Commission of the European Communities v Italian Republic (44/80)

I —Facts and written procedure

Council Directive 76/116/EEC of 18 December 1975 (Official Journal 1976, L 24, p. 21), which was notified to the Member States on 19 December 1975, has as its object the approximation of the laws of the Member States relating to fertilizers. It concerns more particularly provisions relating to the designation and composition of straight and compound fertilizers, to the designation “EEC fertilizer” and also to the identification, packaging and labelling of those fertilizers. Under Article 12 of the Directive, the Member States were required to bring into force the provisions necessary to comply therewith within 24 months of its notification, that is, not later than 19 December 1977. Articles 9 to 11 of the Directive lay down a procedure for adjusting certain of its annexes to technical progress. In application of that procedure the Commission adopted Directive 77/535/EEC on 22 June 1977 (Official Journal 1977, L 213, p. 1). Under Article 2 of that Directive it lay with the Member States to bring into force not later than 19 December 1977 the provisions necessary in order to comply therewith.Since none of the measures necessary in order to comply with Council Directive 76/116/EEC and Commission Directive 77/535/EEC had been adopted by the Italian Republic, the Commission invited the Italian Government by letter of 27 July 1978 to submit its observations pursuant to Article 169 of the Treaty within a period of two months.No reply having been received, the Commission, after establishing the continued absence of national provisions for implementing the directives, delivered a reasoned opinion on 18 May 1979 and requested the Italian Government to comply therewith within a period of two months.By a memorandum of 24 July 1979 from its Permanent Representation, the Italian Government informed the Commission that the complexity of the subject-matter, both from a technical point of view and from the standpoint of its economic complications, gave rise to the delay in drafting the legislative measure needed in order to comply with Directive 76/116/EEC. It is also claimed that implementation of Commission Directive 77/535/EEC was possible only on the entry into force of the legislative measure required by Council Directive 76/116/EEC.By application registered at the Court Registry on 4 February 1980 the Commission brought this action concerning the failure of the State to fulfil its obligations. The defendant did not lodge a rejoinder.Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.

II —Conclusions of the parties

The Commission claims that the Court should:— Declare that by failing to adopt, within the prescribed period, the provisions necessary in order to comply with Council Directive 76/116/EEC of 18 December 1975 on the approximation of the laws of the Member States relating to fertilizers and Commission Directive 77/535/EEC of 22 June 1977 on the approximation of the laws of the Member States relating to methods of sampling and analysis for fertilizers the Italian Republic has failed to fulfil one of its obligations under the Treaty;— Order the defendant to pay the costs.The Italian Government did not put forward any conclusions.

III —Submissions and arguments of the parties

The Commission contends that the binding nature of directives implies that Member States are obliged to comply with the period prescribed for the adoption of the national legal provisions necessary for their implementation. In that regard it refers to the judgment of 26 February 1976 in Case 52/75, Commission of the European Communities v Italian Republic [1976] ECR 277 in which the Court also stated that it must be remembered that a Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with such time-limits.The Italian Government stresses that the incorporation of Council Directive 76/116/EEC into its national legal system requires a special legislative measure, which will lay down new rules for the entire fertilizer sector. A draft law has been laid before the chambers. Once adopted, it will incorporate Council Directive 76/116/EEC into the national legal system and will serve as the basis for a ministerial order which will ensure the implementation of Commission Directive 77/535/EEC. The Italian Government hopes that the draft law will be adopted very shortly.In its reply the Commission points out that the Italian Government disputes neither in fact nor in law its alleged failure to fulfil its obligations and maintains its conclusions.

IV —Oral procedure

The parties presented oral argument at the sitting on 25 November 1980.The Advocate General delivered his opinion at the sitting on 16 December 1980.

Costs