CELEX: 61985CC0158
Language: en
Date: 1986-03-06
Title: Opinion of Mr Advocate General Mischo delivered on 6 March 1986. # Commission of the European Communities v Italian Republic. # Failure to adopt within the prescribed period the implementing measures provided for in directives on the harmonization of procedures for the export of Community goods. # Case 158/85.

OPINION OF MR ADVOCATE GENERAL MISCHO
      delivered on 6 March 1986 (
            *1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      In my view this case is clear and straightforward.
      I —
      The facts set out in the application are not disputed by the Italian Government. They may be summarized in one sentence. The Italian Government failed to adopt within the prescribed period, namely before 1 January 1983, the provisions necessary to comply with Council Directive 81/177/EEC of 24 February 1981 on the harmonization of procedures for the export of Community goods (Official Journal 1981, L 83, p. 40)23 April 1982 laying down certain provisions for implementing Council Directive 82/177/EEC (Official Journal 1982, L 156, p. 1). Consequently, by letters of 1 November 1983 requesting the Italian Republic to submit its observations the Commission initiated the procedure under Article 169 of the EEC Treaty. The matter was brought before the Court by an application registered at the Court on 24 May 1985.
      I would like, as it were in passing, to draw the Court's attention to a detail which would appear until now to have escaped the notice of the parties to the proceedings.
      In the summary of the facts contained in its application the Commission refers specifically to Articles 16 of Directive 81/177/EEC and 22 of Directive 82/347/EEC as the relevant provisions requiring Member States to take the measures necessary to comply with the directives in question. In fact the relevant articles are Article 22 (and not 16) of Directive 81/177/EEC and Article 16 (not 22) of Directive 82/347/EEC.
      That error, which was not taken up by the Italian Government in the defence which it lodged on 9 August 1985, is clearly clerical in nature. Indeed in the two letters requesting the Italian Republic to submit its observations which I have referred to above and in the reasoned opinion addressed to the Italian Government by letter of 7 February 1985, the Commission refers to the penultimate articles of the two directives, which are precisely Articles 22 of Directive 81/177/EEC and 16 of Directive 82/347/EEC.
      Moreover, both in its reasoned opinion and in the written conclusions at the end of the application, the Commission no longer refers specifically to the two articles but to the two directives in general.
      There can therefore be no confusion as to the subject-matter of the dispute which in accordance with Article 38 of the Rules of Procedure was described accurately in the application instituting these proceedings.
      II —
      As a matter of law the Italian Government, which, I would recall, does not contest the Commission's claims contends that:
      
               (a)
            
            
               For the full and faithful transposition of the directives in question into national law it is still necessary to adopt certain measures which may require amendments to various provisions of the consolidated customs laws (approved by Decree No 43 of the President of the Republic of 23 January 1973). A working party which was set up on 14 June 1985 was entrusted with the task of determining and drafting those amendments.
            
         
               (b)
            
            
               Changes have been made in the field in question by Decree No 254 of the President of the Republic of 8 May 1985 implementing Council Directive 83/643/EEC of 1 December 1983 on the facilitation of physical inspections and administrative formalities in respect of the carriage of goods between Member States (Official Journal 1983, L 359, p. 8).
            
         
               (c)
            
            
               It is the firm intention of the Italian Government to bring the procedure which it has initiated for implementing the directive in question to a rapid conclusion.
            
         The Commission stresses in its reply that the infringement still exists and that there is no prospect of a solution in the near future. It maintains that Directive 83/643/EEC does not cover exactly the same matters as the two directives in question and that the delay in implementing the two directives in no way facilitates the revision of the consolidated customs laws.
      For my part I consider that the Court does not need to look into the Commission's findings and statements more closely, however well founded they may be, and that it has no choice but to declare that the Italian Government has failed to fulfil its obligations.
      Indeed that failure is indisputable. The Italian Government failed to take the measures necessary to conform with the directives in question by the date prescribed in the directives, namely 1 January 1983; nor had it done so by the date on which this action was brought. It has still failed to take the necessary action.
      Moreover, the Court has consistently held that no internal difficulty, whether the result of the complexity of the matter requiring legislation or the need to enact at the same time legislation in a wider context, can justify failure to comply with the obligations and time-limits imposed by Community directives. I would refer to a long line of decisions of the Court, and in particular those in Cases 163/78 [1979] ECR 771), 91 and 92/79, ([1980] ECR 1099 and 1115), 42 and 43/80 ([1980] ECR 3635 and 3643), 44 and 45/80 ([1981] ECR 343 and 353), 30 to 34/81 ([1981] ECR 3379).
      Finally the fact that changes have recently been made in the same field following the implementation of Councl Directive 83/643/EEC of 12 December 1983 does not affect the substantive nature of the infringement, which lies in the failure to transpose into national law Council Directive 82/177/EEC and Commission Directive 82/347/EEC by 1 January 1983.
      III —
      For all those reasons I propose that the Court should allow the Commission's application and accordingly declare that the Italian Republic has failed to fulfil its obligations and make the consequent order as to costs.
      (
            *1
         )	Translated from the French.