CELEX: 62003CJ0082
Failure of a Member State to fulfil obligations
Article 10 EC
Cooperation with the Community institutions
Failure to forward information to the Commission

By application lodged at the Court Registry on 25 February 2003, the Commission of the European Communities brought an action
under Article 226 EC in which it seeks a declaration that, by failing genuinely to cooperate with the Commission in a case
concerning the health and safety of workers, the Italian Republic has failed to fulfil its obligations under Article 10 EC.
Article 10 EC provides:
‘Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations
arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the
achievement of the Community’s tasks.
They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty.’
Pre-litigation procedure
In 2000 the Commission received a complaint from an economic operator concerning the application, within the Italian legal
system, of Council Directive 89/655/EEC of 30 November 1989 concerning the minimum safety and health requirements for the
use of work equipment by workers at work (second individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC)
(OJ 1989 L 393, p. 13).  The complainant submitted that the safety requirements set out in points 2.5, 2.8, 2.14, 2.16 and
2.19 of Annex I to Directive 89/655 had not been complied with in one waste water treatment plant.
The Commission wrote to the Italian Republic on 3 August 2000 requesting information in regard to the matters under complaint
to enable it to examine the situation in greater detail.
In the absence of any reply by the Italian authorities to this first letter, the Commission sent a second letter to the Italian
Republic on 19 March 2001 requesting information.  No answer to this second letter was forthcoming either.
According to those letters, the infringements set out in the complaint received by the Commission relate to a ‘waste water
treatment plant in the commune of Mandello del Lario in Lombardy’.
As it formed the view, in particular, that the lack of any reply by the Italian authorities pointed to an absence of genuine
cooperation, for the purposes of Article 10 EC, on the part of the Italian Government, the Commission instituted the procedure
laid down in Article 226 EC.  After putting the Italian Republic on notice to submit its observations, the Commission issued
a reasoned opinion on 18 July 2002 in which it called on that Member State to adopt the measures necessary for compliance
within two months of its notification.
In the absence of any reply from the Italian authorities, the Commission brought the present action.
The action
Arguments of the parties
The Commission submits that it has established that there has been no cooperation on the part of the Italian authorities,
which, despite the numerous contacts made by the Commission, has not forwarded any information on the matters highlighted
by the complainant.  By its persistent silence, the Italian Government has frustrated efforts to uncover the facts vital to
a detailed examination of the complaint.  This lack of cooperation is at variance with both the spirit and the wording of
the obligation to provide genuine cooperation which Article 10 EC imposes on the Member States.
The Italian Government submits that the action is inadmissible and in any event unfounded.
It argues that the application does not set out the minimum factual context which is vital for the exercise of the rights
of the defence and for the subsequent judicial decision.  Neither the application nor any of the documents annexed to it provides
any information on the name and location of the plant which is the subject of the complaint.
This, the Italian Government submits, creates an objective difficulty for the Italian authorities in identifying the supervisory
bodies responsible for safeguarding workers with a view to being able rapidly to conduct targeted inspections. Responsibility
for the deadlock reached in this case rests exclusively with the Commission.
Findings of the Court
The action is admissible in so far as the application meets the requirements of the first paragraph of Article 21 of the Statute
of the Court of Justice and Article 38(1) of the Rules of Procedure, in particular with regard to the identification of the
subject-matter of the dispute and the brief statement of the pleas in law on which the application is based.  The head of
complaint in issue is that of infringement of Article 10 EC through failure to provide any information on the matters which
are the subject of a complaint and which were first set out in the letter of 3 August 2000.  The Italian Republic was perfectly
able to exercise its rights of defence in regard to that head of complaint.
The action is also well founded.
Article 10 EC makes it clear that the Member States are required to cooperate in good faith with the enquiries of the Commission
pursuant to Article 226 EC, and to provide the Commission with all the information requested for that purpose (see, inter
alia, Case 192/84
Commission
v
Greece
[1985] ECR 3967, paragraph 19, and Case C-478/01
Commission
v
Luxembourg
[2003] ECR I-2351, paragraph 24).
Even after being requested to do so on several occasions, the Italian Republic failed to provide the information sought.
The place which is the subject of the complaint is clearly identified in the letters which the Commission sent before it instituted
the pre-litigation procedure and to which it refers in its letter of formal notice of 23 October 2001 and in the reasoned
opinion of 18 July 2002.  The Italian authorities thus had at their disposal the facts enabling them to reply to the Commission’s
request.
It must accordingly be held that, by failing genuinely to cooperate with the Commission in a case concerning the health and
safety of workers in a waste water treatment plant situated in the commune of Mandello del Lario in Lombardy (Italy), the
Italian Republic has failed to fulfil its obligations under Article 10 EC.
Costs
Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been
applied for in the successful party’s pleadings.  As the Commission has asked that costs be awarded against the Italian Republic,
and as the latter has been unsuccessful, the Italian Republic must be ordered to pay the costs.
On those grounds,
THE COURT (Second Chamber)
hereby:
1.
Declares that, by failing genuinely to cooperate with the Commission of the European Communities in a case concerning the
health and safety of workers in a waste water treatment plant situated in the commune of Mandello del Lario in Lombardy (Italy),
the Italian Republic has failed to fulfil its obligations under Article 10 EC;
2.
Orders the Italian Republic to pay the costs.
Timmermans
Gulmann
Cunha Rodrigues
Macken
Colneric
Delivered in open court in Luxembourg on 13 July 2004.
Registrar
President of the Second Chamber
R. Grass
C.W.A. Timmermans
–
Language of the case: Italian.