Opinion of Mr Advocate General Jacobs delivered on 13 April 1994. - Commission of the European Communities v Italian Republic. - Failure to fulfil obligations - Directive 90/486/EEC - concerning electrically-operated lifts - Failure to transpose. - Case C-303/93.



European Court reports 1994 Page I-01901



Opinion of the Advocate-General

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My Lords,

1. In these proceedings under Article 169 of the Treaty the Commission contends that the Republic of Italy has failed to comply with its obligation to implement Council Directive 90/486/EEC of 17 September 1990 (1) amending Council Directive 84/529/EEC (2) on the approximation of the laws of the Member States relating to electrically operated lifts. The preamble to Directive 90/486 recited that "the scope of Directive 84/529 should be extended as a matter of urgency since manufacturers face significant technical barriers to intra-Community trade which threaten to distort the market".

2. Article 2 of Directive 90/486 provides:

"1. Member States shall adopt and publish the laws, regulations and administrative provisions necessary in order to comply with this directive during the six months following its notification. They shall forthwith inform the Commission thereof.

2. Member States shall communicate to the Commission the texts of the provisions of national law which they adopt in the field governed by this Directive."

The directive was notified to the Member States on 24 September 1990. Therefore the time-limit for implementing it expired on 24 March 1991.

3. In a letter dated 28 June 1991 the Commission initiated the procedure laid down in Article 169. It drew to the attention of the Italian Government the fact that the directive should have been transposed into national law by 24 March 1991 and stated that the Commission had received no information indicating that this had been done in Italy. The letter further stated that if the Italian Government believed that national legislation in force was already in conformity with the directive it should communicate the terms of the provisions in question, clearly indicating the articles of the directive to which those provisions corresponded. The Italian Government was invited to submit its observations within two months from receipt of the letter.

4. No observations were received within the prescribed period. Accordingly the Commission issued a reasoned opinion on 9 March 1992, requesting Italy to take the necessary measures to comply with the directive within two months.

5. Having received no response from the Italian Government, the Commission lodged an application at the Court on 28 May 1993.

6. In its defence the Italian Government did not deny that a breach of Community law had taken place. However it observed, as had the Commission in its application, that Article 3 of Italian Law No 142 of 19 February 1992, containing provisions relating to the performance of obligations resulting from Italy' s membership of the European Communities (Community Law for 1991), authorized the Italian Government to implement by means of regulations the Community directives listed in Annex C of that law. Directive 90/486 was listed in Annex C. The Italian Government further stated that the necessary legislation had recently been prepared. It was hoped that the legislation would receive final approval before the end of 1993, taking into account the numerous steps in the legislative procedure (such as obtaining the opinion of the Council of State and the various parliamentary committees competent in this area). As a result the Italian Government expressed the hope that these proceedings would soon become otiose.

7. According to the settled case-law of the Court, a Member State may not plead provisions, practices or circumstances existing in its internal system in order to justify a failure to comply with obligations and time-limits resulting from Community directives. (3)

8. At the hearing, the Agent of the Italian Government stated that the legislation had recently been approved and would shortly be published. However, even assuming that at that stage the infringement is terminated, it is not disputed that the legislation was not in force at the expiry of the time-limit laid down by the Commission' s reasoned opinion, which is the material date. (4)

Conclusion

9. I am accordingly of the opinion that the Court should:

(1) declare that, by failing to adopt within the period prescribed the provisions necessary to ensure the implementation of Council Directive 90/486/EEC of 17 September 1990, the Republic of Italy has failed to fulfil its obligations under the Treaty;

(2) order the Republic of Italy to pay the costs.

(*) Original language: English.

(1) - OJ 1990 L 270, p. 21.

(2) - OJ 1984 L 300, p. 86.

(3) - See, for example, Case 52/75 Commission v Italy [1976] ECR 277; Case 91/79 Commission v Italy [1980] ECR 1099.

(4) - See the judgment of today' s date in Case C-313/93 Commission v Luxembourg, paragraph 10.