C-386/98
ECLI:EU:C:1999:555
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OPINION OF MR JACOBS — CASE C-386/98
O P I N I O N OF ADVOCATE GENERAL JACOBS delivered on 16 November 1999 *
1. In this case the Commission, by applica- certain specific provisions of the directive tion lodged at the Court on 26 October are already reflected in its national legisla- 1998 and made pursuant to Article 169 of tion and that in November 1997, in order the EC Treaty (now Article 226 EC), seeks to improve and supplement that legislation, a declaration that, by not adopting the the two sides of industry initialled a laws, regulations and administrative provi- common declaration concerning implemen- sions needed to implement Council Direc- tation of the directive; that declaration is in tive 93/104/EC of 23 November 1993 practice generally applied in the manufac- concerning certain aspects of the organisa- turing sector. Moreover, in order to put the tion of working time, 1or by not informing directive on a legal footing the Italian the Commission thereof, the Italian Repub- Government has put forward a separate lic has failed to fulfil its obligations under draft law which in February 1999 was the Treaty and under that directive. before the Chamber of Deputies. Italy concludes that it expects the draft law and the subsequent governmental decree of execution to be adopted within a reason- able time scale.
2. Article 18(1)(a) of the directive provides that Member States are to adopt the laws, regulations and administrative provisions necessary to comply with the directive by 23 November 1996 or to ensure by that 4. It is clear that Italy did not take all the date that the two sides of industry establish measures necessary for complete implemen- the necessary measures by agreement, with tation of the directive by the prescribed Member States being obliged to take any date of 23 November 1996. In respect of necessary steps to enable them to guarantee the period since that date, the fact that Italy at all times that the provisions laid down by has attempted to rectify its non-compliance the directive are fulfilled. does not afford it a defence. An action based on Article 169 of the EC Treaty requires only an objective finding of a failure to fulfil obligations and not proof of any inertia or opposition on the part of the Member State concerned. 2It is more- 3. In its defence, lodged on 12 February over settled law that each Member State 1999, Italy notes that the general thrust and must implement directives in a manner
* Original language: English. 2 — Case 301/81 Commission v Belgium [1983] ECR 467, 1 — OJ 1993 L 307, p. 18. paragraph 8 of the judgment.
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COMMISSION V ITALY
which fully meets the requirement of legal 5. In those circumstances the Commission's certainty and must consequently transpose application is well founded. their terms into national law as binding provisions.
Conclusion
6. I accordingly conclude that the Court should:
(1) declare that, by not adopting the laws, regulations and administrative provisions needed to implement Council Directive 93/104/EC of 23 Novem- ber 1993 concerning certain aspects of the organisation of working time, or by not informing the Commission thereof, the Italian Republic has failed to fulfil its obligations under the Treaty and under that directive;
(2) order the Italian Republic to pay the costs.
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