Report for the Hearing delivered in Case 113/86
I — Summary of the facts
1. In order to facilitate the adaptation of supply to demand on the market in poultry products, Regulation (EEC) No 2782/75 of the Council of 29 October 1975 on the production and marketing of eggs for hatching and of farmyard poultry chicks provides for measures to facilitate the introduction of short-term and long-term forecasts based on the knowledge of the means of production employed. For that purpose Article 9 of the regulation requires in particular each hatchery to communicate each month to the competent agency of the Member State the number of eggs placed in incubation, the number of chicks hatched and the number of chicks intended for actual use. Article 10 of the regulation is worded as follows: Commission Regulation (EEC) No 1868/77 of 29 July 1977 laying down detailed rules of application for Regulation No 2782/75 provides in Article 4 (1) that that summary must be drawn up in the standard form set out in the annex to the regulation. The second sentence of Article 4 (1) states that: Article 6 of Regulation No 1868/77 provides that:
‘(1) The Member States shall, as soon as the data referred to in Article 9 is received and analysed, communicate to the Commission a monthly summary based on the data for the previous month. In addition, the summary submitted by the Member States shall show the number of chicks imported and exported during the same month, according to species, category and type of poultry.
2) he Commission shall collate and use this summarized information. It shall inform the Member States thereof.’
‘This summary shall be forwarded by Member States to the Commission each calendar month not later than four weeks after the end of the month to which the figures refer.’
‘Before 30 January each year Member States shall send to the Commission statistics on the structure and activity of hatcheries, using the standard form contained in Annex II.’
2. By a letter of 1 August 1984 requesting the submission of observations, the Commission stated that the Government of the Italian Republic had not regularly forwarded to it the monthly and annual data in question. On 24 April 1985 the Commission sent a reasoned opinion to the Italian Government pursuant to the second paragraph of Article 169 of the EEC Treaty in which it stated that by failing to send to it within the periods laid down the statistical data referred to in Article 10 of Regulation No 2782/75 and Articles 4 (1) and 6 of Regulation No 1868/77, the Italian Republic had failed to fulfil its obligations under those articles. It requested the Italian Republic to comply with the reasoned opinion within a period of one month from its notification. In the opinion, the Commission stated that, since August 1983, it had received only complete monthly data for January and February 1983 and some data for February, March and April 1984. The last annual statistical return it had received was for 1982. By a telex message of 3 June 1985 the Italian Government informed the Commission that the sector concerned was in the course of radical restructuring, requested the Commission to give the Italian authorities a reasonable length of time in which to adapt the administrative structures and informed the Commission that the data relating to structures and incubation activity for 1983 and the monthly data for the period from July to December 1984 would be sent to the Commission very soon. In June 1985 the Italian authorities sent the data for 1983 concerning the structure and activities of hatcheries and the monthly data up to the end of December. Other monthly data was sent later and was supplemented in March 1986 by the monthly data relating to external trade for the period from February 1983 to June 1984. It is undisputed that the statistics for 1984 were sent on 28 June 1985 and those for 1985 on 4 April 1986.
II — Procedure and conclusions
1. By an application which was received at the Court on 16 May 1986 the Commission brought this action under the second paragraph of Article 169 of the EEC Treaty. The Commission claims that the Court should: (1) Declare that by failing to send to the Commission within the prescribed periods the statistical data referred to in Article 10 of Regulation No 2782/75 of the Council and Article 4 (1) and Article 6 of Commission Regulation No 1868/77, the Italian Republic has failed to fulfil its obligations under those articles; (2) Order the Italian Republic to pay the costs.ߣ
2. The Italian Republic contends that the Court should declare the action unfounded.
3. In the written procedure the parties exchanged a reply and 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.
III — Submissions and arguments of the parties
The Commission states that the Italian Republic has not observed the periods for sending in the annual statistics on the structure and activity of hatcheries referred to in Article 6 of Regulation No 1868/77 and the monthly summaries referred to in Article 10 of Regulation No 2782/75 and Article 4 (1) of Regulation No 1868/77. It points out that the need to carry out administrative restructuring can be no justification for such delay.
As regards the annual statistics, the Italian Government does not deny that the 1984 and 1985 statistics were submitted late, but it points out that that obligation had been complied with before the action was brought.
The Commission takes the view that that late fulfilment of obligations does not alter the matter because the breach of obligations consists of the same persistent conduct and the Italian Government has not observed the one-month period for complying with the reasoned opinion. The Commission refers in this regard to the judgment of the Court of 5 June 1986 in Case 103/84, Commission v Italy [1986] ECR 1759.
As regards the monthly summaries, the Italian Government points out that Article 4 of Commission Regulation No 1868/77, which provides that the summary must be forwarded within a period of four weeks, must be read in the light of Articles 9 and 10 of Regulation No 2782/75 of the Council which it is meant to implement. In this context, the four-week period is not rigid and mandatory but is merely presumptive evidence that four weeks is sufficient time if the hatcheries themselves forward their data in good time.
Article 9 of Regulation No 2782/75 of the Council requires hatcheries to supply the data to the authorities of the Member States. They for their part are responsible only for forwarding to the Commission, under Article 10 of that regulation, the statistics provided by hatcheries after they have been received and analysed. An interpretation of Article 4 of Regulation No 1868/77 of the Commission to the effect that the Member State must itself be responsible for the hatcheries' delay in providing those data is not acceptable. Such an interpretation would be incompatible with the provisions of Regulation No 2782/75 of the Council.
In the present case, the difficulties encountered by the Italian authorities in complying with the four-week period are not due to their own negligence but to the delay in the receipt of data, for which the hatcheries are responsible. Appropriate measures to ensure compliance with the obligations which Article 9 of Regulation No 2782/75 imposes directly on hatcheries are now being prepared. In holding the Italian authorities responsible for the delay in the forwarding of data the Commission is therefore confusing the Member State's obligation to ensure, by means of controls and sanctions appropriate to hatcheries, that the rules of the regulation remain effective and its obligation to forward the data to the Commission quickly.
The Commission takes the view that the four-week period laid down in Article 4 of Regulation No 1868/77, which the Italian Government has not contested on the basis of Article 173 of the EEC Treaty, is a fixed period which does not allow any delay. Upon the entry into force of Regulation No 2782/75 the Italian Republic ought to have adopted the measures needed to ensure that all the provisions of that regulation were observed on its territory, including Article 9. It cannot therefore plead, 11 years later, that the controls which it set up for hatcheries are ineffective in order to excuse its own authorities' delay in forwarding the data in question to the Commission.
U. Everling
Judge-Rapporteur
1 Language of the Case: Italian.