OPINION OF MR ADVOCATE-GENERAL MAYRAS

DELIVERED ON 4 FEBRUARY 1976 ( 1 )

Mr President,

Members of the Court,

The production of and trade in vegetable seed holds an important place in the economy of certain of the Member States of the European Communities. The quality of the seed is an essential factor in the yield of this crop. It is for this reason that for a long time the trade in this product has been the subject of varietal controls based upon the result of selection. It is, moreover, scarcely necessary to emphasize that if they wish their products to be competitive in a common market, the terms on which seed is purchased must be the same for all gardeners and market gardeners in the European market. Within the context of the common organization of the market it was therefore necessary to eliminate the internal protective measures which were superseded.

The grains and vegetable seed listed in Chapter 12 of the Common Customs Tariff appear in Annex II to the EEC Treaty which is referred to in Article 38 of that Treaty. For this reason, they had to be made subject to common agricultural rules before the end of the transitional period, that is, by 1 January 1970 at the latest.

The Community policy in this field developed along two different lines: one concerning the technical aspect of the marketing of seed and the other the organization of the market in the true sense.

First, from the point of view of the increase in productivity of the vegetable seed and the free movement of these products it was necessary to unify the rules governing the choice of the varieties accepted for certification, controlling and marketing. For this purpose it was necessary to establish a Community catalogue of the varieties of vegetables and, prior to this, to provide in each Member State for the establishment on the basis of unified rules of one or more national catalogues of the recognized varieties. These rules are governed by various criteria intended to ensure that the varieties accepted are distinct, stable and sufficiently uniform.

Secondly, it was necessary to set up the common organization of the market.

These are the two aspects of the seed sector which the Council endeavoured to organize. However, in the light of the technical and rather complex nature of the problems to be solved it is not surprising that the first Community provisions on this subject were only adopted after the end of the transitional period. As regards the common market in seed (which includes vegetable seed) let us merely recall that the basic text is Regulation No 2358/71 of the Council of 26 October 1971, which came into force on 1 July 1972.

Although this scheme is not directly in question in the present action the connexion between the production and free movement of seed on the one hand the rules concerning quality standards on the other must not be forgotten; in this area more than in any other no ‘common market’ exists without common marketing standards.

In order to define these standards the Council adopted Directive No 70/458 on 29 September 1970. The use of this legal instrument rather than a regulation is easily explained by the nature of the problems to be solved: problems of minimum standards, equivalence and harmonization of the methods of certification and control, the solution of which presupposes close cooperation between the Member States and the Commission.

The importance of this first milestone should not, therefore, be under-estimated even though, in accordance with Article 189, the directive leaves to the national authorities the choice ‘of form and methods’ necessary for the result to be achieved. Directive No 70/458 thus constitutes the true common charter so far as the marketing of vegetable seed is concerned; it conditions the implementation and working of the ‘common market’ in this seed.

Article 3 provides that each Member State shall establish one or more catalogues of the varieties accepted and provides for the establishment of a ‘common catalogue of varieties of vegetable species’, published in the Official Journal of the European Communities.

According to Article 9, by 30 June 1975 at the latest the Member States must have completed the examination of the characters on the basis of which the various species could be accepted into the national catalogue of the varieties. They had to take all measures necessary to ensure that acceptances of varieties granted before 1 July 1970 in accordance with the principles other than those of the directive expire not later than 30 June 1980.

Article 40 of the directive makes the Commission responsible for the adoption of the necessary implementing measures under a procedure similar to that — which you know well — of the Management Committees in the common organizations of the agricultural markets. However, the Commission must exercise this power in the light of the opinion of a Committee known as the Standing Committee on Seeds and Propagating Material for Agriculture, Horticulture and Forestry which was set up by the Council in 1966. Nevertheless, the general rules applying to the consultation of the ‘Management Committees’ are applicable to this procedure.

Finally, Article 43 of the same Community text provides that ‘The Member States shall not later than 1 July 1972, bring into force the laws, regulations or administrative provisions necessary to comply with this directive’ and that they ‘shall forthwith inform the Commission thereof’. Let us note in passing that this date is precisely that on which Regulation No 2358/71 was to enter into force and in fact did so.

However, in this area as in others, the time-limits prescribed had to be revised.

First, in order to take into account the accession of the new Member States, Article 3 of Council Directive No 72/274 of 20 July 1972 fixed at 1 January 1973 the date by which the original Member States were to bring into force the provisions necessary to enable the products originating in the States in question to be marketed in their territory immediately after accession.

A second series of amendments was adopted by Directive No 72/418 of the Council of 6 December 1972.

Article 6 (3) of this directive substituted 1 July 1977 for 1 July 1972 as, the date from which varieties of certain vegetable species would no longer be accepted except on the basis of official examinations. It further relaxed this system by providing that it is only as from this date that it ‘may be prescribed, in accordance with the procedure laid down in Article 40, that, as from specified dates the varieties of certain vegetable species will no longer be accepted except on the basis of official examination’ which amounts to perpetuating a permanent revision clause.

Article 6 (4) accepts for a transitional period (expiring on 30 June 1975) the marketing of a national level of standard varieties of seed which, although not officially accepted, were actually marketed before 1 July 1972.

Article 6 (3) of this directive substituted 1 July 1977 for 1 July 1972 as the date from which varieties of certain vegetable species would no longer be accepted except on the basis of official examinations. It further relaxed this system by providing that it is only as from this date it ‘may be prescribed, in accordance with the procedure laid down in Article 40, that, as from specified dates the varieties of certain vegetable species will no longer be accepted except on the basis of official examination’ which amounts to perpetrating a permanent revision clause.

Article 6 (4) accepts for a transitional period (expiring on 30 June 1975) the marketing at a national level of standard varieties of seed which, although not officially accepted, were actually marketed before 1 July 1972.

Article 7 (3) provides that acceptances granted to varieties in a national catalogue before 1 July 1972 shall be valid until 30 June 1982.

Other amendments were also made to the original system by Council Directive No 73/438 of 11 December 1973.

Article 6 (3) of this new text accepts for a transitional period expiring on 1 July 1975 the possibility of marketing mixtures of standard seed of different varieties, if such seed had been harvested before 1 July 1973 and was marketed as small packages of certain vegetable species. It allows for exceptions to the conditions laid down by the basic directive as regards the germination of this seed, providing it is specially marked.

Finally, under Article 32 (2) of Directive No 70/458, in the absence of any decision by the Council the Member States remained free to decide whether the assurances offered by third countries as regards seed were the same as those enforced in their own countries or resulting from the basic directive. In particular, they were able to decide on their own authority whether inspections and controls carried out in these countries are of equal value.

For its part the Commission was obliged to propose to the Council the adoption of criteria making it possible to ascertain whether the official inspections carried out in these same countries were of equal value to those carried out in the Community.

As it has not been possible to bring the examinations leading to a Community determination of equal values to a successful conclusion, the Commission proposed to the Council (on 31 October 1975) that this date be postponed until 30 June 1977 (OJ C 267 of 21. 11. 1975, p. 14).

Members of the Court, I am sure that you will not lose your way in this jungle of texts, although it is difficult to distinguish between what is the result of the failure either of the Community authorities or the Member States or even third countries, and what is simply the result of the complex nature of the matter and the development of technical knowledge.

The fact remains that as it had not received any official information from the Italian Government concerning the domestic provisions which it had to adopt in order to begin implementing the provisions of the directive which was to enter into force on 1 July 1972 at the latest, and as it had no knowledge of either the adoption or the implementation of the amendments necessary to bring the existing national legislation into line with the Community directive, the Commission informed the Ministry for Foreign Affairs of the Italian Republic on 21 December 1973 that it ‘considered’ that Italy had failed in one of its obligations under the EEC Treaty.

As you are aware, this is the ‘warning shot’ which precedes the implementation of the procedure provided for in Article 169 on failure to fulfil an obligation.

The Commission gave the Italian Government a period of one month in which to submit its observations. On 12 March 1974 the Permanent Representative of the Italian Republic submitted to the Commission a reply from the Italian Government according to which internal Law No 1096 of 25 November 1971, whose implementing regulation was at that time being published in the Gazzetta Ufficiale, had already introduced provisions of a general nature intended to implement the Community provisions, in particular as regards the packaging of the products, the minimum commercial characteristics accepted for marketing, phytosanitary conditions, etc. Moreover, a Decree of the President of the Republic dated 26 April 1973 had set up the catalogue of the varieties of vegetable species. Finally, a draft law adopting the Community provisions concerning vegetable seed had been submitted to the Council of Ministers for approval.

On 13 November 1974 the Commission delivered a reasoned opinion in which it found that the Italian Republic had failed in its obligations under Directive No 70/458 and requested it to take the necessary measures to comply with this opinion within a period of 60 days.

By an application received at the Court Registry on 10 June 1975 the Commission referred the matter to you under the second paragraph of Article 169 and requested you to find the existence of such a failure on the part of the Italian State.

The Commission's application sets out again, in somewhat greater detail, the text of the reasoned opinion: it maintains that although the general provisions of Directive No 70/458 have certainly been incorporated into the Italian legal system, the Italian Republic had not adopted the measures necessary to comply with the provisions concerning:

— the establishment of the national catalogue of varieties of vegetable species and the conditions of acceptance of varieties into this catalogue (Article 3 (2) of the Directive).

— the classification of seed (Articles 2 and 20).

— the marketing criteria applying to standard seed (Articles 24 to 26),

nor had it abolished marketing restrictions on seed in accordance with the third and fifteenth provisions of the directive (Articles 16 (1) and 30).

The Commission has informed us that even though the other Member States only implemented the directive in question after a certain delay they now have all complied, whereas the failure of the Italian State to carry out its obligations has lasted for more than three years.

In its defence the Government of the Italian Republic refers to the explanations put forward by its Permanent Representative: the regulation implementing Law No 1096 had been approved by Decree of the President of the Republic No 1065 of 8 October 1973; the catalogue of varieties of certain species of vegetables had been established by presidential decree on 26 April 1973. Finally, although the final measures necessary to implement the directive in internal law have only been adopted after some delay, this delay was easily explicable in the light of the complex nature of the matter. The time-limits laid down by the Community legislature had been too optimistic and, moreover, no Member State had been able to observe them. At all events, these measures form the subject of a draft law amending and supplementing Law No 1096 which was approved by the Council of Ministers on 28 May 1975 and submitted to the Chamber of Deputies in the hope that it would receive approval within a short time.

In these circumstances the alleged failure of the Italian Republic was not serious and quite excusable.

The reply and the rejoinder bring out hardly any new factors. However, on 21 November 1975 the agent of the Italian Government requested the President of the Court to adjourn the oral procedure for some weeks on the ground that the adoption of draft Law No 2349, which had become in the meantime draft No 3894, was ‘imminent’.

The Governmental crisis which occurred in Italy in January of this year has crushed all hopes of seeing draft Law No 3894, which was already approved by the Chamber of Deputies during its sitting on 3 December 1975, ratified quickly by the Senate. In fact, by virtue of a ‘constitutional’ practice which goes back several years, parliamentary work is interrupted during a Government crisis.

In these circumstances, and by virtue of case-law which is so well-established that I need merely recall the terms in which it was expressed in your judgments of 4 March 1970 (Case 33/69, Commission v Italy, [1970] ECR 93) and 21 June 1973 (in which the same parties were involved, Case 79/72, [1970] ECR 670, 671 and 672) concerning the marketing of forest reproductive material, cases which are on all fours with the present case, I am of the opinion that you should rule that, by failing to adopt the provisions necessary to comply with Council Directive No 70/458 of 29 September 1970 on the marketing of vegetable seed within the time prescribed, the Italian Republic has failed to fulfil one of its obligations under the Treaty. I am also of the opinion that the defendant must be ordered to pay the costs.

( 1 ) Translated from the French.