C-266/89
ECLI:EU:C:1991:92
- Súd
- Súdny dvor Európskej únie
- IČS
- 61989CC0266
- Zdroj
- eur-lex.europa.eu ↗
OPINION OF MR DARMON — CASE C-266/89
O P I N I O N O F MR ADVOCATE GENERAL DARMON delivered on 28 February 1991 *
Mr President, 4. Notwithstanding that information, the Members of the Court, Commission considered that, from the data supplied by the Italian Government, it was possible to reconstitute only part of the data on national carriage and none of those on international carriage expressed in tonnes in 1. By a judgment of 11 July 1985, ' the accordance with the rules laid down in the Court declared that the Italian Republic had directive in question. On 10 April 1989, failed to fulfil its obligations by not it delivered a reasoned opinion to Italy. compiling statistical returns in respect of On 28 June 1989, Italy forwarded carriage of goods by road in accordance supplementary data which the Commission with the rules laid down in Council still considers to be incomplete with respect Directive 78/546/EEC of 12 June 1978 on to national transport as well as to inter- statistical returns in respect of carriage of national transport. This action was brought goods by road, as part of regional stat- on 21 August 1989. istics. 2
5. It was only at the hearing that the Italian Government argued that the action was 2. The Commission now claims that the inadmissible on the ground that, given that Court should declare that, by persisting in it was brought pursuant to Article 171 of its failure to compile statistical data on the EEC Treaty, it could not be based on carriage of goods by road in accordance conduct subsequent to the judgment of the with the rules laid down in the directive in Court of 11 July 1985. According to the question, the Italian Republic has failed to Italian Republic, the failures to fulfil obli- fulfil its obligations under Article 171 of the gations were new and different from the Treaty. subject-matter of that judgment.
6. The Commission contends that, given the 3. By letter of 22 June 1988, the stage at which the objection was raised, the Commission gave the Italian Government Court should hold that it was too late to be formal notice that the data supplied by it considered. In any event, it regards it as during the period from July 1985 to March unfounded. 1988 was insufficient to reconstitute one or more of the six tables provided for by the directive. By letters of 4 and 18 July 1988, Italy's permanent representation forwarded 7. The first question is whether that is a several tables to the Commission. plea of inadmissibility? Article 171 does not lay down a specific form of action but * Original language: French. imposes a clear obligation on the State 1 — Case 101/84 Commission v Itafy[l9»S] ECR 2629. concerned, namely to adopt the necessary 2 — OJ L 168, p. 29. measures to comply with the judgment of
I - 2414
COMMISSION ï ITALY
the Court. It is always under Article 169 8. However, it may not be indispensable for that an action is brought when the the Court to rule on the legal nature of Commission claims that a State has not the 'objection' raised by the Italian correctly complied with a judgment. Government. If it were a plea as to the However, the Court is thereby asked to substance, the Court would have to examine make a declaration on failure to comply the merits of the arguments notwithstanding with an obligation which is no longer the the suge at which Iuly brought them up.
It same obligation whose infringement formed seems clear that the Court must, in any the subject-matter of the first judgment of event, check that there are all the the Court, but the obligation for the Sute constituent elements of an infringement, concerned to adopt the necessary measures even if the defendant government did not to comply with the decision of the Court. In invoke the erroneous nature of the obli- submitting that the present action has been gation allegedly not complied with. wrongly brought under Article 171, Italy is claiming that, in reality, conduct subsequent to the judgment of the Court cannot be cited as constituting failure to comply with 9. First of all, I note that in its reasoned that judgment.
In other words, the obli- opinion the Commission referred to gation allegedly not complied with cannot infringement of both the Directive and serve as a basis for a finding of Article 171. The action, on the other hand, infringement. Is this not, in the final has been brought only for the failure to analysis, tantamount to submitting that the comply with Article 171 stemming from necessary elements to constitute an persistent failure to implement the directive infringement are not all present and that in question. therefore the action is without foundation? However, it is true that in the judgment in Commission v Belgium,1 when Belgium 10. Directive 78/546 provides in particular contended that an action under Article 171 for the annual forwarding by each Member was inadmissible since it related to an State to the Commission of annual sutistical infringement different from that which dau in respect of carriage of goods by formed the subject-matter of the first means of vehicles registered in the Member judgment, the Court apparently did not Sute on the territory of that Member Sute doubt that that constituted a plea of inad- (national transport) and between that
missibility. And, after all, the defendant is Member Sute and another Member Sute opposing consideration of new proceedings or a non-member country (international based on the failure to comply with a transport). The Member Sutes were to u k e judgment on the grounds that, precisely, the the measures necessary to comply with the judgment cannot have the scope claimed by Directive by not later than 1 January 1979. the applicant, something like an objection of res non judicata.
Accordingly one might be led to consider that it is a plea of inadmissi- bility which, moreover, the Court can 11. In the 1985 judgment, the Court examine of its own motion, as it could an declared that by failing to compile sutistical objection of res judicata.* returns Iuly had failed to fulfil those obli- gations. The Commission had asserted at that time, without being contradicted by the Iulian Government (which pleaded
persistent difficulties resulting from an 3 — Judgment in Case 391/85 Commission v Belgium [1988] ECR 579. attack which destroyed the statistical office 4 — Order in Joined Cases 159/84, 267/84, 1,2/85 and 264/85 of its Ministry of Transport at the end of Ainsworth and Orien v Commission [1987] ECR 1579, paragraphs 3 and 4. 1979) that for the years 1979 and 1980 Iuly
I-2415
OPINION OF MR DARMON — CASE C-266/89
had provided only incomplete data in 14. I do not think that it is stretching that relation to international transport. No data decision to hold that implementation of a for national transport had been forwarded judgment declaring that a State has to the Commission. breached an obligation incumbent on it under a directive requiring certain anion from it entails definitively ending that breach by adopting all the measures needed 12. If one accepts the Italian Government's to achieve the prescribed result. As long as view, the judgment of the Court would the breach of obligations established by the therefore have no effect as regards judgment of the Court persists, the State has compliance with those obligations for the not complied with that judgment.
The period subsequent to its pronouncement. Its analysis cannot be different where the obli- only effect would ultimately be to impose a gation has to be complied with not instan- duty to make good the failure to fulfil those taneously (e.g. the adoption or amendment obligations for the period prior to the of legislation), but on successive occasions judgment (or the reasoned opinion, or even as is the case here. the letter of formal notice). In this instance, what would be the value of making good that failure several years after the event?
15. It would be particularly paradoxical if, because of the 'continuous' nature of the obligation incumbent upon it, the State concerned could rely on the fact that the 13. The particularly restrictive construction judgment must not produce effects which the Italian Republic seems to put on subsequent to its pronouncement. Article 171 of the Treaty is in contrast with the firmness of the words which the Court used to recall the effects of a judgment in infringement proceedings : 16. Clearly in this case the necessary measures to comply with the judgment coincide exactly with the fulfilment of the obligations which the directive imposes in 'the finding in a judgment having the force any event. Consequently, the non-fulfilment of res judicata that the Member State of the latter obligations is precisely indica- concerned has failed to fulfil its obligations tive of the absence of measures taken to under Community law amounts to "a comply with the judgment: the infringement prohibition having the full force of law on of that obligation has not been terminated. the competent national authorities against applying a national rule recognized as incompatible with the Treaty and, if the circumstances so require, an obligation on 17. The question remains open, it is true, them to take all appropriate measures to whether Article 171 can be invoked against enable Community law to be fully applied?'. a State which, after having actually ended It follows that by reason solely of the the infringement of its obligations during a judgment declaring the Member Sute to be significant period, subsequently recom- in default, the State concerned is required menced the infringement. In that case, there to take the necessary measures to remedy its could be argument as to whether the effects default and may not create any impediment of the judgment had been 'exhausted'. whatsoever.'5 However, there can be no hesitation in a case such as this where there is continuous failure by a Member State to fulfil the same 5 — Order in Joined Cases 24/80 and 97/80 R Commission v Frtná Republic [19S0\ECR 1319, emphasis added. obligation.
I-2416
COMMISSION v ITALY
18. All that remains to be examined point out that Italy itself considers that, on therefore is precisely whether or not Italy the one hand, the data relating to local has adopted the necessary measures to transport was supplied 'in general terms', comply with the judgment. and on the other hand that the data relating to international transport for groups of countries is lacking. 19. My observations on this point will be succinct. 22. Let me make two comments. 20. The Italian Government has not really contested its non-compliance and admits to not having supplied all the required data. 23. First of all, the Commission rightly Furthermore, its submissions consisted of an stresses that statistics which are not invitation to the Commission to withdraw complete or 100% accurate are of no use, hs action in the light of the steps now being and that, in any event, the de minimis rule is taken. It is clear that those steps, namely the not applicable in the framework of the study allegedly begun by the Instituto procedure under Article 169 of the Treaty. Centrale di Statistica (ISTAT), cannot have any bearing on the declaration of infringement as 24. Secondly, the Italian Republic explains that the absence of data classified by group of countries results from the way in which 'even though Article 171 of the Treaty does the study undertaken at the time was not specify the period within which a organized. It suffices to recall that: judgment must be complied with, it is clear that the process of complying with a judgment must be initiated at once and must be completed as soon as possible.'6 'the Court has consistently held that a Member State cannot plead internal provisions, practices or situations to justify 21. As to the limited importance of the data the failure to fulfil obligations under which was not supplied, I would merely Community law'. '
25. Consequently, I suggest that the Court declare that by persisting in not implementing Council Directive 7 8 / 5 4 6 / E E C of 12 June 1978 on statistical returns in respect of carriage of g o o d s by road, as part of regional statistics, notwithstanding the judgment of the Court of Justice of 11 July 1985, the Italian Republic has failed to fulfil its obligations under Article 171 of the E E C Treaty and order Italy to pay the costs.
6 — Sec, most recently, Case C-375/89, Commiuion v Belgium [1991] ECR 1-383.
I-2417