C-203/82
ECLI:EU:C:1983:218
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J U D G M E N T OF T H E COURT 14 JULY 1983 '
Commission of the European Communities v Italian Republic
(Failure of a Member State to fulfil its obligations — Partial taking over by the State of employers' contributions to the sickness insurance scheme)
Case 203/82
In Case 203/82
COMMISSION OF THE EUROPEAN COMMUNITIES, represented by Marie-José Jonczy, acting as Agent, assisted by Eugenio de March, both members of its Legal Department, with an address for service in Luxembourg at the office of Oreste Montalto, a member of the Legal Department of the Commission, Jean Monnet Building, Kirchberg, applicant,
v
ITALIAN REPUBLIC, represented by the Avvocatura dello Stato in the person of Ignazio Francesco Caramazza, with an address for service in Luxembourg at the Italian Embassy, defendant,
APPLICATION for a declaration that, by failing to comply with the time- limits fixed by Commission Decision 80/932/EEC of 15 September 1980 concerning the partial taking over by the State of employers' contributions to sickness insurance schemes in Italy, the Italian Republic has failed to fulfil one of its obligations under the EEC Treaty,
1 — Language of the Case: Iulian.
JUDGMENT OF 14. 7. 1983 — CASE 203/82
THE COURT
c o m p o s e d of: J. Merteťís de Wilmars, President, P. Pescatore, A. O'Keeffe, U. Everling, Presidents of C h a m b e r s , L o r d M a c k e n z i e Stuart, G. Bosco, T . K o o p m a n s , O . D u e a n d K. Bahlmann, J u d g e s ,
A d v o c a t e G e n e r a l : S. Rozès Registrar: P . H e i m
gives t h e following
JUDGMENT
Facts
The facts and the arguments of the The first paragraph of Article 22 of the parties, elaborated in the course of the aforementioned decree provides that: written procedure, may be summarized as follows : "With effect from the contribution period following the one applying on 31 December 1979, the total levels of contribution for compulsory sickness 1 — Facts and written procedure insurance payable by undertakings . . . are reduced by four percentage points for male employees and by ten By Decree Law N o 353 of 6 July 1978 percentage points for female employees." (Gazzetta Ufficiale N o 192, of 11 July 1978), converted into Law No 502 of 5 That taking over by the State entailed a August 1978 (Gazzetta Ufficiale No 246, greater reduction in employers' contri- 2 September 1978), the Italian butions to the sickness insurance scheme Government introduced a partial taking for female employees than for male over by the State of the employers' employees thereby favouring certain contributions which industrial under- Italian industries employing large takings arid certain undertakings in the numbers of female employees, such as, in services sector have to pay on behalf of particular, those in the textile, clothing, their employees for sickness insurance; footwear and leather-goods sectors. that taking over, initially laid down for a transitional period of six months, was Considering that such a system subsequently extended several times and constituted an aid incompatible with the made definitive by Decree Law N o 663 common market within the meaning of of 30 December 1979 (Gazzetta Ufficiale Article 92 of the EEC Treaty, on 15 No 355, 31 December 1979). September 1980 the Commission took a
COMMISSION v ITALY
decision pursuant to the first subpara- Upon hearing the report of the Judge- graph of Article 93 (2) concerning the Rapporteur and the views of the partial taking over of employers' contri- Advocate General, the Court decided to butions to the sickness insurance schemes open the oral proceedings without any in Italy (Commission Decision 80/932/ preliminary inquiry. EEC, Official Journal 1980, L 264 p. 28). The procedure followed the normal course, except that the Italian Republic That decision provides in particular: gave notice by telephone that it did not "Article 1 wish to submit a rejoinder. The Italian Republic shall within six months remove the difference provided for in Article 22 of Decree No 663 of 30 II — A r g u m e n t s of t h e p a r t i e s December 1979 in the rate of reduction of employers' sickness insurance contri- butions as between male and female The Commission claims that the Court employees. should: Article 2 " 1 . Declare that, by not complying The Italian Republic shall communicate within the prescribed period with the to the Commission the laws, regulations Commission Decision of 15 and administrative provisions adopted to September 1980 concerning the comply with this Decision not later than partial taking over by the State of the end of the period laid down in employers' contributions to the Article 1." sickness-insurance scheme in Italy, the Italian Republic has failed to That decision was notified to the Italian fulfil one of its obligations under the Republic by a letter of 17 September EEC Treaty; . 1980. 2. Order the defendant to pay the In a letter of 18 February 1981 from its costs." Permanent Representative, the Italian Government stated its intention of The Italian Republic has not expressly set complying with the Commission decision out its conclusions. of 15 September 1980. By a letter of 12 May 1981, the Commission authorized exceptionally the extension until 30 June 1981 of the period within which the III — S u b m i s s i o n s and argu- Italian Republic had to comply with the m e n t s of the p a r t i e s aforementioned decision.
The Commission states that since then, The Commission states in its application although several reminders have been that in the proceedings under Article sent, no action has been taken to comply 93 (2) of the EEC Treaty, it observed with the aforementioned decision. that the aid in question was incompatible with the common market within the By application dated 5 August 1982, meaning of Article 92. Thereafter it was lodged at the Court Registry on 8 bound, pursuant to the first subpara- August 1982, the Commission brought graph of Article 93 (2), to decide that the an action before the Court. Italian Republic must abolish or amend
JUDGMENT OF 14. 7. 1983 — CASE 203/82
the measure within such period as the differential, by reducing the rates by Commission might determine. 6.64% for both men and women.
The Commission points out that The Italian legislature's intention was pursuant to Article 189 of the EEC certainly not to crystallize a situation Treaty decisions are binding in their that was not perfectly in conformity with entirety upon those to whom they are the Community legal order, but was and addressed and that, pursuant to Article is to make provisional regulation for a 191, they take effect upon notification. problematical sector within the limited Since the Italian Republic has still not, room for manœuvre allowed by the by the day on which the application has difficult economic situation, pending a been filed, complied with a decision fundamental reorganization of the entire notified to it by letter of 17 September contributions system as soon as possible, 1980, it has, beyond all shadow of which will make it possible to implement doubt, failed to fulfil its obligations fully both the substantive and the formal pursuant to the first subparagraph of result envisaged by Decision 80/932/ Article 93 (2) of the Treaty. EEC.
That is confirmed by all subsequent In its defence, the Italian Government legislation on the subject, which is draws attention to the fact that when expressly provisional and valid for a very Decree Law No 663 was converted into short term. The Italian Government adds a law (Law N o 33 of 29 February 1980), tht the introduction of amending the aforementioned paragraph 1 of provisions substantively implementing the Article 22 was amended so that it now Commission decision in its entirety, opens in the following terms: albeit possibly on a provisional basis, should be proposed once again — provided that the necessary conditions are fulfilled — when the latest decree on "Pending the complete reorganization of the subject (Decree Law No 694 of the entire complex of abatements and the 1 October 1982) is converted into a law. taking over by the State of the cost of social security, with effect from the contribution period following that applying on 31 December 1979 and until In its reply, the Commission states that 31 December 1980...". despite the notice contained in its letter of 12 May 1981 authorizing, excep- tionally, the extension until 30 June 1981 of the' period within which Italy had to The Italian Government submits that at comply with the relevant decision, the the expiry of the period allowed, which Italian authorities extended the afore- was extended to 30 June 1981, Italy mentioned period until 31 October 1981 should be considered, at any event on by another decree, Decree Law No 395 the formal level, as having complied with of 28 July 1981 (converted into Law No the decision of 15 September 1980 at 534 of 25 September 1981), and had least in pan, given that Law N o 782 of further extended it until 31 December 28 November 1980 had made rules for a 1981 by Decree Law No 646 of 16 fixed period (until 30 June 1981) November 1981 (converted into Law No providing for a later reduction of the 3 of 15 January 1982).
COMMISSION v ITALY
By letter of 23 November 1981, the Although the application was already Commission reminded the Italian pending before the Court (5 August Government of its obligations under 1982) and, since Decree Law No 492 Decision 80/932/EEC. At that stage it had expired without being converted into hoped that after 31 December 1981 the a law within the period prescribed by the situation would finally be regularized. Italian Constitution, the Commission However by Decree Law No 91 of 24 thought that the situation had been regu- March 1982, the Italian Government larized retroactively with effect from 1 reintroduced the discriminatory re- July 1982, on 1 October 1982 the Italian ductions in the level of contributions for Government adopted a new Decree Law the period from 1 February 1982 to 31 (No 694) once again extending the March 1982. discriminatory reductions in contri- butions in force on 30 June 1982, this time until 30 November, 1982...
By letter of 10 May 1982, the The Commission concludes therefrom Commission again reminded the Italian that Italy's failure to fulfil its obligation Government of its obligations and under the decision of 15 September 1980 declared its intention to bring the matter is of a continuing and deliberate nature. before the Court. When the Decree Law of 24 March 1982 was converted into Law No 267 of 21 May 1982, the discriminatory reductions were IV — O r a l p r o c e d u r e confirmed for the months of February and March 1982, and, what is more, extended retroactively and without interruption to the period between 1 The parties presented oral argument at January 1982 and 30 June 1982. That the sitting on 11 May 1983. time-limit was later extended to 31 December 1982 by Decree Law No 492 The Advocate General delivered her of 2 August 1982. opinion at the sitting on 22 June 1983.
Decision
1 By application lodged at the C o u r t Registry o n 9 August 1982, the Commission of the E u r o p e a n C o m m u n i t i e s b r o u g h t an action pursuant to the second subparagraph of Article 93 (2) of the E E C T r e a t y for a declaration that the Italian Republic h a d failed to fulfil one of its obligations u n d e r the E E C T r e a t y by n o t complying within the prescribed period with Commission Decision 8 0 / 9 3 2 / E E C of 15 September 1980 concerning the
JUDGMENT OF 14. 7. 1983 — CASE 203/82
partial taking over by the State of employers' contributions to sickness insurance schemes in Italy (Official Journal 1980, L 264, p. 28).
2 By Decree Law No 353 of 6 July 1978 (Gazzetta Ufficiale No 192), converted into Law N o 502 of 5 August 1978 (Gazzetta Ufficiale No 246), the Italian Government introduced a partial taking over by the State of the employers' contributions which industrial undertakings and certain under- takings in the services sector have to pay on behalf of their employees for sickness insurance. That taking over by the State, which was initially laid down for a transitional period of six months, was subsequently extended several times and made definitive by Decree Law No 663 of 30 December 1979 (Gazzetta Ufficiale N o 355).
3 The first paragraph of Article 22 of the aforementioned Decree Law No 663 provides that:
"With effect from the contribution period following the one applying on 31 December 1979, the total levels of contributions for compulsory sickness insurance payable by undertakings . . . are reduced by four percentage points for male employees and by ten percentage points for female employees."
4 The Commission considered that such a system constituted an aid incompatible with the common market within the meaning of Article 92 of the EEC Treaty, since that taking over by the State entailed a greater reduction in employers' contributions to the sickness insurance scheme for female employees than for male employees thereby favouring certain Italian industries employing large numbers of female employees, such as, in particular, those in the textile, clothing, footwear and leather-goods sector. Consequently, on 15 September it adopted a decision (notified to the Italian Government on 17 September 1980) which provides in particular:
"Article 1 The Italian Republic shall within six months remove the difference provided for in Article 22 of Decree N o 663 of 30 December 1979 in the rate of reduction of employers' sickness insurance contributions as between male and female employees.
COMMISSION v ITALY
Article 2 The Italian Republic shall communicate to the Commission the laws, regu- lations and administrative provisions adopted to comply with this Decision not later than the end of the period laid down in Article 1."
5 The Italian Government does not dispute that decision. On the contrary, by a letter of 18 February 1981, it notified the Commission that it had taken cognizance of the decision and intended to comply with it when the provisions governing contributions for medical care were amended.
, 6 By letter of 12 May 1981, the Commission, exceptionally, authorized the extension until 30 June 1981 of the period for complying with the decision, "on the clear understanding that from that date any differentiation between men and women in the level of the said reduction will be definitively abolished".
7 By a series of decree laws, later converted into laws, and in the last instance by Decree Law N o 17 of 29 January 1983, converted into Law No 79 of 25 March 1983, Italy set back repeatedly the effective expiry date of the disputed measure. According to the Italian Government that extension was necessary because of its intention to reorganize the entire system.
8 The explanations provided by the Italian. Government do not affect in the slightest the fact that the disputed aid has, contrary to the Commission decision, remained in force after 30 June 1981 and even up to the date of the oral procedure before the Court.
9 It must therefore be held that by failing to comply within the prescribed period with Commission Decision 80/932/EEC of 15 September 1980 concerning the partial taking over by the State of employers' contributions to sickness insurance schemes in Italy (Official Journal 1980, L 264, p. 28), the Italian Republic has failed to fulfil its obligations under the EEC Treaty.
JUDGMENT OF 14. 7. 1983 — CASE 203/82
Costs
io Under Articles 69 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. 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 comply within the prescribed period with Commission Decision 80/932/EEC of 15 September 1980 concerning the partial taking over by the State of employers' contributions to sickness insurance schemes in Italy (Official Journal 1980, L 264, p. 28), the Italian Republic has failed to fulfil its obligations under the EEC Treaty.
2. Orders the Italian Republic to pay the costs.
Mertens de Wilmars Pescatore O'Keeffe Everling
Mackenzie Stuart Bosco Koopmans Due Bahlmann
Delivered in open court in Luxembourg on 14 July 1983.
P. Heim J. Mertens de Wilmars Registrar President