C-133/80

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by Alberto Prozillo, a member of the Commission's Legal Department, 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 Arnaldo Squillante, Head of the Department for Diplomatic Disputes, Treaties and Legislative Matters, acting a s A g e n t , a s s i s t e d by P i e rGiorgio Ferri, Avvocato dello Stato, with an address for service in Luxembourg at the Italian Embassy,

defendant, 1 — Language of the Case: Italian.

JUDGMENT OF 17. 2. 1981 — CASE 133/80

APPLICATION for a declaration that the Italian Republic has failed to fulfil its obligations under the EEC Treaty by not adopting within the prescribed periods the provisions needed to comply with Council Directive 77/62/EEC coordinating procedures for the award of public supply contracts (Official Journal 1977, L 13, p. 1),

T H E COURT

COMMISSION v ITALY

recitals in the preamble). To achieve this The Commission came to the view that it the directive contains inter alia common had not been given any guarantee as to rules on technical specifications which the implementation of the directive in the have a discriminatory effect (Articles 7 immediate future and by a letter of 13 and 8), on the advertising of contracts March 1979 started the procedure laid (Articles 9 to 16) and on participation in down under Article 169 of the EEC the contracts in question (Articles 17 to Treaty. On 9 April 1979 the Italian 24); it also lays down criteria for the Government replied that the draft Law in award of contracts (Article 25). question, which had been submitted to the Chamber for a second reading, had lapsed owing to the dissolution of the legislature. On 7 December 1979 the Commission sent the Italian Government The following public supply contracts are a reasoned opinion within the meaning excluded from the ambit of the directive: of Article 169 of the Treaty; that opinion contracts for less than 200 000 European was adopted on 6 December 1979 and units of account (Article 5 (i) (a)), declared that "by not adopting the contracts awarded by bodies which measures of internal law needed to administer transport services (Article 2 comply with Council Directive (2) (a)), those awarded by bodies which 77/62/EEC of 21 December 1976 administer production, distribution and coordinating procedures for the award of transmission or transport services for public supply contracts, the Italian water or energy (Article 2 (2) (b)) and by Republic has failed to fulfil its bodies administering telecommunications obligations under the EEC Treaty". It services (Article 2 (2) (b)), and public laid down a period of two months for contracts governed by different pro- the Italian Republic to adopt the cedural rules and awarded pursuant necessary measures. to certain international agreements (Article 3).

II — Conclusions of the parties Republic ([1979] ECR 771), that a Member State "may not plead provisions, practices or circumstances The applicant claims that the Court existing in its internal legal system in should: order to justify a failure to comply with obligations and time-limits imposed by — Declare that by not adopting within Community directives". the prescribed period the provisions needed to comply with Council Directive 77/62/EEC the Italian 2. Defence Republic has failed to fulfil one of its The Italian Government first recalls the obligations under the EEC Treaty; facts and circumstances which prevented the enactment of the Law required to — Order the Italian Republic to pay the incorporate the directive in question into costs. national law. It then contends that the obstacle which prevented that aim from The defendant did not submit any being achieved was due to an extra- ordinary constitutional event which, conclusions. owing to the fundamental requirements of the democratic system, temporarily paralysed the legislative functions III — Submissions and argu- conferred on Parliament. ments of the parties It points out that a bill is at present before the Senate Committee for Finance 1. Application and Treasury Matters and states that it wishes to comply with the Community The Commission points out that under directive in the matters in question. Article 189 of the Treaty establishing the European Economic Community a 3. Reply directive is binding, as to the result to be achieved, upon each Member State to The Commission decided not to submit a which it is addressed, but leaves to the reply. national authorities the choice of form and methods. The binding nature of directives implies that Member States are bound to comply with the periods laid IV — Oral procedure down by them, as is shown in particular by the judgment of 26 February 1976 in The Commission of the European Case 52/75 Commission v Italian Communities, represented by Alberto Republic ([1976] ECR 277) and by the Prozillo, a member of its Legal judgment of 22 September 1976 in Case Department, and the Government of the 10/76 Commission v Italian Republic Italian Republic, represented by Ivo M. ([1976] ECR 1359). It is also apparent Braguglia, Avvocato dello Stato, from the case-law of the Court, in presented oral argument at the sitting on particular from the judgment of 11 April 13 January 1981. 1978 in Case 100/77 Commission v Italian Republic ([1978] ECR 879) and The Advocate General delivered his the judgment of 22 February 1979 in opinion at the sitting on 28 January Case 163/78 Commission v Italian 1981.

4 The period laid down by Article 30 expired on 23 June 1978 without the Italian Republic's having adopted the necessary measures and the Commission gave it a first reminder of its obligation by a letter of 27 October 1978. It took up the matter again at the meeting on 9 and 10 November 1978 of the Advisory Committee for Public Contracts.

JUDGMENT OF 17. 2. 1981 — CASE 133/80

5 Seeing that its reminders had not led to the adoption of the necessary- measures, on 13 March 1979 the Commission invited the Government of the Italian Republic in accordance with the procedure laid down by Article 169 of the EEC Treaty to submit its observations within a period of 20 days. The Government did so by a telex message of 9 April 1979. In that message it was explained that the draft Law to incorporate the directive into the Italian legal system had been passed once by the Chamber of Deputies on 27 September 1978 and then by the Senate on 13 December 1978, but that certain amendments had made it necessary for the draft to be remitted to the Chamber of Deputies. Owing to the dissolution of the legislature Parliament could not complete its scrutiny of the draft Law. The situation remained unchanged throughout 1979 and on 6 December of that year the Commission issued a reasoned opinion declaring that there had been a failure on the part of the Italian Republic to fulfil its obligations under the Treaty and inviting it to comply with that opinion within a period of two months.

6 That invitation was not acted upon and on 2 June 1980 the Commission lodged an application for a declaration establishing the non-compliance. The Italian Republic pointed out in its defence that the delay was due to the dissolution of the legislature, causing all draft Laws under discussion to lapse and thereby rendering necessary a new draft, which had been presented to the Senate on 9 December 1979; but it did not claim that the application should be dismissed.

THE COURT,

hereby:

1. Declares that, by not adopting within the prescribed period the provisions needed to comply with Council Directive 77/62/EEC of 21 December 1976 coordinating procedures for the award of public supply contracts (Official Journal 1977, L 13, p. 1), the Italian Republic has failed to fulfil its obligations under the EEC Treaty;

2. Orders the defendant to pay the costs.

Mertens de Wilmars Pescatore Koopmans O'Keeffe

Bosco Touffait Due Everling Chloros