C-69/90

1. By application received at the Court Registry on 16 March 1990, the Commission brought an action for a declaration that, by failing to communicate 3. In this case the Commission does not within the prescribed period the laws, regu­ complain that the Italian legislature or the lations and administrative provisions by Italian customs authorities have committed which it claims to have fulfilled its obli­ an individual infringement of Community gations under Council Directive 87/53/EEC law. Its action is directed against Italy's of 15 December 1986 amending Directive failure to transpose Directive 87/53 into 83/643/EEC on the facilitation of physical national law. inspections and administrative formalities in respect of the carriage of goods between Member States 1 or by failing to adopt in time the measures needed to comply therewith, the Italian Republic has failed to fulfil its obligations under that directive and the EEC Treaty. Directive 87/53 aims at 'further progress ... in the short term so that inspections and formalities in trade between Member States can be facilitated further'. To that end, Article 1 of the Directive makes a number of amendments and additions to Directive 83/643. 5Article 2(1) 2. To my knowledge this action is the of the new directive requires the Member fourth in a series in which the Commission States, after consulting the Commission, to takes issue with the Italian legislation on bring into force the laws, regulations and customs formalities and the manner in administrative provisions necessary for them which it is applied. Two earlier actions by to comply with the Directive by 1 July 1987 the Commission have given rise to at the latest. In addition, Article 2(2) judgments of the Court, namely Cases requires the Member States to communicate 340/87 2 and C-209/89. 3 In a third case, the texts of the relevant provisions to the C-187/89, the Commission discontinued the Commission.

4. Before considering the parties' arguments in goods by imposing a number of simplifi­ in more detail, I would point out that the cations and relaxations of customs Italian Government does not deny its inspections and formalities. Although the continued failure to implement Article 7a of rules laid down for that purpose may Directive 83/643, added by Directive 87/53. therefore be addressed in the first instance That article is worded as follows: to the customs authorities of the Member States they are also of some relevance, as will be shown by examination of the specific provisions of the directive, to the legal position of persons or undertakings who transport or import goods to or into other Member States or send goods in transit 'Member States shall see to it that any sums through a Member State. Such persons and payable in respect of the inspections and undertakings may have an interest in formalities applied to trade between invoking the obligations imposed on Member States can also be paid by means of customs authorities by the directive when guaranteed or certified international they are confronted by a situation or by cheques, expressed in the currency of the conduct which they consider to be contrary Member State in which the debt is due.' to the directive or to the national legislation adopted in order to implement it. In this connection, regard should be had to the Court's case-law which, in relation to provisions of directives which are intended to create rights for individuals, stresses the importance of clear, precise and published 5. As far as the other provisions of implementing rules. The domestic Directive 87/53 are concerned, however, implementing rules must give persons the Italian Government denies that there has concerned a sufficiently clear perception of been any failure to act. It contends that their rights under Community law and of although those provisions impose a number the means open to them for relying on of obligations on the Member States, Community law (or a rule of domestic law compliance with those obligations does not adopted in order to implement Community 6 necessitate the adoption of national laws or law) before the national courts. regulations. It adds that, with the exception of Article 7a (quoted above), Directive 87/53 merely imposes on the Member States a number of guidelines relating to compliance with a certain line of conduct, compliance with which could be verified by the Commission only in specific situations, there being no need for such guidelines to be laid down in specific laws or regulations However, even with regard to the provisions of general application. of the directive in question which are not intended to confer upon individuals rights capable of being relied upon (so that published, detailed implementing provisions are not required), the Italian Government's

This leaves the category of provisions of the 7. First let me take the new Article 2(2), directive which — it is claimed — do not which was added to directive 83/643 by have to be transposed by means of Article 1(1) of Directive 87/53 and is 'provisions' of domestic law. In my view, worded as follows: Article 2(1) of the directive — which requires Member States to consult the Commission before bringing into force the provisions 'necessary' for transpo­ sition — means that a Member State which considers, although this is not manifest from 'Member States shall facilitate, in circum­ the terms or aims of the directive, that a stances which they deem appropriate, the particular provision of the directive does not use of simplified procedures, such as those require transposition measures, but only laid down by the regulations for the certain non-legislative measures, should despatch, distribution and release for notify the Commission in good time (that is consumption of goods, at the place of origin to say, before expiry of the time-limit for or destination of the goods.' implementation). Only if this is done can the latter exercise its power of supervision under Article 155 of the Treaty properly. Furthermore, Article 2(1) of the directive is a specific application of the first paragraph of Article 5 of the Treaty, which requires To my mind, the interest of specific the Member States to cooperate loyally with measures for incorporating this obligation the Commission to ensure the observance of into the national law is manifest. So far as Community law. The Commission, in its economic operators are concerned, there is application, states that it received no great interest in knowing the circumstances communication whatever from the Italian in which they are entitled to the application Government during the period prescribed of simplified procedures. Admittedly the for transposition or during the pre-litigation directive gives Member States a fairly procedure, and this has not been denied by considerable discretion in determining the the Italian Government. In those circum­ cases in which such simplified procedures stances, I consider that Italy's defence should be applied, but this does not alter the

— the arrangement of frontier posts, I agree with the Italian Government that that provision of the directive does not lend itself to transposition by means of specific, published rules of domestic law which may be relied on before the courts. However, it — the conversion of frontier offices into seems to me that the deployment of customs juxtaposed or combined inspection offices ought to be effected by means of offices, where possible. general administrative measures or at least administrative instructions, so that in any case the 'provisions' within the meaning of Article 2(2) of Directive 87/53 ought to have been transmitted to the Commission. If 3. Member States shall cooperate in order the Italian Government considered that the to harmonize the business hours of the abovementioned provision of the directive various departments carrying out inspections merely contained a guideline which did not and formalities on either side of each lend itself to transposition by legislative frontier post. Should any difficulties arise in 'provisions', it ought to have notified this to attaining such harmonization, Member

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States shall bring them to the Commission's rules which should also have been attention so that it may suggest to the communicated to the Commission. All in all, Member States concerned such solutions as therefore, I do not think the Italian it deems appropriate to resolve them. Government's defence in relation to Article 4 can succeed.

4. Member States shall provide for the possibility of informal consultation at local 10. Article 1(3) of Directive 87/53 added and, if appropriate, national level between the following new Article 5 to Directive representatives of the various departments 83/643: involved in inspections and formalities and of carriers, customs agents, persons engaged in services ancillary to transport and transport users.'

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during an uninterrupted period of at provided that the other posts in that zone least 10 hours, and on Saturday during are able to clear goods and vehicles effec­ an uninterrupted period of at least 6 tively in accordance with that paragraph. hours, unless those days are public holidays;

4. For the frontier posts and customs services referred to in paragraph 1, and under the conditions laid down by Member (b) as regards vehicles and goods trans­ States, the competent authorities of the ported by air, the hours referred to in Member States shall provide, if specifically the second indent of subparagraph (a) requested during business hours and for are adapted in such a way as to meet sound reasons, for inspections and actual needs and for that purpose may formalities to be carried out, as an be split in accordance with the flow of exception, outside business hours, on traffic; condition that, where relevant, payment be made for services so rendered.'

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12. With regard to the first indent of Article 5(1)(«J, the Italian Government does not claim that this provision merely lays down guidelines which need not be transposed into national law by means of a legislative The same considerations apply with regard measure. In other words, the defendant has to the transposition of Article 5(l)(c). That failed to show why that provision has not provision is intended to confer upon carriers

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of goods the right, under certain conditions, designed to ensure that, in exceptional cases to tranship goods at any time without direct to be determined by the Member States, supervision by the customs services. The carriers and importers can rely on being specific details of that right should be set able to have inspections and formalities out in binding, transparent provisions of carried out at times other than during the national law. prescribed minimum business hours, if they make a specific request to that effect for sound reasons. For the same reasons as were given in Article 5(1), this rule should be transposed into national law by means of a specific provision.

14. Again, the same considerations arise with regard to Article 5(2). This obliges the Member States to ensure that a veterinary expert is available during certain minimum periods, subject to not less than 12 (or 18) 15. Directive 87/53 replaced Article 6 of hours' notice. Once again this provision is Directive 83/643 by the following provision: intended to confer a right upon carriers. Therefore a specific, binding, published, implementing measure is necessary.

COMMISSION v ITALY

of national law has to be laid down for the the means required for accomplishing those transposition of the provision in question. tasks are made available.' Nevertheless, Article 6 of the directive assumes that the organization of customs services is actually adapted to suit the mandatory principles listed therein. Such adaptation could be effected, for example, by adjusting the relevant administrative instructions for the customs services, unless With regard to this article, essentially the the current version of such instructions same considerations apply as those set out already ensures compliance with those prin­ above relating to Article 6. Therefore I take ciples. However, the Italian Government has the view that in this case also the Italian not referred to the existence or amendment Government's defence is unfounded. of such instructions, nor has it sent any communication whatever to the Com­ mission. On that ground, Article 6 cannot be regarded as having been correctly incor­ porated into domestic law. 17. Directive 87/53 replaced Article 7 of Directive 83/643 by the following:

'Member States shall endeavour to establish 16. Directive 87/53 added the following at frontier posts, where technically possible new Article 6a to Directive 83/643: and justified by the volume of traffic, express lanes reserved for goods placed under a customs transit procedure, for their means of transport and for vehicles travelling unladen.'

2. With a view to resolving difficulties with inspections or formalities within the meaning of this directive, a Member State 19. Article 7 of Directive 87/53 added the may request consultations with another following new Article 8a to directive Member State. If those consultations do not 83/643: make it possible to resolve these difficulties, a Member State may inform the Com­ mission so that the latter can submit such solutions as it deems appropriate to resolve the difficulties in question.'

'Member States shall supply the Commission in good time with up-to-date information on inspection posts.'

So far as paragraph 1 of this provision is concerned, the Italian Government's defence is manifestly unfounded. The provision imposes on the Member States an obligation to set up the necessary structures Once again the Italian Government's and / or procedures in order to enable defence fails. Either this article, like the new persons involved in trade between Member Article 6 of Directive 83/643 (see paragraph States to inform the competent national 15 above), requires the adoption of adminis­ authorities rapidly of problems arising when trative instructions (the text of which ought crossing frontiers. As such problems will to have been transmitted to the mainly affect economic operators from Commission), or the Italian Government other Member States, the need for a clear, ought to have informed the Commission in

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good time that it did not envisage providing neither of these two eventualities has for transposition measures (with the result occurred, correct transposition has not that a text could not be communicated). As taken place in this connection either.