61986CJ0116_EN
Parties
Grounds
Decision on costs
Operative part
Parties
IN CASE 116/86
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISERS, ALBERTO PROZILLIO AND GIULIANO MARENCO, ACTING AS AGENTS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS, JEAN MONNET BUILDING, KIRCHBERG,
APPLICANT,
V
ITALIAN REPUBLIC, REPRESENTED BY LUIGI FERRARI BRAVO, HEAD OF THE DEPARTMENT FOR CONTENTIOUS DIPLOMATIC AFFAIRS, ACTING AS AGENT, REPRESENTED IN HIS TURN BY OSCAR FIUMARA, AVVOCATO DELLO STATO, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE ITALIAN EMBASSY,
DEFENDANT,
APPLICATION FOR A DECLARATION THAT, BY FAILING TO ADOPT WITHIN THE PRESCRIBED PERIOD THE PROVISIONS NEEDED TO COMPLY WITH COUNCIL DIRECTIVE 79/109 OF 24 JANUARY 1979 AMENDING DIRECTIVE 64/432 AS REGARDS BRUCELLOSIS, THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY,
THE COURT
COMPOSED OF : C . KAKOURIS, ACTING AS PRESIDENT, G . BOSCO AND G.C . RODRIGUEZ IGLESIAS ( PRESIDENTS OF CHAMBERS ), T . KOOPMANS, K . BAHLMANN, R . JOLIET AND F . SCHOCKWEILER, JUDGES,
ADVOCATE GENERAL : J . MISCHO
REGISTRAR : B . PASTOR, ADMINISTRATOR
HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 8 JULY 1987,
AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 1 OCTOBER 1987,
GIVES THE FOLLOWING
JUDGMENT
Grounds
1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 20 MAY 1986, THE COMMISSION OF THE EUROPEAN COMMUNITIES BROUGHT AN ACTION BEFORE THE COURT UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT, BY FAILING TO ADOPT WITHIN THE PRESCRIBED PERIOD THE PROVISIONS NEEDED TO COMPLY WITH COUNCIL DIRECTIVE 79/109 OF 24 JANUARY 1979 ( OFFICIAL JOURNAL L 29, P . 20 ) AMENDING COUNCIL DIRECTIVE 64/432 OF 26 JUNE 1964 ON ANIMAL HEALTH PROBLEMS AFFECTING INTRA-COMMUNITY TRADE IN BOVINE ANIMALS AND SWINE ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1963-1964, P . 164 ), AS MOST RECENTLY AMENDED BY COUNCIL DIRECTIVE 77/98 OF 21 DECEMBER 1976 ( OFFICIAL JOURNAL 1977 L 26, P . 81 ), THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY .
2 DIRECTIVE 79/109 AMENDED DIRECTIVE 64/432 ESSENTIALLY, ON THE ONE HAND, BY INTRODUCING PROVISIONS CONCERNING "BRUCELLOSIS FREE REGIONS" AND, ON THE OTHER, BY INTRODUCING NEW TECHNIQUES FOR CARRYING OUT HEALTH CHECKS USED TO DETECT THE PRESENCE OF BRUCELLOSIS IN BOVINE ANIMALS TRADED BETWEEN THE MEMBER STATES . ACCORDING TO ARTICLE 10 OF DIRECTIVE 79/109, THE MEMBER STATES ARE TO BRING INTO FORCE THE LAWS, REGULATIONS AND ADMINISTRATIVE PROVISIONS NECESSARY TO COMPLY WITH THE DIRECTIVE BY 1 APRIL 1979 AND ARE FORTHWITH TO INFORM THE COMMISSION THEREOF .
3 SINCE THE COMMISSION HAD NOT RECEIVED ANY COMMUNICATION FROM THE ITALIAN GOVERNMENT WITHIN THE PRESCRIBED PERIOD CONCERNING THE MEASURES ADOPTED FOR THE TRANSPOSITION OF THE DIRECTIVE AT ISSUE INTO NATIONAL LAW AND SINCE IT HAD NO OTHER INFORMATION AVAILABLE TO IT PERMITTING IT TO CONCLUDE THAT THE ITALIAN REPUBLIC HAD FULFILLED ITS OBLIGATION TO BRING THE NECESSARY MEASURES INTO FORCE, IT GAVE FORMAL NOTICE TO THE ITALIAN GOVERNMENT ON 10 AUGUST 1984 TO SUBMIT ITS OBSERVATIONS ON THAT SUBJECT WITHIN TWO MONTHS . AFTER CONSIDERING THE OBSERVATIONS OF THE ITALIAN GOVERNMENT, COMMUNICATED BY TELEX MESSAGE OF 18 OCTOBER 1984, THE COMMISSION DELIVERED A REASONED OPINION ON 16 DECEMBER 1985 TO WHICH NO REPLY WAS RECEIVED . UNDER THOSE CIRCUMSTANCES, THE COMMISSION BROUGHT THIS ACTION .
4 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE FACTS OF THE CASE, THE COURSE OF THE PROCEDURE AND THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .
SUBJECT-MATTER OF THE DISPUTE
5 AT THE COURT' S REQUEST, THE ITALIAN GOVERNMENT SUBMITTED A TABLE ON 30 APRIL 1987 IN WHICH THE PROVISIONS OF DIRECTIVE 79/109 WERE COMPARED WITH THE VARIOUS NATIONAL PROVISIONS CORRESPONDING THERETO . UPON RECEIPT OF THAT TABLE, THE COMMISSION, BY LETTER OF 29 MAY 1987, INDICATED THE PRECISE PROVISIONS OF THE DIRECTIVE WHICH WERE NOT COVERED BY THE NATIONAL LEGISLATION . FURTHER DETAILS WERE ADDED BY THE PARTIES DURING THE ORAL PROCEDURE .
6 IT CAN BE SEEN FROM THE INFORMATION THUS SUPPLIED THAT THE COMMISSION ABANDONED THE GENERAL CONCLUSIONS PUT FORWARD IN ITS APPLICATION AND HAS CONFINED ITSELF TO CERTAIN MORE LIMITED CLAIMS WHICH THEREFORE CONSTITUTE THE SUBJECT-MATTER OF THE DISPUTE .
7 IN THAT REGARD, THE COMMISSION OBSERVES IN LIMINE THAT THE IMPLEMENTATION OF THE DIRECTIVE AT ISSUE HAS TWO ASPECTS :
( A ) THE OBLIGATION ON THE PART OF EACH MEMBER STATE TO ADAPT ITS OWN RULES TO THE LEVEL PROVIDED FOR IN THE COMMUNITY PROVISIONS AS REGARDS CHECKS CARRIED OUT ON ITS OWN EXPORTS;
( B ) THE OBLIGATION TO PERMIT THE IMPORTATION OF ANIMALS FROM OTHER MEMBER STATES WHICH, BY VIRTUE OF THAT ORIGIN, HAVE BEEN SUBJECT TO HARMONIZED CHECKS .
WITH REGARD TO THE FIRST ASPECT, THE COMMISSION CONSIDERS THAT THE ITALIAN LEGISLATION FULFILS THE REQUIREMENTS OF THE DIRECTIVE BECAUSE THE FAILURE TO TRANSPOSE CERTAIN OF ITS PROVISIONS IS NOT CONTRARY TO THE DIRECTIVE, WITH THE EXCEPTION OF ARTICLES 6, 7 AND 8 . WITH REGARD TO THE SECOND ASPECT, THE COMMISSION CONSIDERS THAT NO RULES WERE ADOPTED TO IMPLEMENT THE DIRECTIVE IN REGARD TO IMPORTATIONS FROM OTHER MEMBER STATES .
8 EACH OF THE COMMISSION' S CLAIMS MUST NOW BE CONSIDERED .
ARTICLE 6 OF DIRECTIVE 79/109/EEC
9 WITH REGARD TO THE TRANSPOSITION OF ARTICLE 6, THE COMMISSION NOTES THAT THE PROVISIONS IN THE SECOND INDENT OF POINT ( B ) CONTAINED IN THAT ARTICLE AUTHORIZING THE USE OF A NEW TYPE OF VACCINE WHICH DOES NOT CORRESPOND TO ANYTHING CONTAINED IN THE NATIONAL MEASURES RELIED ON BY THE ITALIAN GOVERNMENT . THE COMMISSION' S CLAIM THUS IS CONCERNED ONLY WITH THAT INDENT .
10 IT SHOULD BE POINTED OUT IN THAT REGARD THAT DURING THE ORAL PROCEDURE, THE ITALIAN GOVERNMENT ADMITTED THAT IT HAD NOT TRANSPOSED INTO NATIONAL LAW THE PROVISION IN THE SECOND INDENT OF POINT ( B ) CONTAINED IN ARTICLE 6 OF THE DIRECTIVE CONCERNING THE INTRODUCTION OF 45/20 ADJUVANT VACCINE BECAUSE THE SAID VACCINE HAD NOT YET BEEN REGISTERED AND, THEREFORE, WAS NOT MARKETED IN THE TERRITORY OF THE ITALIAN REPUBLIC .
11 SINCE THAT CONSIDERATION IS IRRELEVANT, IT FOLLOWS THAT THE COMMISSION' S CLAIM MUST BE UPHELD .
ARTICLES 7 AND 8 OF DIRECTIVE 79/109/EEC
12 IT CAN BE SEEN FROM THE COMPARATIVE TABLE SUBMITTED BY THE ITALIAN GOVERNMENT THAT THOSE TWO ARTICLES, DEALING WITH BOVINE ANIMALS OFFICIALLY REGARDED AS BRUCELLOSIS FREE WHICH HAVE BEEN VACCINATED WITH LIVE BUCK 19 VACCINE, HAVE BEEN THE SUBJECT OF ADMINISTRATIVE CIRCULARS NO 25 OF 23 JUNE 1981 AND NO 32 OF 30 APRIL 1986, TO WHICH MUST BE ADDED CIRCULAR NO 65 OF 16 APRIL 1979, WHICH HAD ALREADY BEEN ISSUED, AND THAT NO OTHER MEASURE, IN THE NATURE OF A LAW OR REGULATION, WAS ADOPTED IN ORDER TO TRANSPOSE THOSE ARTICLES INTO ITALIAN LAW .
13 THE DEFENDANT REFERS TO LAW NO 397 OF 30 APRIL 1976 WHICH TRANSPOSED DIRECTIVE 64/43 INTO ITALIAN LAW AND CONTENDS THAT THE CIRCULARS IN QUESTION ARE NOT CONTRARY TO THAT LAW BUT MERELY CONSTITUTE SUPPLEMENTARY, PRACTICAL MEASURES FOR THE IMPLEMENTATION THEREOF .
14 IN THAT REGARD, IT SHOULD BE POINTED OUT THAT THE TWO ARTICLES OF DIRECTIVE 79/109 AT ISSUE AMENDED CERTAIN PROVISIONS IN THE ANNEXES TO DIRECTIVE 64/432 . SINCE THE LATTER, TOGETHER WITH ITS ANNEXES, WAS TRANSPOSED INTO DOMESTIC LAW BY LAW NO 397 OF 30 APRIL 1976, THE TWO ARTICLES OF DIRECTIVE 79/109 AT ISSUE SHOULD ALSO BE TRANSPOSED BY BINDING PROVISIONS OF DOMESTIC LAW HAVING THE SAME FORCE AS THOSE TO BE AMENDED .
15 IN THAT REGARD, IT SHOULD BE POINTED OUT THAT THE COURT HAS CONSISTENTLY HELD THAT MERE ADMINISTRATIVE PRACTICES, WHICH MAY BE CHANGED AS THE ADMINISTRATION SEES FIT AND WHICH HAVE NOT RECEIVED APPROPRIATE PUBLICITY, CANNOT BE REGARDED AS CONSTITUTING VALID IMPLEMENTATION OF THE OBLIGATION IMPOSED ON MEMBER STATES TO WHICH A DIRECTIVE IS ADDRESSED UNDER ARTICLE 189 OF THE EEC TREATY .
16 CONSEQUENTLY, THE CLAIMS CONCERNING THE FAILURE TO TRANSPOSE ARTICLE 7 AND 8 OF THE DIRECTIVE INTO NATIONAL LAW MUST BE UPHELD .
THE IMPLEMENTATION OF THE DIRECTIVE IN REGARD TO IMPORTATIONS FROM OTHER MEMBER STATES
17 THE TERM "REGION" IS DEFINED IN ARTICLE 1 OF DIRECTIVE 79/109 . ARTICLES 2 AND 4 OF THE DIRECTIVE AUTHORIZE THE MEMBER STATES, IN CERTAIN CASES AND IN ACCORDANCE WITH CERTAIN PROCEDURES, TO SIMPLIFY BRUCELLOSIS CHECKS IN "A PART OF A MEMBER STATE COMPOSED OF SEVERAL ADJACENT REGIONS ". ARTICLE 3 PROVIDES FOR THE POSSIBILITY, UNDER CERTAIN CONDITIONS, FOR A BOVINE HERD TO BE REGARDED AS OFFICIALLY BRUCELLOSIS-FREE ON THE BASIS OF CHECKS, NOT ONLY BY MEANS OF RING-TESTS, BUT ALSO BY MEANS OF A BUFFERED BRUCELLA ANTIGEN TEST . FINALLY, ARTICLE 5 OF THE DIRECTIVE, READ TOGETHER WITH ARTICLE 9 THEREOF, PROVIDES FOR FOUR KINDS OF SEROLOGICAL TESTS WHICH MAY BE EMPLOYED AT THE DISCRETION OF THE MEMBER STATE, NAMELY THE SERO-AGGLUTINATION TEST, THE BUFFERED BRUCELLA ANTIGEN TEST, THE PLASMA-AGGLUTINATION TEST AND THE PLASMA RING-TEST .
18 THE COMMISSION CLAIMS ESSENTIALLY THAT ALTHOUGH THE FAILURE TO TRANSPOSE THE ABOVEMENTIONED PROVISIONS OF DIRECTIVE 79/109 INTO NATIONAL LAW DOES NOT CONSTITUTE A FAILURE ON THE PART OF THE ITALIAN REPUBLIC TO FULFIL ITS OBLIGATIONS UNDER THAT DIRECTIVE INASMUCH AS IT IS NOT REQUIRED TO PERMIT THE UTILIZATION OF ALL THE METHODS FOR CHECKS CARRIED OUT ON ITS NATIONAL TERRITORY ON BOVINE ANIMALS INTENDED FOR EXPORT, THE FAILURE TO TRANSPOSE THOSE PROVISIONS NONE THE LESS CONSTITUTES A FAILURE TO FULFIL THE OBLIGATIONS RESULTING FROM THE DIRECTIVE IN REGARD TO THE IMPORTATION OF BOVINE ANIMALS FROM THE SAID REGIONS . BY VIRTUE OF THE FACT THAT THE PROVISIONS OF THE DIRECTIVE HAVE NOT BEEN TRANSPOSED, THE ITALIAN LEGISLATION DOES NOT PERMIT THE IMPORTATION OF BOVINE ANIMALS, EVEN ACCOMPANIED BY CERTIFICATES THAT THEY HAVE BEEN CHECKED IN ACCORDANCE WITH THE METHODS ADOPTED BY OTHER MEMBER STATES, IN ACCORDANCE WITH THE CHOICE PERMITTED BY THE DIRECTIVE, BUT NOT ADOPTED IN ITALY . A LEGISLATIVE PROVISION WAS THEREFORE NECESSARY TO ELIMINATE THE RISK OF OBSTACLES TO IMPORTS .
19 THE ITALIAN REPUBLIC CONTENDS THAT IT HAD ALREADY ADOPTED LAW NO 397 OF 30 APRIL 1976 FOR THE PURPOSE OF TRANSPOSING DIRECTIVE 64/432 INTO ITALIAN LAW . ARTICLE 11 OF THAT LAW PROVIDES AS FOLLOWS :
" BOVINE ANIMALS AND SWINE SENT TO ITALY FROM OTHER MEMBER STATES OF THE EUROPEAN ECONOMIC COMMUNITY MUST PROVIDE THE SAME GUARANTEES IN REGARD TO HEALTH AS THOSE PRESCRIBED IN THE CASE OF SHIPMENT FROM ITALY TO OTHER MEMBER STATES . HOWEVER, THE SAID ANIMALS MUST BE PRESENTED FOR THE VETERINARY CHECK CARRIED OUT AT THE FRONTIER AND BE ACCOMPANIED BY CERTIFICATES CONFORMING TO MODELS I TO IV CONTAINED IN ANNEX F, DRAFTED IN THE ITALIAN LANGUAGE ".
THAT ARTICLE REQUIRES IMPORT CERTIFICATES BUT NOT CERTIFICATES BASED ONLY ON THE METHODS OF CHECKING ADOPTED IN ITALY . FURTHERMORE, NO CASE OF DIFFERENT APPLICATION IN REGARD TO IMPORTS EXISTS IN PRACTICE .
20 IT SHOULD BE POINTED OUT THAT IT CANNOT BE EXCLUDED THAT ARTICLE 11 REFERRED TO ABOVE, ON WHICH THE ITALIAN GOVERNMENT RELIES, COULD BE INTERPRETED AS MEANING THAT IT REQUIRES THE USE OF THE SAME METHODS OF CHECKING FOR IMPORTS OF BOVINE ANIMALS AS ARE USED FOR EXPORTS . FURTHERMORE, THAT IS THE INTERPRETATION GIVEN IN CIRCULAR NO 32 OF 30 APRIL 1986 OF THE MINISTER FOR HEALTH WHICH STATES IN ITS PENULTIMATE PARAGRAPH THAT "THE PROVISIONS LAID DOWN IN REGARD TO BRUCELLOSIS FOR BOVINE ANIMALS SENT FROM ITALY TO THE EUROPEAN ECONOMIC COMMUNITY ALSO APPLY TO BOVINE ANIMALS FOR BREEDING OR PRODUCTION IMPORTED FROM OTHER MEMBER STATES ".
21 THE ITALIAN GOVERNMENT HAS NOT THEREFORE BEEN ABLE TO SHOW THAT THERE IS IN EXISTENCE ANY PROVISION CLEARLY PROVIDING THAT BOVINE ANIMALS COMING FROM OTHER MEMBER STATES MAY BE IMPORTED EVEN IF THEY HAVE BEEN CHECKED IN ACCORDANCE WITH METHODS AUTHORIZED BY DIRECTIVE 79/109 BUT NOT ADOPTED BY THE ITALIAN REPUBLIC BY VIRTUE OF THE CHOICE PROVIDED FOR IN THE SAID DIRECTIVE . THUS, THAT REQUIREMENT, LAID DOWN BY THE DIRECTIVE AT ISSUE, HAS NOT BEEN FULFILLED . THE FACT THAT NO CONCRETE CASE CONCERNING OBSTACLES TO IMPORTS OF BOVINE ANIMALS INTO ITALIAN TERRITORY HAS HITHERTO COME TO LIGHT IN NO WAY AFFECTS THE EXISTENCE OF THE BREACH OF OBLIGATIONS BECAUSE, AS THE COURT HAS CONSISTENTLY HELD, AMBIGUOUS LEGISLATION WHICH LEAVES THOSE SUBJECT THERETO IN A STATE OF UNCERTAINTY AS TO THE EXTENT TO WHICH THEY MAY RELY ON COMMUNITY LAW DOES NOT FULFIL THE OBLIGATION TO TRANSPOSE A DIRECTIVE INTO NATIONAL LAW .
22 IT MUST BE HELD, ON THE BASIS OF ALL THE FOREGOING CONSIDERATIONS, THAT BY FAILING TO ADOPT WITHIN THE PRESCRIBED PERIOD A LEGISLATIVE PROVISION AUTHORIZING THE IMPORTATION OF BOVINE ANIMALS WHICH IN THE MEMBER STATE FROM WHICH THEY COME HAVE BEEN THE SUBJECT OF CHECKS CARRIED OUT IN ACCORDANCE WITH METHODS WHICH HAVE NOT BEEN ADOPTED BY ITALY BUT WHICH HAVE BEEN ADOPTED BY OTHER MEMBER STATES PURSUANT TO THE OPTION AUTHORIZED BY ARTICLES 1, 2, 3, 4, 5 AND 9 OF COUNCIL DIRECTIVE 79/109 OF 24 JANUARY 1979, THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY .
Decision on costs
COSTS
23 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY' S PLEADING . SINCE THE ITALIAN REPUBLIC HAS FAILED IN ITS SUBMISSIONS, IT MUST BE ORDERED TO PAY THE COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT
HEREBY :
( 1 ) DECLARES THAT, BY FAILING TO ADOPT WITHIN THE PRESCRIBED PERIOD THE PROVISIONS NEEDED TO COMPLY WITH POINT ( B ), SECOND INDENT, OF ARTICLE 6, AND ARTICLES 7 AND 8 OF COUNCIL REGULATION 79/109 OF 24 JANUARY 1979 AMENDING AS REGARDS BRUCELLOSIS DIRECTIVE 64/432 OF THE COUNCIL OF 26 JUNE 1964 ON ANIMAL HEALTH PROBLEMS AFFECTING INTRA-COMMUNITY TRADE IN BOVINE ANIMALS AND SWINE, AND BY FAILING TO ADOPT A LEGISLATIVE PROVISION AUTHORIZING THE IMPORTATION OF BOVINE ANIMALS WHICH, IN THE MEMBER STATE FROM WHICH THEY COME, HAVE BEEN THE SUBJECT OF CHECKS CARRIED OUT IN ACCORDANCE WITH METHODS WHICH HAVE NOT BEEN ADOPTED BY ITALY BUT WHICH HAVE BEEN ADOPTED BY OTHER MEMBER STATES PURSUANT TO THE OPTION AUTHORIZED BY ARTICLES 1, 2, 3, 4, 5 AND 9 OF THE SAID DIRECTIVE, THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY;
( 2 ) ORDERS THE ITALIAN REPUBLIC TO BEAR THE COSTS .