OPINION OF MR ADVOCATE GENERAL

VERLOREN VAN THEMAAT

delivered on 10 July 1985 ( *1 )

Mr President,

Members of the Court,

1. Introduction

In this case the Commission asks the Court to find that, by failing to comply with the judgment of the Court of 8 June 1982 in Case 91/81, the Italian Republic has failed to fulfil its obligations under Article 171 of the EEC Treaty. In that judgment the Court held that the Italian Republic had not adopted within the prescribed period the measures needed in order to comply with Council Directive 75/129/EEC of 27 February 1975 on the approximation of the laws of the Member States relating to collective redundancies (Official Journal 1975, L 48, p. 29).

2. Grounds of defence relied upon by the Italian Government and analysis thereof

The Italian Government acknowledges that it has not adopted any measure in response to the judgment of the Court. In its defence it claims, in the first place, that Italian law already conforms to the objectives of the Directive. The required measures are no more than a formality. This ground of defence is identical to that put forward by the Italian Government in Case 91/81. The Court expressly rejected it. I shall not therefore consider it further.

In the second place, the Italian Government considers that, by reason of the national socio-economic climate, it is not at present politically expedient to comply with the judgment of the Court. I can also be brief in my assessment of this ground of defence. According to the Directive, the measures should have been adopted with effect from 19 February 1977 and, although the Member States may be allowed certain latitude in choosing the most appropriate date for implementing a directive, that does not mean that a delay of seven years is permissible.

No genuinely new ground of defence was put forward at the hearing, apart from the statement — which was of course welcome — that a draft law to rectify the situation will probably be tabled in the near future.

I do not believe that such a statement is sufficient to negate the Commission's interest in seeking a declaration from the Court that the Italian Republic has failed to take the necessary action in response to the abovementioned judgment within a reasonable period.

In its judgment in Case 91/81, the Court held that, by not fully applying the directive within the prescribed period, the Italian Government had failed to fulfil its obligations under the Treaty. Three years have now passed without any measure having been adopted to give effect to the judgment of the Court, other than the statement just made to the Court. Article 171 of the EEC Treaty contains no provision regarding the time-limit for the implementation of judgments. The Commission has also made reference thereto.

In that connection I am of the opinion that the implementation of a judgment must be undertaken immediately and that it must be put into effect as soon as it is practically feasible to do so. That certainly seems to me to be the case where, as in this instance, the judgment in question relates to the failure to implement a directive within the period prescribed therein. Finally, Community law must be fully applied at the same time and with identical effects over the whole territory of the Community (Case 48/71 Commission v Italian Republic [1972] ECR 529). At the hearing the Commission also cited other judgments which are of the same purport, and even go into greater detail, in particular Case 39/72 ([1973] ECR 114 and 115).

Furthermore, according to the wellestablished case-law of the Court, a Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify failure to comply with obligations and timelimits laid down in directives. In my opinion that applies with greater force where considerations of political expediency are involved, such as those referred to by the Italian Government in this case. And of course that rule is also applicable to a failure to implement a judgment of the Court having the force of res judicata.

3. Conclusion

Failure to implement judgments of the Court is a serious matter. To date, the Court has had to give judgment in cases of that kind on only two occasions (Case 48/71 Commission v Italian Republic [1972] ECR 527 and the order in Joined Cases 24 and 97/80 R Commission v French Republic [1980] ECR 1319). As the Court stated in its order in Joined Cases 24 and 97/80 R, it is the responsibility of the Commission, on the basis of Article 169 of the EEC Treaty, to bring before the Court the matter of a Member State's failure to implement a judgment. In such a case, the Court can only find that there has been an infringement of Article 171 of the Treaty.

In conclusion, I propose that the Court declare that, by failing to implement the judgment of the Court in Case 91/81, the Italian Republic has failed to fulfil its obligations under Article 171 of the EEC Treaty.

And I propose that the Court order the Italian Republic to pay the costs.

( *1 ) Translated from the French.