C-238/95
ECLI:EU:C:1996:31
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O P I N I O N O F MR FENNELLY — CASE C-238/95
OPINION OF ADVOCATE GENERAL FENNELLY delivered on 1 February 1996 *
1. By application of 22 June 1995, registered authorities, who are obliged by Article 16(1) at the Court on 6 July 1995, pursuant to to carry out the required assessment in Article 169 of the Treaty, the Commission accordance with the general principles laid contends that by failing to implement the down by the Commission pursuant to its laws, regulations and administrative provi- obligation under Article 3(2). The Directive sions necessary to comply with Commission at issue in these proceedings establishes those Directive 93/67/EEC of 20 July 1993 principles. (hereinafter 'the Directive'), 1 laying down the principles for assessment of risks to man and the environment of substances notified in accordance with Council Directive 67/548/EEC (hereinafter 'the Basic Directive'), 2 or by not informing the Com- mission of the measures taken to comply with the Directive, the Italian Republic has 3. Member States were required by Arti- failed in its obligations both under the Treaty cle 8(1) of the Directive to 'adopt and pub- and the Directive. lish the provisions necessary to comply with this Directive by 31 October 1993' and 'forthwith inform the Commission'. Not having received any information from the Italian authorities concerning the measures taken to implement the Directive, the Com- mission commenced the pre-contentious procedure required by Article 169 giving 2. Article 16 of the Basic Directive, as Italy formal notice by letter on 3 December amended, 3 requires the national authorities 1993. There was no response either to that to evaluate the risks to man and the environ- letter or to the Commission's subsequent ment of new chemical substances put on the reasoned opinion of 29 September market. Articles 7 to 9 require that such sub- 1994 addressed to Italy. stances be notified to the competent national
* Original language: English. 1 — OJ 1993 L 227, p. 9. 2 — OJ 1967 L 196, p. 1. The full Official Journal title of the Basic Directive is 'Council Directive of 27 June 1967 on the approximation of the laws, regulations and administrative provisions relating to the classification, packaging and label- ling of dangerous substances'. 3 — The Basic Directive has been amended several times but 4. In its defence of 29 September 1995, the most materially, for the purposes of the present case, by Italian Government admitted that Italy had Council Directive 92/32/EEC of 30 April 1992 amending for the seventh time Directive 67/548/EEC on the approxima- not yet implemented the Directive. It sub- tion of the laws, regulations and administrative provisions mitted, however, that this delay was not relating to the classification, packaging and labelling of dan- gerous substances; OJ 1992 L 154, p. 1. attributable to inertia on its part, but, rather,
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COMMISSION ν ITALY
to problems experienced in implementing the expiry of the prescribed time-limit. The Directive in national law in coordination Court has consistently held that Member with the Basic Directive, as recently States may not plead practical or other diffi amended by Council Directive 92/32/EEC. 4 culties experienced in implementing a direc tive so as to justify a failure to comply with obligations resulting from Community directives. 5
5. Article 189 of the Treaty obliges Member States to adopt the national measures neces sary to ensure the attainment of the objec tives of each directive. This specific require ment is reinforced by their general duty 6. As the failure of Italy to adopt the mea pursuant to Article 5 of the Treaty 'to take sures necessary to implement the Directive all appropriate measures, whether general or and, thus, end the infringement identified by particular, to ensure fulfilment of the obliga the Commission during both the course of tions arising out of this Treaty or resulting the pre-contentious stage and in its applica from action taken by the institutions of the tion in this case has not been remedied, I can Community'. It is undisputed that the Direc only propose that the Court grant the relief tive was not implemented in Italy by the sought by the Commission.
Conclusion
7. Accordingly, I am of the opinion that the C o u r t should:
(1) declare that by n o t implementing within the prescribed p e r i o d t h e laws, reg ulations and administrative provisions necessary t o c o m p l y w i t h C o m m i s s i o n Directive 93/67/EEC of 20 July 1993 laying d o w n the principles for assess ment of risks t o m a n and t h e e n v i r o n m e n t of substances notified in accordance with Council Directive 67/548/EEC, the Italian Republic has failed t o fulfil its obligations u n d e r the third paragraph of Article 189 of the Treaty and u n d e r Article 8(1) of Directive 93/67;
(2) o r d e r the Italian Republic t o pay the costs of these proceedings.
4 — Cited in footnote 3 above. 5 — Sec, for example, Case 58/8! Commission ν Luxembourg [1982] ECR 2175. paragraph 4 of the judgment.
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