Opinion of Mr Advocate General Léger delivered on 5 November 1996. - Commission of the European Communities v Italian Republic. - Failure of a Member State to fulfil its obligations - Directive 91/271/EEC - Urban waste water treatment. - Case C-302/95.



European Court reports 1996 Page I-06765



Opinion of the Advocate-General

1 In the present action, brought under Article 169 of the EC Treaty, the Commission maintains that, by not adopting the laws, regulations and administrative provisions necessary to comply with Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment (1) (`the Directive') or, in any event, by not notifying the Commission thereof, the Italian Republic has failed to fulfil its obligations under that Directive and under the EC Treaty. The Commission also asks that the Italian Government be ordered to pay the costs.

2 Article 19 of the Directive provides that the Member States are to bring into force the laws, regulations and administrative provisions necessary to comply with it no later than 30 June 1993 and immediately to inform the Commission thereof.

3 On 9 August 1993, having received no notification of measures for transposing the Directive into Italian law and possessing no other information to support a conclusion that the Italian Republic had complied with its obligations, the Commission initiated the infringement procedure by letter of formal notice. It was made clear in that letter that, even if the Italian Government considered the rules of domestic law already in force to be in conformity with the Directive, it was still under a duty to communicate them to the Commission.

4 Since there was no reply to the letter of formal notice, the Commission sent the Italian Republic a reasoned opinion on 11 January 1995. The Italian Republic neither responded to the reasoned opinion nor adopted the measures necessary to transpose the Directive into domestic law. Consequently, on 25 September 1995, the Commission decided to bring the present action.

5 In its defence, the Italian Government contends that the matters covered by the Directive are governed in Italy by Law No 319 of 10 May 1976 (2) (rules for the protection of water from pollution; hereinafter `Law 319/76'), which incorporates the main relevant measures. The Italian Government points out that the provisions of Law 319/76 are implemented through rules adopted by the Regions, which have both legislative and administrative competence in matters concerning water. While admitting that the Directive has not yet been fully transposed, particularly as regards the requirements laid down in its annexes, the Italian Government states that full transposition will be brought about `as quickly as possible' by the adoption of a legislative decree. Pending definitive implementation of the Directive, the Italian Government has asked the Regions - by Decree Law No 79 of 17 March 1995 (3) (`Decree Law 79/95') - to comply with the principles and criteria laid down by the Directive in respect of rules requiring amendment (particularly the implementing rules concerning the discharge of waste water from public drains and the discharge from private installations of waste water which does not go into the public drains). In those circumstances, the Italian Republic considers that it has, at least partially, fulfilled its obligation to transpose the Directive and undertakes to ensure that it is fully transposed as soon as possible.

6 In its reply, the Commission argues that Law 319/76 and Decree Law 79/95 do not constitute measures transposing Directive 91/271. Law 319/76, as amended, merely lays down general criteria and principles in accordance with which the Regions are asked to enact legislation. Moreover, the regional rules implementing Law 319/76 have not been communicated to the Commission and it therefore possesses no evidence that the Italian Republic has complied with the Directive. That is why it continues to press its application to the Court.

7 It is not disputed that when the period prescribed in Directive 91/271 expired, the Italian Government had not adopted the laws, regulations and administrative provisions necessary to comply with that Directive. Nor had it made any communication to the Commission.

8 It should therefore be held that the Italian Government has failed to fulfil its obligations under Article 19 of the Directive.

9 Furthermore, as the Commission very rightly pointed out, the arguments put forward by the Italian Republic to justify the delay in adopting the required measures cannot be accepted.

10 According to established case-law of this Court, formal and procedural difficulties such as those relied on by the Italian Republic in order to justify the delay in adopting the legislative decree are irrelevant. The Court unfailingly holds that arguments based on internal legal constraints are inadmissible: `a Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with the obligations and time-limits laid down in a directive'. (4)

11 Furthermore, by way of a minor point, the provisions of Decree Law 79/95, amending Decree Law 319/76, and providing that the Regions must comply with the principles and criteria laid down by Directive 91/271 in respect of rules requiring adjustment, cannot be construed as measures transposing that Directive. According to settled case-law, if domestic measures are to meet the fundamental requirements appropriate to transposition measures as such, they must give effect to the principles of publicity and legal certainty. For this reason, the Court has held that recommendations, opinions, memoranda and judicial decisions (5) cannot satisfy `the requirement for legal certainty, [namely] that individuals should have the benefit of a clear and precise legal situation enabling them to ascertain the full extent of their rights and, where appropriate, to rely on them before the national courts'. (6)

12 Accordingly, the action brought by the Commission should be upheld.

13 I therefore propose that the Court declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment, and by not notifying the Commission thereof within the period prescribed, the Italian Republic has failed to fulfil its obligations under Article 19 of that Directive. I further propose that the Italian Republic be ordered to pay the costs, in accordance with Article 69(2) of the Court's Rules of Procedure.

(1) - OJ 1991 L 135, p. 40.

(2) - GURI, 29 May 1976, No 141.

(3) - GURI, 8 June 1995, No 132, p. 32.

(4) - See one of the more recent judgments: C-236/95 Commission v Greece [1996] ECR I-4459, paragraph 18, or Case-312/95 Commission v Luxembourg [1996] ECR I-5143, paragraph 9.

(5) - See Case C-236/95, cited in footnote 4, paragraph 12.

(6) - Ibid., paragraph 13.