C-323/01

OPINION OF MR RUIZ-JARABO — CASE C-323/01

OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 14 March 2002

1. The Commission has brought an action tection. It therefore prohibits the marketing against the Italian Republic under of certain batteries and accumulators in Article 226 EC, asking the Court of Justice view of the amount of mercury they con­ of the European Communities to declare tain, as well as appliances into which such that the Member State has failed to fulfil its batteries and accumulators are incorpor­ obligations under Commission Directive ated, in order to facilitate the recovery of 98/101/EC 2adapting to technical progress spent batteries. Under the first paragraph of Council Directive 91/157/EEC on batteries Article 2, Member States are to adopt and and accumulators containing certain dan­ publish, before 1 January 2000, the provi­ gerous substances. 3 sions necessary to comply with this Direc­ tive. They are forthwith to inform the Commission thereof.

The applicant claims that Italy has not amended its national legislation within the prescribed period and has failed to inform it of the adoption of any implementing measures.

II — Background to the case

I — Directive 98/101

7. Under the third paragraph of Article 249 5. In its defence to the application, sub­ EC, a directive is binding as to the result to mitted on 23 November 2001, the defend­ be achieved upon each Member State to ant State stated that the interministerial which it is addressed but leaves to the decree implementing Directive 98/101 into national authorities the choice of form and national law had been drafted, that it methods. Under Article 10 EC, Member would be approved before the end of that States are to take all appropriate measures, month and that its text would be com­ whether general or particular, to ensure municated to the Commission so that it fulfilment of the obligations arising out of could determine whether it was technically the Treaty or resulting from action taken correct. It accepted that it was implement­ by the institutions of the Community. ing the Directive late but pointed out that this had not been to the detriment of environmental protection in the Commu­ nity. It was confident that, once it had eliminated the technical difficulties in this area, the Commission would decide to discontinue the proceedings.

8. Since it has been established that Italy has not fulfilled its obligation to bring its domestic law into line with the provisions of Directive 98/101, the Court should grant the application of the Commission and declare that the Member State has failed to 6. In fact, in March 2002, the Commission fulfil its obligations, and order it to pay the gave no indication that it wished to dis­ costs. continue its action. Moreover, it is settled case-law that the subject-matter of an action brought under Article 226 EC is 4 — Case 39/72 Commission v Italy [19731 ECR 101, paragraph 11; Case 154/85 Commission v Italy [1987] ECR 2717, determined by the Commission's reasoned paragraph 6; Case C-29/90 Commission v Greece [1992] ECR I-1971, paragraph 12; and Case C-280/89 Commis- opinion, and even when the default has sion v Ireland [1992] ECR I-6185, paragraph 7.

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