Commission of the European Communities v Italian Republic.
Date: 2005-10-27
8. It is appropriate at the outset to emphasise that the Court may of its own motion examine the question whether the conditions laid down in Article 226 EC for the bringing of an action for failure to fulfil obligations are satisfied (see, inter alia, Case C-362/90 Commission  v Italy  [1992] ECR I-2353, paragraph 8, and Case C-439/99 Commission  v Italy  [2002] ECR I-305, paragraph 8).
10. Nor is the fact that the Italian Republic did not acknowledge the failure of which it was accused, a fact also evoked by the Commission at the hearing in support of the admissibility of its action, of any relevance since the procedure for a declaration of a failure on the part of a Member State to fulfil an obligation is based on the objective finding that a Member State has failed to fulfil its obligations under the Treaty or secondary legislation (see, inter alia, Case C-71/97 Commission  v Spain  [1998] ECR I-5991, paragraph 14, and Case C-83/99 Commission  v Spain  [2001] ECR I-445, paragraph 23).
12. It is important, secondly, to recall that the Commission, in exercising its powers under the second paragraph of Article 226 EC, has the function, in the general interest of the Community, of ensuring that the Member States give effect to the Treaty and the provisions adopted by the institutions thereunder and of obtaining a declaration of any failure to fulfil the obligations deriving therefrom with a view to bringing it to an end (see, to that effect, Case C-431/92 Commission  v Germany  [1995] ECR I‑2189, paragraph 21, and Joined Cases C-20/01 and C-28/01 Commission  v Germany  [2003] ECR I-3609, paragraph 29).
13. In that regard, it follows from the very terms of the second paragraph of Article 226 EC that the Commission may bring an action for failure to fulfil obligations before the Court only if the Member State concerned has failed to comply with the reasoned opinion within the period laid down by the Commission for that purpose (see Case C-362/90 Commission  v Italy , cited above, paragraph 9).
14. It is, furthermore, settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion (see, inter alia, Case C-362/90 Commission  v Italy , cited above, paragraph 10, Case C-173/01 Commission  v Greece  [2002] ECR I-6129, paragraph 7, and Case C-114/02 Commission  v France  [2003] ECR I-3783, paragraph 9).
15. It must be stated that the contested ordinance had ceased to produce any legal effect at the expiry date of the state of emergency declared on Italian territory until 31 October 2002 by the decree of the President of the Council of Ministers of 28 June 2002, the duration for the application of that ordinance being limited to that fixed by the decree.
16. The effects intrinsic to the contested ordinance, which was no longer in force from 1 November 2002, had, as a consequence, been exhausted before the period laid down in the reasoned opinion expired and even before the letter of formal notice was sent. Since it relates only to that single ordinance, the failure of which the Italian Republic is accused in the present action, even if established, could in any event no longer have existed at the time that period expired.
17. It follows from all the foregoing that the Commission’s application must be dismissed as inadmissible.
Costs