C-29/81

JUDGMENT OF 10. 11. 1981 — CASE 29/81

In Case 29/81

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 del 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,

JUDGMENT

Facts and Issues

The facts of the case, the course of occupation is not that of road passenger the procedure and the conclusions, transport operator. submissions and arguments of the parties may be summarized as follows: Article 2, the provisions of which are crucial to the directive, lays down the requirements for engaging in the occupation of road passenger transport I — Facts and written procedure operator. The requirements are :

JUDGMENT OF 10. 11. 1981 — CASE 29/81

The Italian Republic did not adopt the the present date it appears that the measures necessary for implementing the national measures to adapt the national directive by 1 January 1977 as required law have not been taken. by Article 6. This application, dated 12 February By letter of 26 March 1979 the Italian 1980, was received at the Court Registry Permanent Representative stated that the on 16 February. The Italian Government reason for the delay was the need to stated by telephone that it did not intend keep the transmission into national law to lodge a rejoinder. of the directive in question separate from that of Directive No 74/561 on On hearing the report of the Judge- admission to the occupation of road Rapporteur and the views of the haulage operator (failure to implement Advocate General the Court decided to which is the subject-matter of Case open the oral procedure without any 28/81): the conversion of both directives preparatory inquiry. into national law could not proceed as originally envisaged owing to the unforeseen difficulties to which the implementation of Directive No 74/561 II — C o n c l u s i o n s of the p a r t i e s gave rise. In any case the Commission was informed that the Italian authorities responsible for such matters had decided The Commission claims that the Court to adopt the measures necessary to should: commence at an early date the par- liamentary procedure concerning the — Declare that, by failing to adopt draft law on the adoption of Directive within the prescribed period the No 74/562. provisions needed to comply with Council Directive No 74/562/EEC of 12 November 1974 on admission By letter of 7 June 1979 the Commission to the occupation of road passenger informed the Italian Government that in transport operator in national and its opinion Italy had failed to fulfil its international transport operations, obligations under the Treaty, and gave it the Italian Republic has failed to the opportunity of submitting its obser- fulfil one of its obligations under the vations within a period of two months. Treaty;

obligation to comply with the periods number of provisions, requesting that the prescribed by them for the adoption of text of the draft law be more detailed. national implementing provisions. Naturally, the result of this was to slow down the procedure for approving the An infringement of the Treaty by a law in question. Member State exists irrespective of the organ of the State whose act or The Italian Government has already omissions were the cause of the failure to approached the authorities concerned to implement a directive. The Member State ensure that consideration of the draft in question may not plead provisions, law will proceed as quickly as possible. It practices or circumstances in its internal therefore hopes to be able very shortly to legal system in order to justify its submit the draft to Parliament for conduct. approval and for the adoption of the corresponding law so that the object of Those principles have been consistently the action may be considered to have confirmed by the Court in its decisions been eliminated in substance. (see, inter alia, Case 52/75, Commission ν Italy [1976] ECR 277; Case 10/76, In its reply the Commission points out Commission ν Italy [1976] ECR 1359; that the defence gives no details of the Case 163/78, Commission ν Italy [1979] period required for the adoption of the ECR 771; Case 42/80, Commission ν draft law. Italy [1980] ECR 3635; Case 43/80, Commission ν Italy [1980] ECR 3643; Case 44/80, Commission ν Italy [1981] IV — Oral procedure ECR 343; and Case 45/80, Commission ν Italy [1981] ECR 353). At the sitting on 8 October 1981 the In its defence the Italian Government parties submitted oral argument. states that the directive in question was In particular, the Italian Republic included with a view to its im­ requested that the Court grant it an plementation in a special draft law which extension of the period laid down by the was transmitted to the national Commission pursuant to Article 169 of administrative authorities concerned in the Treaty for complying with its order to obtain the necessary approval obligations under the directive in from them before the draft law was question. presented to Parliament. During the approval phase, however, some of those The Advocate General delivered his authorities commented in substance on a opinion at the same sitting.

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 special draft law which was "transmitted to the national authorities concerned in order to obtain the necessary approval from them before submitting the draft law to Parliament". Some of those authorities submitted observations requiring a more detailed draft law. This delayed the procedure for approving the text in question. The Italian Government states that it has approached the authorities concerned with a view to expediting consideration of the draft law so as to be able to table the draft and have it approved 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 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.

COMMISSION ν ITALY

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.

hereby:

1. Declares that, by failing to adopt within the prescribed period the provisions needed in order to comply with Council Directive No 74/562 of 12 November 1974 on admission to the occupation of road

OPINION OF SIR GORDON SLYNN — CASE 29/81

passenger transport operator in national and international transport operations (Official Journal No L 308, p. 23), 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