# C_2005182EN.01002301.xml

| 23.7.2005 | EN | Official Journal of the European Union | C 182/23 |
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23.7.2005

EN

Official Journal of the European Union

C 182/23

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Action brought on 26 April 2005 by the Commission of the European Communities against the Italian Republic

(Case C-185/05)

(2005/C 182/43)

Language of the case: Italian

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 26 April 2005 by the Commission of the European Communities, represented by B. Schima and F. Amato, of its Legal Service.

The Commission claims that the Court should:

| 1. | declare that:
  by maintaining in force legislation such as that contained in Article 9(3) and (4) of legislative decree No 344 of 1999, under which the operator of an establishment where dangerous substances are present may commence activity without the authority which has to give its views on the safety report having expressly communicated the conclusions of its examination of the safety report to the operator,
  by maintaining in force legislation such as that contained in Article 21(3) of legislative decree No 344 of 1999, under which, where the measures the operator plans to adopt for the prevention and mitigation of major accidents are seriously deficient, the competent authority is not required to prohibit commencement of activity;
  by failing to adopt binding legislation providing for inspections which allow a planned and systematic examination of technical, organisational and management systems applied in the establishment in question, so as to ensure that the operator can demonstrate that he has adopted adequate measures in the light of the activities carried out by the establishment, to prevent any relevant accidents and to ensure that the operator can demonstrate that he has appropriate means of limiting the consequences of accidents on and off site,
  by failing to adopt legislation providing for inspections which ensure that the data and information contained in the safety report or any other report submitted adequately reflect the conditions in the establishment,
  the Italian Republic has failed to fulfil its obligations under Article 9(4), Article 17(1) and the first, second and third indents of Article 18(1) of Directive 96/82. (1) |
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1.

declare that:

by maintaining in force legislation such as that contained in Article 9(3) and (4) of legislative decree No 344 of 1999, under which the operator of an establishment where dangerous substances are present may commence activity without the authority which has to give its views on the safety report having expressly communicated the conclusions of its examination of the safety report to the operator,

by maintaining in force legislation such as that contained in Article 21(3) of legislative decree No 344 of 1999, under which, where the measures the operator plans to adopt for the prevention and mitigation of major accidents are seriously deficient, the competent authority is not required to prohibit commencement of activity;

by failing to adopt binding legislation providing for inspections which allow a planned and systematic examination of technical, organisational and management systems applied in the establishment in question, so as to ensure that the operator can demonstrate that he has adopted adequate measures in the light of the activities carried out by the establishment, to prevent any relevant accidents and to ensure that the operator can demonstrate that he has appropriate means of limiting the consequences of accidents on and off site,

by failing to adopt legislation providing for inspections which ensure that the data and information contained in the safety report or any other report submitted adequately reflect the conditions in the establishment,

the Italian Republic has failed to fulfil its obligations under Article 9(4), Article 17(1) and the first, second and third indents of Article 18(1) of Directive 96/82. (1)

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| 2. | order the Italian Republic to pay the costs. |
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2.

order the Italian Republic to pay the costs.

Pleas in law and main arguments

Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances provides that the operator of an establishment where dangerous substances are present is required to submit a safety report to the competent authority. The Italian Republic transposed that directive by legislative decree No 334 of 17 August 1999.

The Commission takes the view, first, that under Article 9(4) of the directive the operator may not commence activity in the absence of express authorisation from the competent authority.

However, the legislative decree allows the operator to commence activity without the competent authority having expressly communicated the conclusions of its examination of the safety report to the operator.

Then, according to Article 17(1) of the directive, the competent authority is required to prohibit the activity where the measures the operator plans to adopt for the prevention and mitigation of major accidents are seriously deficient.

However, the legislative decree appears not to impose that requirement on the competent authority.

Finally, under Article 18(1) of the directive, the Member States must adopt binding legislation providing for inspections which allow a planned and systematic examination of technical, organisational and management systems applied in the establishment in question, so as to ensure that the operator can demonstrate that he has adopted adequate measures in the light of the activities carried out by the establishment, to prevent any major accidents and to ensure that the operator can demonstrate that he has appropriate means of limiting the consequences of accidents on and off site. Under Article 18(1) of the directive, again, the Member States must adopt legislation providing for inspections which ensure that the data and information contained in the safety report or any other report submitted adequately reflects the conditions in the establishment.

However, the legislative decree has not implemented those provisions but merely referred to a later implementing decree which to date has not yet been adopted.

In the light of the foregoing, therefore, the Commission submits that the Italian Republic has failed to fulfil its obligations under Article 9(4), Article 17(1) and the first, second and third indents of Article 18(1) of the directive.

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(1)  OJ 1997 L 10, 14. 1. 1997, p. 13

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