3.

Objectively speaking, the failure to fulfil its obligations with which the defendant State is accused is not denied. It is nevertheless common ground that at the date of the hearing it had still not satisfied its obligations under the directive. The Treaty itself states that, as regards the implementation of Community directives, Member States have an obligation, not to adopt particular means, but to achieve a particular result. The first paragraph of Article 5 of the Treaty states: ‘Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from actions taken by the institutions of the Community. They shall facilitate the achievement of the Community's tasks.’ The third paragraph of Article 189 further provides: ‘A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.’ Article 10 of the directive recalls the nature of that obligation and also fixes the date by which it must be fulfilled. A person under an obligation to achieve a particular result must, in the event of its non-fulfilment, prove that it is and remains due to an unforeseeable and insurmountable event. No one would deny that the destruction of statistical data records is such an event and constitutes force majeure. The Italian Ministry of transport informed the competent Community departments of the event in a letter dated 18 January 1979. The attack therefore took place between the end of 1978 and the beginning of 1979. In the period which immediately followed its occurrence the Italian Republic could not be required to fulfil its obligation. Therefore the Commission, exercising its discretion, allowed Italy a period of three years before initiating the procedure laid down in Article 169 of the Treaty for establishing a Member State's failure to fulfil its obligations. It was justified in doing so. The occurrence of the bomb attack, which excused Italy from fulfilling its obligation at the actual time when the directive centered into force, could not release it for good from its obligation or give it the power to decide in a discretionary way when the directive should be implemented. On the question of the importance of observing, such time-limits the Court has held that: ‘The correct application of a directive is particularly important since the implementing measures are left to the discretion or the Member State and would be ineffective if the desired aims are not achieved within the prescribed time-limits. Although the provisions of a directive are no less binding on the Member State to which they are addressed than the provisions of any other rule of Community law, such an effect attaches a fortiori to the provisions relating to the periods allowed for implementing the measures prescribed ...’ (Case 52/75, Commission v Italy, [1976] ECR 277, paragraph 10 at p. 284). The question which arises is therefore whether the Italian Government which, as I have said, was unable to comply immediately with the time-limits laid down in the directive because of the bomb attack, may still, six years after its occurrence, rely on that event before this Court to justify its continued failure to fulfil its obligation. I do not think so. An impediment, however serious it may be, cannot be relied upon indefinitely. In any event, after a certain period, this can be done only by the appropriate means, as defined by the Court. The Court has in fact held that: ‘If the period allowed for the implementation of a directive proves to be too short the only means of action compatible with Community law available to the Member State concerned consists in taking the appropriate initiatives within the Community in order to obtain the necessary extension of the period by the competent Community institution.’ (Case 52/75, cited above, paragraph 12 at p. 284). Such a step would have allowed this Court to determine whether or not there was still a diriment impediment arising from the bomb attack. There is no shortage of cases in which Council directives have extended, at the request of a Member State, the periods originally laid down for the implementation of a directive. The Italian Government does not claim to have made any such request. Since it has not done so, it must be regarded as having failed to fulfil its obligations under the aforesaid directive.