C-45/80

In Case 45/80

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by Gian Piero Alessi, acting as Agent, 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 Ivo M. Braguglia, Avvocato dello Stato, acting as Agent, with an address for service in Luxembourg at the Italian Embassy, 5 Rue Marie-Adélaïde,

defendant, 1 — Language of the Case: Italian.

JUDGMENT OF 4. 2. 1981 — CASE 45/80

APPLICATION for a declaration that the Italian Republic has failed to fulfil its obligations under the EEC Treaty by not implementing Council Directive 76/767/EEC of 27 July 1976 on the approximation of the laws of the Member States relating to common provisions for pressure vessels and methods of inspecting them (Official Journal 1976, L 262, p. 153),

The facts of the case, the course of With a view to such harmonization and the procedure and the conclusions, in order to achieve the free movement of submissions and arguments of the parties pressure vessels within the EEC, that may be summarized as follows : Directive lays down the principle of mutual recognition of inspection pro- cedures and for that purpose introduces I — Facts and written procedure an EEC pattern approval procedure and an EEC verification procedure. The The Directive cited above is one of presence on a pressure vessel of the EEC the numerous harmonizing directives mark showing that it has undergone the adopted by the Council with a view to appropriate inspections indicates that the progressive elimination of the it satisfies the relevant technical technical obstacles to intra-Community requirements and therefore makes it trade resulting from differences between unnecessary, on the importation and national rules. placing into service of the vessel, to

COMMISSION v ITALY

repeat the inspections which have already "by failing to adopt the laws, regulations been carried out. and administrative provisions necessary in order to comply with Council Directive 76/767/EEC of 27 July 1976 The Directive constitutes a general on pressure vessels and methods of framework within which the adoption of inspecting them, Italy has failed to fulfil further directives is planned. its obligations under that directive".

Consequently, the Member States were By a second memorandum dated 1 required to comply with the Directive October 1979 Italy's Permanent Re- before 30 January 1978. presentation informed the Commission that implementation of the directive Since the Italian Republic had neither could be accomplished by means of regu- adopted nor brought into force the lations and assured it that those necessary implementing measures within provisions would be adopted shortly. the period accorded to it, the Commission decided to initiate against it the procedure laid down by Article 169 Since the Commission received no of the Treaty for a declaration that the further communication on this matter State had failed to fulfil an obligation from the Italian Government and since under the Treaty. the national provisions required in order to implement the directive had still not been adopted, the Commission brought By letter of 12 April 1978, the Italian the matter before the Court of Justice by Republic was given the opportunity to lodging this application, which was submit its observations in accordance received at the Court Registry on 14 with the first paragraph of Article 169. February 1980.

No reply to that letter having been received, the Commission, after estab- Upon hearing the report of the Judge- lishing the continued absence of national Rapporteur and the views of the legal provisions for implementing the Advocate General, the Court decided to directives, delivered a reasoned opinion open the oral procedure without any on 18 May 1979 stating that preparatory inquiry.

As the approval of this draft law was III — Submissions and argu- thought to be imminent, it seemed ments of the parties advisable "above all for reasons of legal certainty, not to implement by means of regulations certain provisions of The Commission first analyses the Directive 76/767/EEC whose incorpor- objectives and the provisions of Directive ation would not have required a law". 76/767/EEC and states that the Italian Republic did not adopt, within the period accorded to it, the measures The Commission states that the Italian needed to comply with the directive. Republic does not dispute either in fact or in law the arguments which it has put forward and that the defendant's failure It then recalls that under Article 189 of to fulfil its obligations is therefore the EEC Treaty, a directive is binding, as established. It stresses the need to to the result to be achieved, upon each implement directives within the time- Member State and that, according to the limits and the irrelevance, "as a means of

COMMISSION v ITALY

justifying the failures in question, of Republic, represented by its Agent, A. considerations relating to provisions or Squillante, assisted by I. M. Braguglia, practices of internal law or to particular Avvocato dello Stato, presented oral material circumstances existing at argument at the sitting on 25 November national level". 1980.

IV — Oral procedure The Advocate General delivered his The Commission, represented by its opinion at the sitting on 16 December Agent, G. P. Alessi, and the Italian 1980.

Decision

1 By application lodged at the Court Registry on 4 February 1980 the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that the Italian Republic, by failing to adopt, within the prescribed period, the provisions needed in order to comply with Council Directive 76/767/EEC of 27 July 1976 on the approxi- mation of the laws of the Member States relating to common provisions for pressure vessels and methods of inspecting them (Official Journal 1976, L 262, p. 153), has failed to fulfil one of its obligations under the Treaty.

5 It must therefore be held that by failing to adopt, within the prescribed period, the provisions needed in order to comply with Council Directive 76/767/EEC, 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 must be ordered to pay the costs if they have been asked for in the successful party's pleading.

Since the defendant has failed in its submissions, it must be ordered to pay the costs.

On those grounds,

THE COURT

Delivered in open court in Luxembourg on 4 February 1981.

A. Van Houtte J. Mertens de Wilmars Registrar President

OPINION OF MR ADVOCATE GENERAL REISCHL

(see Case 44/80, p. 349)