C-28/81
ECLI:EU:C:1981:257
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JUDGMENT OF 10. 11. 1981 — CASE 28/81
In Case 28/81
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 office of Oreste Montako, a member of the Legal Department, Jean Monnet Building, Kirchberg,
applicant, ν
ITALIAN REPUBLIC, represented by its Agent, Arnaldo Squillante, Capo del Servizio Contenzioso Diplomatico, Trattati ed Affari Legislativi [Head of the Department of diplomatic legal affairs, treaties and legislative business] represented and assisted by Guido Fienga, Avvocato dello Stato, with an address for service in Luxembourg at the Italian Embassy,
defendant,
APPLICATION for a declaration that the Italian Republic has failed to fulfil its obligations under the EEC Treaty by failing to adopt within the pre scribed period the provisions needed to comply with Council Directive No 74/561/EEC of 12 November 1974 on admission to the occupation of road haulage operator in national and international transport operations (Official Journal L 308, p. 18),
THE COURT
composed of: J. Mertens de Wilmars, President, G. Bosco and A. Touffait (Presidents of Chambers), Lord Mackenzie Stuart, A. O'Keeffe, T. Koopmans, U. Everling, A. Chloros and F. Grévisse, Judges,
Advocate General: Sir Gordon Slynn Registrar: A. Van Houtte
gives the following
COMMISSION ν ITALY
JUDGMENT
Facts and Issues
The facts of the case, the course of occupation of road haulage operator. the procedure and the conclusions, The requirements are: submissions and arguments of the parties may be summarized as follows: (a) "good repute";
(b) "appropriate financial standing" which consists in having available I — Facts and written procedure sufficient financial resources to ensure the launching and proper administration of the undertaking; The purpose of Directive No 74/561 is to promote the organization of the (c) "professional competence". transport market, which has an essential role to play in implementing the common transport policy provided for by Article While the adoption of detailed rules for 74 et seq. oí the Treaty. Rules adopted at applying the conditions referred to at (a) Community level and the resulting and (b) is left to the Member States for a coordination of the conditions for transitional period pending subsequent admission to the occupation of road coordination at the Community level, haulage operator also encourage proper the condition concerning "professional exercise of the right of establishment. By competence" is governed directly by improving operators', qualifications the Article 3 (4) in conjunction with the directive also aims to improve conditions annex to the directive. on the market and enhance the quality of service as well as to ensure road safety. As to the implementation of the directive Article 7 provides as follows:
For the purpose of the directive "the "1. Member States shall, after consulting occupation of road haulage operator" the Commission and before 1 means the activity of persons trans- January 1977, adopt the measures porting goods for hire or regard by necessary for the implementation of means of either a self-contained motor this directive, in particular Article 3 vehicle or a combination of coupled (4) thereof. vehicles (Article 1 (2)). 2. Member States shall ensure that the procedure for official verification of Article 2 allows for exemptions from the the skills mentioned in Article 3 (4) application of the directive in the case of shall become operative for the first transport operations which have only a time before 1 January 1978." minor impact on the market. The Italian Republic did not adopt the Article 3, the provisions of which are measures necessary for implementing the crucial to the directive, lays down the directive by 1 January 1977 as required requirements for engaging in the by Article 7.
JUDGMENT OF 10. 11. 1981 — CASE 28/81
By letter of 26 March 1979 the Italian II — Conclusions of the parties Permanent Representative informed the Commission that while it hoped that the directive would shortly be given effect in national law there were delays owing to The Commission claims that the Court the difficulties caused by the need to should: restructure Law No 298 of 6 June 1974 on road haulage operations and by the many and divergent demands made by — Declare that, by failing to adopt the operators concerned. within the prescribed period the provisions needed to comply with Council Directive No 74/561/EEC By letter of 7 June 1979 the Commission of 12 November 1974 on admission informed the Italian Government that in to the occupation of road haulage its opinion Italy had failed to fulfil its operator in national and international obligations under the Treaty, and gave it transport operations, the Italian the opportunity of submitting its obser- Republic has failed to fulfil one of its vations within a period of two months. obligations under the Treaty;
In the absence of any reply from the — Order the defendant to pay the costs. Italian Government, and having established the continued absence of national legal provisions on the adoption of the necessary measures, the The Italian Republic did not submit any Commission delivered to Italy on 15 formal conclusions. April 1980 the reasoned opinion provided for in the first paragraph of Article 169 of the Treaty requesting that country to adopt within two months III — Submissions and argu- the measures necessary to fulfil its ments of the parties obligations. The Italian Government acknowledged receipt of the reasoned opinion but took no further action. At the present date it appears that the In its application the Commission claims national measures to adapt the national that since directives are binding in law have not been taken. character Member States have an obligation to comply with the periods prescribed by them for the adoption of This application, dated 12 February national implementing provisions. 1980, was received at the Court Registry on 18 February. The Italian Government stated by telephone that it did not intend An infringement of the Treaty by a to lodge a rejoinder. Member State exists irrespective of the organ of the State whose act or omissions were the cause of the failure to On hearing the report of the Judge- implement a directive. The Member State Rapporteur and the views of the in question may not plead provisions, Advocate General the Court decided to practices or circumstances in its internal open the oral procedure without any legal system in order to justify its preparatory inquiry. conduct.
COMMISSION ν ITALY
Those principles have been consistently The Italian Government has already confirmed by the Court in its decisions asked the authorities concerned to (see, inter alia, Case 52/75, Commission expedite the procedure for approving the ν Italy [1976] ECR 277; Case 10/76, draft law. It therefore hopes to have it Commission ν Italy [1976] ECR 1359; approved and the corresponding law Case 163/78, Commission ν Italy [1979] adopted very shortly, so that the object ECR 771; Case 42/80, Commission ν of the action may be considered to have Italy [1980] ECR 3635; Case 43/80, been eliminated in substance. Commission ν Italy [1980] ECR 3643; In its reply the Commission points out Case 44/80, Commission ν Italy [1981] that the defence gives no details of the ECR 343; and Case 45/80, Commission period required for the adoption of the ν Italy [1981] ECR 353). draft law. In its defence the Italian Government states that the directive in question was included with a view to its im IV — O r a l p r o c e d u r e plementation in a draft law which is now under consideration by the Tenth At the sitting on 8 October 1981 the Committee of the Chamber of Deputies, parties submitted oral argument. which deals with matters relating to road In particular, the Italian Republic haulage. The draft Law was not requested that the Court grant it an submitted to Parliament until 12 extension of the period laid down by the December 1980 owing to the detailed Commission pursuant to Article 169 of scrutiny to which it was first subjected the Treaty for complying with its by all the administrative authorities obligations under the directive in concerned, a scrutiny which was question. necessarily time-consuming in view of The Advocate General delivered his the complexity of the subject-matter. opinion at the same sitting.
Decision
1 By application lodged at the C o u r t Registry on 18 February 1981 the Commission b r o u g h t an action u n d e r Article 169 of the E E C T r e a t y for a declaration that the Italian Republic had failed t o fulfil o n e of its obligations u n d e r the T r e a t y by failing t o a d o p t within the prescribed period the provisions needed in o r d e r to comply with Council Directive N o 74/561 of 12 N o v e m b e r 1974 on admission to the occupation of r o a d haulage o p e r a t o r in national and international transport operations (Official J o u r n a l L 308, p. 18).
JUDGMENT OF 10. 11. 1981 — CASE 28/81
2 By virtue of Article 7 of Council Directive No 74/561 Member States were required to adopt the measures necessary for implementation of the directive within a period expiring on 1 January 1977.
3 The Italian Government does not dispute the fact that it has not satisfied that obligation. It explains that the directive in question has been included for implementation in a draft law which is now under consideration by the Chamber of Deputies. The draft was not tabled until 12 December 1980 owing to the detailed scrutiny to which it was first subjected by all the administrative authorities concerned. The Italian Government states that it has asked the authorities concerned to expedite the procedure for approving the draft law and hopes to obtain approval within the shortest possible time. The Italian Government claims that in the circumstances it may be considered that the object of the action has been eliminated in substance so that this application has become devoid of purpose.
4 Those circumstances do not expunge the failure of the Italian Republic to fulfil its obligations. According to the well-established case-law a Member State may not plead provisions, practices or circumstances in its internal legal system in order to justify a failure to comply with obligations under Community directives.
5 In the course of the hearing the Italian Government requested the Court to grant it an extension of the period allowed by the Commission pursuant to Article 169 of the Treaty for fulfilling the obligations under the directive in question.
6 The powers conferred on the Court in relation to applications under Article 169 of the Treaty do not include the power to substitute a different period for that laid down by the Commission pursuant to Article 169 in its reasoned opinion, although the legality of that opinion is subject to review by the Court. Subject to the same reservation, it is for the Commission to decide whether such a request from a Member State is to be granted.
7 It must therefore be held that by failing to adopt within the prescribed period the provisions needed in order to comply with Council Directive No 74/561
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of 12 November 1974 the Italian Republic has failed to fulfil one of its obligations under the Treaty.
Costs
8 Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs.
9 Since the defendant has failed in its submissions, 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 Council Directive No 74/561 of 12 November 1974 on admission to the occupation of road haulage operator in national and international transport operations (Official Journal L 308, p. 18), 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 Bosco Touffait Mackenzie Stuart O'Keeffe
Koopmans Everling Chloros Grévisse
Delivered in open court in Luxembourg on 10 November 1981.
J. A. Pompe J. Mertens de Wilmars Deputy Registrar President