Judgment of the Court of 9 April 1987. - Commission of the European Communities v Italian Republic. - Failure of a Member State to fulfil its obligations - Feedingstuffs. - Case 363/85.



European Court reports 1987 Page 01733



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

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MEASURES ADOPTED BY THE INSTITUTIONS - DIRECTIVES - IMPLEMENTATION BY THE MEMBER STATES - TRANSPOSITION OF A DIRECTIVE WITHOUT FORMAL AND VERBATIM INCORPORATION OF ITS PROVISIONS - PERMISSIBILITY - CONDITIONS - EXISTENCE OF A GENERAL LEGAL CONTEXT GUARANTEEING FULL APPLICATION OF THE DIRECTIVE

( EEC TREATY, ART . 189, THIRD PARAGRAPH )

Summary

UNDER THE THIRD PARAGRAPH OF ARTICLE 189 OF THE TREATY THE TRANSPOSITION OF A DIRECTIVE INTO DOMESTIC LAW DOES NOT NECESSARILY REQUIRE THAT ITS PROVISIONS BE INCORPORATED FORMALLY AND VERBATIM IN EXPRESS, SPECIFIC LEGISLATION; A GENERAL LEGAL CONTEXT MAY, DEPENDING ON THE CONTENT OF THE DIRECTIVE, BE ADEQUATE FOR THE PURPOSE PROVIDED THAT IT DOES INDEED GUARANTEE THE FULL APPLICATION OF THE DIRECTIVE IN A SUFFICIENTLY CLEAR AND PRECISE MANNER SO THAT, WHERE THE DIRECTIVE IS INTENDED TO CREATE RIGHTS FOR INDIVIDUALS, THE PERSONS CONCERNED CAN ASCERTAIN THE FULL EXTENT OF THEIR RIGHTS AND, WHERE APPROPRIATE, RELY ON THEM BEFORE THE NATIONAL COURTS .

Parties

IN CASE 363/85

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ALBERTO PROZZILLO, LEGAL ADVISER, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF GEORGE KREMLIS, A MEMBER OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,

APPLICANT,

V

ITALIAN REPUBLIC, REPRESENTED BY PROFESSOR LUIGI FERRARI BRAVO, HEAD OF THE DEPARTMENT FOR CONTENTIOUS DIPLOMATIC AFFAIRS, TREATIES AND LEGISLATIVE MATTERS AT THE MINISTRY OF FOREIGN AFFAIRS, ACTING AS AGENT, ASSISTED BY IVO BRAGUGLIA, 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 PROVISIONS NECESSARY TO COMPLY WITH COUNCIL DIRECTIVE 80/502/EEC OF 6 MAY 1980 AMENDING DIRECTIVE 74/63/EEC ON THE FIXING OF MAXIMUM PERMITTED LEVELS FOR UNDESIRABLE SUBSTANCES AND PRODUCTS IN FEEDINGSTUFFS, THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OLIGATIONS UNDER THE EEC TREATY,

THE COURT

COMPOSED OF : LORD MACKENZIE STUART, PRESIDENT, T.*F . O' HIGGINS AND F . SCHOCKWEILER ( PRESIDENTS OF CHAMBERS ), U . EVERLING, K . BAHLMANN, R . JOLIET, AND J.C . MOITINHO DE ALMEIDA, JUDGES,

ADVOCATE GENERAL : M . DARMON

REGISTRAR : D . LOUTERMAN, ADMINISTRATOR

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 14 JANUARY 1987,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 19 FEBRUARY 1987,

GIVES THE FOLLOWING

JUDGMENT

Grounds

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 25 NOVEMBER 1985 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 PROVISIONS NECESSARY TO COMPLY WITH COUNCIL DIRECTIVE 80/502/EEC OF 6 MAY 1980 AMENDING DIRECTIVE 74/63/EEC ON THE FIXING OF MAXIMUM PERMITTED LEVELS FOR UNDESIRABLE SUBSTANCES AND PRODUCTS IN FEEDINGSTUFFS ( OFFICIAL JOURNAL 1980, L*124, P . 17 ), THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY .

2 THE COMMISSION MAINTAINS IN PARTICULAR THAT THE ITALIAN REPUBLIC HAS FAILED TO TRANSPOSE INTO ITS DOMESTIC LAW THE DEFINITIONS OF THE TERMS "ANIMALS", "PET ANIMALS" AND "COMPOUND FEEDINGSTUFFS" SET OUT IN ARTICLE 1*(3 ) OF DIRECTIVE 80/502/EEC TO BE INSERTED IN ARTICLE 2 OF DIRECTIVE 74/63/EEC .

3 THE GOVERNMENT OF THE ITALIAN REPUBLIC ADMITS THAT THOSE DEFINITIONS HAVE NOT BEEN INCORPORATED VERBATIM INTO ITALIAN LAW, BUT MAINTAINS THAT THEY ARE NEVERTHELESS IMPLICIT IN THE ITALIAN LEGISLATION ON FEEDINGSTUFFS TAKEN AS A WHOLE, WHOSE SCOPE IS IN FACT CO-EXTENSIVE WITH THAT OF THE DIRECTIVE . MOREOVER, THE COMMISSION HAS NOT CLAIMED THAT THERE HAS BEEN ANY DIFFICULTY IN IMPLEMENTING THE DIRECTIVE AS A RESULT OF THE FAILURE TO REPRODUCE THE DEFINITIONS IN QUESTION VERBATIM .

4 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE FACTS, 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 REASONING OF THE COURT .

5 IN THE FIRST PLACE IT MUST BE POINTED OUT THAT THE PURPOSE OF INFRINGEMENT PROCEEDINGS UNDER ARTICLE 169 OF THE EEC TREATY IS TO OBTAIN A DECLARATION THAT A MEMBER STATE HAS NOT FULFILLED, IN LAW OR IN FACT, AN OBLIGATION INCUMBENT UPON IT UNDER COMMUNITY LAW .

6 A DIRECTIVE IS, PURSUANT TO THE THIRD PARAGRAPH OF ARTICLE 189 OF THE EEC TREATY, BINDING, AS TO THE RESULT TO BE ACHIEVED, UPON EACH MEMBER STATE TO WHICH IT IS ADDRESSED, BUT LEAVES TO THE MEMBER STATE THE CHOICE OF FORM AND METHODS .

7 AS THE COURT HAS ALREADY HELD IN ITS JUDGMENT OF 23 MAY 1985 IN CASE 29/84 COMMISSION V FEDERAL REPUBLIC OF GERMANY (( 1985 )) ECR 1661, THE TRANSPOSITION OF A DIRECTIVE INTO DOMESTIC LAW DOES NOT NECESSARILY REQUIRE THAT ITS PROVISIONS BE INCORPORATED FORMALLY AND VERBATIM IN EXPRESS, SPECIFIC LEGISLATION; A GENERAL LEGAL CONTEXT MAY, DEPENDING ON THE CONTENT OF THE DIRECTIVE, BE ADEQUATE FOR THE PURPOSE PROVIDED THAT IT DOES INDEED GUARANTEE THE FULL APPLICATION OF THE DIRECTIVE IN A SUFFICIENTLY CLEAR AND PRECISE MANNER SO THAT, WHERE THE DIRECTIVE IS INTENDED TO CREATE RIGHTS FOR INDIVIDUALS, THE PERSONS CONCERNED CAN ASCERTAIN THE FULL EXTENT OF THEIR RIGHTS AND, WHERE APPROPRIATE, RELY ON THEM BEFORE THE NATIONAL COURTS .

8 IT IS IN THE LIGHT OF THOSE CONDITIONS THAT IT MUST BE CONSIDERED WHETHER THE ITALIAN LEGISLATION GUARANTEES THE DUE IMPLEMENTATION OF THE RULES ON FEEDINGSTUFFS LAID DOWN IN DIRECTIVES 74/63/EEC AND 80/502/EEC .

9 THE AIM OF THOSE DIRECTIVES IS TO RESTRICT THE PRESENCE IN FEEDINGSTUFFS OF UNDESIRABLE SUBSTANCES AND PRODUCTS WHICH, AS THE THIRD RECITAL IN THE PREAMBLE TO DIRECTIVE 74/63/EEC STATES, MAY ENDANGER "ANIMAL HEALTH OR, BECAUSE OF THEIR PRESENCE IN LIVESTOCK PRODUCTS, HUMAN HEALTH ". IT WAS WITH THAT AIM IN VIEW THAT DIRECTIVE 80/502/EEC SET OUT TO DEFINE MORE CLEARLY THE SCOPE OF DIRECTIVE 74/63/EEC BY MEANS OF THE DEFINITIONS WHOSE WORDING THE ITALIAN REPUBLIC IS ACCUSED OF NOT HAVING INCORPORATED IN ITS LEGISLATION .

10 IN ORDER TO ESTABLISH WHETHER THE ITALIAN REPUBLIC HAS IN FACT FAILED TO FULFIL ITS OBLIGATIONS IT MUST BE ASSESSED WHETHER THE FACT THAT THE WORDING OF THE DEFINITIONS SET OUT IN DIRECTIVE 80/502/EEC IS NOT TO BE FOUND IN THE EXISTING ITALIAN LEGISLATION IS LIABLE TO JEOPARDIZE THE DUE IMPLEMENTATION OF THE RULES LAID DOWN IN THE DIRECTIVES IN QUESTION .

11 IT MUST BE OBSERVED IN THE FIRST PLACE THAT THE COMMISSION DOES NOT CLAIM THAT THE FACT THAT THE EXACT WORDING OF THE DEFINITIONS IS NOT REPRODUCED HAS HAD THE SLIGHTEST EFFECT ON THE ATTAINMENT OF THE RESULT TO BE ACHIEVED OR ON THE RULES WHICH THE DIRECTIVES SOUGHT TO IMPLEMENT WITH REGARD TO THE MAXIMUM LEVELS OF UNDESIRABLE SUBSTANCES AND PRODUCTS IN FEEDINGSTUFFS IN SO FAR AS IT HAS ADMITTED AT THE HEARING THAT NO PRACTICAL DIFFICULTIES HAVE BEEN ENCOUNTERED .

12 SINCE THE COMMISSION HAS NOT ACTUALLY FOUND THAT THERE HAVE BEEN ANY PRACTICAL CONSEQUENCES, IT MUST BE CONSIDERED WHETHER ANY ADVERSE CONSEQUENCES ARE, THEORETICALLY AT LEAST, POSSIBLE .

13 AS REGARDS THE DELINEATION OF THE SCOPE OF THE RULES, THE DIRECTIVE DEFINES THE TERM "ANIMALS" AS COVERING "ANIMALS BELONGING TO SPECIES NORMALLY NOURISHED AND KEPT OR CONSUMED BY MAN" WHEREAS THE ITALIAN LAW OF 15 FEBRUARY 1963 IS STATED TO APPLY TO "LIVESTOCK ". ACCORDING TO THE ORDINARY MEANING OF THOSE WORDS THERE IS NO DISCERNIBLE DIFFERENCE BETWEEN AN ANIMAL REARED BY MAN AND AN ANIMAL NOURISHED AND KEPT BY MAN, WHETHER OR NOT IT IS CONSUMED BY MAN . SINCE THE TERM USED IN THE ITALIAN LEGISLATION IS IN SUBSTANCE THE SAME AS THAT IN THE DIRECTIVE, THE COMPLAINT RAISED BY THE COMMISSION IS WITHOUT ANY FACTUAL BASIS .

14 AS REGARDS THE ABSENCE OF A DEFINITION OF THE TERM "PET ANIMALS" IN THE ITALIAN LEGISLATION, IT MUST BE HELD ONCE AGAIN THAT, AT LEAST IN GENERAL, NON-TECHNICAL USAGE, THE TERM "PET ANIMALS" IS UNDERSTOOD AS APPLYING TO ANIMALS REARED BY MAN WITH THE RESULT THAT IT MUST BE REGARDED AS BEING COVERED BY THE TERM "LIVESTOCK" USED IN THE ITALIAN LAW . IN POINT OF FACT, THE DIRECTIVE CLASSIFIES PET ANIMALS IN A SEPARATE CATEGORY IN SO FAR AS THEY ARE NOURISHED BUT NOT CONSUMED BY MAN . HOWEVER, THAT DISTINCTION HAS NO PRACTICAL CONSEQUENCES SINCE THE COMMISSION HAS NOT EVEN CLAIMED THAT THAT SUBCATEGORY IS SUBJECT TO SPECIAL RULES . ADMITTEDLY, IN FIXING AT A MAXIMUM OF 15 PPM THE NITRITE CONTENT ( EXPRESSED AS SODIUM NITRITE ) OF COMPLETE FEEDINGSTUFFS, ARTICLE 2 OF COMMISSION DIRECTIVE 76/934/EEC OF 1 DECEMBER 1976 AMENDING THE ANNEX TO COUNCIL DIRECTIVE 74/63/EEC ( OFFICIAL JOURNAL 1976, L*364, P . 20 ) PROVIDES FOR AN EXCEPTION FROM THAT LIMIT IN RESPECT OF FEEDINGSTUFFS INTENDED FOR PETS EXCEPT BIRDS AND AQUARIUM FISH . BUT SINCE THAT PROVISION IS A DEROGATION ALLOWING DIFFERENT LEVELS OF HARMFUL SUBSTANCES TO BE USED IN FEEDINGSTUFFS FOR CERTAIN ANIMALS, A MEMBER STATE CANNOT BE CRITICIZED FOR NOT UTILIZING THAT POSSIBILITY . SINCE THE ABSENCE OF A SPECIFIC DEFINITION FOR THAT CATEGORY OF ANIMAL IS THEREFORE NOT LIABLE TO IMPEDE THE IMPLEMENTATION OF THE DIRECTIVE, THE COURT CANNOT BUT HOLD THAT COMPLAINT TO BE UNFOUNDED .

15 AS REGARDS THE TERM "COMPOUND FEEDINGSTUFFS", WHICH DIRECTIVE 80/502/EEC DEFINES AS "ORGANIC OR INORGANIC SUBSTANCES IN MIXTURES, WHETHER OR NOT CONTAINING ADDITIVES, FOR ORAL ANIMAL FEEDING IN THE FORM OF COMPLETE FEEDINGSTUFFS OR COMPLEMENTARY FEEDINGSTUFFS", IT MUST BE OBSERVED THAT THE TERM IN THE ITALIAN LAW COVERS EXPLICITLY ONLY "PREPARATIONS OBTAINED BY APPROPRIATELY COMBINING TWO OR MORE FEEDINGSTUFFS" BUT THAT IT ALSO LAYS DOWN RULES ON THE USE OF FEEDINGSTUFFS OF MINERAL ORIGIN AND FEEDINGSTUFFS CONTAINING ADDITIVES, MEDICAL SUPPLEMENTS OR ACTIVE INGREDIENTS . SINCE THE COMMISSION HAS FAILED TO SHOW IN WHAT RESPECT THE SCOPE OF THE ITALIAN LAW OF 15 FEBRUARY 1963 AS DEFINED BY CHAPTER I THEREOF DIFFERS FROM THE SCOPE OF THE COMMUNITY RULES AS DETERMINED BY THE DEFINITION SET OUT IN DIRECTIVE 80/502/EEC, THE COURT CANNOT HOLD THAT A MERE TERMINOLOGICAL DIFFERENCE WHICH IN ITS VIEW CANNOT POSSIBLY AFFECT THE IMPLEMENTATION OF THE OBLIGATIONS ARISING OUT OF THE COMMUNITY RULES IS CAPABLE OF CONSTITUTING A FAILURE TO FULFIL OBLIGATIONS . CONSEQUENTLY, THE THIRD COMPLAINT IS ALSO UNFOUNDED .

16 THE ACTION MUST BE DISMISSED IN ITS ENTIRETY .

Decision on costs

COSTS

17 UNDER ARTICLE 69*(2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE COMMISSION HAS FAILED IN ITS SUBMISSIONS, IT MUST BE ORDERED TO PAY THE COSTS .

Operative part

ON THOSE GROUNDS,

THE COURT

HEREBY :

( 1 ) DISMISSES THE APPLICATION;

( 2 ) ORDERS THE COMMISSION TO PAY THE COSTS .