C-43/97

Italian Republic, represented by Professor Umberto Leanza, Head of the Legal Department in the Ministry of Foreign Affairs, acting as Agent, assisted by Ivo M. Braguglia, Avvocato dello Stato, with an address for service in Luxembourg at the Italian Embassy, 5 Rue Marie-Adélaïde,

defendant,

APPLICATION for a declaration that, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for

* Language of the case: Italian.

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COMMISSION v ITALY

gives the following

Judgment

1 By application lodged at the Court Registry on 3 February 1997, the Commission of the European Communities brought an action under Article 169 of the EC Treaty, seeking a declaration that, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with

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JUDGMENT OF 17. 7.1997 — CASE C-43/97

Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ 1993 L 199, p. 1) and by failing to notify those provisions, the Italian Republic has failed to fulfil its obligations under the first subparagraph of Article 34(1) of that directive.

6 The Italian Republic does not deny that it has failed to fulfil its obligations as set out in the application and merely states that it will shortly adopt measures to rem­ edy the situation. It states that under the draft 1995/1996 Community Law, cur­ rently before the Italian Parliament, responsibility is to be delegated to the Gov­ ernment for transposing Directive 93/96 into national law by means of a legislative decree which will be adopted as soon as the 1995/1996 Community Law enters into force.

7 Since Directive 93/96 has not been transposed within the period laid down therein, the Italian Republic must be found to have failed to fulfil its obligations as con­ tended by the Commission.

8 That conclusion cannot be called into question by the Italian Government's argu­ ment that the failure with which it is charged is of minor importance inasmuch as the basic provisions concerning procedures for the award of public supply con­ tracts have long formed part of the national legal system as a result of the imple­ mentation of Council Directive 77/62/EEC of 21 December 1976 coordinating procedures for the award of public supply contracts (OJ 1977 L 13, p. 1), as amended on several occasions.

9 The Italian Government does not deny that Directive 93/96 imposes new obliga­ tions on the Member States, which they were to implement by 14 June 1994 at the latest.

10 Contrary to what the Commission claims, however, the Court does not have to take account of the failure to notify the laws, regulations or administrative provi­ sions necessary to comply with the directive, since the Italian Republic did not adopt those provisions within the period prescribed in the reasoned opinion (see Case C-147/94 Commission v Spain [1995] ECR I-1015, paragraph 7).

THE COURT (Sixth Chamber)

hereby:

1. Declares that, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with Council Directive 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts, the Italian Republic has failed to fulfil its obliga- tions under the first subparagraph of Article 34(1) of that directive;

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COMMISSION v ITALY

2. Dismisses the remainder of the application;

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