CELEX: 61995CC0238
Language: en
Date: 1996-02-01
Title: Opinion of Mr Advocate General Fennelly delivered on 1 February 1996. # Commission of the European Communities v Italian Republic. # Failure to fulfil obligations - Directive 93/67/EEC - Assessment of risks to man and the environment posed by dangerous substances. # Case C-238/95.

OPINION OF ADVOCATE GENERALFENNELLY delivered on 1 February 1996  (1)
         Case C-238/95 CommissionvItalian Republic
            ()
            
      
         
      1.  By application of 22 June 1995, registered at the Court on 6 July 1995, pursuant to Article 169 of the Treaty, the Commission
      contends that by failing to implement the laws, regulations and administrative provisions necessary to comply with Commission
      Directive 93/67/EEC of 20 July 1993 (hereinafter  
      the Directive), 
      
         			(2)
         		 laying down the principles for assessment of risks to man and the environment of substances notified in accordance with Council
      Directive 67/548/EEC (hereinafter  
      the Basic Directive), 
      
         			(3)
         		 or by not informing the Commission of the measures taken to comply with the Directive, the Italian Republic has failed in
      its obligations both under the Treaty and the Directive.
      
      2.  Article 16 of the Basic Directive, as amended, 
      
         			(4)
         		 requires the national authorities to evaluate the risks to man and the environment of new chemical substances put on the
      market.  Articles 7 to 9 require that such substances be notified to the competent national authorities, who are obliged by
      Article 16(1) to carry out the required assessment in accordance with the general principles laid down by the Commission pursuant
      to its obligation under Article 3(2).  The Directive at issue in these proceedings establishes those principles.
      
      3.  Member States were required by Article 8(1) of the Directive to  
      adopt and publish the provisions necessary to comply with this Directive by 31 October 1993 and  
      forthwith inform the Commission.  Not having received any information from the Italian authorities concerning the measures taken to implement the Directive,
      the Commission commenced the pre-contentious procedure required by Article 169 giving Italy formal notice by letter on 3 December
      1993.  There was no response either to that letter or to the Commission's subsequent reasoned opinion of 29 September 1994
      addressed to Italy.
      
      4.  In its defence of 29 September 1995, the Italian Government admitted that Italy had not yet implemented the Directive.  It
      submitted, however, that this delay was not attributable to inertia on its part, but, rather, to problems experienced in implementing
      the Directive in national law in coordination with the Basic Directive, as recently amended by Council Directive 92/32/EEC. 
      
         			(5)
         		
      5.  Article 189 of the Treaty obliges Member States to adopt the national measures necessary to ensure the attainment of the objectives
      of each directive.  This specific requirement is reinforced by their general duty pursuant to Article 5 of the Treaty  
      to take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this
      Treaty or resulting from action taken by the institutions of the Community.  It is undisputed that the Directive was not implemented in Italy by the expiry of the prescribed time-limit.  The Court
      has consistently held that Member States may not plead practical or other difficulties experienced in implementing a directive
      so as to justify a failure to comply with obligations resulting from Community directives. 
      
         			(6)
         		
      6.  As the failure of Italy to adopt the measures necessary to implement the Directive and, thus, end the infringement identified
      by the Commission during both the course of the pre-contentious stage and in its application in this case has not been remedied,
      I can only propose that the Court grant the relief sought by the Commission.
        Conclusion
      
      7.  Accordingly, I am of the opinion that the Court should:
      (1) declare that by not implementing within the prescribed period the laws, regulations and administrative provisions necessary
      to comply with Commission Directive 93/67/EEC of 20 July 1993 laying down the principles for assessment of risks to man and
      the environment of substances notified in accordance with Council Directive 67/548/EEC, the Italian Republic has failed to
      fulfil its obligations under the third paragraph of Article 189 of the Treaty and under Article 8(1) of Directive 93/67; 
      
      (2) order the Italian Republic to pay the costs of these proceedings. 
      
      
      
       1 –
         
            Original language: English.
      
      2 –
         
         OJ 1993 L 227, p. 9.
      
      3 –
         
         OJ 1967 L 196, p. 1.  The full Official Journal title of the Basic Directive is  
            Council Directive of 27 June 1967 on the approximation of the laws, regulations and administrative provisions relating to
            the classification, packaging and labelling of dangerous substances.
         
      
      4 –
         
         The Basic Directive has been amended several times but most materially, for the purposes of the present case, by Council Directive
            92/32/EEC of 30 April 1992 amending for the seventh time Directive 67/548/EEC on the approximation of the laws, regulations
            and administrative provisions relating to the classification, packaging and labelling of dangerous substances; OJ 1992 L 154,
            p. 1.
         
      
      5 –
         
         Cited in footnote 3 above.
      
      6 –
         
         See, for example, Case 58/81  
             Commission  v  
             Luxembourg  [1982] ECR 2175, paragraph 4 of the judgment.