C-92/79

JUDGMENT OF 18. 3. 1980 — CASE 92/79

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 92/79

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by Alberto Prozzillo and Auke Haagsma, acting as Agents, with an address for service in Luxem- bourg 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 period the laws, regulations and administrative provisions necessary in order to comply with Council Directive N o 75/716/EEC of 24 November 1975 on the approximation of the laws of the Member States relating to the sulphur content of certain liquid fuels (Official Journal N o L 307 of 27 November 1975, p. 22), has failed to fulfil its obligations under the Treaty,

Facts and Issues

The facts, the procedure and the Article 2 (1) of the directive fixes the submissions and arguments of the parties maximum sulphur compound content by may be summarized as follows: weight of the two types of gas oil set out in Article 1: 0.5% from 1 October 1976 and 0.3% from 1 October 1980 for type A gas oil (which may be used anywhere in the Member States) and 0.8% and I — Facts and written p r o c e d u r e 0.5% respectively for type B gas oil, which may be used in zones to be determined by the Member States).

JUDGMENT OF 18. 3. 1980 — CASE 92/79

Italy did not comply with the provisions Advocate General, the Court decided to of the directive within the period laid open the oral procedure without any down and the Commission, by letter of preparatory inquiry. 29 October 1976, gave her an oppor- tunity to submit her observations as provided under Article 169 of the Treaty. II — C o n c l u s i o n s of t h e p a r t i e s It is apparent from the reply given to the Commission in a letter of 14 January The Commission claims that the Court 1977 by the Permanent Representation should: for Italy that the - Italian Ministry of Health was preparing a draft law to — Declare that the Italian Republic, by comply with the directive. A copy of the failing to adopt within the prescribed draft was to be sent to the Commission periods the laws, regulations and after the Ministry had received the administrative provisions needed in opinions of the other technical auth- order to comply with Council orities concerned. Directive No 75/716/EEC of 24 November 1975 on the approxi- mation of the laws of the Member N o t having received any information States relating to the sulphur content leading it to believe that the necessary of certain liquid fuels, has failed to measures had been taken, the fulfil its obligations under the Treaty; Commission sent the Italian Government a reasoned opinion dated 23 January 1978. N o official reply to that opinion — Order the Italian Republic to pay the has been received by the Commission. costs.

directive as regards the result to be The Italian Government is not unaware achieved means that the Member States that under the case-law of the Court have a duty to observe the time-limits "delay" is deemed to be "a refusal" and laid down. This is apparent from the that both are classed under the general case-law of the Court (cf. judgment in term "failure to fulfil an obligation"; Case 10/76, Commission v Italian however, it takes the view that it would Republic [1977] ECR 1359). be more correct to use the concept of "substantial conflict" and to hold that there is such a conflict solely in the case of an express or implied refusal. Case-law (judgment in Case 100/77, Commission v Italian Republic [1978] ECR 879) clearly shows too that a It asks the Court to examine whether, in Member State cannot rely upon domestic order to settle this dispute, it is necessary difficulties or provisions of its national to apply automatically a criterion of legal system, even of a constitutional objective liability, or whether, on the nature, for the purpose of justifying a contrary, it is possible and requisite to failure to comply with obligations and ascertain the actual circumstances behind time-limits resulting from Community this "delay", namely the vicissitudes directives. which were a feature of the brief existence of the seventh legislature of the Italian Parliament, and particularly its premature end. In its defence the Italian Government points out that Italian law already contains certain provisions on the industrial processing of mineral oils The Italian Government hopes that the (Decree Law No 1741, of 2 November draft law, which will be laid before the 1933, amended by Law No 367 of new Parliament, will be passed within the 8 February 1934) and on atmospheric shortest possible time so that these pollution (Law No 615 of 13 July 1966 proceedings will lose their purpose. and Law No 437 of 3 June 1971).

the directive is issued as well as those have any bearing on the nature of this already in existence at that time. In its obligation and cannot therefore application the Commission does not determine whether there is a failure or complain that certain provisions of not. That does not however preclude the Italian law are not in conformity with Commission from taking account of such the provisions of the directive but that circumstances when the decision to there has been a failure to observe the commence or to continue the procedure obligation laid down in Article 8 of the laid down in Article 169 has to be taken. directive to comply with it and to notify the measures taken; this failure is In this case the Commission sent the admitted by the Italian Government. reasoned opinion on 23 January 1978. However, the application commencing As regards the applicability of Article 2 these proceedings was not sent until June (3) of the directive, the Commission 1979. The measures should have been thinks this does not amount to an oppor- adopted by 26 August 1976. tunity for deferring the introduction of the provisions required by the directive The Commission emphasizes that when for an indefinite period but of derogating adopting a directive Member States must from the "harmonized" provisions in take account of the problems which will accordance with a procedure laid down arise when they have to transpose it into in the directive and for a period and on domestic law and that they must not give conditions fixed by the Commission. their agreement to a period with which they certainly cannot comply. It points On the question whether an objective out in this respect that directives based criterion should be applied to determine on Article 100 are adopted unanimously. whether a Member State is guilty of an The Commission, represented by its infringement or whether the factual Agent, A. Prozzillo, and the Italian circumstances giving rise to the failure to Government, represented by F. Favara, fulfil the obligation should be taken into Avvocato dello Stato, presented oral account, the Commission takes the view argument at the sitting on 8 January that only an objective criterion may be 1980. used. The obligation laid down in Article 8 of the directive is clear, precise and The Advocate General delivered his objective. Domestic circumstances opinion at the sitting on 5 February peculiar to one Member State cannot 1980.

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 directive 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 it moreover 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 38/79, Commission v Italy [1970] ECR 47) that a measure which has the features of

JUDGMENT OF 18. 3. 1980 — CASE 92/79

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.

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 tó adopt within the pre- scribed period the provisions needed in order to comply with Council Directive No 75/716/EEC of 24 November 1975 on the approxi- mation of the laws of the Member States relating to the sulphur content of certain liquid fuels (Official Journal No L 307, p. 22), has failed to fulfil an obligation under the Treaty;