Opinion of Mr Advocate General Darmon delivered on 19 February 1987. - Commission of the European Communities v Italian Republic. - Failure of a Member State to fulfil its obligations - Feedingstuffs. - Case 363/85.



European Court reports 1987 Page 01733



Opinion of the Advocate-General

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Mr President,

Members of the Court,

I - 1 . The Commission has asked the Court for a declaration that the Italian Government has failed to adopt all the laws, regulations and administrative provisions necessary fully to implement Article 1 ( 3 ) of Council Directive 80/502/EEC of 6 May 1980 amending Directive 74/63/EEC on the fixing of maximum permitted levels for undesirable substances and products in feedingstuffs, and hence has failed to fulfil its obligations under Articles 5 and 189 of the EEC Treaty .

2 . More specifically, the Italian Republic is charged with having failed to transpose into national law the Community definitions of the following expressions : "animals", "pet animals" and "compound feedingstuffs ".

II - 3 . Directive 74/63 constitutes, together with Council Directive 70/524/EEC of 23 November 1970 concerning additives in feedingstuffs and Council Directive 79/373 of 2 April 1979 on the marketing of compound feedingstuffs, a "coherent system" whose

"common objective ... is to increase agricultural productivity by promoting the quality of animal production by means of the use of 'appropriate good-quality feedingstuffs' ". ( 1 )

4 . Article 2 of Directive 79/373 itself incorporates the same definitions of the expressions "animals", "pet animals" and "compound feedingstuffs" as Directive 80/502 .

III - 5 . It is not contested that the Italian Republic failed to adopt within the period prescribed by Directive 80/502, that is to say at the latest by 1 July 1981, specific measures to implement that directive . In that connection, it has indicated that a draft law has been put before the Italian Parliament to secure the formal incorporation into Italian law of the definitions set out in the aforementioned Article 1 ( 3 ).

6 . The Italian Government considers that it has not failed to fulfil its obligations under the Treaty in that respect and asserts that, even if those definitions are not formally set out in its national legislation, it is possible to infer from the national legislation the intended uses of the feedingstuffs ( for animals and pet animals ) and the characteristics of compound feedingstuffs . As a result, the Italian law of 15 February 1963, as amended in 1968 ( hereinafter referred to as "the Italian law "), which is currently in force, already serves to implement Article 1 ( 3 ).

IV - 7 . Accordingly, it must be established whether the Italian legislation antedating the Community directive is such as to secure the implementation of the directive . In order to do so, it is necessary to assess the relevant national provisions . In its judgment in Case 29/84 ( 2 ) the Court considered that, under the third paragraph of Article 189 of the Treaty,

"the implementation of a directive does not necessarily require legislative action in each Member State",

provided that the "full application" of the directive is in fact guaranteed .

8 . Consequently, the pre-existing Italian legislation may satisfy Community requirements in so far as it already enabled the objective pursued by Directive 80/502 to be attained, even if the exact wording of that directive was not reproduced therein . ( 3 )

V - 9 . Does a comparison of Article 1 ( 3 ) of Directive 80/502 with Article 1 of the Italian law which contains the comparable definitions reveal that the Community rules have been satisfactorily implemented?

10 . As regards the definition of the term "animals" set out in Article 1 ( 3 ) ( f ), I consider that the Italian Government has not, as the Commission claims, failed to fulfil its obligations . The Italian law applies "to products ... intended for feeding to livestock", ( 4 ) which is a general category which covers the class which the directive defines under the term "animals ".

11 . If I may now turn to "pet animals", these necessarily constitute an individual class of "animals" within the meaning of the directive whose essential characteristic is that its members are not consumed by man . The Italian law does not incorporate any specific provision relating to that category . The maximum level of undesirable substances and products in feedingstuffs may vary depending on whether the feedingstuffs are intended for "animals" or for "pet animals ".

12 . In view of the aim of protecting animal and human health which is pursued by Directives 74/63 and 80/502, the failure to make that distinction constitutes, as the Commission rightly maintains, a failure on the part of the defendant Member State to fulfil its obligations .

13 . As for "compound feedingstuffs", it must be held that the definition given in the Italian law is narrower than that set out in the directive . The directive defines compound feedingstuffs as "organic or inorganic substances in mixtures, whether or not containing additives, for oral animal feeding in the form of complete feedingstuffs or complementary feedingstuffs" whereas the Italian law defines the term as meaning "preparations obtained by appropriately combining two or more straight feedingstuffs", without mentioning products of mineral origin and additives or complementary feedingstuffs .

14 . Admittedly, the Italian law does not preclude the possibility of using all those ingredients but they are not included in the Italian definition of "compound feedingstuffs ".

15 . Given that the definition in question is a Community definition, it must be set out in the legislation of all the Member States . It follows that, in that respect too, the Italian Republic must be held to have failed to fulfil its obligations .

VI - 16 . Therefore, I conclude that

by failing to adopt, by 1 July 1981 at the latest, the provisions necessary to implement Article 1 ( 3 ) ( g ) and ( h ) of the aforesaid Directive 80/502, the Italian Government has failed to fulfil its obligations under Articles 5 and 189 of the EEC Treaty;

the Italian Republic should be ordered to pay the costs .

(*) Translated from the French .

( 1 ) Judgment of 3 October 1985 in Case 28/84 Commission v Federal Republic of Germany (( 1985 )) ECR 3097, paragraph 12 .

( 2 ) Judgment of 23 May 1985 in Case 29/84 Commission v Federal Republic of Germany (( 1985 )) ECR 1661, paragraph 23 .

( 3 ) Judgment of 26 October 1983 in Case 163/82 Commission v Italian Republic (( 1983 )) ECR 3273, paragraphs 9 and 10 .

( 4 ) My emphasis .