C-279/94

Italian Republic, represented by Professor Umberto Leanza, Head of the Depart- ment for Contentious Diplomatic Affairs in the Ministry of Foreign Affairs, acting as Agent, assisted by Pier Giorgio Ferri, Avvocato dello Stato, with an address for service in Luxembourg at the Italian Embassy, 5 Rue Marie-Adélaïde,

defendant,

A P P L I C A T I O N for a declaration that, in adopting Law N o 257 of 27 March 1992 laying down rules concerning the cessation of the use of asbestos, without having notified the draft Law to the Commission, the Italian Republic has failed t o fulfil its obligations under the first subparagraph of Article 8(1) — or, in the alternative, Article 9(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 (OJ 1983 L 109, p. 8), as amended by Council Directive 88/182/EEC of 22 March 1988 (OJ 1988 L 81, p. 75),

* Language of the case: Italian.

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JUDGMENT OF 16. 9. 1997 — CASE C-279/94

gives the following

Judgment

1 By application lodged at the Registry of the Court on 13 October 1994, the Com- mission of the European Communities brought an action under Article 169 of the E C Treaty for a declaration that, in adopting Law N o 257 of 27 March 1992 laying down rules concerning the cessation of the use of asbestos {Gazzetta Ufficiale detta Repubblica Italiana, Ordinary Supplement N o 87 of 13 April 1992, p. 5, hereinafter 'Law N o 257/92'), without having notified the draft Law to the Com- mission, the Italian Republic has failed to fulfil its obligations under the first para- graph of Article 8(1) — or, in the alternative, Article 9(1) — of Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of

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COMMISSION v ITALY

information in the field of technical standards and regulations (OJ 1983 L 109, p. 8), as amended by Council Directive 88/182/EEC of 22 March 1988 (OJ 1988 L 81, p. 75, hereinafter 'the Directive').

JUDGMENT OF 16. 9. 1997 — CASE C-279/94

Article 3 — Limits

1. The concentration of inhalable asbestos fibres at work places where asbestos is used, processed or disposed of, at sites where reclamation is carried out, at the premises of establishments where asbestos is used and of undertakings or bodies authorized to carry out operations for the processing or disposal of asbestos or for the reclamation of the areas concerned, shall not exceed the limits laid down by Article 31 of Legislative Decree No 277 of 15 August 1991, as amended by this Law.

2. The limits, procedures and analytical methods for the measurement of asbestos pollution, including liquid and gaseous effluent containing asbestos, shall be defined in accordance with Council Directive 87/217/EEC of 19 March 1987. The period for promulgation of the legislative decree 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.

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 proposal from the Commission referred to in Article 4, by decree of the Minister for Health, acting in consultation with the Minister for the Environment and the Minister for Industry, Trade and Crafts.

4. Article 31(l)(a) of Legislative Decree N o 277 of 15 August 1991 shall be replaced by the following:

1. The classification, packaging and labelling of asbestos and products containing asbestos are governed by Law N o 256 of 29 May 1974, as subsequently amended and supplemented, and by Presidential Decree N o 215 of 24 May 1988.'

3 'Technical regulation', as referred to in Article 8 of the Directive, is defined in Article 1(5) as follows:

'... technical specifications, including the relevant administrative provisions, the observance 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.'

4 The first subparagraph of Article 8(1) of the Directive provides:

' 1 . Member States shall immediately communicate to the Commission any draft technical regulation, except where such technical regulation merely transposes the

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9 In those circumstances the Commission has brought this action.

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Admissibility

io By a separate document lodged at the Registry of the Court on 19 January 1995, the Italian Republic, pursuant to Article 91 of the Rules of Procedure, raised an objection seeking to have the application declared inadmissible.

1 1 O n 11 July 1995 the Court decided to consider the objection as to admissibility with the substance of the case.

concerned an opportunity to submit its observations. Thus, according to settled case-law, the purpose of the letter of formal notice at the pre-litigation stage of the procedure for establishing a State's failure to fulfil its obligations is to delimit the subject-matter of the dispute and to indicate to the Member State asked to submit its observations the factors enabling it to prepare its defence (see, in particular, the judgment in Case C-289/94 Commission v Italy [1996] ECR 1-4405, paragraph 15).

is Although the reasoned opinion provided for in Article 169 of the Treaty must con- tain a coherent and detailed statement of the reasons which led the Commission to conclude that the State in question has failed to fulfil one of its obligations under the Treaty, the letter of formal notice cannot be subject to such strict requirements of precision, since it cannot, of necessity, contain anything more than an initial brief summary of the complaints. There is therefore nothing to prevent the Com- mission from setting out in detail in the reasoned opinion the complaints which it has already made more generally in the letter of formal notice (see the judgment in Case C-289/94 Commission v Italy, cited above, paragraph 16).

u In the present case, the letter putting the Italian Republic on notice to submit its observations identified with sufficient precision the breach of obligations of which the Italian Republic was accused, which consisted in the adoption of Law N o 257/92 which, although containing, according to the Commission, technical regu- lations, was not previously notified in draft form to the Commission as the Direc- tive requires. That letter therefore enabled the Italian Government to acquaint itself with the nature of the complaints raised by giving it the possibility of pre- senting its defence. Moreover, it was preceded by a telex sent on 26 February 1992 setting out the position of the Commission.

20 It appears from the text of the reasoned opinion that it fulfils that requirement. The Commission set out in its opinion the complaints contained in the formal let- ter, identifying the provisions of Law N o 257/92 which, in its view, were technical regulations. It follows that the reasoned opinion identified sufficiently well the subject-matter of the application.

2i The second plea of inadmissibility must therefore also be dismissed.

The third plea in Uw

22 The Italian Republic contends that the application is inadmissible in that there is a discrepancy between the application and the reasoned opinion. In its view, the

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25 However, that requirement cannot be stretched so far as to mean that in every case the statement of the subject-matter of the proceedings in the reasoned opinion must be exactly the same as the form of order sought in the application if the subject-matter of the proceedings has n o t been extended or altered but simply lim- ited.

26 It follows that the third plea of inadmissibility must also be dismissed. The appli- cation is therefore admissible.

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Substance

28 Without even responding to the Commission's argument that Articles 1, 3 and 8 of Law N o 257/92 constitute technical regulations, the Italian Republic maintains in any event that this is not sufficient to make it obligatory for the entire text of Law N o 257/92 to be notified as a complete technical regulation. It argues that, even if those provisions constitute technical regulations, this cannot entail an obligation to notify the entire Law. It is clear from Article 9 of the Directive that, once a techni- cal regulation is notified at the draft stage, it is necessary to suspend the internal enactment procedure until the procedure provided for by the Directive is com- pleted. So, if the complete text of Law N o 257/92 should have been notified, the Italian Parliament would have had to refrain from approving and enacting provi- sions not related in any way to technical regulations.

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29 The first point to be determined is whether, as the Commission contends, Articles 1, 3 and 8 of Law N o 257/92 constitute technical regulations within the meaning of the Directive.

30 As far as Article 1(2) of Law N o 257/92 is concerned, that provision prohibits the extraction, importation, exportation, marketing and production of asbestos, asbes- tos products and products containing asbestos after a period of one year after the date of entry into force of the Law. Such a provision, in prohibiting the marketing and use of asbestos, constitutes a technical regulation which the Italian Govern- ment ought to have notified in accordance with the first subparagraph of Article 8(1) of the Directive.

34 According to Article 1, point 5 of the Directive, however, a 'technical regulation' is to be understood as meaning 'technical specifications, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing or use in a Member State'. According to Article 1, point 1, of the Directive, a 'technical specification' is a specification contained in a document which lays down the characteristics required of a product such as levels of quality, performance and safety. Article 3(1) of Law N o 257/92 lays down limits for the concentration of inhalable asbestos fibres at workplaces. Since this provi- sion does not define a characteristic required of a product, it does not in principle fall within the definition of a technical specification and consequently cannot be regarded as a technical regulation which has to be notified to the Commission pur- suant to the first subparagraph of Article 8(1) of the Directive. Although obser- vance of the value limits for concentrations of inhalable asbestos fibres provided for by Article 3 of Law N o 257/92 may have consequences as regards the charac- teristics of the product in question, as these are provided for by Article 1, point 1 of the Directive, the Commission has not demonstrated how this could be the case.

35 The Commission contends that Article 8 of Law N o 257/92 extends to asbestos the application of provisions which did not previously apply to this product. The Italian Republic, on the other hand, maintains that the provision in question merely refers back to provisions already applicable to asbestos.

40 However, the aim of the last sentence of the first subparagraph of Article 8(1) of the Directive is to enable the Commission to have as much information as possible on any draft technical regulation with respect to its content, scope and general context in order to enable it to exercise as effectively as possible the powers con- ferred on it by the Directive.

4i Only full communication of Law N o 257/92 could enable the Commission to evaluate the exact scope of any technical regulations contained in that Law which, as its title indicates, concerns the cessation of the use of asbestos.

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42 However, the mere fact that all the provisions contained in Law N o 257/92 are notified to the Commission does not prevent the Italian Republic from bringing into force immediately, and therefore without waiting for the results of the exami- nation procedure provided for by the Directive, the provisions which do not con- stitute technical regulations.

43 Consequently, it must be declared that, in adopting Law N o 257/92 without hav- ing notified the draft Law to the Commission, the Italian Republic has failed t o fulfil its obligations under the first subparagraph of Article 8(1) of the Directive.

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draft Law 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, as amended by Council Directive 88/182/EEC of 22 March 1988;

2. Orders the Italian Republic to pay the costs.

Mancini Murray Hirsch

Ragnemalm Schintgen