C-94/81

In Case 94/81 COMMISSION OF THE EUROPEAN COMMUNITIES, represented by G. Marenco, a member of its Legal Department, acting as Agent, with an address for service in Luxembourg at the office of O. Montako, a member of its Legal Department, Jean Monnet Building, Kirchberg, applicant, v ITALIAN REPUBLIC, in the person of its Agent, A. Squillante, Head of the Department for Contentious Diplomatic Legal Affairs, Treaties and Legislative Matters, represented and assisted by G. Fienga, Avvocato dello Stato, with an address for service in Luxembourg at the Italian Embassy, defendant, I — Language of the Case: Italian.

JUDGMENT OF 2. 3. 1982 - CASE »4/81

APPLICATION for a declaration that by not implementing Council Directive 76/768/EEC of 27 July 1976 on the a p p r o b a t i o n of the laws of the Member States relating to cosmetic products (Official Journal, 1976, L 262, p. 169) the Italian Republic has failed to fulfil its obligations under the EEC Treaty,

T H E COURT,

composed of: J. Menens de Wilmars President, G. Bosco and O. Due (Presidents of Chambers), A. O'Keeffe, T. Koopmans, A. Chloros and F. Grévisse, Judges,

Advocate General: P. VerLoren van Themaat Registrar: P. Heim

5. The present application was lodged 4. By a letter dated 5 July 1979 at the Court Registry on 24 April 1981. addressed to the Ministry of Foreign Affairs of the Italian Republic, the The Italian Government has not lodged Commission, after noting that the period a rejoinder. for implementig the directive had expired and that it had received no communi- cation concerning the adoption of Upon hearing the repon of the Judge- implementing measures by the Italian Rapporteur and the views of the Republic, expressed the opinion that the ' Advocate General the Court decided to Italian Republic had failed to fulfil its open the oral procedure without any obligations and, in pursuance of Article preparator}' inquiry. 169 of the Treaty, it invited the Italian Government to submit its observations within a period of two months. II — C o n c l u s i o n s of the p a r t i e s The Italian authorities replied by a letter dated 11 July 1979, in which they A. In its application the Commission referred to an Italian note dated 12 April claims that the Court should: 1979 which had brought to the Commission's attention the fact that a draft law, submitted by the Italian (1) Declare that by omitting to adopt Government and already examined by within the prescribed period the the Senate, had lapsed because of the provisions needed to complv with premature dissolution of the Parliament. Directive 76/768/EEC of the The assurance was given that, once the Council of 27 July 1976 on the new government was constituted, it approximation of the laws of the would not fail to re-submit the draft Law Member States relating to to the Parliament. cosmetic products, the Italian Republic has failed to fulfil its obligations under the EEC On 19 May 1980 the Commission issued Treaty; a reasoned opinion in pursuance of Article 169 of the Treaty, and invited the Italian Government to comply with that (2) Order the defendant to pay the opinion within a period of two months. costs.

III — S u b m i s s i o n s and argu- Thus, quite apart from their extremely m e n t s of the p a r t i e s narrow scope, the measures in question do not even constitute, according to the Commission, an appropriate im- A — General observations plementation of the directive to which they refer. The directive requires for its implementation the creation of a legal 1. The Italian Government refers to the framework within which the rights and observations which it submitted prior to duties of traders are stipulated in a the Commission's application to the manner consistent with the requirements Court and contends in addition that, of clarity and certainty. within the limits permitted by the legislative provisions in force, it has taken care to adopt, at the administrative level, its own measures of surveillance B — Observations on the measures which are applied in the cosmetics sector adopted by Italy for the purpose of by the Ministry of Health, to the implementing the directive principles underlying the Community directive. 1. The Italian Government points out that where irregularities have been found Whilst admitting that the subject-matter to exist the manufacturers and distribu- of the dispute can only be eliminated by tors have been given formal notice to the adoption of a law implementing the make the packaging of their products directive, the Italian Government hopes comply with the provisions of the that the Court will as far as possible take directive. into account its administrative action. The Commission replies that it appears, although it is not certain, that the 2. The Commission observes that the measure adopted by the Italian provisions adopted by the Italian Government refers to Article 6 of the Government are incomplete and, even as directive. regards those points which they do cover, they do not appear to correspond faithfully to the requirements of the 2. The Italian Government also remarks directive. The aim of the directive, which that the elimination of dangerous or is to bring about complete harmonization pharmacologically active substances con- and, as a result, the elimination of tained in cosmetic products and listed in barriers to trade, is not achieved. The Annex II to the directive has been Commission also remarks that, leaving enforced by recourse to the procedures aside the incomplete nature of the of seizure or warning. provisions, as the Court stated in its judgment of 6 May 1980 in Case 102/79 According to the Commission, this Commission v Belgium [1980] ECR 1473, measure relates to the duty laid upon the Member States by Anicie 4 (a) of the "Mere administrative practices, which by directive. However, it is not clear their nature can be changed as and when whether the measure covers all or only the authorities please and which are not some of the 361 substances listed in publicized widely enough, cannot . . . be Annex II to the directive. regarded as a proper fulfilment of the obligation imposed by Article 189 on Member States to which the directives 3. The Italian Government stresses that are addressed". a ministerial order was expressly adopted

Decision

1 By application lodged at the C o u r t Registry on 24 April 1981 the Commission of the European Communities brought an action pursuant to Article 169 of the E E C T r e a t y for a declaration that by not adopting within the prescribed period the provisions needed to comply with Council Directive

JUDGMENT OF 2. 3. 1982 — CASE 94/81

76/768/EEC of 27 July 1976 on the approximation of the laws of the Member States relating to cosmetic products (Official Journal 1976, L 262, p. 169), the Italian Republic has failed to fulfil its obligations under the Treaty.

: By virtue of Anicie 14 of the directive the Member States were to bring into force the provisions needed to comply with the directive within 18 months of its notification. In this case that period expired on 30 January 1978.

The Italian Government has stated that the directive has already been the subject of measures which implement it in part. Nevertheless it does not deny that the Italian Republic has not fulfilled its obligation to implement the directive fully within the prescribed period.

7 Anicie 69 (2) of the Rules of Procedure provides that the unsuccessful party is to 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 not adopting within the prescribed period the provisions needed to comply with Council Directive 76/768/EEC of 27 July 1976 on the approximation of the laws of the Member States relating to cosmetic products, the Italian Republic has failed to fulfil its obligations under the Treaty;

2. Orders the Italian Republic to pay the costs.