C-322/86

COMMISSION v ITALY

OPINION OF MR ADVOCATE GENERAL LENZ delivered on 15 March 1988 *

Mr President, programmes established by the Member Members of the Court, States.

A — The facts

3. In the pre-litigation procedure, in which the applicant contended that the Italian legislation did not comply with the directive, the defendant argued that the directive contained no values actually to be 1. In the proceedings in which I deliver my attained; the initiative was instead left to the Opinion today, the Commission seeks a Member States. Moreover, a consolidated declaration that the Republic of Italy has text was in preparation providing for the failed to fulfil its obligations under the EEC implementation of several directives relating Treaty by not adopting within the to water. However, this process had been prescribed period the measures necessary in delayed, so that the text could not be order to implement Council Directive adopted during the pre-litigation procedure. 78 / 659 / EEC of 18 July 1978 on the quality of fresh waters needing protection or improvement in order to support fish life. 1

5. (a) As the applicant has not challenged the defendant's description of the legal 7. The failure to clarify the legal position situation, in which it explained the existing should therefore be regarded as an aspect of division of powers, it may be assumed that the defendant's incomplete and in part also under the existing legislation the means are misleading explanations in its conduct prior available for the proper implementation of to the proceedings, which will have a the directive. The required designation falls bearing on the question of costs. within the sphere of competence of the Minister for Agriculture and Forestry, whilst the actual selection of waters to be protected is the responsibility of the regions. On the other hand, the Ministry of the Environment is responsible for the drawing up of programmes and supervision. Since the applicant has entertained no doubts as 8. (c) The defendant did not deny the to this division of responsibility or the substance of the allegation that the measures underlying legal provisions allocating such necessary for implementation had not been powers, it must be assumed that it has taken, as regards either the adequate desig­ abandoned its claim that the procedures nation of waters, as a first step, or the necessary for the implementation of the establishment of programmes to attain directive have not yet been adopted by the the values set, as a second step. Indeed, legislature. the defendant's representative expressly acknowledged at the hearing that 'there was a failure on the part of the Italian Republic to implement the directive' and that 'the insufficient implementation consists in insuf­ ficient designation of waters'. In reply to a question on this point, the defendant's 6. (b) In addition to the obligation to enact representative once again repeated that 'a the requisite legal and administrative failure to implement is not contested by our provisions, Article 17 also contains an obli­ side'. It may therefore be concluded that the gation to give notice of those measures. The defendant admits its failure to fulfil its obli­ applicant in its submissions also alleged an gations. infringement of this provision. As the existing division of powers was not estab­ lished for the purpose of implementing the directive, it is questionable whether such general provisions can fall under the duty to notify under Article 17 of the directive. In any event, once the legislative position was 9. Moreover, I may also point out that even explained in the defence the applicant no the designation of waters in respect of the longer claimed that the late notification was Province of Bolzano was late. The two-year a separate breach of this obligation but period came to an end in July 1980, and the merely relied on it to justify its lack of designation was made only in January 1981.