OPINION OF MR ADVOCATE GENERAL

VERLOREN VAN THEMAAT

DELIVERED ON 6 JUNE 1984 ( 1 )

Mr President,

Members of the Court,

By Decision 82/401 of 5 May 1982 (Official Journal 1982, L 173, p. 20) the Commission declared that certain measures providing for aid laid down by the Sicilian authorities in Regional Law No 16/81 were incompatible with Article 92 of the EEC Treaty and the common organization of the markets in wine and vegetables and fruit. That decision was not contested by the Italian Government. It urged the Sicilian regional authorities to repeal the legislative provisions in question, which, however, has not so far been done. In Article 2 of the decision the Italian Republic was directed to take the necessary measures within one month of notification of the decision and to inform the Commission thereof. The Commission's application seeks a declaration from the Court that by not adopting the necessary measures within the prescribed period the Italian Republic has failed to fulfil its obligations under the Treaty. The facts which gave rise to the decision and also the content of the decision are set out in full in the Report for the Hearing. Therefore I shall refrain from bringing that information once more to the attention of the Court. The Italian Government asks the Court to dismiss the Commission's application or in the alternative to declare that the application has become devoid of purpose.. As regards the aid provided for in Article 13 of Regional Law No 16/81, whereby an amount of LIT 3000 million is made available to the Istituto Regionale della Vite e del Vino [Regional Wine Board] for the 1981 wine year, the Italian Government states that the aid is not a production aid of the kind referred to by the Commission in its decision. I share the Commission's view that that defence is directed against the decision itself, which is no longer open to challenge, with the result that it must be dismissed as inadmissible.

As regards the aid measures provided for in Articles 1, 2 and 7 of Regional Law No 16/81, the Italian Government maintains that the aid has never been paid and cannot be paid in the future because the 1981 wine year is over. It considers that the Commission's application is thereby rendered devoid of purpose.

The Commission recognizes that the aid provided for in the provisions in question has not been paid. However, the Commission requires the legislative provisions in question to be repealed. Its insistence that they should be repealed is based not only on the formal ground of their incompatibility with Community law but also on the desire to preclude the possibility of any subsequent payment of aid. At the hearing the parties took different views as to whether such later payments were possible. However, we need not, I think, dwell long on this matter. Provisions which are contrary to Community law must be repealed. By virtue of Article 189 of the EEC Treaty a decision is binding in its entirety upon those to whom it is addressed. That applies also to Article 2 of the decision in question, which clearly required the repeal of the regional legislation and against which no application to the Court was lodged.

Accordingly, I am of the opinion that the Court should decide that by not complying within the prescribed period with the Commission's decision of 5 May 1982 the Italian Republic has failed to fulfil its obligations under the EEC Treaty. The Italian Republic should also be ordered to pay the costs.

( 1 ) Translated from the German.