C-362/98

OPINION OF MR MISCHO — CASE C-362/98

O P I N I O N OF ADVOCATE GENERAI MISCHO delivered on 1 July 1999 *

1. By the present action for failure to fulfil of Article 189 of the EC Treaty (now obligations brought against the Italian Article 249 EC) and Article 5 of the EC Republic on 9 October 1998, the Commis- Treaty (now Article 10 EC). sion seeks from the Court a declaration that, by failing to adopt the laws, regula- tions and administrative provisions neces- sary to comply with Council Directive 93/103/EC of 23 November 1993 concern- 3. In its defence, lodged on 29 January ing the minimum safety and health require- 1999, the Italian Republic neither disputes ments for work on board fishing vessels that the precontentious procedure was (13th individual Directive within the mean- properly followed nor denies the infringe- ing of Article 16(1) of Directive 89/391/ ment. EEC) (OJ 1993 L 307, p. 1, hereinafter 'the Directive'), or at least by failing to com- municate them to the Commission, the Italian Republic has failed to fulfil its obligations under the Treaty and the Direc- 4. It merely states that it was not possible to tive. The Commission also seeks an order initiate the process to implement the Direc- requiring the Italian Republic to bear the tive until May 1998 when Community Law costs of the proceedings. 1995/97 came into force, and that this implementation process is at present ongoing.

2. In its application the Commission 5. The Commission has taken the view that retraces the various stages of the precon- there is no need to lodge a reply, and both tentious procedure laid down by Arti- parties have waived their right to an oral cle 169 of the EC Treaty (now Article 226 hearing. EC). As regards the merits of its action, the Commission argues that, by failing to adopt the necessary implementation mea- sures, the Italian Republic has infringed Article 13(1) of the Directive, which 6. In those circumstances, I can only allowed it until 23 November 1995 to propose that the Commission's action be adopt those measures, the third paragraph upheld in its entirety, albeit that it seems to me that a simple finding of infringement of Article 13 of the Directive would be suffi- * Original language: French. cient.

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