C-257/94

OPINION OF MR ELMER — CASE C-257/94

OPINION OF ADVOCATE GENERAL ELMER delivered on 14 September 1995 *

1. By application lodged at the Registry period, informed the Commission that it had of the Court of Justice on 16 September transposed the directives, the Commission, 1994, the Commission has sought a by way of a letter of formal notice of declaration that, by not adopting within 14 October 1992, instituted the procedure the prescribed period the laws, regulations under Article 169 of the Treaty for failure to and administrative provisions necessary to fulfil obligations. In the absence of a reply comply with Council Directive 91/685/EEC from the Italian Government, the Commis- of 11 December 1991 amending Directive sion restated its views in a reasoned opinion 80/217/EEC introducing Community of 11 May 1993. N o reply to this reasoned measures for the control of classical opinion was forthcoming from the Italian swine-fever ' and with Council Directive Government either, and it is for this reason 91/688/EEC of 11 December 1991 amending that the Commission has brought the present Directive 72/462/EEC on health and veteri- proceedings. nary inspection problems upon importation of bovine, ovine and caprine animals and swine, fresh meat or meat products from third countries, 2 the Italian Republic has failed to fulfil its obligations under the E C Treaty. 3. The Italian Government does not deny that it is under an obligation to transpose the directives in question into Italian law and that this was not done within the period laid down in the directives.

6. The Commission has requested that the Italian Republic pay the costs of the pro- ceedings, including the costs for that part of 4. In view of the transposition of Directive the proceedings relating to Directive 91/688. 91/688 by way of the Ministerial Decree of 26 July 1994, the Commission, in its reply, abandoned its claim that there had been a failure to transpose that directive but still maintained its claim that there had been a failure to fulfil obligations with regard to Directive 91/685. Article 69(2) of the Rules of Procedure pro- vides that the unsuccessful party is to b e ordered to pay the costs if they have been applied for in the successful party's plead- ings. Under Article 69(5), a party who dis- continues proceedings is required to pay the 5. The Court has consistently held that a costs. However, upon application by the Member State may not plead provisions, party who discontinues proceedings, the practices or circumstances existing in its costs are to be borne by the other party if internal legal system in order to justify a fail- this appears justified by the conduct of that ure to comply with its obligations under party. Community law. 4

In view of the fact that the Italian Govern- Since the Italian Republic has not denied that ment did not immediately inform the Com- Directive 91/685 was not transposed into mission when it transposed Directive Italian law before the expiry of the period 91/688 into Italian law in July 1994, the laid down in Article 2, it must be held that Commission's application of 16 September 1994 also related to this directive. The Italian Government first pointed out in its state- ment of defence that the directive had 4 — Sec most recently the judgment in Case C-147/94 Commis- sion v Spain [1995] ECR 1-1015. already been transposed, after which the

(2) Order the Italian Republic to pay the costs of the proceedings.

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