C-135/94
ECLI:EU:C:1995:110
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COMMISSION v ITALY
OPINION OF ADVOCATE GENERAL ELMER delivered on 6 April 1995 *
1. By application lodged at the Registry of 3. The letter of formal notice was dated the Court of Justice on 11 May 1994, the 20 May 1992 and referred to an annexed list Commission in this case seeks a declaration setting out 49 directives which, in the Com- that, by failing to take the measures neces- mission's view, had not been transposed into sary to comply with Council Directive Italian law within the specified period. 48 of 89/618/Euratom of 27 November 1989 on the directives listed were E E C directives, informing the general public about health while the directive at issue in the present case protection measures to be applied and steps is a Euratom directive. The directive was cor- to be taken in the event of a radiological rectly cited in the list as 'Council Directive emergency, * the Italian Republic has failed of 27 November 1989 on informing the to fulfil its obligations under that directive. general public about health protection measures to be applied and steps to be taken in the event of a radiological emergency (89/618/Euratom)'.
2. Member States were required under Arti- cle 12 of the directive to take the measures At the conclusion of the letter of formal necessary to comply with it not later than notice, the Commission stated that, by rea- 24 months after its adoption on 27 Novem- son of its failure to transpose the directives ber 1989. The Italian Republic was thus set out in the list, the Italian Republic had required to transpose the directive into its failed to fulfil its obligations under those national legal order by no later than directives and under the third paragraph of 27 November 1991. Article 189 and the first paragraph of Article 5 of the EEC Treaty. The Commission also requested the Italian Government to submit its observations on the matter in accordance with Article 169 of the EEC Treaty and reserved the right to deliver a reasoned opinion. Although it does not deny that this was not done, the Italian Government argues that the action should be declared inadmissible on the ground that there was a formal defect in the letter of formal notice. 4. As the Italian Government did not reply to the letter of formal notice, the Commis- sion sent to it, on 25 May 1993, a reasoned * Original language: Danish. opinion regarding its failure to transpose 1 — OJ 1989 L 357, p. 31. Directive 89/618/Euratom. The Commission
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referred in its reasoned opinion to the rele- The subject-matter of the dispute was thus vant provisions of the EAEC Treaty. not altered in relation to the letter of formal notice, since the substantive complaint — the failure to transpose Directive 89/618/ Euratom — was the same in the letter of formal notice, the reasoned opinion and in the document instituting proceedings. 5. The Italian Government argues that the Commission's letter of formal notice of 20 May 1992 cannot constitute a valid insti- tution of the infringement procedure under Article 141 of the EAEC Treaty in view of 7. The wording of Article 141 of the EAEC the fact that that letter referred solely to the Treaty is identical to that of Article 169 of procedure under Article 169 of the EEC the EEC Treaty, for which reason the Treaty and made no reference to Article Court's case-law on the procedure under 141 of the EAEC Treaty. Even if the letter of Article 169 of the EEC Treaty may consti- formal notice -were to be regarded as a valid tute a guide to the infringement procedure institution of that procedure, failure to state under Article 141 of the EAEC Treaty. that the complaint related to breach of obli- gations under the EAEC Treaty meant that the subject-matter of the complaint specified in the letter of formal notice did not corre- spond to that of the proceedings subse- With regard to Article 169 of the EEC quently brought before the Court of Justice. Treaty, the Court has declared on numerous The Italian Government accordingly submits occasions, for instance in its judgment in that the case should be declared inadmissible. Case 51/83 Commission v Italy,2 that the letter of formal notice is intended to define the subject-matter of the dispute and to indi- cate to the Member State which is invited to submit its observations the factors enabling 6. The Commission first points out that in it to prepare its defence. The opportunity for the present case a standardized letter of for- the Member State concerned to submit its mal notice was used which referred to a observations constitutes an essential guaran- computerized list. This method enables the tee required by the Treaty and observance of Commission to deal with Treaty- that guarantee is a condition governing the infringement cases in a rapid and effective validity of the Treaty-infringement proceed- manner. The Commission also submits that ings against the Member State in question. the purpose of the administrative procedure was respected in this case in so far as the let- ter of formal notice of 20 May 1992 made the Italian Government fully aware of the Commission's complaints so as to enable it The Court, in its judgment in Case to prepare its defence. The fact that the 274/83 Commission v Italy, 3 has also ruled, Commission referred to provisions in the E E C Treaty instead of the EAEC Treaty is no more than an insignificant formal inaccu- 2 — Judgment in Case 51/83 Commission v haly [1984] racy which cannot render the action inad- ECR 2793, paragraphs 3, 4 and 5. missible. 3 — Judgment in Case 274/83 Commission v Italy [1985] ECR 1077, paragraph 21.
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with regard to the requirements of the letter EAEC Treaty and the provisions in the third of formal notice under Article 169, that: paragraph of Article 161 and the first para- graph of Article 192 of the EAEC Treaty, which correspond to the third paragraph of Article 189 and the first paragraph of Article 5 of the EEC Treaty. The Commission also refers in the document instituting proceed- ings to Article 141, the third paragraph of Article 161 and the first paragraph of Article 'Although it follows that the reasoned opin- 192 of the EAEC Treaty. ion provided for in Article 169 of the EEC Treaty must contain a coherent and detailed statement of the reasons which led the Com- mission to conclude that the State in ques- tion has failed to fulfil one of its obligations under the Treaty, the Court cannot impose such strict requirements as regards the initial letter, which of necessity will contain only an initial brief summary of the complaints ...' The substantive complaint — failure to transpose Directive 89/618/Euratom — was, however, as the Commission points out, never altered.
8. As already mentioned, the Commission informed the Italian Government in its letter of formal notice that it had to assume, on the basis of the information before it, that the 9. In my opinion, the Italian Government directives set out in the annexed list had not cannot have been in any doubt as to the been transposed into Italian law. That list Commission's view that there had been a included the directive at issue in the present failure to fulfil obligations under the EAEC case, which was expressly referred to as a Treaty by reason of its failure to transpose Euratom directive. Council Directive 89/618/Euratom.
The Commission's failure to cite the relevant provisions in the EAEC Treaty was reme- The Italian Government had an opportunity died in its reasoned opinion of 25 May 1993, to submit its observations on the Commis- which referred exclusively to the infringe- sion's allegations but did not reply to the let- ment procedure under Article 141 of the ter of formal notice.
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The Commission's procedure in this case in Since the Italian Republic's rights of defence sending a brief standardized letter of formal do not therefore appear to have been notice referring to a computerized list of adversely affected, it would be no more than directives, the period for transposition of unnecessarily formalistic — and would con- which had expired without the Commis- stitute a delay in the finding that there had sion's being aware of having received the been a breach of the Treaty — to declare the appropriate notification, makes it possible to case inadmissible on the basis of the Com- deal simply and rapidly with a large number mission's defective reference. of Treaty-infringement cases at this very early stage. This procedure has considerable advantages not only for the Commission but also for the Member States, which can, in one single and often very brief reply, provide an account of the transposition of what can often be a large number of directives, such as I accordingly do not find that there are any the total of 49 in the present case. grounds for upholding the objection of inad- missibility raised by the Italian Government.
It is of course unfortunate that the Commis- 10. In view of the fact that the Italian Gov- sion, in its reference in the letter of formal ernment has not denied that Council Direc- notice to one of 49 possible Treaty infringe- tive 89/618/Euratom was not transposed into ments, did not refer to the formally correct Italian law before the expiry of the period provisions. The Italian Republic, however, laid down in Article 12 of the directive, it cannot have been in any serious doubt what- must be held that the Italian Republic has soever as to the subject-matter of the com- failed to fulfil its obligations under the direc- plaint. tive, in particular Article 12 thereof, and under the third paragraph of Article 161 and the first paragraph of Article 192 of the EAEC Treaty.
Furthermore, it follows from the above case- law of the Court concerning the administra- 11. The Commission has requested that the tive procedure that there is nothing to pre- Italian Republic should be ordered to pay vent the Commission, in the reasoned the costs of the proceedings. Under Article opinion, from outlining the legal context of a 69(2) of the Rules of Procedure, the unsuc- case in greater detail than in the letter of for- cessful party is to be ordered to pay the costs mal notice, provided that the substantive if they have been applied for in the success- complaints remain unaltered. ful party's pleadings.
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Conclusion
12. I accordingly propose that the Court rule as follows:
— by failing to take the measures necessary to comply with Council Directive 89/618/Euratom of 27 November 1989 on informing the general public about health protection measures to be applied and steps to be taken in the event of a radiological emergency, the Italian Republic has failed to fulfil its obligations under that directive;
— the Italian Republic is ordered to pay the costs.
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