61985C0017
OPINION OF MR ADVOCATE GENERAL DARMON
delivered on 20 February 1986 (
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)
Mr President,
Members of the Court,
1.
This case concerning the failure of a Member State to fulfil its obligations under the EEC Treaty relates to the failure of the Italian Republic to implement within the prescribed period, which expired on 31 July 1980, the Fourth Council Directive of 25 July 1978 (No 78/660/EEC) based on Article 54 (3) (g) of the Treaty on the annual accounts of certain types of companies. The directive was aimed principally at ‘the coordination of national provisions concerning the presentation and content of annual accounts and annual reports, the valuation methods used therein and their publication in respect of certain companies with limited liability ...’ (first recital in the preamble) whether private or public (Article 1).
The period allowed for transposing into national law the provisions of the regulation, laid down in Article 55 (1), was two years from the date of its notification; the same provision required the Member States to inform the Commission as soon as the laws, regulations and administrative provisions necessary to comply with the directive had been adopted.
2.
The Commission received no response from the Italian Government either to its letter (No SG (82) D/13781) of 19 October 1982 inviting the Government, in the absence of any communication from it concerning the adoption of the directive into national law, to submit its observations on the matter to the Commission, or to the reasoned opinion it issued on 14 June 1984 requesting the Italian Government to adopt the measures necessary to comply with the opinion within a period of two months. Having thus complied with the preliminary procedure laid down in Article 169 of the Treaty, the Commission brought this action on 21 January 1985.
The sole argument put forward in its defence by the Italian Government was that consideration of a draft law on the adoption of the directive was now ‘at an advanced stage’ and it hoped that it would be adopted shortly.
3.
The Court then asked the Commission to inform it of the measures which had been adopted by the Member States to implement the directive, indicating the dates on which the measures were adopted, and it asked the Italian Government to inform it of the stage actually reached in the procedure for implementing the directive referred to in its defence.
According to the reply received from the Commission six Member States have adopted implementing measures:
Denmark (two laws adopted on 10 June 1981);
United Kingdom (the Companies Act of 30 October 1981);
France (a law adopted on 30 April 1983; Ministerial Decree of 17 April 1982 publishing the new form for companies' accounts; Decree of 22 November 1983);
Belgium (two laws adopted on 1 July 1983 and 5 December 1984; Royal Decrees adopted on 12 September 1983);
Netherlands (a law adopted on 7 December 1983; Decrees of 22 and 23 December 1983);
Luxembourg (a law adopted on 4 May 1984).
Two actions for failure to fulfil obligations are pending before the Court against the Federal Republic of Germany (Case 18/85) and against Ireland (Case 16/85). Note that in the case of Germany a law dated 19 December 1985 concerning the adoption of the Fourth, Seventh and Eighth Directives of the Council harmonizing company law is scheduled to enter into force on 1 January 1987. As regards Ireland, a draft law is at present before the Irish parliament (the Dail), and its provisions may be adopted in the course of the first quarter of 1986.
Finally, proceedings against Greece for breach of its obligations have been initiated under Article 169 of the EEC Treaty.
The reply of the Italian Government was that the draft law, although at an advanced stage, was still in the course of preparation. At the hearing the representative of the Italian Government declared that the situation had not changed.
4.
The number of actions which have been brought by the Commission regarding the adoption into national law of the directive in question, and the fact that no Member State was able to comply with the time-limit laid down therefor, are evidence of the difficulty which has been experienced in implementing provisions relating to highly technical subject-matter, affecting a particularly vital area of economic life in which commercial companies play a leading rôle.
Nevertheless, we are compelled to the conclusion in this case that the Italian Republic — as it has admitted — has not been able to show that the least effort has been made to introduce the measures necessary to implement its obligations under Article 189 of the EEC Treaty. The Court has consistently held, as was recalled by the Commission and restated in one of your most recent judgments (that of 6 November 1985 in Case 131/84 Commission v Italian Republic [1985] ECR 3531):
‘A Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify failure to comply with obligations and time-limits laid down in Community directives’ (paragraph 6 of the decision).
5.
In conclusion I suggest that the Court
Declare that by failing to adopt within the prescribed period the measures necessary to comply with Council Directive No 78/660/EEC of 25 July 1978 the Italian Republic has failed to fulfil its obligations under the EEC Treaty;
Order the Italian Government to pay the costs.
(
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)	Translated from the French.