CELEX: 61992CC0139
Language: en
Date: 1993-07-14
Title: Opinion of Mr Advocate General Gulmann delivered on 14 July 1993. # Commission of the European Communities v Italian Republic. # Failure to fulfil obligations - Directive 83/189/EEC. # Case C-139/92.

OPINION OF ADVOCATE GENERAL
      GULMANN
      delivered on 14 July 1993 (
            *1
         )
      Mr President,
      Members of the Court,
      
               1. 
            
            
               The Commission has brought an action against Italy under Article 169 of the EEC Treaty for a declaration that Italy has failed to fulfil its obligations under Articles 8 and 9 of Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations. (
                     1
                  )
            
         
               2. 
            
            
               Under Article 8 of that directive Member States are immediately to communicate to the Commission any draft technical regulation (that is, technical specifications the observance of which is compulsory, de jure or de facto, in the case of marketing or use of a product in a Member State — see Article 1(5)). The Commission is then to notify the other Member States of the draft and the Commission and the other Member States may make comments to the Member State concerned, which is to take such comments into account in the subsequent preparation of the technical regulation. Under Article 9, unless there are urgent reasons to the contrary, Member States are to postpone the adoption of the technical regulation for three months in order to give the Commission and the other Member States the opportunity to submit their observations. According to Article 10, Articles 8 and 9 are not to apply where Member States adopt technical regulations in order to honour their obligations arising out of Community directives or certain international rules.
               The purpose of the directive is therefore to prevent the creation of new national barriers to trade between Member States and to that end the Commission, in a communication published in the Official Journal of the European Communities on 1 October 1986, (
                     2
                  ) drew the attention of Member States and other interested parties to the fact that national technical standards and regulations adopted in breach of Directive 83/189/EEC were ‘unenforceable against third parties’ and that the Commission expected that national courts would refuse to enforce them.
            
         
               3. 
            
            
               According to the Commission, Italy failed to fulfil its obligations under Articles 8 and 9 of the directive by failing to communicate to the Commission at the draft stage Ministerial Decree No 514 of 5 November 1987 on the definition and verification of the maximum output, the construction and installation of engines for pleasure craft.
            
         
               4. 
            
            
               The Italian Government does not deny that the ministerial decree is covered by the obligation to provide information laid down in Article 8 of the directive — even though part of the decree was adopted in order to implement a Council directive (
                     3
                  ) — or that the ministerial decree in question was not communicated to the Commission prior to its adoption. (
                     4
                  )
               However, the Italian Government has observed that both during the administrative procedure prior to the action and in the application the Commission claimed that in a situation such as this it follows from the directive that the Member State is required to suspend the application of the technical provisions adopted and immediately communicate them to the Commission, so that the ‘new’ rules enter into force only after the information procedure has been carried out, in accordance with the provisions of the directive.
               The Italian Government does not share the Commission's view as regards the way in which Italy is to remedy the infringement of the directive. It states that Ministerial Decree No 514 replaced technical provisions for engines for pleasure craft which involved technical barriers to trade and that the new regulations were precisely intended to eliminate those barriers, which means that it would be contrary both to the objective of the directive on the procedure for the provision of information and to the rules of the Treaty on the free movement of goods if the failure to communicate the draft of Decree No 514 to the Commission should involve the suspension of the decree. The Italian Government has therefore contended that the application should be declared inadmissible or, in the alternative, dismissed as unfounded.
            
         
               5. 
            
            
               The reason for the Italian Government's contention is therefore not that it denies the original breach of Italy's obligations under the directive but that it disagrees with the Commission's view that Italy infringed the directive by failing to suspend the ministerial decree.
            
         
               6. 
            
            
               The real dispute between the parties in this case therefore concerns a different issue from that which is the subject of the Commission's claim.
            
         
               7. 
            
            
               There may in one way be good reasons why the Court should in this case consider the question on which the parties are actually divided. It is a question which is important in principle and practice, on which the Court has thus far not had the opportunity to give its views. The parties have concentrated on this question in their pleadings and each has put forward weighty arguments in support of its point of view.
            
         
               8. 
            
            
               It is therefore to some extent with regret and a sense of adopting perhaps too formalistic an approach that I suggest that the Court should deliver judgment only on the subject-matter of the Commission's claim, in respect of which the Italian Government has admitted the breach of the directive.
            
         
               9. 
            
            
               As the Court has consistently held, the substance of a case may be examined only within the framework determined by the form of order sought in the application. (
                     5
                  ) Irrespective of the fact that the essential purpose of that principle is to ensure that the defendant is able to prepare its defence, and of the fact that it does not seem that such an interest can be specifically invoked in this case, in my view it is a guarantee of legal certainty so fundamental as to preclude the possibility of derogation.
            
         
               10. 
            
            
               As far as I can see there would have been nothing to prevent the Commission from expanding its claim so as to include the failure to suspend the ministerial decree. It was clear at the stage of the administrative procedure prior to the action that the question of the suspension of the decree was the real point at issue between the parlies. Since the Commission did not do so and thus limited the subject-matter of the case to an aspect on which in reality there was no dispute, I consider that it may be appropriate to make use of the first subparagraph of Article 69(3) of the Rules of the Procedure and to leave each party to bear its own costs.
            
         Conclusion
      
               11.
            
            
               For those reasons I suggest that the Court should:
               
                        —
                     
                     
                        declare that by failing to communicate to the Commission, at the draft stage, Ministerial Decree No 514 of 5 November 1987 on the definition and verification of the maximum output, the construction and installation of engines for pleasure craft, Italy has failed to fulfil its obligations under Articles 8 and 9 of Council Directive 83/189/EEC laying down a procedure for the provision of information in the field of technical standards and regulations;
                        and
                     
                  
                        —
                     
                     
                        order the parties to bear their own costs.
                     
                  
         (
            *1
         )	Original language: Danish.
      (
            1
         )	OJ 1983 L 109. p. 8, amended by Council Directive 88/182/EEC of 22 March 1988 (OJ 1988 L 81, p. 75). The amending directive was to be transposed before 1 January 1989 and has no relevance to this case.
      (
            2
         )	OJ 1986 C 245. p. 4.
      (
            3
         )	Directive 80/181/EEC of 20 December 1979 on the approximation of the laws of the Member States relating to units of measurement (OJ 1980 L 39, p. 40).
      (
            4
         )	The Italian Government has stated that it sent Decree No 514 to the Commission in July 1991 (that is, following the expiry of the period allowed in the Commission's reasoned opinion for Italy to take the necessary steps).
      Furthermore, it is apparent from the documents before the Court that, in accordance with the directive on the procedure for the provision of information, the Italian Government in June 1992 submitted a new draft ministerial decree to replace Decree No 514 and bring the rules in that decree up to date.
      (
            5
         )	See, for example, Case 232/78 Commission v France [1979] ECR 2729, paragraph 3, and Case 124/81 Commission v United Kingdom [1983] ECR 233, paragraph 6.