C-209/88
ECLI:EU:C:1990:347
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COMMISSION v ITALY
OPINION OF MR ADVOCATE GENERAL MISCHO delivered on 9 O c t o b e r 1990 *
Mr President, not comply with the requirements laid down Members of the Court, by the Community rules as regards content, form or the time-limits to be observed.
4. However, the Italian Republic states that 1. This Opinion deals with the action the difficulties which it is encountering, and brought by the Commission against the which, moreover, it is not alone in Italian Republic seeking a declaration that encountering in complying with the obli- that Member State has failed to comply with gations in question are due to the fact that the obligations to provide information the Community rules in question are too imposed on it by certain provisions of stringent for them to be capable of practical Council Regulation (EEC) No 3796/81 of application and that, at a regional level in 29 December 1981 on the common organ- any event, the importance of the sector does ization of the market in fishery products, 1 not justify the establishment of offices, and of the Commission's implementing services, or expensive procedures. The regulations, Regulations (EEC) Nos complaints made by the Commission, it is 3191/82, 1501/83, 3598/83 and 3599/83. claimed, relate only to minor administrative 'malfunctions' which cannot be described as failures to fulfil obligations under the EEC Treaty and consequently held to be so in a judgment given under Article 169.
2. The provisions in question, details of the nature and scope of which are given in the Report for the Hearing, require Member 5. It must be pointed out first in this regard States to inform the Commission, with that the question whether certain adminis- varying frequency, of the withdrawal prices trative obligations imposed on Member for certain categories of fish fixed by States by Community regulations entail producer organizations, the quantities of costs which exceed the advantages which products withdrawn from the market, the might be gained is a matter for discussion prices ascertained on representative and resolution within the Council or the wholesale markets or in representative ports, management committees established by the and the free-at-frontier prices for fish from common organizations of the market. Given non-member countries. that there is no dispute as to the validity of the provisions relied on by the Commission, the Court, for its part, can only take cognizance of the wording of those provisions and, if necessary, declare that 3. The Italian Republic does not dispute the they have been infringed. Commission's contention that the infor- mation which the defendant sent to it does
* Original language: French. 6. Furthermore, as the Commission 1 — OJ 1981 L 379, p. 1. correctly pointed out in its reply, the Treaty
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OPINION OF MR M I S C H O —CASE C-209/88
does not allow of any de minimis theory damage to the functioning of the common which might enable a distinction to be organization of markets. drawn between provisions, non-compliance with which constitutes a failure to fulfil obligations, and other provisions which, by reason of their limited importance, could not give rise to proceedings under 9. However, it follows unequivocally from Article 169. the case-law of the Court that failure to comply with Community provisions is sufficient to constitute the breach, and the fact that such failure has had no negative consequences is therefore not relevant. 7. Consequently, I believe that it is Thus, the Court has held on several necessary in the present context to apply the occasions that the fact that legislation which established case-law of the Court, according infringes Community law is only seldom to which a Member State may not plead applied and that the failure has therefore provisions, practices or circumstances little substantive significance is not sufficient existing in its internal legal system in order to nullify the infringement.3 to justify a failure to comply with obli- gations and time-limits resulting from Community law. 2 More recently, the Court replied in a like manner to a similar argument in its judgment in Case C-48/89 10. In similar vein, the Court has ruled Commission v Italian Republic [1990] ECR that: I-2425, where the defendant, as in the present case, had pleaded difficulties in applying the measure under which it was required to supply certain information to the Commission. This judgment confirms the earlier case-law of the Court to the 'a Member State may not invoke, for the effect that: purpose of justifying a failure to fulfil obli- gations under a harmonizing directive, the argument that the failure to apply that directive has had no adverse effect on the functioning of the common market'. 4
'practical difficulties which appear at the stage when a Community measure is put into effect cannot permit a Member State unilaterally to opt out of fulfilling its obli- 11. In any case, the Commission pointed gations'. out that the absence of adequate statistical data had indeed created problems in the past both with regard to the fixing of guide prices and in respect of the implementation of the safeguard clause in cases where this 8. The Italian Republic once again stresses had been requested by Italy. that the failures in question are purely formal in nature and caused no substantive 3 — See, in particular, the judgment in Case 257/86 Commission v Italian Republic [1988] ECR 3249, paragraph 11. — See, ¡n particular, the judgment ¡n Case 254/83 4 — Judgment in Case 95/77 Commission v Kingdom of the Commission v Italian Republic [1984] ECR 3395. Netherlands [1978] ECR 863.
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COMMISSION v ITALY
Conclusion
12. For these reasons I propose that the Court declare that by failing to adopt the measures provided for under Articles 9(4), 11(1), 15(2), 17(2) and 21(3) of Council Regulation (EEC) No 3796/81, Article 2 of Commission Regulation (EEC) No 3191/82, Article 4 of Commission Regulation (EEC) No 1501/83, Articles 1, 3 and 4 of Commission Regulation (EEC) N o 3598/83, and Article 3 of Commission Regulation (EEC) No 3599/83, the Italian Republic has failed to fulfil its obligations under those provisions. It should for that reason also be ordered to pay the costs.
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