OPINION OF MR ADVOCATE GENERAL MAYRAS

DELIVERED ON 5 FEBRUARY 1980 ( 1 )

Mr President,

Members of the Court,

These actions for failure to fulfil obligations, brought by the Commission against Italy, are not without some legal interest in so far as they are of such a nature as to provide the Court with the opportunity to reply to implied criticism of its settled case-law by reaffirming a number of principles which it has already established concerning this type of proceedings.

I —

As far as the facts are concerned, the situation which gave rise to these actions is straightforward. The Commission is accusing Italy of a failure to fulfil its obligations under Council Directives No 73/404 of 22 November 1973 on the approximation of the laws of the Member States relating to detergents and No 75/716 of 24 November 1975 relating to the sulphur content of certain liquid fuels.

These directives, both of which relate to Article 100 of the Treaty, come under both the General Programme for the elimination of technical barriers to trade which result from disparities between the provisions laid down by law, regulation or administrative action in Member States as well as under the Community's Programme of Action on the Environment.

The object of Directive No 73/404 is to eliminate disparities between the laws of the Member States on the biodegradability of detergents in order, in particular, to reduce water pollution.

Directive No 75/716 is intended to approximate national laws on the maximum sulphur content of fuels, in particular of gas oils, in order to reduce pollution of the atmosphere by sulphur dioxide.

Article 8 (1) of both regulations provides that the Member States shall put into force the national legal measures necessary to comply with the directives within a certain period from their notification and shall forthwith inform the Commission thereof, and Article 8 (2) provides that they must communicate the text of these measures to that institution.

The period allowed by the first directive, on detergents, was eighteen months and as the directive was notified on 27 November 1973, the period expired on 27 May 1975. The period prescribed by the directive on sulphur was nine months and since the directive was notified on 25 November 1975, it ran out on 26 August 1976.

On those dates the Commission had not received from the Italian Republic any of the required communications. However, it did not begin the administrative stage of the procedure provided for by Article 169 of the Treaty until 29 October 1976 in the case of sulphur and 23 November 1976 in the case of detergents.

The Italian Government replied in both cases that it had drawn up draft laws taking into account the provisions of the directives in order to transpose them into national law. But the Commission never received the text of the legislative instruments adopted or any information leading it to believe that Italy had actually taken the required measures. Therefore, on 23 December 1977 in the case of detergents, and on 23 January 1978 in the case of sulphur, it sent the reasoned opinions provided for under the first paragraph of Article 169.

In the case of detergents, Italy replied by requesting an extension of two months for the period which it had been allowed for compliance with the directive. This was granted. On 28 February 1978 it further reported that the draft law needed to introduce the directive into Italian law was under scrutiny by the Senate. No further information was subsequently received by the Commission.

The Commission, however, waited until June 1979 before starting the judicial stage of the procedure for failure to fulfil obligations.

After receipt of the reasoned opinion in the sulphur case, all Italy did was to send off, as late as 16 March 1979, the text of a draft law designed to delegate to the Government the power to adopt the legislative measures needed to comply with a series of directives, including the one in question. In this case, too, no further information was received by the Commission.

The Commission showed some understanding once again in this case by waiting until June 1979 before bringing an action before the Court.

II —

In its defence the Italian Government first of all puts forward an objection of inadmissibility derived from the lack of any real reasons for initiating the actions for failure to fulfil obligations or for the opinions which preceded them.

As regards the opinion required by the first paragraph of Article 169, longestablished case-law states that it is to be “considered to contain a sufficient statement of reasons to satisfy the law when it contains ... a coherent statement of the reasons which led the Commission to believe that the State in question has failed to fulfil an obligation under the Treaty” (judgment of 19 December 1961, Case 7/61, [1961] ECR 327) or under an instrument adopted for its application. It seems to me that this statement must be extended to these two cases.

In these cases, in fact, the belief of the Commission is based upon the failure by Italy to take, within the required time, the required measures to comply with the directives and to inform the Commission thereof. In actual fact, a mere reading of the reasoned opinions and even the Commission's first letters shows that these complaints, which by their nature do not require long arguments, were clearly and concisely set out.

However, the defendant criticizes the applicant on account of the essentially formal nature of the complaints consisting of a somewhat mechanical recital of a delay in compliance, ignoring the actual circumstances which in its view justified such a delay. The Commission should have set out all the political, economic and administrative considerations which led it to bring its actions.

This line of argument does not take into account the provisions contained in each directive which oblige Member States to take all necessary measures to comply with them and to inform the Commission thereof. Moreover these obligations are merely an instance of the general duty to cooperate imposed by Article 5 of the Treaty which States must exercise in regard to the Community.

In addition they seem to me to be justified by a genuine practical reason. The number and complexity of directives would make it impossible for the Commission without the active assistance of the Member States to check that they had all been implemented.

It is even more clear that the Commission could not be required, before starting the procedure for failure to fulfil obligations at a time when it is already satisfied that the national law of a Member State does not comply with a directive, to ascertain further whether traders in the Member State concerned have in fact already complied with the directive.

III —

Basically the Italian Republic admits the failure but makes a number of submissions in its defence many of which overlap. It consequently requests you to declare that it is only slow to adapt its law to Directives Nos 72/404 and 75/716 for reasons not involving any lack of diligence, and to order the parties to pay their own costs.

Clearly, at the stage of legal proceedings, it had no choice but to admit the failure which it had acknowledged throughout the administrative stage. Ample evidence of this is provided by the correspondence between its Permanent Representation and the Commission, and indeed by the submission to Parliament of draft laws intended precisely to bring this irregular situation to an end.

(a) I shall first examine two defence submissions by the Italian Government whose relevance to proceedings for failure to fulfil an obligation seems doubtful to say the least. First of all, the claim that the formulation of regulations on the environment for which the Treaty of Rome does not make provision could not be the basis for directives founded on Article 100 alone. The defendant Government deduces from this that the instruments in question are directives in name only and that they are actually international conventions. In reply to this one need only say, as I have indicated, that the disputed directives were not only adopted in order to protect the environment; they also feature in the programme for the elimination of barriers to trade resulting from disparities between the laws of the Member States, which was adopted by the Council on 28 May 1969. Furthermore the Italian Government has expressly recognized this, as is evidenced in particular by the documents laying before Parliament the draft legislation intended to enable it to comply with its obligations. For the rest I shall content myself with pointing out that Italy has not taken its argument to its conclusion. If it really challenged the validity of these directives it should have brought an action within the stipulated period to annul them under Article 173 of the Treaty. Similarly, the failure by Italy to follow the proper procedure provided by Article 2 (3) of Directive No 75/716 is one of the reasons which make it impossible to consider the argument which it wishes to base on that provision, in Case 92/79. This derogative provision is intended to allow on to the market gas oils having a sulphur content higher than the permitted maximum following a sudden change in crude oil supplies. In that event the State concerned must forthwith notify the Commission which, after consulting the other Member States, shall decide within three months on the duration and details of this derogation. The Commission never in fact received any information that Italy intended to avail itself of this right. Even supposing that the recent international situation would have enabled Article 2 (3) to be applied, I do not see how it could justify the failure by the Italian authorities to implement the directive, a failure which, as I have said, dates back to 26 August 1976. The defendant also looks for an argument in the case-law of the Court to the effect that certain provisions of directives are capable of having direct effect in regard to individuals. However it does not clearly indicate the inferences which it draws as regards a finding of a failure to fulfil obligations. Be that as it may, on this point I should like to recall that a direct effect giving individuals the right to rely upon it before the courts is possible only as regards provisions in directives which impose clear and precise obligations upon Member States and which at the same time are sufficient in themselves and are not dependent upon the interposition of subsequent instruments either by the Community authorities or Member States (cf. judgment of 4 December 1974 in particular, Case 41/74, Van Duyn v Home Office [1974] ECR 1348/1349). It is established that this condition is not fulfilled in this case since the very complaint made by the Commission against Italy is that it has not taken the implementing measures required to put the directives into force. In fact, as Mr Advocate General Reischl said in his opinion in Case 167/73, Commission v French Republic,“according to the case-law it does not matter that the provisions of Community law ... are directly applicable and override conflicting national law by reason of the priority of Community law. Proceedings under Article 169 are justified notwithstanding such considerations” ([1974] ECR at p. 377).

(b) In its defence and in the oral procedure Italy also put forward three submissions which are best grouped together in a composite whole. It starts off from the idea that no provision of the Treaty obliges Member States to adopt laws, regulations or administrative provisions to comply with directives. Article 189 stipulates only that directives shall be binding, as to the result to be achieved, upon the Member States whilst leaving to the national authorities the choice of form and methods. This definition therefore aims to achieve a practical result: it does not imply that legal rules must be amended. The Italian law in force, it is claimed, has in fact already gone a long way towards achieving the objects of the directives in question. Thus as regards detergents, Law No 125 of 3 March 1971 requires a biodegradability of at least 80 % whilst Directive No 73/404 stipulates 90 %. Also the information to be given on packaging and labels, as required by that law, is similar to that stipulated by the directive. Furthermore, the Commission could not prove that in actual fact traders, who moreover are few in number and consist largely of multinational undertakings, are not putting on to the market products conforming with the directives. This is particularly true of the maximum sulphur content of mineral oils. Decree Law No 1741 of 2 November 1933 is in fact silent on this question. On the other hand, it makes the processing of mineral oils subject to the grant of a licence. Directive No 75/716 would therefore be observed if, when each licence was granted, the administration drew the licensee's attention to the duty to observe the maximum sulphur content stipulated by the Community provision. On this evidence I should agree with Italy that it would be pointless for a Member State to amend its own legal rules if these already conformed in all aspects with the provisions of a directive. However, in the two present cases, the Italian Government itself admits that this is not the case since it has embarked on action in Parliament to secure the full and complete adaptation of its laws to the necessary requirements. The harmonization of those laws of the Member States which directly affect the establishment or working of the Common Market would lose all justification if States were allowed merely to keep in force laws which, although not completely implementing the directives, were along the same lines. “Similar” and “identical” are not synonymous. What is more, supposing that traders do henceforth comply with the directives in question, the same necessity justifies the need to set up a complete, consistent legal framework valid throughout the Community. To concede the opposite would be tantamount to giving national administrations a free discretion which would be incompatible with the absolute requirements of legal certainty and, finally, to accepting that the provisions of Community law should not all achieve their full effect in a uniform way in all Member States.

(c) Lastly, being unable to deny the delay which it is accused of — delay which the case-law of the Court assimilates to a refusal to implement — to base these two terms in the general concept of failure to fulfil obligations, Italy draws your attention to the weaknesses which it thinks it can discern in the Court's position. The Court's refusal to acknowledge that Member States may rely upon internal difficulties to justify a failure to comply with obligations and time-limits arising from Community directives does not seem to Italy to take account of the fact that the Member States are an integral part of the Community. They cannot, therefore, be looked upon by it “as ‘foreign’ subjects burdened only with obligations and liability toward it, for which national political realities with all their vicissitudes are only ‘accidents’ of no legal importance”.

Consequently the Italian Government asks the Court to have regard to the circumstances giving rise to its delay in adopting the directives in question, namely the short duration and the premature end of Parliament's seventh legislature. In doing so the Court is asked to fall into line with the view of the majority of academic writers on international law that the assessment of the international liability of a State must take into account the factual circumstances which brought about the breach of its obligations.

This attempt to induce the Court to go back upon case-law whose consistency is a sure indication of its soundness does not seem acceptable to me. The Italian line of argument seems to me in fact to be ill-founded inasmuch as it pretends to ignore the specific object of the procedure for failure to fulfil obligations. It is not to call in question the liability of a State under the machinery of general international law; a judgment finding a failure to fulfil an obligation does not constitute a condemnation as I have already said in my opinion in Case 30/72 (Commission v Italy [1973] ECR 179), but only the objective establishment of a situation. The object of the procedure, is to ensure the uniform application of Community law in all Member States, a condition that is necessary to give a solid basis to the free movement of goods, the foundation of the Community. That is why any distinction between delay and refusal and the taking into account of the circumstances explaining factually the reasons existing in a country for its failure are incompatible with the very nature of the procedure.

As regards Council Directive No 73/404 of 23 November 1973, on the approximation of the laws of the Member States relating to detergents and No 75/716 of 24 November 1975 on the approximation of the laws of the Member States relating to the sulphur content of certain liquid fuels, I can only propose:

— That the Court should declare that the Italian Republic, by failing to put into force within the prescribed periods the laws, regulations and administrative provisions needed to comply with them, has failed to fulfil its obligations under the Treaty;

— And that the Court should order the Italian Republic to pay the costs.

( 1 ) Translated from the French.