C-43/80
ECLI:EU:C:1980:275
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JUDGMENT OF THE COURT OF 2 DECEMBER 1980 '
Commission of the European Communities v Italian Republic
"Failure of a State to fulfil its obligations — Implementation of a directive"
Case 43/80
Member States — Obligations — Implementation of directives — Failure to fulfil — Justification — Not permissible A Member State may not plead order to justify a failure to comply with provisions, practices or circumstances obligations and time-limits resulting from existing in its internal legal system in Community directives.
In Case 43/80
COMMISSION OF THE EUROPEAN COMMUNITIES, represented by Gian Piero Alessi, a member of the Legal Department of the Commission, acting as Agent, with an address for service in Luxembourg at the office of Mario Cervino, Jean Monnet Building, Kirchberg, applicant, v
ITALIAN REPUBLIC, represented by Ivo M. 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 43/80
APPLICATION for a declaration that the Italian Republic has failed to fulfil its obligations under the Treaty by not implementing in good time Commission Directive N o 76/696/EEC of 27 July 1976 adapting to technical progress Council Directive N o 73/360/EEC of 19 November 1973 on the approximation of the laws of the Member States relating to non- automatic weighing machines (Official Journal 1976, L 236, p. 26),
THE COURT
composed of: J. Mertens de Wilmars, President, P. Pescatore (President of Chamber), Lord Mackenzie Stuart, A. O'Keeffe, G. Bosco, A. Touffait and O. Due, Judges,
Advocate General: J.-P. Warner Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts and Issues
The facts of the case, the course of the 1972, Official Journal, English Special procedure, the conclusions, submissions Edition 1972 (28-30 December), p. 71, and arguments of the parties may be and by Annex I to the Act of Accession) summarized as follows: is one of the harmonization directives adopted by the Council in order to eliminate progessively the technical I — Facts and written procedure barriers to trade within the Community which result from the disparities between Council Directive No 71/316 of 26 July national rules. 1971 on the approximation of the laws of the Member States relating to For the purpose of such harmonization common provisions for both measuring and in order to achieve freedom of instruments and methods of metrological movement of measuring instruments control (Official Journal, English Special within the common market that directive Edition 1971 (II), p. 707, amended by introduces the principle of mutual Directive No 72/427 of 19 December recognition of controls and establishes
COMMISSION v ITALY
for that purpose a procedure for EEC Article 2 of that directive provides that: pattern approval and an EEC verification procedure. The presence on a measuring "(1) Member States shall adopt the laws, instrument of the EEC mark showing the regulations and administrative controls it has undergone indicates that provisions needed in order to it meets the relevant technical comply with this directive in such a requirements and therefore when the manner that these provisions shall instrument is imported and put into take effect one year after the date operation it is unnecessary to repeat the of notification of this directive. controls which have already been carried out. (2) However, in the event of Ireland and the United Kingdom implementing the provisions of the That directive forms a general Council Directive of 19 November framework within which implementing 1973 at any time later than the date directives specific to each category of fixed in the preceding paragraph, instruments are to be adopted. One of the provisions of this directive those directives is Council Directive No shall take effect simultaneously 73/360 of 19 November 1973 on the therewith. approximation of the laws of Member States relating to non-automatic weighing machines (Official Journal (3) Member States shall communicate 1973, L 335, p. 1). Instruments which the texts of the provisions of meet the technical requirements laid national law which they adopt in down by that directive, which have been the field covered by this directive to checked in accordance with its the Commission." provisions, and which furthermore bear the prescribed EEC signs or marks may not be either barred from free circulation Notification of the directive was effected within the Community or undergo new on 30 July 1976. Consequently Member controls at the frontiers. States had to comply with the directive before 30 July 1977.
Articles 17 to 19 of the basic Directive As the Italian Republic had not adopted No 71/316 make provision for the adap- or put into effect the necessary tation to technical progress of the implementing measures in the period annexes to the directive in question as allotted to it the Commission decided to well as of the annexes to the special commence the procedure laid down by implementing directives by means of a Article 169 of the Treaty to establish a procedure to establish close cooperation failure of a State to fulfil obligations. between the Commission and the Member States through a "committee on adaptation to technical progress". By a letter of 4 April 1978 the Italian Republic was given the opportunity to submit its observations in accordance In accordance with that procedure on 27 with the first paragraph of Article 169. July 1976 the Commission adopted Directive No 76/696 (Official Journal As there was no reply to that letter and 1976, L 236, p. 26) amending various as the Commission noted a continuing points of the Annex to Directive No failure to adopt national provisions to 73/360. put the directives into effect the
JUDGMENT OF 2. 12. 1980 — CASE 43/80
Commission produced a reasoned II — C o n c l u s i o n s of t h e p a r t i e s opinion on 18 May 1979 to the effect that: The applicant claims that the Court "By failing to adopt the laws, regulations should: and administrative provisions needed in order to comply with Commission 1. Declare that the Italian Republic, by Directive N o 76/696/EEC of 27 July failing to adopt within the prescribed 1976 on non-automatic weighing period the provisions needed in order machines, the Italian Republic has failed to comply with Commission Directive to fulfil its obligations under the Treaty." No 76/696/EEC of 27 July 1976 adapting to technical progress the That reasoned opinion was sent to Council Directive of 19 November the Italian Government by a letter of 1973 on the approximation of the 28 May 1979. laws of the Member States relating to non-automatic weighing machines, has failed to fulfil one of its By a memorandum dated 21 September obligations under the Treaty; 1979 the Italian Government replied through the intermediary of the Permanent Representation of Italy that 2. Order the defendant to pay the costs. during the course of the previous Par- liament it had begun the procedure to adopt the necessary legislative measures; The defendant did not submit any formal it gave the further assurance that it conclusions. would submit for the approval of the new Parliament as soon as possible the measures needed to put the directive in question into effect in its legal system. III — S u b m i s s i o n s and argu- m e n t s of t h e p a r t i e s Not having received any subsequent communication from the Italian Government on this matter and as the national provisions needed to implement The applicant contends that the the directive had still not been adopted, mandatory nature of the directives means the Commission brought the matter that Member States are obliged to before the Court of Justice by the observe the periods which they prescribe present application, received at the Court for the adoption of national adaptation Registry on 1 February 1980. measures. It refers in this respect to the judgments of the Court in Cases 52/75 [1976] ECR 277, 10/76 [1976] ECR The defendant has not submitted a 1359 and 163/78 [1979] ECR 771. rejoinder. The defendant emphasizes that a draft On hearing the report of the Judge- law requesting statutory authorization Rapporteur and the views of the for the adoption into the Italian legal Advocate General the Court decided to system of a number of directives has open the oral procedure without any once more been laid before Parliament in preparatory inquiry. the present legislative period. It hopes
COMMISSION v ITALY
that the parliamentary procedure relating IV — Oral procedure to that draft law will be completed in the very near future so that the dispute may Oral argument was presented by the be seen to have lost its purpose. parties at the sitting on 21 October 1980. In its reply the applicant maintains its The Advocate General delivered his conclusions. opinion during the same sitting.
Decision
1 By application lodged at the Court Registry on 1 February 1980 the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that by failing to adopt within the prescribed period the provisions needed to comply with Commission Directive N o 76/696 of 17 July 1976 adapting to technical progress the Council Directive of 19 November 1973 on the approximation of the laws of the Member States relating to non-automatic weighing machines (Official Journal L 236, p. 26), the Italian Republic has failed to fulfil one of its obligations under the third paragraph of Article 189 of the EEC Treaty.
2 By Article 2 of that directive Member States were required to put into effect the measures needed to comply therewith within a period of one year from the date of notification thereof; that period expired on 30 July 1977.
3 The Italian Republic does not deny that it has not met that obligation. It states that the delay in implementing the directive was at first due to the fact that a draft law submitted for that purpose had lapsed owing to the dissolution of Parliament and that it was later due to the fact that a draft law requesting statutory authorization for the adoption into the Italian legal system of a number of directives, though approved by the Senate on 16 July 1980, was still under scrutiny by the Chamber of Deputies.
JUDGMENT OF 2. 12. 1980 — CASE 43/80
4 Those circumstances do not expunge the failure to fulfil its obligations with which the Italian Republic is charged. According to 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.
s It must therefore be declared that by failing to adopt, within the prescribed period, the provisions needed in order to comply with Commission Directive No 76/696 of 27 July 1976 the Italian Republic has failed to fulfil one of its obligations under the Treaty.
Costs
6 Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs. Since the defendant has been unsuccessful it must be ordered to pay the costs.
On those grounds,
THE COURT
hereby:
1. Declares that, by failing to adopt, within the prescribed period, the provisions needed in order to comply with Commission Directive No 76/696 of 27 July 1976 adapting to technical progress 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 236, p. 26), the Italian Republic has failed to fulfil one of its obligations under the Treaty;
COMMISSION v ITALY
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.
A. Van Houtte J. Mertens de Wilmars Registrar President
OPINION OF MR ADVOCATE GENERAL WARNER
(see Case 42/80, p. 3642)