Commission of the European Communities v Italian Republic.
Date: 1992-03-31
8 As a preliminary point, it should be noted that the fact that the Italian Government formally pleaded the inadmissibility of the action only in its rejoinder cannot prevent the Court from examining this issue. The arguments relied upon in that respect by the Italian Government had already been submitted in its defence, in which it had formally contended that the action be dismissed. The Commission therefore had the opportunity to answer those arguments in its reply. Furthermore, and in any event, the Court may of its own motion examine the question whether the conditions laid down in Article 169 of the Treaty for the bringing of an action for failure to fulfil an obligation are satisfied.
9 In that respect it should first be noted that it follows from the very terms of the second paragraph of Article 169 of the Treaty that the Commission may bring an action for failure to fulfil obligations before the Court only if the Member State concerned does not comply with the opinion within the period laid down by the Commission for that purpose.
10 Secondly, the Court has consistently held that the action brought under the second paragraph of Article 169 is for a declaration that the State concerned has failed to fulfil an obligation under the Treaty and that it has not put an end to that infringement within the time laid down to that effect by the Commission in its reasoned opinion (judgment in Case C-347/88 Commission v Greece [1990] ECR I-4747, paragraph 40). The Court has consistently held that the question whether there has been a failure to fulfil obligations must be examined on the basis of the position in which the Member State found itself at the end of the period laid down in the reasoned opinion (judgment in Case C-200/88 Commission v Greece [1990] ECR I-4299, paragraph 13).
11 In the present case it is common ground that, first of all, the effects of the contract notice at issue had been exhausted on 31 December 1989, that is to say, before the issue of the reasoned opinion of 27 March 1990. Secondly, the contract notices for 1990 and 1991, published, respectively, on 4 November 1989, that is to say before the issue of the reasoned opinion, and on 3 November 1990, that is to say before the present action was brought, no longer contained the condition at issue.
12 It should be stated, moreover, that the Commission did not act in good time in order to prevent, by means of procedures available to it, the infringement complained of from producing effects and did not even invoke the existence of circumstances preventing it from concluding the pre-litigation procedure laid down in Article 169 of the Treaty before the infringement ceased to exist. The fact, alleged at the hearing, that the Commission had already issued a first reasoned opinion on 17 August 1989 is irrelevant in that respect, since it was not referred to in the course of the proceedings and that the application is not based on it. Furthermore, that circumstance cannot constitute a matter of law or fact which has come to light in the course of the procedure, for the purposes of Article 42(2) of the Rules of Procedure, so that any plea based on it must be regarded as out of time and, consequently, be dismissed as inadmissible.
13 It follows from the foregoing considerations that, at the date of expiry of the period laid down in the Commission' s reasoned opinion of 27 March 1990, the infringement complained of no longer existed. Consequently, the action brought by the Commission must be dismissed as inadmissible.