C-113/86
ECLI:EU:C:1987:474
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OPINION OF MR DA CRUZ VILAÇA — CASE 113/86
OPINION OF MR ADVOCATE GENERAL DA CRUZ VILAÇA delivered on 10 November 1987 *
chicks imported and exported over the same Mr President, period. Members of the Court,
4. The second sentence of Article 4 (1) of I — Subject-matter of the application and Commission Regulation No 1868/77 states relevant legislation that the summary 'shall be forwarded by Member States to the Commission each calendar month not later than four weeks 1. A — In this action, brought under after the end of the month to which the Article 169 of the Treaty, the Commission figures refer'. In addition, Article 6 of that asks the Court to declare that the Italian regulation provides that 'before 30 January Republic has failed to fulfil its obligations each year Member States shall send to the under Article 10 of Regulation (EEC) No Commission statistics on the structure and 2782/75 of the Council of 29 October activity of hatcheries'. 1975 1 on the production and marketing of eggs for hatching and of farmyard poultry chicks, and Articles 4 (1) and 6 of Commission Regulation (EEC) No 1868/77 5. The purpose of the statistics which I have of 29 July 1977 2laying down detailed rules just described is to provide the Commission of application for the first-mentioned regu with the information it needs in order to lation. forecast production trends and adopt appro priate measures for the management of the common organization of the market in the sector concerned. 2. B — Article 9 of Regulation No 2782/75 of the Council requires each hatchery to communicate monthly to the competent agency of the Member State the 6. C — In its reasoned opinion, dispatched number of eggs placed in incubation, the on 24 April 1985, the Commission stated number of chicks hatched and the number that, since August 1983, it had received only of chicks intended for actual use. complete monthly data for January and February 1983 and some data for February, March and April 1984. The last annual stat 3. Article 10 of that regulation provides that istical return it had received was for 1982. the Member States are to communicate to the Commission, after the relevant data have been received and analysed, a monthly summary based on the data for the previous 7. In its application (12 May 1986), the month, which is also to show the number of Commission stated that it received in June 1985 the annual data for 1983 and the * Translated from the Portuguese. monthly data up to the end of December 1 — Official Journal 1975, L 282, p. 100. 1984, that is to say, in any event, after the 2 — Official Journal 1977, L 209, p. 1. one-month period laid down in the
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reasoned opinion had expired. the obligation imposed by the regulation, Subsequently, according to the Commission, the Italian Government argued that the fact further monthly data were communicated that the returns for 1984 and 1985 had been out of time including, in March 1986, the forwarded before the Commission instituted monthly data relating to external trade for proceedings meant that the action was not the period from February 1983 to June well founded. 1984.
13. In my view, that is not the case. 8. The Commission also alleged in its application that it had not yet received the annual statistical returns for 1984 and 1985 14. The default with which the Italian (which should have been forwarded to it on Republic is charged consists in its failure to 30 January 1985 and 30 January 1986 observe the periods prescribed by the regu respectively). It also complained that the lation. That is explained quite clearly in monthly data were still consistently being paragraphs 3 and 7 of the application and returned approximately two months after was already apparent from the reasoned the expiry of the period prescribed by opinion because, in stating that since 10 Article 4 (1) of Regulation No 1868/77. August 1983 it had received only some of the statistical data which should have been forwarded to it, the Commission made it II — The annual statistical returns clear that all the remaining information up to that date was missing. 9. As is clear from the documents before the Court, it is not disputed that there were considerable delays, in relation to the 15. Nor is the defect in question remedied periods laid down, in forwarding the annual by the subsequent communication of the returns for 1983, 1984 and 1985 to the missing data. A 'belated fulfilment of its Commission. obligations' by a Member State still constitutes a failure to fulfil its obligations and the Court would therefore have to 10. It is surprising, however, that, as the make a declaration to that effect. Italian Government stated in its reply to the application and as the Commission confirmed in its rejoinder, the returns for 16. Moreover, as the Court has frequently 1984 and 1985 had already been received by pointed out, 3even if the default is remedied the Commission on 28 June 1985 and 4 after the expiry of the time-limit prescribed April 1986 respectively, which is to say by the second paragraph of Article 169 of before it instituted proceedings. the Treaty, there is still an interest in pursuing an action.
11. At the hearing, the Agent for the Commission ascribed that mistake to a 17. As the Court has consistently held, failure to communicate data which had however, the scope of an action brought already been processed by the departments under Article 169 of the Treaty is limited concerned and passed on to the Member by the preliminary administrative procedure States. and is defined in the reasoned opinion, so
12. Although it expressly acknowledged 3 — See the judgment of 5 June 1986 in Case 103/84 Commission v Italian Republic [1986] ECR 1759, paragraph that there had been 'a delay in discharging' 8 of the decision.
OPINION OF MR DA CRUZ VILAÇA — CASE 113/86
that it may not be widened in the plead 'internal administrative difficulties in contentious proceedings. 4 order to justify a failure to comply with obligations and time-limits arising from 18. The reasoned opinion was delivered Community law.' 5In particular, the Court before the end of 1985, with the result that has already pointed out 6 that 'practical Italy could not have been in default with difficulties which appear at the stage when a regard to the communication of the annual Community measure is put into effect data for that year. Therefore it would cannot permit a Member State unilaterally appear that, for procedural reasons to opt out of fulfilling its obligations'.
The connected with Italy's rights of defence, the Member State concerned may avail itself, Court should refrain from declaring that under the institutional system of the Italy has failed to fulfil its obligations in that Community, of 'the necessary means to regard. ensure that its difficulties be given due consideration, subject to compliance with the principles of the common market' and, 19. However, in my view, that is not neces in those circumstances, 'the possible diffi sarily the case. Although the events in culties of implementation alleged by the question occurred after the reasoned defendant cannot be accepted as a justifi opinion was delivered, they are of exactly cation'. That is so particularly where, as in the same nature as those which were this case, it is necessary to give effect to a referred to in that opinion and involved the regulation which has been in existence for same kind of conduct, and there is no over 10 years. particular reason connected with those events which is likely to affect the procedural position of the defendant.
23. That consideration also applies to the 20. Hence, by analogy with its judgment of next point, in which I propose to deal with 22 March 1983 in Case 42/82 Commission the problem of the delay in forwarding the v France [1983] ECR 1013, at p. 1040, monthly summaries. paragraph 20 of the decision), I believe that the Court can declare that the Italian Republic has failed to fulfil its obligations HI — The monthly summaries on account of the delay which occurred in forwarding the annual statistical data for 1983, 1984 and 1985. 24. A — The Italian Government does not deny that there was a consistent delay in
21. That conclusion is not precluded by the forwarding the monthly summaries of Italian Republic's contention, made in approximately two months, compared with response to the reasoned opinion, that the the four-week period referred to in Article 4 sector concerned is being completely reor of Commission Regulation No 1868/77. ganized owing to the need to adapt internal administrative structures. 25. It denies, however, that it has failed to 22. The Court has consistently held, in fulfil any of its obligations on that account. similar cases, that a Member State may not 5 — Judgment of 17 June 1987 in Case 394/85 Commission v Italy [1987], cited above, paragraph 12 of the decision; see 4 — See, for instance, the judgment of 15 January 1986 in Case also judgment of 20 February 1986 in Case 309/84 121/84 Commission v Italy [1986] ECR 107, paragraph 8 Commission v Italy paragraph 17 of the decision; judgment of the decision; judgment of 20 February 1986 in Case of 12 February 1987 in Case 69/86 Commission v Italy 309/84 Commission v Italy [1986] ECR 599, paragraph 14 [1987] ECR 773, paragraph 7 of the decision. of the decision; and judgment of 17 June 1987 in Case 6 — Judgment of 7 February 1979 in Case 128/78 Commission v 154/85 Commission v Italy [1987] ECR 2717, paragraph 6 United Kingdom [1979] ECR 419, 429, paragraphs 10 and of the decision. 11 of the decision.
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In its view, the four-week period cannot be summaries relate to the statistical data for regarded as a rigid and peremptory the previous month. That regulation does time-limit but is merely a typical indication not clearly indicate either the period within of the time needed, on average, to discharge which such data are to be communicated or the obligation imposed by Article 10 of the date from which that period starts to Regulation No 2782/75 of the Council, run, nor did it in fact need to do so as it is a which does not prescribe a rigid period. basic regulation. Those matters are set out, According to the Italian Government, the as is appropriate, in the Commission's delays in question occurred within implementing regulation which provides that reasonable limits. the data are to be communicated within a four-week period and that the period starts to run from the end of the previous month.
26. The Italian Government also maintains that observance of the period in question presupposes compliance on the part of the 31. Moreover, it is quite apparent that the hatcheries with the obligation imposed on wording of Article 10 of Regulation No them by Article 9 of Regulation No 2782/75 itself points to the interpretation 2784/75 to communicate their data in due which subsequently found expression in the time, and it rejects an interpretation of Commission's implementing regulation. It is Article 4 of Regulation No 1868/77 to the difficult to perceive any difference between effect that the Member State is responsible forwarding to the Commission a monthly for any delay on the part of the hatcheries, summary based on data for the previous as in this case, in forwarding those data to month and communicating data for each it. month in the four weeks following the end 7 of each month. Furthermore, Article 10 refers to 'data for the previous month' and 27. B — The arguments relied upon by the not to 'data forwarded to the national Italian Government would not appear to be authority in the previous month'. As the well founded. Agent for the Commission pointed out at the hearing, the latter solution would have unacceptable consequences inasmuch as it would render the statistical data irrelevant 28. To begin with, it is clear from the and make the processing thereof extremely actual wording of Article 4 of Regulation awkward, and not even the Italian Republic No 1868/77 that the period prescribed has been prepared to adopt such an therein is a fixed one and its purpose is not approach. It can therefore be stated, in my merely to provide guidance. view, that, even in the absence of an implementing regulation, a reasonable inter pretation of Article 10 of Regulation No 29. As Article 189 of the EEC Treaty lays 2782/75 would lead to the same conclusion down, a regulation 'shall be binding in its as that which must without a shadow of entirety* and is not acceptable that 'a doubt be reached in the light of the wording Member State should apply [its provisions] of Article 4 of Regulation No 1868/77. in an incomplete or selective manner'.
32. According to the Commission, the justi 30. On the other hand, the period laid fication for imposing the period in question down is quite consistent with Article 10 of Regulation No 2782/75 of the Council. 7 — Judgment of 7 February 1979 in Case 128/78 Commission v According to that provision, the monthly Untied Kingdom, cited above, paragraph 9 of the decision.
OPINION OF MR DA CRUZ VILAÇA—CASE 113/86
consists in the fact that the market must be 38. On the assumption that the prior monitored as quickly and as accurately as communication of the data referred to in possible in view of the short marketing Article 9 is an ancillary obligation imposed period for poultry in order to make on the hatcheries, it is for the Member available to the traders concerned data States to ensure that the hatcheries comply enabling them to respond in due time to with it on time. market trends and thus to permit the common organization of the market in question, which is based on that response, 39. In that regard the Commission has to function effectively. drawn attention to Article 16 of Regulation No 2782/75, according to which observance of the provisions of the regulation is to be 33. The Commission also claims that checked by the agencies appointed by each observance of the period by the other Member State, and to Article 5 of Regu Member States has not given rise to any lation No 1868/77 which provides that the problems, which must militate in favour of Member States are to take 'all necessary the view that the period is a reasonable one measures to impose penalties for any and, in any event, demonstrates that infringement of the regulations on the compliance with that period is not an production and marketing of eggs for impossible task. hatching and of farmyard poultry animals', that is to say the two regulations whose interpretation is at issue. 34. C — However, what are we to make of the argument that compliance with the period prescribed by Article 4 of the 40. In any event, Article 5 of the EEC Commission's regulation depends on Treaty requires the Member States to take fulfilment by the hatcheries of the obli 'all appropriate measures, whether general gation, imposed on them by Article 9 (1) of or particular, to ensure fulfilment of the the Council's regulation, concerning the obligations . .. resulting from action taken communication of data? by the institutions of the Community', and they are to facilitate 'the achievement of the Community's tasks'. 35. The Italian Government considers that, as Article 9 (1) is directed at traders, the 41. Moreover, the Commission made it Member State itself cannot be held clear at the hearing that, as the system responsible for their failure to comply with pursues statistical rather than financial or the period imposed on them. fiscal objectives, it would always interpret the obligation concerning the communi cation of data in a reasonable manner and 36. That is not, in my view, the best not treat as irregular any communication approach to the problem. from which certain data had been omitted by reason of the fact that, from time to time, the producers had not supplied such 37. The obligation concerning the com data to the Member State concerned on munication of data, which is imposed on time. Member States by Article 10 (1) of Regu lation No 2782/75 and Article 4 (1) of Regulation No 1868/77, is peremptory and 42. In those circumstances, the existence of unequivocal and requires them to adopt the an obligation imposed directly on traders measures necessary to comply with it. would not appear to affect the peremptory
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nature of the obligation, which is binding the part of the hatcheries, which, in its view, on the Member States, to comply with the could not be imputed to the Italian auth machinery of, and the periods laid down by, orities. In referring to the supervisory obli Article 10 of Regulation No 2782/75 and gations imposed on the Member States, the Article 4 of Regulation No 1868/77. Commission merely sought to demonstrate that the Italian Republic's defence was not 43. D — At the hearing the Italian well founded, without in any way impairing Republic contended that, in those circum Italy's procedural rights. In any event, the stances, there had been an unacceptable fact remains that those supervisory obli alteration of the subject-matter of the gations flow, as is the nature of things, from application since the Commission had the need to comply with the primary obli charged Italy only with infringing Article 10 gation, and it is not therefore surprising that of Regulation No 2782/75 and Articles 4 disregard of the supervisory obligations may (1) and 6 of Regulation No 1868/77, and underlie a failure to comply with the not with infringing the obligations relating primary obligation. to supervision and verification imposed upon Italy by Article 9 of Regulation No 45. In any event, this case is not concerned 2782/75 and Article 5 of Regulation No with establishing whether Article 16 of 1868/77. Regulation No 2782/75 or Article 5 of Regulation No 1868/77, or even Article 5 44. That argument cannot be upheld. The of the EEC Treaty, has been infringed; it is default with which Italy is charged is concerned only with the question whether non-compliance with the periods prescribed the periods prescribed by other provisions by the combined provisions of Article 10 of have been infringed, and it makes no Regulation No 2782/75 and Articles 4 and difference for those purposes whether or not 6 of Regulation No 1868/77. It was the the measures in question contain express Italian Government which, in its defence, at provisions regarding the supervisory obli once defended itself by pleading delays on gations of the Member States.
IV — Conclusion
46. In the light of all the foregoing considerations, I suggest that the Court declare that, by failing to communicate to the Commission within the prescribed periods the statistical data referred to in Article 10 (1) of Regulation No 2782/75 of the Council and in Articles 4 (1) and 6 of Commission Regulation No 1868/77, the Italian Republic has failed to fulfil its obligations under those provisions.
47. The Italian Republic should therefore be ordered to pay the costs, in accordance with Article 69 (2) of the Rules of Procedure.