Commission of the European Communities v Italian Republic (91/81)

III —Submissions and arguments of the parties

In its judgment the Commission maintains that the case-law of the Court in this matter is clear, as is established in particular by the judgments in Case 79/72 Commission v Italy [1973] ECR 667; Case 52/75 Commission v Italy [1976] ECR 277; Case 10/76 Commission × Italy [1976] ECR 1359 and Joined Cases 42 and 43/80, Commission v Italy [1980] ECR 3635 and 3643.In the second of those judgments the Court of Justice amplified the reasoning previously set out in the first judgment and stated:“The correa application of a directive is particularly important since the implementing measures are left to the discretion of the Member States and would be ineffective if the desired aims are not achieved within the prescribed time-limits. Although the provisions of a directive are no less binding on the Member States to which they are addressed than the provisions of any other rule of Community law, such an effect attaches a fortiori to the provisions relating to the periods allowed for implementing the measures prescribed, in particular since the existence of differences in the rules applied in the Member Sutes after these periods have expired might result in discrimination.”The case-law of the Court of Justice furthermore makes clear that the Member States may not plead provisions or practices based on their internal legal system or circumstances of fact peculiar to a State in order to justify a failure to comply with the obligations and time-limits prescribed by Community directives.Is does not appear to the Italian Government that the matter has been duly brought before the Court of Justice under Article 169 of the Treaty on the basis of appropriate and substantial complaints of failure to fulfil an obligation.In fact its observations of 23 November 1979 following the communication of the opinion of the Commission show that, as the said directive prescribes, the provisions in force in Italy are of such a nature as to prevent all collective redundancies unless the employer has begun consultations with the workers' representatives in order to keep the redundancies within the limits of what is strictly indispensable and to mitigate the consequences thereof and without the ministry or competent agency being notified thereof beforehand by the employer in order to take appropriate measures to resolve the problem.The Commission, however, took the view that there was no need for it to take into consideration the information provided in the abovementioned observations, adding that the Iulian authorities “have made absolutely no attempt to challenge the failure to fulfil their obligations which was alleged against them” in the subsequent communication of 25 March 1980.The interpreution of the content of that communication is ceruinly misuken. The existence of a bill intended to define more precisely the national rules in the field covered by the directive does not mean that the new legislative measures were considered necessary by the Iulian Government in order to implement the Community directive.As that is made clear by the content of the communication of 25 March 1980 it was simply considered appropriate to systematize and confirm a body of principles and rules concerning the conditions to be observed and the procedures to be followed in the case of collective redundancies without subsuntial innovations in a body of law which guarantees by itself that the criteria indicated in the Community directive will be applied in Iuly.The Commission replies that Article 41 of the new Iulian bill, like the previous decree law which expired, in fact conuins the measures necessary for the implemenution of the directive. The failure to fulfil its obligations which is alleged against Iuly consists, however, in not having adopted within the prescribed period the provisions for the implemenution of the directive. The defendant's arguments concerning the “appropriateness” of these provisions are contradicted by the course of events. They are furthermore incompatible with the letter and spirit of the third paragraph of Article 189 of the Treaty and with the consistent case-law of the Court which is cited above. Finally they fail to take into account the provisions of Article 5 of the Treaty. In reply to a question from the Court concerning the lacunae in the provisions in force in Italy which constitute an incomplete implementation of the Council directive the Commission's answer did not provide any information in addition to that which it has already furnished in its written submissions.