61981C0028
OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN
DELIVERED ON 8 OCTOBER 1981
My Lords,
This is an application by the Commission for a declaration that the Republic of Italy has failed to fulfil its obligations under the Treaty in that it has not adopted the measures which are necessary to implement Council Directive No 74/561 of 12 November 1974 (OJ L 308, of 19. 11. 1974, p. 18) within the period fixed for doing so by Article 7.
The Republic of Italy has not denied, either in the written procedure, or in its oral submissions, that it has failed to comply with the directive. It has explained why the directive has not been implemented. It seems that the various consultations and legislative processes which were necessary have taken a long time and this has resulted in the measures not being implemented.
It is well established, in my view, by the cases decided by the Court that a Member State is not entitled to rely on circumstances or practices existing in its own internal legal system to justify failing to comply with the obligations imposed on it by a directive.
Counsel for the Republic of Italy has asked that the Court should extend the time which is provided by the article for the implementation of the directive. It does not seem to me that the Court has power to alter the period which is fixed by a directive. It may well be that the Court could, in its own discretion, delay the making of a declaration because of the circumstances which were explained to the Court. It seems to me, however, that it is essentially a matter for the Commission to decide whether the time has come to bring a failure to fulfil an obligation under the Treaty before the Court, and it does not seem to me that it is appropriate that, in a case where the Commission has shown that there has been a failure to fulfil such an obligation, the Court should, in the ordinary case, refuse to grant the declaration sought.
In consequence, in my opinion, the declaration sought by the Commission should be granted in this case and the Republic of Italy should be ordered to pay the costs of the action.