Opinion of Mr Advocate General Léger delivered on 12 November 1998. - Commission of the European Communities v Italian Republic. - Failure by a Member State to fulfil its obligations - Failure to transpose Directive 91/676/EEC. - Case C-195/97.



European Court reports 1999 Page I-01169



Opinion of the Advocate-General

1 In the present proceedings, the Commission of the European Communities seeks a declaration that, `by failing to adopt and communicate within the prescribed period the provisions necessary to transpose into domestic law Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources (1) (hereinafter `the Directive'), and in particular by failing to comply with the obligation laid down in Article 3(2) of the Directive, the Italian Republic has failed to fulfil its obligations under Community law'. The Commission also requests that the Italian Republic be ordered to pay the costs of the proceedings.

2 Article 12(1) of the Directive provides that the Member States are to bring into force the laws, regulations and administrative provisions necessary to comply with it within two years of its notification and are forthwith to inform the Commission thereof. Since the Directive was notified to the Member States on 19 December 1991, that time-limit for implementation expired on 19 December 1993.

3 By the same date, the Member States were required, under Article 3(2) of the Directive, to have designated for the first time as vulnerable zones all known areas of land in their territories which drain into waters affected by pollution and waters which could be affected by pollution, in accordance with the criteria set out in the Directive. They were required furthermore to have notified the Commission of that initial designation within six months.

Under Article 3(5), however, Member States are to be exempt from that obligation to identify specific vulnerable zones if they consider the whole of their national territory to be vulnerable and consequently establish and apply action programmes with the objective of reducing and preventing water pollution caused by nitrates from agricultural sources throughout that territory.

4 Finally, under Article 4 of the Directive, the Member States were, still within the same period, to establish a code or codes of good agricultural practice, to be implemented by farmers on a voluntary basis, with the aim of providing for all waters a general level of protection against pollution.

5 On the expiry of that time-limit the Commission had not received any communication relating either to the transposition of the Directive into Italian law or to the designation of specific vulnerable zones, or exemption from that specific obligation pursuant to Article 3(5), and had no other information enabling it to conclude that the Italian Republic had complied with its obligations. By letter of 10 July 1995, therefore, and in accordance with the procedure laid down in Article 169 of the EC Treaty, it gave the Italian Government formal notice to submit its observations on the matter within two months. It also called upon it to submit its observations on the fact that the competent authorities had not established a code or codes of good agricultural practice, as Article 4 of the Directive obliged them to do.

6 Since it received no reply to that letter, the Commission sent a reasoned opinion to the Italian Government on 26 July 1996 calling upon it to adopt the measures necessary to comply with it within two months of its notification.

7 By letter of 20 January 1997 the Permanent Representation of Italy to the European Union replied to the Commission. While admitting that its government had not yet adopted a specific measure to transpose Directive 91/676 into Italian law, it argued that the government had, in all essentials, fulfilled the obligations laid down in it, and referred in particular to the obligations arising under Articles 3(2) and 4 of the Directive.

8 In the light of that information, the Commission did not pursue its complaints in respect of failure to comply with Article 4 of the Directive. However, it was not satisfied with the argument put forward concerning the obligation imposed by Article 3(2), and consequently decided to apply to the Court of Justice for a declaration that the Italian Republic had failed to fulfil the obligations in question.

9 The Commission's application was lodged at the Registry of the Court of Justice on 20 May 1997. The Italian Government contends that it should be dismissed.

10 In the defence, the Italian Government points out that it communicated to the Commission, once it had received the reasoned opinion, a series of measures in force in Italy, which were not legislative in nature, `by virtue of which it can be considered that Directive 91/676/EEC has, in certain respects, been implemented'.(2) It also states that it intends to adopt, under powers delegated by Parliament, a legislative decree containing `complete rules on the subject covered by the said directive'.

11 The Commission repeats its complaints in the reply.

12 It maintains, first, that it never implied that implementation must necessarily take the form of a measure which is legislative in nature. It points out that its criticism of the Italian Government is not for having adopted measures which are not legislative, but for having failed in any event to comply with its obligations under the Directive, by adopting measures of whatever nature.

13 It then observes that the correct transposition of a directive requires the adoption of measures, if necessary in a particular order, which ensure its effectiveness and lead to the intended results. However, in this case, by adopting measures designed, first, to establish a code of good agricultural practice in accordance with Article 4 and, secondly, to appear in the action programmes to reduce and prevent water pollution, prescribed in Article 5(4) of the Directive, before first identifying the waters and zones at risk, as required by Article 3(2), the Italian Government has proceeded in an illogical manner. The measures so far adopted will remain a dead letter, according to the Commission, since they are intended to protect zones which have still not been identified.

14 In its rejoinder, the Italian Republic disputes that reasoning. It argues that it would not be practical to proceed in the order suggested by the Commission. It adds that `the documentation relating to the measures adopted to implement the provisions of Article 5 of the Directive is currently on its way to the Commission'.(3)

15 It therefore appears that the Italian Government did not deny, either during the pre-litigation stage or in its defence or rejoinder, the failure to transpose the Directive into national law within the prescribed period, and the resulting failure to communicate measures to the Commission. It merely referred to a certain number of measures which might, if necessary, comply with the requirements of Article 5 of the Directive, which provides specifically for the adoption of action programmes to reduce and prevent water pollution caused or induced by nitrates from agricultural sources. However, apart from the fact that those action programmes must satisfy a number of mandatory requirements, compliance with which it is impossible in this case to evaluate, it is clear that that is not the only aspect of the Directive with which the Member States are required to comply.

16 In particular it is not disputed that no national measure has yet been adopted or communicated to the Commission for the purposes of complying with the obligation to designate vulnerable zones pursuant to Article 3(2) of the Directive.

17 On the contrary, by referring, in the defence, to the imminent adoption of a legislative text effecting complete transposition of the Directive, and by insisting, in the rejoinder, that documentation relating to complementary national measures is currently on its way to the Commission, the Italian Republic recognises in any event that all the relevant measures have not been adopted, or communicated to the Commission, in due time.

18 Without going further into the detail of the arguments presented, it is therefore sufficient to state that, since the Directive was not transposed and the transposition communicated within the time-limit prescribed by the Directive, the action brought by the Commission is well founded.(4)

19 It must consequently be held that, by not adopting and not communicating to the Commission within the prescribed time-limit the laws, regulations and administrative provisions necessary to comply with the Directive, the Italian Republic has failed to fulfil its obligations under Article 12(1) thereof.

20 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Italian Republic has been unsuccessful, it should be ordered to pay the costs.

Conclusion

21 For those reasons, I propose that the Court:

(1) declare that, by not adopting and not communicating to the Commission within the prescribed time-limit the laws, regulations and administrative provisions necessary to comply with Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources, the Italian Republic has failed to fulfil its obligations under Article 12(1) thereof;

(2) order the Italian Republic to pay the costs.

(1) - OJ 1991 L 375, p. 1

(2) - First paragraph of point 1 of the defence.

(3) - First paragraph of point 5 of the rejoinder.

(4) - See, for example, Case C-79/98 Commission v Belgium [1998] ECR I-6139, paragraph 8.