Judgment of the Court of 27 November 1990. - Commission of the European Communities v Italian Republic. - Obligation to provide fishery information. - Case C-209/88.



European Court reports 1990 Page I-04313



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

++++

1 . Member States - Obligations - Failure to comply with obligations - - Justification - None permissible

( EEC Treaty, Art . 169 )

2 . Action against a Member State for failure to fulfil obligations - Commission' s right of action - Discretionary exercise

( EEC Treaty, Art . 169 )

3 . Action against a Member State for failure to fulfil obligations - Examination by the Court as to whether action is well founded - No adverse effects resulting from the alleged failure - Not relevant

( EEC Treaty, Art . 169 )

Summary

1 . A Member State may not plead internal circumstances in order to justify a failure to comply with obligations and time-limits resulting from Community law .

2 . Article 169 of the Treaty enables the Commission to institute proceedings for failure to fulfil obligations each time it forms the view that a Member State has failed to fulfil an obligation under Community law, without its being required to draw distinctions based on the nature and gravity of the infringement . The use of Article 169 is not limited to situations which arise from a disagreement on the interpretation to be given to the Community rules between the Commission and the authorities of the Member State whose conduct is in question .

3 . Since a Member States' non-compliance with an obligation imposed by a rule of Community law itself constitutes a failure to fulfil obligations, the fact that it had no adverse effects is irrelevant for the purpose of deciding whether an action brought under Article 169 of the Treaty is well founded .

Parties

In Case C-209/88,

Commission of the European Communities, represented by S . Fabro, a member of its Legal Department, acting as Agent, with an address for service in Luxembourg at the office of Guido Berardis, also a member of the Commission' s Legal Department, Wagner Centre, Kirchberg,

applicant,

v

Italian Republic, represented by Professor L . Ferrari Bravo, Head of the Department for Contentious Diplomatic Affairs at the Ministry of Foreign Affairs, acting as Agent, assisted by F . Favara, avvocato dello Stato, with an address for service in Luxembourg at the Italian Embassy, 5 rue Marie-Adélaïde,

defendant,

APPLICATION for a declaration that by omitting to forward certain information relating to the market in fishery products, the Italian Republic has failed to fulfil its obligations under certain provisions of Council Regulation ( EEC ) No 3796/81 on the common organization of the market in fishery products and of the Commission' s implementing regulations, Regulations ( EEC ) Nos 3191/82, 1501/83, 3598/83 and 3599/83,

THE COURT,

composed of : O . Due, President, G . F . Mancini, T . F . O' Higgins, G . C . Rodríguez Iglesias and M . Díez de Velasco ( Presidents of Chambers ), C . N . Kakouris, R . Joliet, F . A . Schockweiler and P . J . G . Kapteyn, Judges,

Advocate General : J . Mischo

Registrar : H . A . Ruehl, Principal Administrator,

having regard to the Report for the Hearing and further to the hearing on 19 September 1990,

after hearing the Opinion of the Advocate General delivered at the sitting on 9 October 1990,

gives the following

Judgment

Grounds

1 By an application lodged at the Court Registry on 28 July 1988, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that by omitting to forward to the Commission certain information relating to the market in fishery products, Italy had failed to fulfil its obligations under Articles 9(4 ), 11(1 ), 15(2 ), 17(2 ) and 21(3 ) of Council Regulation ( EEC ) No 3796/81 of 29 December 1981 on the common organization of the market in fishery products ( Official Journal 1981 L 379, p . 1 ), Article 2 of Commission Regulation ( EEC ) No 3191/82 of 29 November 1982 laying down detailed rules for the application of the reference price system for fishery products ( Official Journal 1982 L 338, p . 13 ), Article 4 of Commission Regulation ( EEC ) No 1501/83 of 9 June 1983 on the disposal of certain fishery products which have been the subject of measures to stabilize the market ( Official Journal 1983 L 152, p . 22 ), Articles 1, 3 and 4 of Commission Regulation ( EEC ) No 3598/83 of 20 December 1983 on the notification of prices and fixing the list of representative wholesale markets and ports for fishery products ( Official Journal 1983 L 357, p . 17 ) and Article 3 of Commission Regulation ( EEC ) No 3599/83 of 20 December 1983 on communication of information concerning the withdrawal prices applied by producers' organizations in the fishing industry ( Official Journal 1983 L 357, p . 22 ).

2 The Commission has made six complaints against the Italian Republic .

3 The first of those complaints relates to Article 21(3 ) of Regulation No 3796/81 and to Article 2(2 ) of Regulation No 3191/82 . Article 21(3 ) of Regulation No 3796/81 requires Member States to notify the Commission of the free-at-frontier prices of fishery products . Article 2 of Regulation No 3191/82 provides that this information must be sent without delay by telex message to the Commission for each market day .

4 The second complaint concerns Article 11(1 ) of Regulation No 3796/81 and Article 1 of Regulation No 3598/83 . In order to establish the guide price for the products listed in Annex I(A ) and ( D ), Article 11(1 ) of Regulation No 3796/81 requires Member States to notify the Commission of the prices recorded on representative wholesale markets or in representative ports . Article 1 of Regulation No 3598/83 provides that this information must relate to the average price on the market day and must be submitted on a bi-monthly basis .

5 The third complaint relates to Article 15(2 ) of Regulation No 3796/81 and Article 3 of Regulation No 3598/83 . In order that the Commission may determine the guide price for the categories of products dealt with in Annex II, Article 15(2 ) of Regulation No 3796/81 requires Member States to notify the Commission of the prices recorded for those products on representative wholesale markets or in representative ports . Article 3 of Regulation No 3598/83 specifies that this information must relate to the average price established for two given weeks and that it must be sent on the first working day following the weeks in question .

6 Fourthly, the Commission alleges that the Italian Republic has failed to comply with the obligation imposed by Article 17(2 ) of Regulation No 3796/81 and with Article 4 of Regulation No 3598/83 . In order to fix the Community production prices of the products listed in Annex III, Article 17(2 ) of Regulation No 3796/81 requires Member States to notify the Commission of the prices recorded for those products on representative wholesale markets or in representative ports . Article 4 of Regulation No 3598/83 provides that this information must relate to the average monthly price and must be sent to the Commission at the end of the first week following the month concerned .

7 Fifthly, the Commission alleges that the Italian Republic has failed to comply with the obligations set out in Article 9(4 ) of Regulation No 3796/81 and Article 3 of Regulation No 3599/83 . Under Article 9(4 ) of Council Regulation No 3796/81, producers' organizations are required to supply the national authorities with a list of the products to which they intend to apply withdrawal prices, the level of those prices and the period during which they are to apply . The national authorities are in turn required to communicate that information to the Commission . To this end, Article 3 of Regulation No 3599/83 adds that Member States shall communicate to the Commission each month, at the latest at the end of the sixth week following the month in question, the quantities of products withdrawn from the market; a distinction is required to be drawn between those products withdrawn at the Community withdrawal price and those withdrawn at the autonomous withdrawal price .

8 The sixth complaint relates to Article 4 of Regulation No 1501/83 . Member States are required under that provision to notify the Commission every six months of the average prices obtained for the disposal of products withdrawn from the market and of the quantities rendered unusable .

9 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of the procedure and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

10 The Italian Government accepts that it has failed to fulfil its obligations . However, it points out that it encountered practical difficulties when implementing those rules which were due to its administrative organization and to shortcomings on the part of producers . The very stringent provisions cited above, it is claimed, proved to be particularly difficult to apply in Italy, where the limited importance of the fisheries sector could not justify the introduction of an expensive infrastructure .

11 It suffices in this regard to point out that the Court has consistently held that a Member State may not plead internal circumstances in order to justify a failure to comply with obligations and time-limits resulting from Community law ( see, in particular, the judgment in Case 254/83 Commission v Italy [1984] ECR 3395 ).

12 The Italian Government also contended that the infringements of which it is accused and which relate solely to administrative malfunctioning and shortcomings on the part of individuals are insufficient to constitute failures to fulfil obligations within the meaning of Article 169 of the Treaty . Since they were purely formal, those infringements did not in any case cause substantive damage to the functioning of the market in fishery products .

13 In that regard, it must be noted that Article 169 of the Treaty enables the Commission to institute proceedings for failure to fulfil obligations each time it forms the view that a Member State has failed to fulfil an obligation under Community law, without its being required to draw distinctions based on the nature and gravity of the infringement .

14 With regard to the Italian Government' s argument that the failure to comply with the obligation to communicate prices did not have any adverse consequences, it must be pointed out first of all that the Commission disputes this contention . According to the Commission, the absence of statistical data did indeed disrupt the functioning of the common organization of the market in fishery products, both in respect of the fixing of guide prices and with regard to the implementation of the safeguard clause in those cases where this had been requested by Italy . Even if it should be established that there was no damage, it is important to remember that the failure to comply with an obligation imposed by a rule of Community law is sufficient to constitute the breach, and the fact that such a failure had no adverse effects is irrelevant ( see, on this point, the judgement in Case 95/77 Commission v Netherlands [1978] ECR 863 ).

15 Finally, the Italian Government contended during the hearing that the present position could not give rise to an action for failure to fulfil obligations under Article 169 of the Treaty in view of the fact that it did not arise from a disagreement between the Italian Government and the Commission on the interpretation to be given to the abovementioned provisions .

16 It suffices on this point to emphasize that, under the system established by Article 169 of the Treaty, the Commission enjoys a discretionary power as to whether it will bring an action for failure to fulfil obligations and it is not for the Court to judge whether that discretion was wisely exercised .

17 It must therefore be held that by omitting to forward certain information relating to the market in fishery products, the Italian Republic has failed to fulfil its obligations under Articles 9(4 ), 11(1 ), 15(2 ), 17(2 ) and 21(3 ) of Regulation No 3796/81, Article 2 of Regulation No 3191/82, Article 4 of Regulation No 1501/83, Articles 1, 3 and 4 of Regulation No 3598/83 and Article 3 of Regulation No 3599/83 .

Decision on costs

Costs

18 Under Article 69(2 ) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs . Since the defendant has been unsuccessful in its submissions it must be ordered to pay the costs .

Operative part

On those grounds,

THE COURT

hereby :

( 1 ) Declares that by omitting to forward certain information relating to the market in fishery products, the Italian Republic has failed to fulfil its obligations under Articles 9(4 ), 11(1 ), 15(2 ), 17(2 ) and 21(3 ) of Council Regulation ( EEC ) No 3796/81 of 29 December 1981 on the common organization of the market in fishery products, Article 2 of Commission Regulation ( EEC ) No 3191/82 of 29 November 1982 laying down detailed rules for the application of the reference price system for fishery products, Article 4 of Commission Regulation ( EEC ) No 1501/83 of 9 June 1983 on the disposal of certain fishery products which have been the subject of measures to stabilize the market, Articles 1, 3 and 4 of Commission Regulation ( EEC ) No 3598/83 of 20 December 1983 on the notification of prices and fixing the list of representative wholesale markets and ports for fishery products and Article 3 of Commission Regulation ( EEC ) No 3599/83 of 20 December 1983 on communication of information concerning the withdrawal prices applied by producers' organizations in the fishing industry;

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