Opinion of Mr Advocate General Jacobs delivered on 16 November 1999. - Commission of the European Communities v Italian Republic. - Failure of a Member State to fulfil its obligations - Directive 93/104/EC - Organisation of working time - Failure to transpose into national law. - Case C-386/98.



European Court reports 2000 Page I-01277



Opinion of the Advocate-General

1. In this case the Commission, by application lodged at the Court on 26 October 1998 and made pursuant to Article 169 of the EC Treaty (now Article 226 EC), seeks a declaration that, by not adopting the laws, regulations and administrative provisions needed to implement Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time, or by not informing the Commission thereof, the Italian Republic has failed to fulfil its obligations under the Treaty and under that directive.

2. Article 18(1)(a) of the directive provides that Member States are to adopt the laws, regulations and administrative provisions necessary to comply with the directive by 23 November 1996 or to ensure by that date that the two sides of industry establish the necessary measures by agreement, with Member States being obliged to take any necessary steps to enable them to guarantee at all times that the provisions laid down by the directive are fulfilled.

3. In its defence, lodged on 12 February 1999, Italy notes that the general thrust and certain specific provisions of the directive are already reflected in its national legislation and that in November 1997, in order to improve and supplement that legislation, the two sides of industry initialled a common declaration concerning implementation of the directive; that declaration is in practice generally applied in the manufacturing sector. Moreover, in order to put the directive on a legal footing the Italian Government has put forward a separate draft law which in February 1999 was before the Chamber of Deputies. Italy concludes that it expects the draft law and the subsequent governmental decree of execution to be adopted within a reasonable time scale.

4. It is clear that Italy did not take all the measures necessary for complete implementation of the directive by the prescribed date of 23 November 1996. In respect of the period since that date, the fact that Italy has attempted to rectify its non-compliance does not afford it a defence. An action based on Article 169 of the EC Treaty requires only an objective finding of a failure to fulfil obligations and not proof of any inertia or opposition on the part of the Member State concerned. It is moreover settled law that each Member State must implement directives in a manner which fully meets the requirement of legal certainty and must consequently transpose their terms into national law as binding provisions.

5. In those circumstances the Commission's application is well founded.

Conclusion

6. I accordingly conclude that the Court should:

(1) declare that, by not adopting the laws, regulations and administrative provisions needed to implement Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time, or by not informing the Commission thereof, the Italian Republic has failed to fulfil its obligations under the Treaty and under that directive;

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