmans (Presidents of Chambers), A. O'Keeffe, G. Bosco, A. Touffait, O. Due, U. Everling and A. Chloros, Judges, Advocate General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

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

I — Facts and written procedure

Directive 76/769 is intended to approximate the laws of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations. It deals in particular with polychlorinated biphenyls (excluding mono- and dichlorinated biphenyls), with polychlorinated terphenyls, which are prohibited except for certain purposes, and with monomer vinyl chloride, which may not be used as an aerosol propellane

That directive was notified on 2 August 1976; by the terms of Article 3 thereof Member States should have adopted the measures needed to implement it by 2 February 1978.

On 14 June 1977 the Permanent Representation of Italy informed the Commission that a draft Law had been prepared in order to implement the directive. No further communication was made to the Commission on this matter.

By a letter of 29 January 1979 the Commission informed the Italian Government that it believed that Italy had failed to fulfil its obligations under the EEC Treaty and invited it to submit its observations.

No direct reply was received to that letter. However, on 18 March 1979 the Italian Government informed the the Commission that it had submitted to parliament a draft Law to authorize the Government to adopt the provisions needed to adjust the national legal system in accordance with a large number of Community directives, one of which was Directive 76/769/EEC.

Having heard nothing further, on 9 October 1979 the Commission sent a reasoned opinion to Italy pursuant to the first paragraph of Article 169 of the Treaty inviting it to adopt within a period of two months the measures needed to discharge its obligations. That reasoned opinion did not receive any reply.

This application was lodged on 24 July 1980 and registered at the Court on 28 July 1980. By a letter of 29 September 1980 the Commission stated its intention not to submit a reply.

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 preliminary inquiry.

II — Conclusions of the parties

The Commission claims that the Court should:

Declare that by not adopting within the prescribed period the provisions needed to comply with Council Directive 76/769/EEC the Italian Republic has failed to fulfil one of its obligations under the Treaty;

Order the Italian Republic to pay the costs.

The Italian Republic did not put forward any conclusions.

III — Submissions and arguments of the parties

In its application the Commission submits that the binding nature of directives, as to the result to be achieved, implies that Member States are bound to observe the periods laid down by them.

The Court declared in the judgment of 26 February 1976 in Case 52/75 Commission v Italian Republic [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.”

Furthermore, in the judgment of 11 April 1978 in Case 100/77 Commission v Italian Republic [1978] ECR 879 and in the judgment of 22 February 1979 in Case 163/78 Commission v Italian Republic [1979] ECR 771 the Court made it plain that a Member State “cannot rely upon domestic difficulties or provisions of its national legal system, even its constitutional system, for the purpose of justifying a failure to comply with obligations and periods resulting from Community directives”.

In its defence the Italian Government stresses that in order to accelerate the adaptation of its legal system in accordance with the Community directives it recently took the step of requesting Parliament to delegate the legislative powers provided for by Article 76 of the Constitution in order to facilitate by means of decrees the promulgation of rules, having legal force and status, required to implement a number of Community directives. The delegation was approved by the Senate on 16 July 1980 when it passed a special draft Law which has been sent to the Chamber of Deputies for scrutiny.

The Italian Government observes that the relatively long duration of the legislative process of delegating authority is due to the high number of directives involved in that process and thus to the broad scope of the powers to be delegated; but the time lost will be more than made up by the impetus given to such comprehensive action for incorporating Community principles on standardization.

The priority given to the entire procedure evinces the Italian Government's firm intention to meet its Community commitments on directives and is a guarantee that there can be no doubt that the directives on the marketing and the use of dangerous substances and preparations will be incorporated into the Italian legal system.

The Commission, represented by Alberto Prozzillo, acting as Agent, and the Italian Republic, represented by Ivo Maria Braguglia, Avvocato dello Stato, acting as Agent, presented oral argument at the sitting on 13 January 1981.

The Advocate General delivered his opinion at the sitting on 28 January 1981.

Decision

1. By application lodged at the Court Registry on 28 July 1980 the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that by not adopting within the prescribed period the provisions required in order to comply with Council Directive 76/769/EEC of 27 July 1976 on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations (Official Journal 1976 L 262, p. 201), the Italian Republic has failed to fulfil one of its obligations under the EEC Treaty.

2. By Article 3 of Council Directive 76/769/EEC Member States were to bring into force the measures needed to comply with it within a period of 18 months from its notification; that period expired in this case on 2 February 1978.

3. The Italian Government does not contest that it has not discharged that obligation. It states that “the accelerated process of European integration places on Member States to which directives are addressed under Article 189 of the Treaty a considerable number of obligations concerning the adaptation of their internal systems, which, as regards the procedures to be gone through for the enactment of legal rules, may prove more or less difficult depending on the legislative principles in those systems and on the degree of innovation required by the legal system governing the matter in question”. It adds that “as Community directives affect relationships governed by law they make it necessary to resort to legislative procedures the duration of which is determined by requirements and events peculiar to the parliamentary process”. In order to accelerate the adaptation of its legal system in accordance with the Community directives the Italian Government has taken the step of requesting Parliament to delegate the legislative powers provided for by Article 76 of the Constitution in order to enact by means of decrees rules, having legal force and status, required to implement a number of Community directives, including the one in question. The delegation was approved by the Senate on 16 July 1980 when it passed a special draft Law now under scrutiny by the Chamber of Deputies.

4. Those circumstances cannot 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 the obligations imposed by Community directives.

5. It is therefore necessary to declare that by not adopting within the prescribed period the provisions needed to comply with Council Directive 76/769/EEC of 27 July 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 is to be ordered to pay the costs.

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

On those grounds, THE COURT hereby:

1 Declares that, by not adopting within the prescribed period the provisions needed to comply with Council Directive 76/769/EEC of 27 July 1976 on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations (Official Journal 1976 L 262, p. 201), the Italian Republic has failed to fulfil one of its obligations under the Treaty;

2 Orders the defendant to pay the costs.