Judgment of the Court of 12 July 1988. - Commission of the European Communities v Italian Republic. - Failure by a Member State to fulfil its obligations - Failure to transpose Council Directive 78/659/EEC into national law - Protection of the quality of fresh waters capable of supporting fish life. - Case 322/86.



European Court reports 1988 Page 03995



Parties

Grounds

Decision on costs

Operative part



Keywords

++++

Measures adopted by the institutions - Directives - Implementation by the Member States - Necessity of complete transposition

( EEC Treaty, Art . 189, third paragraph )

Parties

In Case 322/86

Commission of the European Communities, represented by Enrico Traversa, a member of its Legal Department, acting as Agent, with an address for service in Luxembourg at the office of G . Kremlis, a member of the Commission' s Legal Department, Jean Monnet Building, Kirchberg,

applicant,

v

Italian Republic, represented by Luigi Ferrari Bravo, Head of the Department for Contentious Diplomatic Affairs, acting as Agent, assisted by Pier Giorgio

Ferri, 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 measures necessary to comply with the provisions of Council Directive 78/659/EEC of 18 July 1978 on the quality of fresh waters needing protection or improvement in order to support fish life ( Official Journal 1978, L 222, p . 1 ) the Italian Republic has failed to fulfil its obligations under the EEC Treaty,

THE COURT

composed of : Lord Mackenzie Stuart, President, G . Bosco, J . C . Moitinho de Almeida and G . C . Rodríguez Iglesias ( Presidents of Chambers ), T . Koopmans, U . Everling, Y . Galmot, C . Kakouris and F . Schockweiler, Judges,

Advocate General : C . O . Lenz

Registrar : H . A . Ruehl, Principal Administrator

having regard to the Report for the Hearing and further to the hearing on 24 February 1988,

after hearing the Opinion of the Advocate General delivered at the sitting on 15 March 1988,

gives the following

Judgment

Grounds

1 By an application lodged at the Court Registry on 19 December 1986, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that by failing to adopt within the prescribed period the measures necessary to comply with Council Directive 78/659/EEC of 18 July 1978 on the quality of fresh waters needing protection or improvement in order to support fish life ( Official Journal 1978, L 222, p . 1 ) the Italian Republic has failed to fulfil its obligations under the EEC Treaty .

2 The aim of the directive is to protect or improve the quality of running or standing fresh waters which support or, if pollution were reduced or eliminated, would become capable of supporting fish belonging to certain species . Under Article 1 ( 1 ), the directive applies to waters designated by the Member States as needing such protection or improvement . Article 4 provides that Member States are, initially within a two-year period following the notification of the directive, to designate salmonid waters and cyprinid waters . Article 5 provides that, by means of programmes to be established by Member States in order to reduce pollution, designated waters are to conform within five years following designation to the values set by the Member States for the physical and chemical parameters set out in Annex 1 to the directive . Under Article 17, Member States are to bring into force the laws, regulations and administrative provisions necessary to comply with the directive within two years of its notification and are forthwith to inform the Commission thereof . Since the directive was notified to the Member States on 20 July 1978, that period expired on 20 July 1980 .

3 Since it had received no communication from the Italian Government concerning measures to implement the directive, on 11 March 1985 the Commission addressed to it a formal letter calling on it to submit its observations . By a letter of 5 November 1985 the Italian Permanent Representation to the European Communities replied that a group of experts of the interministerial committee for the protection of waters against pollution had been given the task of drawing up a draft law to transpose the provisions of the directive into the Italian legal system . The Commission received no further communication relating to the adoption of that draft law, and on 28 February 1986 it issued a reasoned opinion under the first paragraph of Article 169 of the EEC Treaty . In response to that reasoned opinion, the Italian Government stated in a letter dated 15 July 1986 from the Italian Permanent Representation that the procedure for the enactment of the draft law had been suspended and that the Government had approved and transmitted to the Italian Parliament on 23 May 1986 a draft law, Article 24 of which delegated to the Government the authority to adopt, by decree, a consolidated text intended to restructure, with due regard to relevant Community directives, the whole of the Italian legislation in force relating to the protection of waters against pollution and the disposal of waste . As this consolidated text has not been adopted by the Italian Government, the Commission has brought these proceedings for failure to fulfil obligations .

4 Reference is made to the Report for the Hearing for a more detailed 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 Court' s reasoning .

5 The Italian Government acknowledges that it has not fulfilled its obligations but observes that on the basis of the relevant legislation in force the Italian public authorities responsible for the management and protection of public waters, namely the State and the regions, have all the powers necessary for implementing the provisions of the directive, in particular Article 4, on the designation of salmonid and cyprinid waters . In this connection, it states that by a decree of 16 January 1981 the Minister of Agriculture and Forestry designated a certain number of fresh waters in the territory of the autonomous province of Bolzano deemed capable of supporting fish life . As regards the action to be taken in respect of the designated waters in order to comply with the obligations flowing from Article 5 of the Directive, the Italian Government points out that Article 1 ( d ) of Law No 319 of 10 May 1976 ( Official Gazette of the Italian Republic No 141 of 29 May 1976 ) provides for the drawing up of regional and national rehabilitation programmes for waters under which all the measures necessary for the protection of waters against pollution will be taken . Consequently, the failure to fulfil obligations lies only in the incomplete transposition of the directive, inasmuch as the designation of waters needing protection is inadequate .

6 As the Court has held, most recently in its judgment of 2 March 1988 in Case 309/86 ( Commission v Italian Republic 1988 ECR 1237 ), the transposition into domestic law of Community directives must effectively guarantee their full application . However, it must be acknowledged that the measures adopted by the Italian Government in order to transpose the directive in question into the Italian legal order are insufficient . No salmonid or cyprinid waters situated on Italian territory have been designated other than those in the autonomous province of Bolzano . The Government has also failed to set, for these waters, specific values for the parameters laid down in Annex 1 of the directive, and to draw up programmes in order to ensure that these parameters conform to the values set .

7 It must therefore be held that by failing to adopt within the prescribed period the measures necessary in order to comply with Council Directive 78/659/EEC of 18 July 1978 the Italian Republic has failed to fulfil its obligations under the EEC Treaty .

Decision on costs

Costs

8 Under Article 69 ( 2 ) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs . Since the defendant 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 measures necessary in order to comply with Council Directive 78/659/EEC of 18 July 1978 on the quality of fresh waters needing protection or improvement in order to support fish life the Italian Republic has failed to fulfil its obligations under the Treaty .

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