Report for the Hearing delivered in Case 363/85

I — Facts

1. In essence Council Directive 80/502/EEC of 6 May 1980 amending Directive 74/63/EEC on the fixing of maximum permitted levels for undesirable substances and products in feedingstuffs (Official Journal 1980, L 124, p. 17) supplements the definitions of technical terms referred to in Directive 74/63/EEC, namely the terms ‘animals’, ‘pet animals’and ‘compound feedingstuffs’. Article 2 of Directive 80/502/EEC provides that the Member States are to bring into force, on 1 July 1981, the laws, regulations and administrative provisions necessary to comply with the directive. It also provides that they are to inform the Commission thereof forthwith.

2. The Commission failed to receive from the Italian Government any communication concerning implementation measures and had no other information suggesting that the Italian Republic had fulfilled its obligation to adopt the requisite provisions. Consequently, in a letter dated 22 December 1983 it gave the Italian Government formal notice, in accordance with the procedure provided for in Article 169 of the EEC Treaty, to submit its observations on the matter within two months.

3. By a letter dated 25 February 1984 the Italian authorities replied that a draft law to transpose the provisions and definitions set out in Article 1 (1), (2) and (3) of the directive into national law was under consideration by the Italian Government.

4. Thereafter the Commission received no communication that would allow it to conclude that the requirements imposed on the Italian Republic by the directive in question had been fulfilled. On 7 June 1985 the Commission delivered a reasoned opinion pursuant to the first paragraph of Article 169 of the EEC Treaty in which it stated that, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with Directive 80/502/EEC, the Italian Republic had failed to fulfil its obligations under the Treaty. Pursuant to the second paragraph of Article 169 of the Treaty the Commission asked the Italian Republic to take the necessary measures to comply with that opinion within two months of its notification. The Commission received no reply to its reasoned opinion, which was notified to the Italian Republic by letter dated 7 June 1985.

II — Written procedure and conclusions of the parties

1. By an application lodged at the Court Registry on 25 November 1985 the Commission brought an action before the Court, pursuant to the second paragraph of Article 169 of the EEC Treaty, concerning the alleged failure of the Italian Republic to adopt, within the prescribed period, the provisions necessary to comply with Directive 80/502/EEC.

2. Upon hearing the repon of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preliminary inquiry.

3. The applicant, the Commission, claims that the Court should: Declare that, by failing to adopt within the prescribed period the provisions necessary to comply with Council Directive 80/502/EEC of 6 May 1980 amending Directive 74/63/EEC on the fixing of maximum permitted levels for undesirable substances and products in feedingstuffs, the Italian Republic has failed to fulfil its obligations under the EEC Treaty; Order the Italian Republic to pay the costs.

4. The defendant, the Italian Republic, claims that the Court should: Dismiss the application; Order the applicant to pay the costs.

III — Submissions and arguments of the parties

1. The Commission states that under the third paragraph of Article 189 of the EEC Treaty directives are binding, as to the result to be achieved, upon each Member State to which they are addressed and that, under the first paragraph of Article 5 of the Treaty, Member States are to take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of the Treaty or resulting from action taken by the institutions of the Community. The Commission points out that Article 2 of Directive 80/502/EEC provides that the Member States are to bring into force, on 1 July 1981, the provisions necessary to comply with the directive and that they are to inform the Commission thereof forthwith. It further points out that the Italian Republic nevertheless failed to adopt the measures required by the aforesaid directive within the period prescribed. The Commission makes it clear, in its reply, that its action concerns Article 1 (3) of the directive, which supplements Article 2 of Directive 74/63/EEC by adding definitions of the terms ‘animals’, ‘pet animals’ and ‘compound feedingstuffs’, since the other provisions of the directive do not require the adoption of ‘necessary provisions’. The Commission contends that it is contradictory for the defendant, on the one hand, to declare that everything is in order and, on the other, to submit a draft law on the matter to the national parliament. The explanation is that the definitions in question do not appear in the laws cited by the defendant. The sole definition clearly expressed in Article 1 of the Italian Law of 8 March 1968 relates to compound feedingstuffs, which are defined as follows: ‘compound feedingstuffs’ means preparations obtained by appropriately combining two or more straight feedingstuffs. In the Commission's view, that definition does not coincide with that given in the directive.

2. The Italian Government replies that the action is devoid of any legal foundation. The Italian Republic observes in the first place that the Commission has not specified the provisions of Directive 80/502 to which the general infringement with which the Italian Republic is charged should be related. Secondly, it claims that the Commission should have indicated the repercussions of the amendments introduced by Article 1 (3) of the directive. The Italian Republic states that, in any event, the definitions set out in Article 1 (3) of the directive can be found in Italian Law No 281 of 15 February 1963 as amended by Law No 399 of 8 March 1968 and the Ministerial Decrees relating thereto. Even if it is not possible to identify the corresponding formal definitions in the Italian legislation, the recipients of the feedingstuffs (animals and pet animals) and the characteristics of the feedingstuffs, including compound feedingstuffs, emerge clearly from the relevant national rules taken as a whole. Furthermore, the fact that the Italian legislation does not reproduce exactly the definitions contained in the directive cannot constitute a failure to implement the directive, especially since the Commission has not indicated the substantive implications of the difference in the definitions, despite the request made to that effect in the defence. Consequently, the Italian Republic contends that, from the point of view of the substance and the result to be achieved, it has by no means failed to fulfil its obligations. In any event, a draft law, which was submitted to the Italian Parliament some time ago, will also guarantee that the definitions in question are formally incorporated into national law.

F. Schockweiler

Judge-Rapporteur

1 Language of the Case: Italian.