C-336/97

COMMISSION V ITALY

OPINION OF ADVOCATE GENERAL JACOBS delivered on 25 March 1999 *

1. In this case the Commission seeks a ity', 'manufacturer', 'major accident' and declaration pursuant to Article 169 of the 'dangerous substances'. EC Treaty that Italy has failed to fulfil its obligations under the Treaty by not fully implementing Council Directive 82/501/EEC of 24 June 1982 on the major-accident hazards of certain industrial activities 1(the 'Seveso' Directive). 4. Article 3 provides:

2. Article 1(1) of the Directive states:

'Member States shall adopt the provisions necessary to ensure that, in the case of any of the industrial activities specified in Article 1, the manufacturer is obliged to take all the measures necessary to prevent 'This Directive is concerned with the pre- major accidents and to limit their conse- vention of major accidents which might quences for man and the environment.' result from certain industrial activities and with the limitation of their consequences for man and the environment. It is directed in particular towards the approximation of the measures taken by Member States in this field.'

5. Article 4 provides:

7. Article 5(1) further prescribes in detail — substances stored or used in con- the information which such notification nection with the industrial activity must contain, relating to substances listed concerned, in Annexes II and III, to the installations and to 'possible major-accident situations', including 'any information necessary to the competent authorities to enable them to prepare emergency plans for use outside the establishment in accordance with — products of manufacture, Article 7(1)'.

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COMMISSION V ITALY

8. Article 7 provides: 1984 and forthwith to inform the Commis- sion thereof.

'1. The Member States shall set up or appoint the competent authority or autho- rities who, account being taken of the responsibility of the manufacturer, are responsible for: 10. The Commission claims that the mea- sures adopted by Italy to implement the Directive, namely Decree No 175 of the President of the Republic, of 17 May 1988, 2as amended and re-enacted,3 have not been and are still not such as to ensure that all the emergency plans referred to in the third indent of Article 7(1) have been drawn up or all the inspections or other measures of control referred to in Arti- cle 7(2) carried out.

— ensuring that an emergency plan is drawn up for action outside the estab- lishment in respect of whose industrial activity notification has been given,

12. I cannot agree. It is clear from the the competent authorities are in place whole aim and structure of the Directive would run counter to the whole body of ('the purpose of Directive 82/501 is, in case-law to the effect that Member States particular, to ensure that the necessary may not escape responsibility for comply­ measures are adopted to prevent major ing with their obligations under a directive accidents arising from certain industrial on the ground that the task has been activities and to limit the consequences of delegated to domestic authorities 5or that any such accidents' 4 ) that it seeks not the failure to comply was caused by the merely the creation of a legislative frame­ action or inaction of some other, even work within which those results may be independent, agency of the State. 6In this achieved but their actual achievement. instance, the obligation to appoint the Were that not so and were it permissible competent authorities would be devoid of for Member States to comply with a any sensible purpose if it did not entail the directive simply by setting up machinery obligation to see to it that they carried out rather than by setting it in motion, the their tasks. Nor can I accept the argument whole system of harmonisation of laws put forward by the Italian Government at within the Community would in many the hearing, based on a comparison with cases be set at nought. Directive 96/82. 7 Whilst the Member State's responsibility may be stated more plainly in the latter, 8 that does not imply the absence of any such responsibility under the previous legislation.

to be achieved, and Article 5 explicitly verb 'carry out'. 1 1However, the terms of requires Member States to take all appro- the Directive as enacted make it impossible priate measures to ensure fulfilment of their to accept the Italian Government's argu- obligations resulting from 'action taken by ment, namely that the requirement laid Community institutions', a category which down does not extend to ensuring that the clearly includes directives. The Court has inspections or controls take place. consistently held that the obligation is not merely to enact the relevant legislation but also to take 'all the measures necessary to ensure that the directive is fully effective',9 and that Member States must 'ensure that the provisions of a directive are applied exactly and in full'. 10 In this case, the result to be achieved includes the explicit require- ment that the competent authorities must ensure that emergency plans are drawn up and organise inspections or other appro- priate measures of control. If they fail to do 17. Finally, the specific argument of the so, the Member State has not fulfilled its Italian Government to the effect that plans obligations under the Directive. cannot be drawn up or inspections properly carried out until manufacturers have pro- vided the requisite information may be countered simply by reference to the terms of Articles 4 and 5(1) of the Directive, under which Member States must take the measures necessary to ensure that manu- facturers are required to provide that information.

21. In any event, even if steps have now been taken to reduce the extent of the non­ compliance, they have clearly not met with anything approaching complete success; the subject-matter of an Article 169 action is, moreover, determined at the stage of the Commission's reasoned opinion and is 19. With regard to the first point, suffice it to note that the Italian Government stated, unaffected by any subsequent remedying in a letter to the Commission dated 21 May of the failure at issue. 12 1997, that 110 plans had been drawn up out of a total of 443 which should have been prepared, and apparently has not since then produced any other plans for inspection by the Commission. Plans are, moreover, clearly to be based on the specific information provided by each 22. The fact that actual compliance with manufacturer, so that a general plan could the two requirements in question is at a only satisfy the requirements of the Direc­ level of approximately 2 5 % is further tive if it dealt with each establishment exacerbated by the fact that the time-limit individually. for implementation of the Directive expired on 8 January 1984 and the relevant Italian provisions have been in effect since 1988. Although it is accepted by the Commission that the time-limit for implementation does not extend to 'second-stage' measures to be carried out by the competent authorities, there has clearly been considerably more than enough time for those measures to be put into effect. 20. "With regard to the second point, the Italian Government states that in fact 220 out of 391 establishments have been inspected, the. remainder having been sub­ jected to other measures of control, whereas the Commission relies on letters from that Government stating that the number of establishments to be inspected is 710 and the number inspected 179. 12 — See, for example, Case C-280/89 Commission ν Ireland Again, the Italian Government does not [1992] ECR I-6185, paragraph 7 of the judgment.

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