C-91/79
ECLI:EU:C:1980:85
- Súd
- Súdny dvor Európskej únie
- IČS
- 61979CJ0091
- Zdroj
- eur-lex.europa.eu ↗
JUDGMENT OF 18. 3. 1980 — CASE 91/79
4. A Member State may not plead to justify a failure to comply with provisions, practices or circumstances obligations and time-limits resulting existing in its internal system in order from Community directives.
In Case 91/79
COMMISSION OF THE EUROPEAN COMMUNITIES, represented by Alberto Prozzillo and Auke Haagsma, acting as Agents, with an address for service in Luxembourg at the office of Mario Cervino, Legal Adviser to the Commission, Jean Monnet Building, Kirchberg, applicant, v
ITALIAN REPUBLIC, represented by Arnaldo Squillante, acting as Agent, assisted by Franco Favara, Avvocato dello Stato [State Advocate], with an address for service in Luxembourg at the Italian Embassy, defendant,
APPLICATION for a declaration that the Italian Republic, by failing to put into force within the prescribed periods the laws, regulations and administrative provisions necessary in order to comply with Council Directive N o 73/404/EEC of 22 November 1973 on the approximation of the laws of the Member States relating to detergents (Official Journal L 347, p. 51), has failed to fulfil its obligations under the Treaty,
THE COURT
composed of H. Kutscher, President, A. O'Keeffe and A. Touffait (Presidents of Chambers), J. Mertens de Wilmars, P. Pescatore, Lord Mackenzie Stuart, G. Bosco, T. Koopmans and O. Due, Judges,
Advocate General: H. Mayras Registrar: A. Van Houtte
gives the following
COMMISSION v ITALY
JUDGMENT
Facts and Issues
The facts, the procedure and the Under Article 2 of the directive the submissions and arguments of the parties surfactants contained in detergents must may be summarized as follows : have an average level of bio-degra- dability of not less than 90% and use of them must not, under normal conditions of use, be harmful to human or animal health. Article 4 provides that I — Facts and written p r o c e d u r e compliance with the requirements of Article 2 shall be established by the methods of testing provided for in other Council directives. Directive No 73/404/EEC is one of a number of directives adopted under the General Programme for the elimination Article 5 requires each Member State, of technical barriers to trade which result should it find that a detergent does not from the disparities between the comply with the requirements laid down provisions laid down by law, regulation in Article 2, to prohibit the placing on or administrative action in the Member the market and use of that detergent in States, adopted by the Council on 28 its territory. The same article also lays May 1969 (Official Journal, English down a procedure whereby the Member Special Edition, Second Series, IX, p. States and the Commission are to supply 25) as well as under the Programme of each other with information and to Action of the European Communities on consult one another in such cases. Article the Environment (Official Journal C 112 7 stipulates that packaging for detergents of 20 December 1973, p. 1). Its aim is to must bear the name of the product and abolish the disparities which exist in the the name or trade-name and address or provisions relating to the bio-degra- trade-mark of the party responsible for dability of detergents. It has the further placing the product on the market. object of restricting the use of non-bio- degradable detergents in order to reduce appreciably pollution of the natural As regards the action which Member environment in general, and, in States must take in relation to the particular, water pollution. directive, Article 8 provides for a period of 18 months from its notification for compliance with it and for informing the The requirements of the directive are Commission of such compliance. The meant to achieve total harmonization, directive was notified on 27 November that is to say, not only must Member 1973, so that the prescribed period States guarantee freedom of access to the expired on 27 May 1975. Community market for detergents which satisfy the requirements of the directive, they must also prohibit the marketing of Italy did not comply with the provisions detergents not in keeping with them. of the directive within the period laid
JUDGMENT OF 18. 3. 1980 — CASE 91/79
down and the Commission, by letter of — Declare that the Italian Republic, by 23 December 1976, gave her an oppor- failing to adopt within the prescribed tunity to submit her observations as periods the laws, regulations and provided under Article 169 of the Treaty. administrative provisions needed in order to comply with Council It is apparent from the reply given t o the Directive N o 73/404/EEC of 22 Commission in a telex message of November 1973 on the approxi- 17 February 1977 by the Permanent mation of the laws of the Member Representation for Italy that the States relating to detergents, has Italian Ministry of Health had prepared failed to fulfil its obligations under a draft law to comply with the said the Treaty: directive which was submitted to the Council of Ministers. A copy of the draft law was sent to the Commission on — Order the Italian Republic to pay the 28 March 1977. costs.
Not having received any information leading it to believe that the necessary The Italian Government contends that measures had been taken, on 23 the Court should: December 1977 the Commission sent the Italian Government a reasoned opinion. The Commission then extended the — Declare that the Commission's period prescribed for Italy to comply application is incomplete and with the reasoned opinion in view of the inadmissible; fact that the legislative process had been suspended owing to a government crisis. — In the alternative, declare that the By a telex message of 25 February 1978 Italian Republic, for reasons not the Permanent Representation for Italy involving any lack of usual diligence, informed the Commission that the draft is only slow to adapt national law was before the Senate. Since that legislation so as to conform to time no information has been received by Directive No 73/404/EEC; the Commission.
These proceedings were begun on 22 — Order the parties to pay their own May 1979 and the application was costs. registered at the Court on 14 June 1979.
The Italian Republic has not submitted a rejoinder. Ill — Submissions and argu- On hearing the report of the Judge- m e n t s of the p a r t i e s Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any In its application the Commission claims preparatory inquiry. that the mandatory nature of the directive as regards the result to be achieved means that the Member States have a duty to observe the time-limits II — C o n c l u s i o n s of t h e p a r t i e s laid down. This is apparent from the case-law of the Court (cf. judgment in The Commission claims that the Court Case 10/76, Commission v Italian should: Republic [1977] ECR 1359).
COMMISSION v ITALY
Case-law (judgment in Case 100/77, there is such a conflict solely in the case Commission v Italian Republic [1978] of an express or implied refusal. ECR 879) clearly shows too that a Member State cannot rely upon domestic difficulties or provisions of its national legal system, even of a constitutional It asks the Court to examine whether, in nature, for the purpose of justifying a order to settle this dispute, it is necessary failure to comply with obligations and to apply automatically a criterion of time-limits resulting from Community objective liability, or whether, on the directives. contrary, it is possible and requisite to ascertain the actual circumstances behind this "delay", namely the vicissitudes which were a feature of the brief existence of the seventh legislature of the In its defence the Italian Government Italian Parliament, and particularly its points out that the directive corresponds premature end. to a number of national provisions which have to a large extent already achieved the objects of the directive. Thus, for example, the Italian Law No 125 of The Italian Government hopes that the 3 March 1971 provides for a rate of bio- draft law, which will be laid before the degradability of not less than 80%, an new Parliament, will be passed within the obligation to give virtually the same shortest possible time so that these information on packaging and labels as proceedings will lose their purpose. required under Article 7 of the directive and designates the controlling bodies for production of the trade in detergents. In its reply the Commission contends that the provisions of the directive have a direct effect upon the establishment and the working of the Common Market. In The Italian Government states that it its view it should be recognized that the does not intend to raise the question directive in question does not on any whether the directive is valid in the light view lie "on the fringe of Community of the fact that combating pollution is powers"; there is no need to enter into not one of the tasks entrusted to the the question whether a directive dealing Community by the Treaty. Nevertheless only with a matter of environmental it feels that the matter lies "on the policy may be based on Article 100. fringe" of Community powers and that this is actually a convention drawn up in the form of a directive. The duty to supply information designed to enable the Commission to check whether the laws of the Member States are in conformity with the directive The Italian Government is not unaware relates to the provisions adopted after that under the case-law of the Court the directive is issued as well as those "delay" is deemed to be "a refusal" and already in existence at that time. In its that both are classed under the general application the Commission does not term "failure to fulfil an obligation"; complain that certain provisions of however, it takes the view that it would Italian law are not in conformity with be more correct to use the concept of the the provisions of the directive but that "substantial conflict" and to hold that there has been a failure to observe the
JUDGMENT OF 18. 3. 1980 — CASE 91/79
obligation laid down in Article 8 of the In this case the Commission sent the directive to comply with it and to notify reasoned opinion on 23 December 1977. the measures taken; this failure is However, the application commencing admitted by the Italian Government. these proceedings was not sent until June 1979. The measures should have been adopted by 27 May 1975. O n the question whether an objective criterion should be applied to determine The Commission emphasizes that when whether a Member State is guilty of an adopting a directive Member States must infringement or whether the factual take account of the problems which will circumstances giving rise to the failure to arise when they have to transpose it into fulfil the obligation should be taken into domestic law and that they must not give account, the Commission takes the view their agreement to a period with which that only an objective criterion may be they certainly cannot comply. It points used. The obligation laid down in Article out in this respect that directives based 8 of the directive is clear, precise on Article 100 are adopted unanimously. and objective. Domestic circumstances The Commission, represented by its peculiar to one Member State cannot Agent, A. Prozzillo, and the Italian have any bearing on the nature of this Government, represented by F. Favara, obligation and cannot therefore Avvocato dello Stato, presented oral determine whether there is a failure or argument at the sitting of 8 January not. That does not however preclude the 1980. Commission from taking account of such circumstances when the decision to The Advocate General delivered his commence or to continue the procedure opinion at the sitting on 5 February laid down in Article 169 has to be taken. 1980.
Decision
1 By an application received at t h e C o u r t Registry on 14 J u n e 1979 the C o m m i s s i o n applied t o the C o u r t u n d e r Article 169 of the E E C T r e a t y for a d e c l a r a t i o n t h a t t h e Italian Republic h a d failed t o fulfil an obligation u n d e r t h e T r e a t y by failing t o adopt, w i t h i n the prescribed p e r i o d , the provision n e e d e d in o r d e r t o c o m p l y with Council Directive N o 7 3 / 4 0 4 / E Ė C of 22 N o v e m b e r 1973 o n t h e approximation of the laws of the M e m b e r States relating t o d e t e r g e n t s (Offical J o u r n a l L 347, p. 51).
COMMISSION v ITALY
2 According to Article 8 of the directive, Member States were required to put into force the measures needed to comply with it within eighteen months of its notification; the period expired in this case on 27 May 1975.
3 In its defence the Italian Government argues that its national legislation already contains provisions which to a large extent secure the realization of the objects of the directive.
4 It feels moreover that the subject-matter of the directive lies "at the fringe" of Community powers and that it is actually a convention drawn up in the form of a directive.
s It argues that the delay in applying the directive in question arose from the fact that its efforts to fulfil its obligations under the said directives were thwarted by the vicissitudes which were a feature of the brief existence of the seventh legislature of the Italian Parliament, and particularly its premature end.
6 Even if it is true that Italian domestic law has to a large extent already secured the objectives of the directive, nevertheless the position remains that the Italian Republic has not completely complied with it, which moreover it does not deny, and it has not notified the Commission of the national measures adopted. It should be noted in this respect that the Member States are obliged to ensure the full and exact application of the provisions of any directive.
7 As regards the Italian Government's argument that the directive is actually a convention drawn up in this special form, it need only be recalled that the Court has already said in its judgment of 18 February 1970 (Case 38/69, Commission v Italy [1970] ECR 47) that a measure which has the features of a decision when viewed in the light of its objective and the institutional framework within which it has been drawn up, cannot be described as an "international agreement". The same considerations apply where a Council directive is concerned.
JUDGMENT OF 18. 3. 1980 — CASE 91/79
8 As regards the observations of the Italian Government concerning the powers of the Community in the matter, it should be observed that the directive has been adopted not only within the Programme of Action of the Communities on the Environment; it also comes under 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, adopted by the Council on 28 May 1969. In this sense it is validly founded upon Article 100. Furthermore it is by no means ruled out that provisions on the environment may be based upon Article 100 of the Treaty. Provisions which are made necessary by considerations relating to the environment and health may be a burden upon the undertakings to which they apply and if there is no harmonization of national provisions on the matter, competition may be appreciably distorted.
9 Finally it should bė recalled that a Member State may not plead provisions, practices or circumstances existing in its internal system in order to justify a failure to comply with obligations and time-limits resulting from Community directives.
io There are therefore grounds for declaring that by failing to adopt within the prescribed period the provisions necessary in order to comply with Council Directive N o 73/404 of 22 November 1973, the Italian Republic has failed to fulfil an obligation under the Treaty.
Costs
n Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.
i2 Since the defendant has been unsuccessful it must be ordered to pay the costs.
COMMISSION v ITALY
On those grounds,
THE COURT
hereby:
1. Declares that the Italian Republic, by failing to adopt within the pre scribed period the provisions needed in order to comply with Council Directive No 73/404/EEC of 22 November 1973 on the approxi mation of the laws of the Member States relating to detergents (Official Journal L 347, p. 51), has failed to fulfil an obligation under the Treaty;
2. Orders the defendant to pay the costs.
Kutscher O'Keeffe Touffait Meitēns de Wilmars Pescatore
Mackenzie Stuart Bosco Koopmans Due
Delivered in open court in Luxembourg on 18 March 1980.
A. Van Houtte H. Kutscher Registrar President