C-42/80

In Case 42/80

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by Gian Piero Alessi, a member of the Legal Department, acting as Agent, with an address for service in Luxembourg at the Chambers of Mario Cervino, Legal Adviser to the Commission, Jean Monnet Building, Kirchberg, applicant, v

ITALIAN REPUBLIC, represented by Ivo Mario Braguglia, Avvocato dello Stato, acting as Agent, with an address for service in Luxembourg at the Italian Embassy,

defendant, 1 — Language of the Case: Italian.

JUDGMENT OF 2. 12. 1980 — CASE 42/80

APPLICATION for a declaration that the Italian Republic has failed to fulfil its obligations under the EEC Treaty by not implementing within the pre- scribed period Council Directive No 73/361 of 19 November 1973, on the approximation of the laws, regulations and administrative provisions of the Member States relating to the certification and marking of wire-ropes, chains and hooks (Official Journal L 335, p. 51) and also Commission Directive N o 76/434 of 13 April 1976, adapting the said Council Directive to technical progress (Official Journal L 122, p. 20),

The facts, the course of the procedure pursuant to Article 100 of the Treaty, are and the conclusions, submissions and designed to eliminate technical obstacles arguments of the parties may be to intra-Community trade resulting from summarized as follows: the differences between national provisions which subject the marketing or use of certain products to particular I — Facts and written procedure technical specifications. It seeks to approximate the laws of Member States Directive No 73/361 is one of the relating to the certification and marking numerous Community measures which, of wire-ropes, round steel chains, and

COMMISSION v ITALY

In accordance with the procedure laid This action was brought on 28 January down in Articles 4 and 5 of the Council 1980 and registered at the Court on directive, the Commission, by Directive I February 1980. Italy waived its right to No 76/434, undertook the adaptation of lodge a rejoinder. Directive No 73/361 to technical progress. The annex to the latter directive was replaced by new technical Upon hearing the report of the Judge- specifications. Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any As far as the implementation of the preparatory inquiry. Commission directive is concerned, Article 2 provides that the Member States must comply with it within a period of nine months following its II — C o n c l u s i o n s of t h e p a r t i e s notification and must inform the Commission thereof. The Commission claims that the Court Directive N o 73/361 was notified to the should: Member States on 25 November 1973 and Directive N o 76/434 on 13 April (a) Declare that the Italian Republic, by 1976 so that the periods for failing to adopt within the period implementation expired on 25 May 1975 prescribed the provisions needed in and 13 January 1977 respectively. order to comply with Council Directive No 73/361/EEC of 19 As Italy did not comply with the November 1973, and with Com- provisions of the two directives, the mission Directive N o 76/434/EEC Commission, by a letter of 7 June 1977, of 13 April 1976, on the approxi-

JUDGMENT OF 2. 12. 1980 — CASE 42/80

mation of the laws of the Member relating to the periods allowed for States relating to the certification implementing the measures prescribed, in and marking of wire-ropes, chains particular since the existence of and hooks, has failed to fulfil one of differences in the rules applied in the its obligations under the Treaty; Member States after these periods have expired might result in. discrimination."

In its defence the Italian Government In its application, the Commission claims points out that with a view to the that the binding nature of the directives, implementation of the two directives, as to the result to be achieved, implies an Draft Law No 1313 was tabled before obligation on the Member States to the Italian Parliament, but lapsed owing comply with the periods prescribed for to the early dissolution of that Par- the adoption of the national legal liament. The directives cited above have provisions, which are needed for their been included in Draft Law No 554, at implementation. present under examination by both Chambers, which delegates power to the Government to incorporate a series of Community directives into the internal The Court has stated this on several legal system. occasions. In this connexion it emphasized in Case 52/75 (Commission v Italy, [1976] ECR 277) that: The Italian Government hopes that the parliamentary procedure regarding this draft law will be completed very shortly "The correct application of a directive is so that in this case it may be considered particularly important since the that the object of the action has been implementing measures are left to the eliminated in substance. discretion of the Member States and would be ineffective if the desired aims are not achieved within the prescribed time-limits. Although the provisions of a In its reply, the Commission observes that directive are no less binding on the the Italian Government does not give Member States to which they are any details of the period required for the addressed than the provisions of any adoption of the draft law in question; other rule of Community law, such an consequently, the Commission maintains effect attaches a fortiori to the provisions its conclusions.

3 The Italian Government does not dispute the fact that it has not satisfied that obligation. It merely states that the delay in applying the directives in question is due to the fact that its attempts to fulfil its obligations under the said directives have not succeeded owing to political and parliamentary events. A draft law was tabled before the Italian Parliament during the

JUDGMENT OF 2. 12. 1980 — CASE 42/80

previous session but lapsed owing to the early dissolution of that Parliament. . In order to adapt the internal legal system more rapidly to Community directives, the Italian Government has subsequently asked the Parliament for the delegation of legislative powers, as provided for in Article 76 of the Constitution, in order that provisions having the force and status of law, which were necessary for the implementation of a body of Community directives including those in question, might be adopted by decree. Such delegation was approved by the Senate on 16 July 1980, by the adoption of an appropriate draft law, which is at present under examination by the Chamber of Deputies.

4 These circumstances do not expunge the failure to fulfil its obligations, with which the Italian Republic is charged. According to the well-established case- law, a Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with obligations and time-limits resulting from Community directives.

5 It must therefore be declared that by failing to adopt, within the prescribed periods, the provisions needed in order to comply with Council Directive N o 73/361 of 19 November 1973 and Commission Directive N o 76/434 of 13 April 1976, the Italian Republic has failed to fulfil one of its obligations under the Treaty.

hereby:

1. Declares that, by failing to adopt, within the prescribed period, the provisions needed in order to comply with Council Directive No 73/361 of 19 November 1973, on the approximation of the laws, regulations and administrative provisions of the Member States relating to the certification and marking of wire-ropes, chains and hooks (Official Journal L 335, p. 51) and with Commission Directive No 76/434 of 13 April 1976 adapting the said Council directive to technical progress (Official Journal L 122, p. 20), the Italian Republic has failed to fulfil one of its obligations under the Treaty;

2. Orders the defendant to pay the costs.

Mertens de Wilmars Pescatore Mackenzie Stuart

O'Keeffe Bosco Touffait Due

Delivered in open court in Luxembourg on 2 December 1980.