JUDGMENT OF 5. 6, 1984 — CASE 280/83 COMMISSION / ITALY

In Case 280/83

THE COURT composed of: Lord Mackenzie Stuart, President, T. Koopmans and Y. Galmot, (Presidents of Chambers), G. Bosco, U. Everling, C. Kakouris and R, Joliét, Judges, Advocate General: Sir Gordon Slynn Registrar: H. A. Rühi, Principal Administrator

gives the following

JUDGMENT

Facts and Issues

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

I — Facts and procedure

1. The purpose of Council Directive 79/32 of 18 December 1978 on taxes other than turnover taxes which affect the consumption of manufactured tobacco (Official Journal 1979, L 10, p. 8) is to define the different kinds of manufactured tobacco. Article 9 provides that the Member States must bring into force the laws, regulations and administrative provisions necessary to comply with the directive not later than 1 January 1980 and that they must forthwith inform the Commission thereof,

2. Since the Italian Republic did not inform the Commission of the measures taken to comply with the directive, the Commission assumed that the Italian Republic had not yet taken such measures and, by a letter of 1 October 1981, invited the Italian Government to submit its observations within one month.

3. By a letter dated 20 November 1981, the Permanent Representation of Italy to the European Communities informed the Commission that on 16 May 1980 the Italian Government had presented a draft Law to Parliament whose purpose was in particular to implement Directive 70/32.

4. The Commission, considering that, since no provisions had yet been adopted, the Italian Government's reply was insufficient, delivered a reasoned opinion on 13 July 1982.

5. By a letter dated 28 July 1982, the Permanent Representation merely acknowledged receipt of the reasoned opinion.

6. After deciding that the Italian Republic had not adopted any provisions to comply with Directive 79/32, the Commission brought an action under the second paragraph of Article 169 of the Treaty for a declaration that the Italian Republic had failed to fulfil its obligations under the Treaty.

7. The Commission's application was lodged at the Court Registry on 19 December 1983. The written procedure followed its normal course. However, òri 26 March 1984 the Commission indicated that it did not intend to lodge a reply.

8. 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

Only the Commission presented conclusions. It claims that the Court should:

Declare that, by failing to adopt within the prescribed period the provisions needed to comly with Council Directive 79/32/EEC of 18 December 1979 on taxes other than turnover taxes which affect the consumption of manufactured tobacco, the Italian Republic has failed to fulfil its obligations under the EEC Treaty;

Order the Italian Republic to pay the costs.

III — Submissions and arguments of the parties

1. The Commission relies on the terms of the third paragraph of Article 189 of the Treaty according to which directives are binding, as to the result to be achieved, upon each Member State to which they are addressed. It also points out that the first paragraph of Article 5 of the Treaty requires Member States to take all appropriate measures, whether general or particular, to ensure fulfilmet of the obligations arising out of the Treaty or resulting from action taken by the institutions of the Community. Finally, the Commission adds that it is a well-established case-law that those provisions of the Treaty require the Member States to bring their national law into line with directives within the time-limits laid down in them and that a Member State may not plead provisions, practices or circumstances existing in its own internal legal order in order to justify a failure to comply with obligations and time-limits laid clown in Community directives.

2. The Government of the Italian Republic draws attention to the fact that a draft Law (No 1697) was presented to the Chamber of Deputies on 16 May 1980. That draft Law was abandoned as a result of an early dissolution of the Chamber. The Italian Government adds that a new draft Law is now being prepared in order to implement the directive in question as quickly as possible.

IV — Oral procedure

The Commission of the European Communities, represented by G. Berardis, acting as Agent, and the Italian Republic, represented by O. Fiumara, Avvocato dello Stato, presented oral argument at the sitting on 8 May 1984.

The Advocate General delivered his opinion at the same sitting.

Decision

1. By an application lodged at the Court Registry on 19 December 1983, 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 to comply with Council Directive 79/32/EEC of 18 December 1978 on taxes other than turnover taxes which affect the consumption of manufactured tobacco, the Italian Republic has failed to fulfil its obligations under the EEC Treaty.

2. The purpose of Council Directive 79/32 of 18 December 1978 on taxes other than turnover taxes which affect the consumption of manufactured tobacco (Official Journal 1979, L 10, p. 8) is to define the different kinds of manufactured tobacco. Article 9 provides that the Member States must bring into force the laws, regulations or administrative provisions necessary to comply with the directive not later than 1 January 1980 and that they must forthwith inform the Commission thereof.

3. The Italian Government does not deny that it has not fulfilled that obligation. It states that the delay in implementing the directive is due to the fact that Draft Law No 1697, which was laid before the Chamber of Deputies on 16 May 1980 for that purpose, could not complete the parliamentary procedure because of the early dissolution of Parliament. A new draft Law is being prepared in order to implement the directive as quickly as possible.

4. Those circumstances cannot expunge the failure to fulfil one of its obligations with which the Italian Republic is charged. According to wellestablished case-law of the Court, 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 laid down in Community directives.

5. It must therefore be held that, by failing to adopt within the prescribed period the provisions needed to comply with Council Directive 79/32/EEC of 18 December 1978, the Italian Republic has failed to fulfil its obligations under the EEC Treaty.

Costs

6. Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. 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 to comply with Council Directive 79/32/EEC of 18 December 1978 on taxes other than turnover taxes which affect the consumption of manufactured tobacco (Official Journal 1979, L 10, p. 8), the Italian Republic has failed to fulfil its obligations under the EEC Treaty;

2 Orders the defendant to pay the costs.