C-302/95

OPINION OF MR LÉGER — CASE C-302/95

OPINION OF ADVOCATE GENERAL LÉGER delivered on 5 November 1996 *

1. In the present action, brought under its obligations, the Commission initiated the Article 169 of the EC Treaty, the Commis­ infringement procedure by letter of formal sion maintains that, by not adopting the notice. It was made clear in that letter that, laws, regulations and administrative provi­ even if the Italian Government considered sions necessary to comply with Council the rules of domestic law already in force to Directive 91/271/EEC of 21 May 1991 con­ be in conformity with the Directive, it was cerning urban waste water treatment ' ('the still under a duty to communicate them to Directive') or, in any event, by not notifying the Commission. the Commission thereof, the Italian Republic has failed to fulfil its obligations under that Directive and under the EC Treaty. The Commission also asks that the Italian Gov­ ernment be ordered to pay the costs. 4. Since there was no reply to the letter of formal notice, the Commission sent the Ital­ ian Republic a reasoned opinion on 11 Janu­ ary 1995. The Italian Republic neither responded to the reasoned opinion nor adopted the measures necessary to transpose the Directive into domestic law. Conse­ 2. Article 19 of the Directive provides that quently, on 25 September 1995, the Commis­ the Member States are to bring into force the sion decided to bring the present action. laws, regulations and administrative provi­ sions necessary to comply with it no later than 30 June 1993 and immediately to inform the Commission thereof.

Directive has not yet been fully transposed, 7. It is not disputed that when the period particularly as regards the requirements laid prescribed in Directive 91/271 expired, the down in its annexes, the Italian Government Italian Government had not adopted the states that full transposition will be brought laws, regulations and administrative provi­ about 'as quickly as possible' by the adop­ sions necessary to comply with that Direc­ tion of a legislative decree. Pending definitive tive. Nor had it made any communication to implementation of the Directive, the Italian the Commission. Government has asked the Regions — by 3 Decree Law No 79 of 17 March 1995 ('Decree Law 79/95') — to comply with the principles and criteria laid down by the Directive in respect of rules requiring amendment (particularly the implementing rules concerning the discharge of waste water from public drains and the discharge 8. It should therefore be held that the Italian from private installations of waste water Government has failed to fulfil its obliga­ which does not go into the public drains). In tions under Article 19 of the Directive. those circumstances, the Italian Republic considers that it has, at least partially, ful­ filled its obligation to transpose the Directive and undertakes to ensure that it is fully transposed as soon as possible.

9. Furthermore, as the Commission very rightly pointed out, the arguments put for­ ward by the Italian Republic to justify the delay in adopting the required measures can­ not be accepted.

tions and time-limits laid down in a direc­ to the principles of publicity and legal cer­ tive'. 4 tainty. For this reason, the Court has held that recommendations, opinions, memoranda and judicial decisions 5 cannot satisfy 'the requirement for legal certainty, [namely] that individuals should have the benefit of a clear 11. Furthermore, by way of a minor point, and precise legal situation enabling them to the provisions of Decree Law 79/95, amend­ ascertain the full extent of their rights and, ing Decree Law 319/76, and providing that where appropriate, to rely on them before the Regions must comply with the principles 6 the national courts'. and criteria laid down by Directive 91/271 in respect of rules requiring adjustment, cannot be construed as measures transposing that Directive. According to settled case-law, if domestic measures are to meet the funda­ mental requirements appropriate to transpo­ 12. Accordingly, the action brought by the sition measures as such, they must give effect Commission should be upheld.

13. I therefore propose that the Court declare that, by not adopting the laws, regu­ lations and administrative provisions necessary to comply with Council Directive 91 / 271 / EEC of 21 May 1991 concerning urban waste water treatment , and by not notifying the Commission thereof within the period prescribed, the Italian Republic has failed to fulfil its obligations under Article 19 of that Directive. I further pro­ pose that the Italian Republic be ordered to pay the costs, in accordance with Article 69(2) of the Court's Rules of Procedure .