2.

Having made these preliminary remarks, let us see whether it is possible to dismiss the Commission's application, in accordance with the submissions of the Italian Republic. As you know, the Italian Government merely refers to the fact that the application is based on a ‘legislative situation which no longer corresponds to the existing legal situation in Italy’ (‘Situazione normativa che non corrisponde più alla realtà giuridica dell'ordinamento italiano’). It defines the existing situation as follows: the draft bill to abolish the charge in question had already been put before the Senate on 27 June 1969. On 29 April 1970 the Senate approved this bill, which even provided that it should have retroactive effect as from 1 July 1968 in respect of intra-Community trade, and it was thereupon submitted to the President of the Financial and Budgetary Commission of the Chamber of Deputies for urgent consideration. It was arranged for the bill to be considered by Parliament on 8 July 1970, but because of the governmental crisis which arose in the meantime, and owing to Parliament's summer recess, this had to be adjourned. The Italian Government claims that consequently it can be said that it had set about resolving the matter at issue within the context of its national constitutional system as it had been requested to do and had acted speedily. It maintains that the events which had; prevented the matter from being finally settled must be described as instances of force majeure, owing to the national constitutional system. For these reasons, the complaint that the Italian Government had infringed the Treaty was wrongly made. The Commission has not challenged any of these facts. However, in my opinion it rightly adheres to its conclusions and resists attempts to have its application dismissed. In this respect the function of the procedure under Article 169 of the EEC Treaty to obtain a declaration that there has been an infringement of the Treaty must first be recalled: I am persuaded that it is essentially an objective procedure which is intended to establish whether a specified national legal situation or administrative practice is in harmony with Community law, that is, a procedure which in principle excludes any considerations of fault. Therefore, under the system laid down in the Treaty, an application with this aim in view is admissible in principle if the reasoned opinion delivered by the Commission is not complied with within the period provided therein. As we know, this applies to both reasoned opinions delivered by the Commission in the present case and to the periods laid down by them. In addition, it cannot be said that the periods laid down were inappropriate either. In this connexion it is important that the legal situation was already basically clear since the judgment in Joined Cases 52 and 55/65 of 16 June 1966 had been delivered and that, although a bill drafted by the Italian Government with this aim in view had already been approved by the Council of Ministers in May 1969 the legal situation which was criticized still existed at the time when the application was lodged, that is, about seven months after the period fixed in the second reasoned opinion of the Commission had expired. Consequently there can be no objection made to the admissibility of the application in these circumstances. Moreover, it cannot be claimed either that there is no need for initiating this procedure because there are no differences of opinion with regard to the substance of the legal situation and that accordingly there is no corresponding need to clarify it. It is impossible to argue in this way since the purpose of the procedure under Article 169 is not only to investigate whether national legislation is compatible with Community law and to achieve clarification of the legal situation but also to implement Community law and to ensure that it is applied, for example, to an existing national administrative practice. In this respect the deciding factor here is that the legal and administrative situation in Italy which has been criticized is still in fact in existence. For this reason, let it be said in passing, it seems senseless to refer to the argument that Community law, in any case where it is contained in regulations and perhaps also in directives, can directly prevail over national law. The existing Italian legal situation does not accord with this argument, quite apart from the fact that in any case the situation would have to be formally settled. Therefore it is impossible to say that the application is inadmissible having regard to the considerations which have just been set out. Accordingly it only remains to show that the subject-matter of the application has not been lost. This cannot be the case as long as the legal situation in force does not comply with the Treaty and as long as what until now has been considered contrary to the Treaty has not in fact been abolished, even if this might occur in the near future and with retroactive effect (in this connexion it seems only to have been envisaged that the law should have retroactive effect as from 1 July 1968). The obligations imposed by the Treaty are not fulfilled merely by the fact that a government has done all that is necessary to set the legislative procedure in motion. Such circumstances may at most justify certain expectations; however, there is no guarantee that during the proceedings in Parliament no further obstacles will be put in the way of the adoption of bills which have been introduced to meet the requirements of the Treaty. Moreover it should not be forgotten that under the procedure under Article 169 neither the behaviour of a government nor the proceedings of the legislature are at issue but the behaviour of the Member State concerned which is represented by its government in the proceedings before the Court of Justice. This was clearly emphasized in Case 77/69 ([1970] E.C.R.) in the following sentence taken from judgment in that case: ‘the liability of the Member State under Article 169 arises whatever the agency of the State whose action or inaction is the cause of the failure to fulfil its obligations, even in the case of a constitutionally independent institution’.