C-279/94

COMMISSION v ITALY

OPINION OF ADVOCATE GENERAL FENNELLY delivered on 20 March 1997 *

I — Introduction services of the Commission notified the Ital- ian authorities that a projected law on the cessation of the use of asbestos constituted a technical regulation within the scope of the Directive. The law was adopted on 27 March 1. Where only a small number of provisions 1992 as Law N o 257 'laying down rules con- of a proposed national law might be classi- cerning the cessation of the use of asbestos' fied as 'technical regulations' for the pur- (hereinafter 'Law N o 257/92' or 'the national poses of Council Directive 83/189/EEC of law'). 2 While it appears that the text of the 28 March 1983 laying down a procedure for draft law was notified to the Commission on the provision of information in the field of 26 February 1992 in the context of the Com- technical standards and regulations (hereinaf- munity provisions on State aids, this notifi- ter 'the Directive'), ' to what extent is the cation was subsequently withdrawn, and it is Member State in question obliged to notify common ground that Law N o 257/92 was at the Commission of the proposed law under no time notified to the Commission for the Article 8 of the Directive? This is the essen- purposes of the Directive. tial question which arises in the present infringement proceedings, to which a pre- liminary objection of inadmissibility has been made by the defendant Member State.

3. The most relevant provisions of Law N o 257/92 are the following: II — Facts and procedural background

(a) Law No 257 of 27 March 1992 'Article 1 — Purpose

2. With effect from the expiry of a period of 365 days from the date of the entry into force of this Law, and subject to the various time-limits laid down for the cessation of the 2. The limits, procedures and analytical production and marketing of the products methods for the measurement of asbestos referred to in the table annexed hereto, the pollution, including liquid and gaseous efflu- extraction, importation, exportation, market- ent containing asbestos, shall be defined in ing and production of asbestos, asbestos accordance with Council Directive products and products containing asbestos, 87/217/EEC of 19 March 1987. The period including those listed under letters (c) and for promulgation of the legislative decree (g) of the said table, shall be prohibited. implementing that directive, referred to in Articles 1 and 67 of Law N o 428 of 29 December 1990, is extended until 30 June 1992.

(...)

Article 3 — Limits 3. Any updating of or amendments to the limits referred to in paragraphs 1 and 2 of this article shall be enacted, also on a pro- posal from the commission referred to in Article 4, by decree of the Minister of Health, acting in consultation with the Min- 1. The concentration of inhalable asbestos ister for the Environment and the Minister fibres at workplaces where asbestos is used, for Industry, Trade and Crafts.

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COMMISSION v ITALY

4. Article 31(l)(a) of Legislative Decree 4. The remaining provisions of N o 277 of 15 August 1991 shall be replaced Law N o 257/92 were summarized thus by by the following: Italy in its defence:

OPINION OF MR FENNELLY — CASE C-279/94

— Articles 13 and 14 provide for financial 6. Article 1(5) defines 'technical regulation' support for technological innovation, as follows: restructuring and reconversion of asbes- tos production; and

'technical specifications, including the rel- — Article 16 lays down provisions on fund- evant administrative provisions, the obser- ing. vance of which is compulsory, de jure or de facto, in the case of marketing or use in a Member State or a major part thereof, except those laid down by local authorities.'

(b) The Directive

7. Article 8(1) and (2) provides:

2. The Commission and the Member States may make comments to the Member State which has forwarded a draft technical regu- 2 a. If the Commission ascertains that a lation; that Member State shall take such communication pursuant to Article 8(1) comments into account as far as possible in relates to a subject covered by a proposal for the subsequent preparation of the technical a directive or regulation submitted to the regulation.' Council, it shall inform the Member State concerned of this fact within three months of receiving the communication.

8. Article 9 provides in relevant part:

(c) Pre-litigation procedure absence of any reply, the Commission initi- ated the present proceedings on 13 October 1994, seeking a declaration that, by adopting Law N o 257/92 without having notified the Commission of the draft, Italy has failed to respect the obligations incumbent on it by virtue of the first subparagraph of 9. By a letter of formal notice of 18 Novem- Article 8(1) of the Directive or, in the alter- ber 1992, the Commission informed the native, Article 9(1). defendant Member State of its view that Lav/ N o 257/92, which it described as a 'national technical measure', came within the scope of application of the Directive, and should therefore have been notified in accordance with Article 8(1); furthermore, it considered that the national law should be 11. In accordance with Article 91 of the suspended until the expiry of the deadlines Rules of Procedure, Italy lodged an objec- laid down in Article 9(1), (2) and (2)(a). The tion of inadmissibility; this was joined to the Commission added that, because of this pro- merits by order of the Court of 11 July 1995. cedural defect, 'the technical rule' had no legal effect and was therefore not opposable to third parties, citing its communication 86/C 245/05. 3 Italy was invited to submit its observations in accordance with Article 169 of the E C Treaty within two months. Ill — Analysis

agent for Italy suggested that only rules con- not dissimilar to that proposed by Italy in cerning the characteristics of a product could the present case; as compliance with the par- constitute technical regulations, relying on ticular compulsory technical specifications the judgment in Semeraro Casa Uno, where had a direct impact on the marketing of the the Court noted that '[the] obligation to product, the national provisions were notify laid down by the directive does not... deemed to be technical regulations. 5 More apply to national rules which do not lay generally, in Bic Benelux, in the judgment down the characteristics required of a prod- given today, the Court noted that the objec- uct but are confined to regulating the closing tive of the Directive is to protect the free times of shops'. 4 movement of goods by preventive supervi- sion, and held that such supervision applies in respect of technical regulations which are 'capable of hindering, directly or indirectly, actually or potentially, intra-Community trade in goods', 6 a formula which was clearly inspired by the test for measures hav- 13. For its part, the Commission contends ing an effect equivalent to quantitative that, where a general measure contains tech- restrictions laid down in Dassonville. 7 nical regulations, the Organic whole' of the law must be notified; if this were not the case, it would be more difficult, if not impos- sible, to evaluate the scope of the technical rules and in particular to make a judgment as to whether they would create barriers to trade.

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16. In the second place, as appears from the the conditions governing the establishment wording of Article 8(1), the obligation to of security firms, it was not a technical regu- notify covers not just technical regulations as lation. The classification of Article 12 as a defined above, but also 'the grounds which technical regulation was held to depend on make the enactment of such a technical regu- whether it had legal effects on its own; a lation necessary, where these are not already national rule with no effects for individuals made clear in the draft' and, where appropri- in the absence of implementing measures did ate, 'the text of the basic legislative or regula- not fall within the Directive, while one tory provisions principally and directly con- which was binding even without such mea- cerned, should knowledge of such text be sures fell within Article 8 of the Directive. 10 necessary to assess the implications of the Nothing in the judgment indicates that the draft technical regulation'. It does not fol- notification requirement extended either to low, in my view, that a Member State is nec- the law considered as a whole or to those essarily obliged under this provision to provisions which, considered separately, notify the entirety of a national law of gen- were not capable of creating an obstacle to eral scope which contains both technical trade. regulations and other provisions. In so far as the notification of a particular 'non- technical' provision is necessary to evaluate the legal effects of a technical provision, it is covered by the express terms of Article 8(1). Where, however, compliance with 'non- technical' provisions has no direct impact on the production, marketing or use of goods, it may not be assumed that the Member State is obliged to notify them to the Commission.

19. N o r does the judgment in Semer aro Casa Uno 14 provide any assistance for the contentions of Italy. The national rules at 21. According to the consistent case-law of issue, which concerned closing times for the Court, 'the purpose of the letter of for- shops, clearly did not fall within any defini- mal notice is to delimit the subject-matter of tion of 'technical regulation' for the purposes the dispute and to indicate to the Member of the Directive; the use of the term 'the State, which is invited to submit is observa- characteristics required of a product' may be tions, the factors enabling it to prepare its taken as an abbreviated reference to the com- defence'. 15 The Court has recognized that plex concept of technical regulation, rather the letter 'cannot contain anything more than a restriction of this notion to product than an initial brief summary of the com- specification. plaints'. , 6 In the present case, the letter indi- cated clearly the Commission's view that the national law came within the scope of the Directive, that the law had not been notified to the Commission and that this set of cir- cumstances gave rise to a breach of Articles 8(1) and 9 of the Directive. Further- (b) Admissibility more, given that the very title and the subject-matter of the national law in ques- tion indicated that a notification under the Directive might be required, and that the Commission services contacted the Italian authorities informally on three occasions before the letter of formal notice was sent, I 20. Italy contends that the Commission's am of the view that this was sufficient in the application is inadmissible on three grounds: circumstances 'to inform the State to which that the letter of formal notice did not suffi- it is addressed of the essential points of the ciently define the breach of the Directive breach of the obligations with which it is which was alleged, that the reasoned opinion charged'. 17 raised new arguments and maintained the uncertainty surrounding the object of the infringement being pursued, and that in its 15 — Case C-289/94, cited in footnote 5 above, paragraph 15 of the judgment; see also Case 274/83 Commission v Italy [1985] ECR 1077, paragraph 19 and Case 229/87 Commis- sion v Greece [1988] ECR 6347, paragraphs 11 and 12. 16 — Case C-289/94 Commission v ludy, cited in footnote 5 12 — Cited in footnote 10 above. above, paragraph 16 of the judgment. 13 — Cited in footnote 5 above. 17 — Case 353/85 Commission v United Kingdom [1988] 14 — Cited in footnote 4 above. ECR 817, paragraph 19 of the judgment.

22. Italy challenges the reasoned opinion on Law N o 257/92 other than those specified the grounds that it identifies three technical therein, viz. Articles 1, 3 and 8. For the rea- rules in the national law which were not sons set out above, 1 9 it may not be assumed mentioned in the letter of formal notice, and that such an obligation arises in respect of that, by describing its examination of Law the entirety of a national law of general N o 257/92 as 'non-exhaustive', the Commis- scope containing both technical and non- sion maintained the uncertainty which arose technical provisions. It may be, as the Com- from the letter of formal notice as to the mission has argued, that in some circum- scope of the infringement alleged. stances the obligation to notify does indeed embrace the whole legislative text; however, the Commission must demonstrate in the reasoned opinion that such circumstances exist, 20 and, with the exception of the speci- fied provisions, it has not done so in the present case. 23. Having argued that the letter of formal notice did not sufficiently identify the alleged breach of the Directive, I find it somewhat anomalous that Italy should then complain that the reasoned opinion sets out the spe- cific reasons for which the Commission con- siders an infringement of the Directive has occurred. As the Court noted in Case C-289/94 Commission v Italy, 'the reasoned 25. It does not follow, however, that the opinion provided for in Article 169 of the application should be rejected as inadmis- Treaty must contain a coherent and detailed sible in its entirety, as Italy has contended; statement of the reasons which led the Com- the application may in my view be admitted, mission to conclude that the State in ques- though only in so far as the Commission is tion failed to fulfil one of its obligations claiming that the obligation to notify applied under the Treaty'. 18 The Commission was to the provisions of the national law identi- therefore not only entitled but obliged to fied in the reasoned opinion. Italy has itself specify the grounds on which it had taken argued that provisions of such a law of gen- the view that Italy should have notified Law eral scope are autonomous as regards the N o 257/92 in draft form. obligation to notify under the Directive, and can therefore have been in no doubt that the Commission took the view that at least those three provisions should have been notified. It follows that, by specifying those provisions of the national law which the Commission considered to be technical regulations, the 24. O n the other hand, it does not appear to reasoned opinion sufficiently clarified the me that the reasoned opinion is sufficient to establish even a prima facie case that Italy was obliged in accordance with Article 8(1 ) of the Directive to notify any provisions of 19 — Paragraphs 16 to 18 of the present Opinion. 20 — T h e proper conduct of the pre-Iiugation procedure consti- tutes an essential guarantee required by the Treaty ... so as to ensure that any contentious procedure will have a clearly defined dispute as its subject-matter' (Case C-266/94 Com- mission v Spain [1995] ECR 1-1975, paragraphs 17 and 18 of 18 — Cited in footnote 5 above, paragraph 16 of the judgment the order).

(c) The merits of the Commission's applica- 29. In its application, the Commission tion described Article 3(4) of the national law as laying down limit-values on asbestos con- tent, and stated that Article 3 also defined the procedures and methods of measuring these values. Article 3(4) of the national law amends Article 31(l)(a) of Legislative Decree N o 277 of 15 August 1991, which seeks to implement a number of Council directives 27. It only remains for me to examine on the protection of workers from the dan- whether the three provisions identified by gers of exposure to certain chemical, physical the Commission constitute technical regula- and biological agents at the workplace. 2 1 tions for the purposes of the Directive. Italy did not deal in its written statement in defence with the question of whether these 21 — Supplemento ordinario alla Gazzetta Ufficiale deUa Repub- provisions could be so considered, though it blica Italiana No 200 of 21 August 1991, p. 3.

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30. Article 3(2) of Law N o 257/92 concerns '[the] limits, procedures and analytical meth- ods for the measurement of asbestos pollu- tion' which fall prima facie within the defini- tion of a 'technical specification' of Article 1(1) and hence within that of a 'tech- 32. The notification system of Article 8 of nical regulation' in Article 1(5). However, the Directive is clearly intended to apply the national provision in question merely only to technical measures at the stage of states that these limits, procedures and ana- their introduction into the national legal sys- lytical methods 'shall be defined in accord- tem. Article 8 of Law N o 257/92 merely ance with Council Directive 87/217/EEC of declares that '[t]he classification, packaging

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COMMISSION y ITALY

22 — Gazzetta Ufficiale deUa Repubblica Italiana N o 178 of 9 July 1974, p. 4543. 23 — Supplemento ordinario alla Gazzetta Ufficiale della Repub- blica Italiana N o 143 of 20 June 1988, p. 5. 24 — '[I]n proceedings under Article 169 of the [EC] Treaty ... it is for the Commission to prove that the allegation has not been fulfilled ... in so doing it may not rely on any pre- sumption' (Case 96/81 Commission v Netherlands [1982] ECR 1791, paragraph 6 of the judgment).

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OPINION OF MR FENNELLY — CASE C-279/94

— declare that, by adopting Article 1 (2) of Law N o 257/92 without having previ- ously notified the draft of this provision to the Commission, the Italian Republic has failed to fulfil its obligations under the first subparagraph of Article 8(1) of Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations;

— for the rest, dismiss the application as unfounded;

— order each of the parties to bear its own costs.