C-58/99
ECLI:EU:C:2000:96
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COMMISSION V ITALY
OPINION OF ADVOCATE GENERAL MISCHO delivered on 22 February 2000 *
1. The Commission of the European Com- ments, that is to say, in particular, where munities seeks from the Court a declaration there are overriding reasons in the general that, by adopting Articles 1(5) and 2 of the interest, and in compliance with the prin- consolidated text of Decree Law No 332 of ciples of non-discrimination and propor- 31 May 1994, converted, after amend- tionality. ment, into Law No 474 of 30 July 1994, and the decrees concerning the 'special powers' laid down in the case of the privatisation of ENI SpA and Telecom Italia SpA, the Italian Republic has failed 5. Its failure to fulfil its obligations should to fulfil its obligations. therefore be regarded as having ceased since the adoption of the decree.
2. The defendant admits the failure to fulfil its obligations. 6. However, it is to be remembered, as the Italian Government indeed acknowledges, that, in accordance with the settled case- law of the Court, 1 the question whether there is a failure to fulfil obligations should 3. It submits, however, that account should be assessed as at the date on which the be taken of the decree of the President of deadline set in the reasoned opinion the Council of Ministers of 4 May 1999, expires. laying down instructions for the exercise of special powers as provided for in Article 2 of Decree Law No 332 of 31 May 1994.
7. In the present case, that deadline was two months and the reasoned opinion was 4. According to the defendant, the new notified by letter of 10 August 1998. The decree fully satisfies the requirements deadline therefore expired long before the which the Commission regards as arising decree of the President of the Council of from Community law. The decree requires Ministers of 4 May 1999 was adopted. The the 'special powers' to be exercised in Court is therefore unable to take account of conditions consistent with those require- the above argument and it is not even
1 — Sec, for example. Case C-200/88 Commission v Greece * Original language: French. [1990] ECU I-4299.
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OPINION OF MR MISCHO — CASE C-58/99
necessary to consider the Commission's 9. That argument comes up against the response that the content of that decree is same obstacle as the preceding one. not such as to ensure sufficient legal certainty.
10. Accordingly, it is irrelevant whether or 8. The same case-law means that it is not the relevant provisions of the Finance fruitless for the Italian Government to state Law must be supplemented by an imple- that the content of the decree was included menting regulation, which indeed has not in the Finance Law of 23 December 1999 yet entered into force, if the failure to fulfil and that, as a result, legal certainty is fully obligations is to be eliminated, and the fact guaranteed and the failure to fulfil obliga- that that question is in dispute between the tions has been eliminated beyond all doubt. parties is of no consequence.
Conclusion
1 1 . In those circumstances, I propose that the Court should grant the Commission's application for a declaration that, by adopting Articles 1(5) and 2 of the consolidated text of Decree Law N o 332 of 31 May 1994, converted, after amendment, into Law N o 474 of 30 July 1994, and the decrees concerning the 'special powers' laid down in the case of the privatisation of ENI SpA and Telecom Italia SpA, the Italian Republic has failed to fulfil its obligations under:
— Article 52 of the EC Treaty (now, after amendment, Article 43 EC);
— Article 59 of the EC Treaty (now, after amendment, Article 49 EC); and
— Article 73b of the EC Treaty (now Article 56 EC).
12. Consequently, I also propose that the Italian Republic should be ordered to pay the costs.
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