Opinion of Mr Advocate General Ruiz-Jarabo Colomer delivered on 12 September 1996. - Commission of the European Communities v Italian Republic. - Failure by a Member State to fulfil its obligations - Failure to transpose directives concerning public health and animal health into national law. - Case C-314/95.



European Court reports 1997 Page I-00427



Opinion of the Advocate-General

1 In these proceedings, the Court of Justice is called upon to give a decision in the action brought under Article 169 of the EC Treaty by the Commission on 3 October 1995 for a declaration that, by not adopting and bringing into force within the prescribed periods the provisions necessary to comply with Directives 92/45/EEC, (1) 92/46/EEC, (2) 92/65/EEC, (3) 92/88/EEC, (4) 92/116/EEC, (5) 92/117/EEC (6) and 92/118/EEC, (7) and by failing to notify the Commission thereof, the Italian Republic has failed to fulfil its obligations under the Treaty and under Article 23(1) of Directive 92/45, Article 32(1) of Directive 92/46, Article 29(1) of Directive 92/65, the first paragraph of Article 2 of Directive 92/88, the first sentence of Article 3(1) of Directive 92/116, Article 17(1) of Directive 92/117 and Article 20(1) of Directive 92/118.

2 In accordance with the abovementioned provisions, the Member States were required to bring into force the laws, regulations and administrative provisions necessary to comply with those directives before 31 December 1993 or 1 January 1994 and in each case to inform the Commission.

3 Since on 1 January 1994 the Commission had not received any notification of adaptations of national law as provided for by those directives, on 10 February 1994 it sent a letter before action to the Italian Government drawing to its attention the lack of notification and asking it to communicate a full and detailed description of the national provisions implementing those directives. In the same letter, the Commission complained that the Italian Government had failed to fulfil its obligations under the Treaty and the abovementioned directives and gave it two months in which to submit its observations.

4 By letter of 24 March 1994 from its Permanent Representative, Italy informed the Commission that the measures necessary to implement the directives were being prepared, annexing thereto the text of Law No 146 of 22 February 1994 concerning the provisions relating to fulfilment of the obligations entailed by Italy's membership of the European Communities (`Law No 146').

5 Since it received no other communication from the Italian authorities, the Commission delivered a reasoned opinion on 22 September 1994, in which it stated that, according to the information available, the Italian Republic had not transposed those directives into national law nor sent any such notification to the Commission, which constituted a failure to fulfil obligations, and therefore it requested that the measures necessary to implement the directives should be adopted within two months.

6 On 28 October 1994, by letter from the Permanent Representative, the Italian authorities stated that:

(1) the allegedly unimplemented directives had still not been transposed into national law, partly on account of delay in passing Law No 146;

(2) provisions to transpose Directives 92/45, 92/88, 92/116 and 92/118 had already been drawn up by the competent minister and the procedure for approving them was under way, and

(3) work on drafting the legislation to transpose the other directives into national law would start shortly.

7 Since almost a year later the Commission had no evidence that Italy had implemented any of the directives, it brought this action which was lodged at the Registry of the Court of Justice on 3 October 1995.

8 In its defence, the Italian Government does not deny the alleged failure to fulfil its obligations, merely repeating the claims made throughout the pre-litigation procedure that it would shortly be adopting the provisions necessary to transpose those directives into national law.

9 It is clear from the Italian Government's defence that, when the Commission lodged its application, the Italian Republic had not adopted the measures necessary to transpose the directives into national law, since the time-limit for doing so had expired on 31 December 1993 in the case of Directive 92/88 and on 1 January 1994 in the case of the others.

10 The application should therefore be upheld and, in accordance with Article 69(2) of the Rules of Procedure, the defendant Member State should be ordered to pay the costs.

11 I therefore propose that the Court should:

(1) declare that by not adopting and bringing into force within the prescribed period the provisions necessary to comply with Directives 92/45/EEC, 92/46/EEC, 92/65/EEC, 92/88/EEC, 92/116/EEC, 92/117/EEC and 92/118/EEC, and by failing to notify the Commission thereof, the Italian Republic has failed to fulfil its obligations under the Treaty and under Article 23(1) of Directive 92/45, Article 32(1) of Directive 92/46, Article 29(1) of Directive 92/65, the first paragraph of Article 2 of Directive 92/88, the first sentence of Article 3(1) of Directive 92/116, Article 17(1) of Directive 92/117 and Article 20(1) of Directive 92/118;

(2) order the Italian Republic to pay the costs.

(1) - Council Directive 92/45/EEC of 16 June 1992 on public health and animal health problems relating to the killing of wild game and the placing on the market of wild-game meat (OJ 1992 L 268, p. 35).

(2) - Council Directive 92/46/EEC of 16 June 1992 laying down the health rules for the production and placing on the market of raw milk, heat-treated milk and milk-based products (OJ 1992 L 268, p. 1).

(3) - Council Directive 92/65/EEC of 13 July 1992 laying down animal health requirements governing trade in and imports into the Community of animals, sperm, ova and embryos not subject to animal health requirements laid down in specific Community rules referred to in Annex A(I) to Directive 90/425/EEC (OJ 1992 L 268, p. 54).

(4) - Council Directive 92/88/EEC of 26 October 1992 amending Directive 74/63/EEC on undesirable substances and products in animal nutrition (OJ 1992 L 321, p. 4).

(5) - Council Directive 92/116/EEC of 17 December 1992 amending and updating Directive 71/118/EEC on health problems affecting trade in fresh poultrymeat (OJ 1993 L 62, p. 1).

(6) - Council Directive 92/117/EEC concerning measures for protection against specific zoonoses and specified zoonotic agents in animals and products of animal origin in order to prevent outbreaks of food-borne infections and intoxications (OJ 1993 L 62, p. 38).

(7) - Council Directive 92/118/EEC laying down animal health and public health requirements governing trade in and imports into the Community of products not subject to the said requirements laid down in specific Community rules referred to in Annex A(I) to Directive 89/662/EEC and, as regards pathogens, to Directive 90/425/EEC (OJ 1993 L 62, p. 49).