OPINION OF MR ADVOCATE GENERAL REISCHL

DELIVERED ON 16 DECEMBER 1980 ( 1 )

Mr President,

Members of the Court,

I shall, if I may, deal in a joint opinion with both cases under consideration today. In each case the defendant is the Italian Republic and each concerns the implementation of Community directives adopted for the purpose of eliminating, through the aproximation of certain technical rules, obstacles to the free movement of goods, which until then resulted from the disparity of national laws.

I do not really need at this stage to set out in detail the provisions of those directives. For that purpose I refer to the Commission's applications and to the Reports for the Hearings. Only this much should be borne in mind:

Directive 76/116/EEC of 18 December 1975 on the approximation of the laws of the Member States relating to fertilizers (Official Journal 1976, L 24, p. 21), with which Case 44/80 is concerned, contains provisions on the composition of fertilizers, the use of the designation “EEC fertilizer” and the implementation of control measures which make use of sampling techniques. Its objective is not merely optional but complete harmonization. That means that an EEC fertilizer may only be marketed with such a designation if it complies with the Directive and, under Article 7 of the Directive, Member States must not prohibit, restrict or hinder the marketing of fertilizers marked “EEC fertilizer” which satisfy the provisions of the Directive and its annexes. The Directive was notified to the Member States on 19 December 1975. Under Article 12 of the Directive they had a period of 24 months., commencing on that date, in which to bring into force the necessary provisions and to communicate such provisions to the Commission. It should also be mentioned that by Article 11 of the Directive, a special procedure — a form of administrative committee procedure — was laid down expressly for the purpose of amending and adjusting individual annexes to technical progress. The committee in question consists of representatives of the Member States and has a representative of the Commission as chairman. Where the Commission's proposals are in accordance with the Committee's opinion, adopted by a qualified majority, the Commission must adopt the measures which it has proposed. Otherwise the Commission is to propose to the Council the measures to be adopted and the Council is to act thereupon by a qualified majority. Article 9 (2) of the Directive provided that sampling and analysis methods were also to be determined in accordance with that procedure. That was in fact accomplished by Directive 77/535/EEC of 22 June 1977 (Official Journal 1977, L 213, p. 1), which is also relevant in Case 44/80. Pursuant to Article 2 of that Directive, the Member States were required to bring into force the necessary laws, regulations or administrative provisions not later than 19 December 1977 and to communicate the texts thereof to the Commission. A single period, which expired on 19 December 1977, therefore applied to the implementation of both directives.

Case 45/80 is concerned with Directive 76/767/EEC of 27 July 1976 on the approximation of the laws of the Member States relating to common provisions for pressure vessels and methods of inspecting them (Official Journal 1976, L 262, p. 153). As the title itself indicates, the Directive concerns the harmonization of laws on the inspection of such appliances. For that purpose a procedure for EEC pattern approval — which applies to prototypes — and a procedure for EEC verification are prescribed for each appliance.When such inspections have been carried out, they must be mutually recognized by the Member States. As is laid down by Article 3 of the Directive, Member States may not therefore obstruct the free movement of appliances complying with the Directive; that constitutes not complete but merely optional harmonization. It must be pointed out with regard to this Directive that it only lays down a general framework and makes provision for further directives for each category of appliance, which have however not yet been adopted. Accordingly, in the absence of special directives, Article 22 of the Directive applies to appliances falling within its scope. That article provides that the inspection authorities of the country of destination shall regard appliances which have been inspected in accordance with Annex IV as conforming to the law and that such inspections in the country of despatch must likewise be carried out in accordance with the procedure laid down in Annex IV. Pursuant to Article 24 thereof, this Directive, which was notified to the Member States on 30 July 1976, had to be implemented within a period of 18 months, that is, by 30 January 1978. The relevant texts had to be notified to the Commission by that date.

Since both that period and those laid down by Directives 76/116/EEC and 77/535/EEC expired without the necessary implementing laws having been enacted in Italy, the Commission instituted proceedings against the Italian Republic under Article 169 of the EEC Treaty. That was done by letters of 12 April and 27 July 1978. When the periods of two months laid down therein for the submission of observations had expired without advantage having been taken of that opportunity, reasoned opinions were delivered on 18 May 1979 in which periods of two months were again allowed for the implementation of the directives.

Thereupon, in regard to the first case the Commission learned in a memorandum of 24 July 1979 from Italy's Permanent Representation that Directive 76/116/EEC necessitated the enactment of a law. Enactment of it had been delayed on account of the complexity of the subject-matter and because it was necessary to lay down new rules for the whole fertilizer sector but a draft law would be considered shortly by the Italian Council of Ministers. In regard to the implementation of Directive 77/535/EEC, it was merely stated that that Directive was closely connected with the entry into force of the aforementioned new and comprehensive body of rules and was consequently dependent thereon.

In regard to the second case (Directive 76/767/EEC), it was first pointed out in a memorandum of 5 June 1979 from Italy's Permanent Representation that the Italian Government had laid a draft law before Parliament containing provisions enabling the adoption of the necessary measures but that the draft law had lapsed owing to the premature dissolution of Parliament. It was stated in a further memorandum of 1 October 1979, that the Directive could be implemented with the aid of administrative provisions, the adoption of which would soon follow.

Since the Commission did not regard those answers as sufficient and because the adoption of the measures announced and their notification to the Commission did not subsequently take place, the Commission brought the matter before the Court of Justice on 4 February 1980.

In Case 44/80 the Commission sought a declaration that by failing to adopt, within the period prescribed, the provisions needed in order to implement Directive 76/116/EEC and Directive 77/535/EEC the Italian Republic had failed to fulfil its obligations under the EEC Treaty.

In Case 45/80 it sought a further declaration that by failing to bring into force, within the period prescribed, the provisions needed in order to implement Directive 76/767/EEC the Italian Republic had failed to fulfil its obligations under the EEC Treaty.

Having regard to all that the Court has heard during the proceedings, it is plain that these applications must be granted.

It was represented with regard to the first case that the preparation of a draft law was delayed owing to the need for the participation of many governmental departments. It was further stated that the draft of a law which would not only serve to implement Directive 76/166/EEC but which would also lay down new rules for the entire sector and, in addition, constitute a basis for the adoption of a ministerial order, which has already been drafted, implementing Directive 77/535/EEC is now however before Parliament and that, once it has been considered by two committees, completion of its passage can definitely be expected within the coming months.

With regard to the second case, the Court has heard that the draft law containing provisions enabling the government to implement a series of Community directives which could not be passed in the preceding legislative session owing to the early dissolution of Parliament has now again been laid before Parliament. The adoption of administrative measures for some provisions of the Directive, of which there had earlier been talk, has therefore also been dispensed with. The draft law is at present under consideration by Parliament but must thereafter come before the Senate.

It is accordingly clear that in no case have binding provisions been adopted and that it is not possible to state by which date such adoption may be expected. There are therefore surely no grounds for holding that the proceedings have become devoid of purpose.

On the other hand it has already repeatedly been made clear in the case-law that the complexity of the subject-matter on which rules must be adopted or the need simultaneously to adopt rules within a broader framework may not be pleaded in order to justify considerable delay in the implementation of Community directives where the periods prescribed therein, which are binding in their nature, have not been extended. As the Commission pointed out in particular, it is also clear from the case-law that in proceedings pursuant to Article 169 of the EEC Treaty a Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify its failure to legislate and that in such proceedings it is also immaterial which organ of the State is responsible for the failure complained of.

Consequently there is no choice other than to declare that by failing to adopt, within the prescribed period, the measures needed in order to implement Directives 76/116/EEC, 77/535/EEC and 76/767/EEC, the Italian Republic has failed to fulfil its obligations under the EEC Treaty. Furthermore the defendant must be ordered to pay the costs of the proceedings.

( 1 ) Translated from the German.