C-136/81

In Case 136/81

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, Antonino Abate, acting as Agent, with an address for service in Luxembourg at the office of Oreste Montako, a member of its Legal Department, Jean Monnet Building, Kirchberg,

applicant,

v

ITALIAN REPUBLIC, represented by Arnaldo Squillante, President of Section of the Consiglio di Stato [State Council] and head of the Department for

1 — Language of the Case: Italian.

Advocate General: Sir Gordon Slynn Registrar: P. Heim

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of the devolving upon them regarding the right procedure, the conclusions and the of establishment, in particular by coordi­ submissions and arguments of the parties nating to the necessary extent the safe­ may be summarized as follows: guards which, for the protection of the interests of members and others, are required by Member States of companies I — Summary of the facts or firms within the meaning of the second paragraph of Article 58 Article 54 (3) (g) of the EEC Treaty (companies or firms constituted under provides that the Council and the civil or commercial law, including Commission are to carry out the duties cooperative societies, and other legal

COMMISSION v ITALY

To give effect to those provisions, the By a telex message of 1 February 1980, Council, after issuing a first directive, the Permanent Representation of the Directive 68/151 of 9 March 1968, Italian Republic to the Communities adopted a second directive on 13 informed the Commission that the bill December 1976, Directive 77/91, on empowering the government to coordination of safeguards which, for implement the directive, which had been the protection of the interests of tabled during the seventh legislature and members and others, are required by had lapsed at the end of it, had been Member States of companies within the tabled again in Parliament in this meaning of the second paragraph of legislature and was under consideration Article 58 of the Treaty, in respect of the by the Commissioni Riunite della formation of public limited liability Giustizia e delle Finanze del Senato companies and the maintenance and [Joint Committees on Justice and alteration of their capital, with a view to Finance of the Senate]; furthermore the making such safeguards equivalent ad hoc Inter-Departmental Committee, (Official Journal 1977, L 26, p. 1). set up in the Prime Minister's office, had clarified the technical aspects of the directive which call for national implementing provisions in order to draw Directive 77/91 was notified to the up without delay the decree to be Member States on 16 December 1976. In enacted after the approval by both accordance with Article 43 thereof, the Houses of Parliament of the enabling Member States were required to bring legislation. into force the laws, regulations and administrative provisions needed in order to comply with the directive within two The Commission, pursuant to the first years of its notification, that is to say by paragraph of Article 169 of the EEC 16 December 1978, and forthwith to Treaty, issued a reasoned opinion on

By application lodged on 5 June 1981, the Commission, pursuant to the second IV — Submissions and arguments paragraph of Article 168 of the EEC of the parties during the Treaty, brought before the Court the written procedure matter of the alleged failure of the Italian Republic to fulfil one of its obligations by not giving effect to Directive 77/91. The Commission observes that according The written procedure followed the to the third paragraph of Article 189 of normal course; the Commission waived the EEC Treaty directives are binding, as its right to submit a reply. to the results to be achieved, upon the Member States to which they are On hearing the report of the Judge- addressed, whilst leaving to the national Rapporteur and the views of the authorities the choice of form and 'Advocate General, the Court decided to methods. The mandatory nature of open the oral procedure without any directives imposes upon Member States preparatory inquiry. However, it invited the obligation to observe the periods the Italian Government to state, in which they prescribe for the adoption of writing, the exact date on which it had national implementing provisions. commenced the legislative procedure with a view to implementation of the directive; that invitation was complied Infringement of the Treaty by a Member with within the prescribed period. State exists no matter which organ of the State it is whose act or omission is responsible for the failure. The Member State in question may not plead III — Conclusions of the parties provisions or practices existing in its internal legal system or special circum­ The Commission claims that the Court stances at national level in order to should: justify its failure to fulfil an obligation.

Decision

1 By application received at the Court Registry on 5 June 1981 the Commission brought an action under Article 169 of the EEC Treaty for a declaration that by not adopting within the prescribed period the national provisions needed to comply with Directive 77 / 91 / EEC , the second Council Directive of 13 December 1976 on coordination of safeguards which, for the protection of the interests of members and others , are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty , in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent, (Official Journal , 1977, L 26, p. 1), the Italian Republic had failed to fulfil one of its obligations under the EEC Treaty .

JUDGMENT OF 12. 10. 1982 — CASE 136/81

2 Pursuant to Article 43 of the directive, Member States were required to bring into force the laws, regulations and administrative provisions needed in order to comply with the directive within two years of its notification. It was notified to the Italian Republic on 16 December 1976 and the above- mentioned period accordingly expired on 16 December 1978.

3 The Italian Government does not contest that it has not fulfilled that obligation. It states that it initiated the necessary legislative procedure by laying the appropriate bill before Parliament but that, despite its repeated interventions, the bill, which has already been approved by the Senate, is still under debate in the Chamber of Deputies. Its firm intention of incorporating the directive into national law has not been called in question in any way and the delay stems from the difficulties inherent in the legislative procedures.

On those grounds,

THE COURT

hereby:

1. Declares that by not adopting within the prescribed period the provisions needed in order to comply with Council Directive 77/91/ EEC, the second Council Directive of 13 December 1976 on coordi- nation of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent, the Italian Republic has failed to fulfil one of its obligations under the EEC Treaty;

2. Orders the Italian Republic to pay the costs.

Mertens de Wilmars O'Keeffe Everling