C-100/77

In Case 100/77

Commission of the European Communities , represented by its Legal Adviser, Armando Toledano-Laredo, acting as Agent, with an address for service in Luxembourg at the offices of Mario Cervino, Jean Monnet Building, Kirchberg,

applicant, v

Italian Republic, represented by its Ambassador, Adolfo Maresca, acting as Agent, assisted by the Avvocato dello Stato, Arturo Marzano, with an address for service in Luxembourg at the Italian Embassy,

defendant,

APPLICATION for a declaration that the Italian Republic has failed to fulfil its obligations under Council Directives Nos 71/316 /EEC, 71/317/­ EEC, 71/318 /EEC, 71/347 /EEC, 71/349/EEC, 71/354/EEC, 73/360/­ EEC, 73/362/EEC and 74/148/EEC and Commission Directive No 74/­

gives the following

JUDGMENT

Facts and Issues

The facts, procedure, conclusions and first letter referred only to the first eight submissions and arguments of the directives, in respect of which the last of parties may be summarized as follows: the periods within which they were to be implemented expired on 21 April 1973). The period for submitting a reply I — Facts and procedure was extended to no effect.

On 15 October 1975 the Commission Between 1971 and 1974, the Council requested the Italian Government to and the Commission adopted ten submit within one month its obser­ directives on the approximation of the vations on its inactivity following the laws of the Member States in the field entry into force of four other directives, of measuring instruments. The Italian one of which was adopted by the authorities did not adopt within the Commission (the periods during which prescribed period the measures provided those directives were to be implemented for by those directives, the prescribed had expired between 21 May 1975 and periods expiring between 29 January 21 June 1975). 1973 and 6 September 1975. On 1 December 1975, the Italian On 14 February 1975 the Commission, Minister for Industry announced that in view of the inactivity of the Italian two draft laws corresponding to the authorities, requested the Italian contents of those four directives had Government to submit within one been put before the parliament and that month its observations in accordance he hoped that its "passage through par­ with Article 169 of the EEC Treaty (this liament" could be accomplished shortly.

A reasoned opinion was sent in respect "So far as the procedure is concerned, of the first eight directives on 22 the Commission states that it will not December 1975; the Italian authorities lodge a reply. acknowledged receipt of that opinion It therefore concludes that the on 5 January 1976. procedure should enter the oral stage." On 4 June 1976, the Commission The Court, after hearing the report of delivered a fresh reasoned opinion the Judge-Rapporteur and the views of relating to the other four directives. the Advocate General, decided to open On 28 July 1977, the Commission the oral procedure without any preparatory inquiry. instituted proceedings for a declaration that the Italian Government had failed to fulfil its obligations under ten II — Submissions and argu­ directives of the 12 in question, leaving ments of the parties put aside the two Council directives relating forward during the written to measuring instruments for liquids procedure concerned in the first reasoned opinion. By letter lodged on 16 September 1977, The causes of any failure to fulfil its the Italian Ministry for Foreign Affairs obligations under the Treaty of which sent the Court of Justice the following the Italian Government is accused have document: been put forward by the latter in various documents and in particular in a "The Italian Government, represented telegram sent to the Commission on 22 by the Agent of the Government, July 1976: Adolfo Maresca, Ambassador, having taken note of the proceedings instituted "Above-mentioned directives may only by the European Community under be incorporated into Italian legislation by specific law. For this purpose, as Article 169 of the EEC Treaty on the communicated by Memorandum No ground of failure to apply Council Directives Nos 71/316/EEC, 71/317/­ 484 of 22 January 1976, two draft laws have been put before the sixth EEC, 71/318/EEC, 71/347/EEC, legislature of the parliament for exam­ 71/349/EEC, 71/354/EEC, 73/360/­ ination. Early dissolution of the EEC, 73/362/EEC and 74/148/EEC and Commission Directive No 74/331/­ chambers has resulted in delay in the passage of two draft laws which may EEC, on the approximation of the laws only be continued after resumption of of the Member States in the field of the legislative activities of the chambers measuring instruments, recalls its elected on 20 June. It is therefore intention to expedite as much as essential to have an appropriate possible the procedures already initiated extension of the period laid down etc. some time ago for the purpose of incor­ porating Community provisions in the The Commission recalls the need to national legal system and hopes that the Commission's request can be made ensure that the duty to implement the purposeless as soon as possible by the directives is complied with which has removal of the subject-matter of the been recognized on several occasions by the Court, in particular in the judgment dispute." in Case 52/75 (Commission of the By letter of 11 November 1977 the European Communities v Italian Commission took note of the letter Republic, judgment of 26 February 1976 from the Italian Government but stated [1976] ECR 277). The Commission that: emphasizes, in reply to the argument

relating to the parliamentary procedures lar bar weights and 1 to 10 and the delay therein, that the case-law kilogramme medium accuracy of the Court "makes it clear, moreover, cylindrical weights (Official Journal, that the Member States cannot rely English Special Edition 1971 (II), p. upon provisions or practices in their 721). own domestic legal system or on — Council Directive No 71/318/EEC physical circumstances of a national of 26 July 1971 on the approxi nature in order to justify failure to mation of the laws of the Member comply with the duties and periods States relating to gas volume meters prescribed by the Community (Official Journal, English Special

1). Within the context of that — Council Directive No 71/354/EEC programme the following directives, whose contents the Commission sets of 18 October 1971, amended by Article 29 and Annex I to the Act out, were adopted in turn: concerning the Conditions of — Council Directive No 71/316/EEC Accession, on the approximation of of 26 July 1971, amended by the laws of the Member States Articles 29 and 30 and the

health, public safety or gical control. administrative purposes. — Council Directive No 71/317/EEC — Council Directive No 73/360/EEC of 26 July 1971 on the approxi of 19 November 1973 on the mation of the laws of the Member approximation of the laws of the States relating to 5 to 50 kilo Member States relating to non- gramme medium accuracy rectangu- automatic weighing machines

Decision

1 By an application lodged at the Registry on 2 August 1977, the Commission brought before the Court under Article 169 of the EEC Treaty an application for a declaration that, by not adopting within the prescribed periods, the laws, regulations or administrative provisions needed in order to comply with Council Directives Nos 71/316, 71/317, 71/318, 71/347, 71/349, 71/354, 73/360, 73/362, 74/148 and Commission Directive No 74/331, on the approximation of the laws of the Member States in the field of measuring instruments, the Italian Republic has failed to fulfil an obligation under the Treaty.

JUDGMENT OF 11. 4. 1978 — CASE 100/77

2 These directives form part of a series of provisions relating to measuring instruments expressly provided for in the General Programme for the elimination of technical barriers to trade which result from disparities between the provisions laid down by law, regulation or administrative action in Member States which was adopted by the Council on 28 May 1969 (Official Journal, English Special Edition, Second Series, IX, p. 25).

3 This general programme was implemented by an outline directive of the Council, Directive No 71/316/EEC of 26 July 1971 on the approximation of the laws of the Member States relating to common provisions for both measuring instruments and methods of metrological control (Official Journal, English Special Edition 1971 (II), p. 707), amended by Articles 29 and 30 and the corresponding annexes to the Act concerning the Conditions of Accession, whose aim was essentially to harmonize the national provisions relating to the control of those instruments and which was based on the fundamental principle of mutual recognition of controls.

describes the Community requirements relating to the calibration method intended to ensure that the quantity of liquid in tanks, including the liquid fuel bunkers, of inland waterway vessels and of national and international coasters, calibrated by this method can be measured at all times and with sufficient accuracy.

7 Council Directive No 71/354/EEC of 18 October 1971 on the approxi­ mation of the laws of the Member States relating to units of measurement (Official Journal, English Special Edition 1971 (III), p. 878), amended by Article 29 and Annex I to the Act concerning the Conditions of Accession, emphasizes the interdependence of the rules concerning units of measurement and those concerning measuring instruments and harmonizes the national provisions so as to ensure harmonious application of existing and future Community directives relating to measuring instruments and methods of metrological control.

8 Council Directive No 73/360/EEC of 19 November 1973 on the approxi­ mation of the laws of the Member States relating to non-automatic weighing machines (Official Journal L 335) fixes the technical requirements for the design and functioning of this type of instrument.

9 Council Directive No 73/362/EEC of 19 November 1973 on the approxi­ mation of the laws of the Member States relating to material measures of length (Official Journal L 335) lays down the technical requirements which must be fulfilled by material measures of length in order that they may be imported, marketed and freely used after they have been subject to controls and the marks and symbols laid down have been affixed to them.

14 The directives were notified to the Italian Republic on the following dates:

— 29 July 1971 in the case of Directives Nos 71/316/EEC, 71/317/EEC and 71/318/EEC,

— 15 October 1971 in the case of Directives Nos 71/347/EEC and 71/349/EEC,

— 21 October 1971 in the case of Directive No 71/354 /EEC,

— 21 November 1973 in the case of Directives Nos 73/360/EEC and 73/362/EEC,

— 6 March 1974 in the case of Directive No 74/148/EEC

18 On 22 January 1976, the Italian Government informed the Commission that draft laws relating to the incorporation of the above-mentioned directives into Italian legislation had been laid before the parliament.

19 On 22 July 1976 it announced that because of the premature end of the sixth legislative period the draft laws laid before the parliament had lapsed and requested an extension of the period laid down in the reasoned opinion, giving an assurance that the problem in question would be rapidly sealed.

20 As the Commission had received no other information since that date it lodged on 28 July 1977 an application for a declaration that the Italian Government had failed to fulfil an obligation under the Treaty.

21 The defendant, who does not deny the failure to failure to fulfil obligations under the Treaty of which it is accused, 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.

22 It follows that since it did not put into force within the prescribed periods the provisions needed to comply with Council Directives Nos 71/316, 71/317, 71/318, 71/347, 71/349, 71/354, 73/360, 73/362 and 74/148 and Commission Directive No 74/331, on the approximation of the laws of the Member States in the field of measuring instruments, the Italian Republic has failed to fulfil an obligation under the Treaty.

Costs

2. Orders the defendant to pay the costs.

Kutscher Sørensen Bosco Donner Mertens de Wilmars

Pescatore Mackenzie Stuart O'Keeffe Touffait

Delivered in open court in Luxembourg on 11 April 1978.

A. Van Houtte H. Kutscher

Registrar President