Commission of the European Communities v Italian Republic (C-302/95)

Contents

Judgment of the Court (Fifth Chamber)12 December 1996^noteIn Case C-302/95,Commission of the European Communities, represented by Dominique Maidani, Legal Adviser, and Laura Pignataro, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,vItalian Republic, represented by Professor Umberto Leanza, Head of the Legal Affairs Department of the Ministry of Foreign Affairs, acting as Agent, assisted by Pier Giorgio Ferri, Avvocato dello Stato, with an address for service in Luxembourg at the Italian Embassy, 5 Rue Marie-Adelaide,THE COURT (Fifth Chamber),composed of: J. C. Moitinho de Almeida, President of the Chamber, L. Sevón (Rapporteur), D. A. O. Edward, P. Jann and M. Wathelet, Judges,Advocate General: P. Léger,Registrar: R. Grass,having regard to the report of the Judge-Rapporteur,after hearing the Opinion of the Advocate General at the sitting on 5 November 1996,gives the following

Judgment

1By application lodged at the Court Registry on 25 September 1995, the Commission of the European Communities brought an action under Article 169 of the EC Treaty for a declaration that, by not adopting the laws, regulations and administrative provisions necessary to comply with Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment (OJ 1991 L 135, p. 40; ‘the Directive’) or, in any event, by not notifying the Commission thereof, the Italian Republic has failed to fulfil its obligations under that Directive and under the EC Treaty.

2Under Article 19(1) of the Directive, the Member States were to bring into force the laws, regulations and administrative provisions necessary to comply with it no later than 30 June 1993 and immediately to inform the Commission thereof.

3Since the Commission did not receive notification of the measures for transposing the Directive into Italian law and possessed no other information to support a conclusion that the Italian Republic had complied with its obligations, it gave Italy formal notice by letter of 9 August 1993 to submit its observations within two months. It was made clear in that letter that, even if the Italian Government considered the rules of domestic law already in force to be in conformity with the Directive, it was still under a duty to communicate them to the Commission.

4Since there was no reply to the letter of formal notice, the Commission sent the Italian Republic a reasoned opinion on 27 December 1994, in accordance with Article 169 of the EC Treaty, calling upon it to adopt the measures necessary to comply with its obligations under the Directive within two months of notification.

5Since the Italian Government failed to respond to the reasoned opinion, the Commission brought the present proceedings.

6In its defence, the Italian Government contends that the matters covered by the Directive are governed in Italy by Law No 319 of 10 May 1976 on the protection of water from pollution (‘Law 319/76’), which already incorporates the main measures prescribed by the Directive for the prevention of damage to the environment and, in particular, to water resources. The Italian Government points out that the provisions of Law 319/76 are implemented through rules adopted by the Regions, which have both legislative and administrative competence in matters concerning water.

7The Italian Government admits nevertheless that the rules of domestic law still require amendment if the Directive is to be fully transposed, particularly as regards the requirements laid down in its annexes. However, full transposition should be brought about very shortly by the adoption of a legislative decree.

8The Italian Government adds that, pending definitive implementation of the Directive, it has asked the Regions — by Decree Law No 79 of 17 March 1995 (GURI No 132 of 8 June 1995; ‘Decree Law 79/95’) — to comply with the principles and criteria laid down by the Directive when enacting the rules implementing it with regard to the discharge of waste water from public drains and the discharge from private installations of waste water which does not go into the public drains. In those circumstances, the Italian Republic considers that it has, at least partially, fulfilled its obligation to transpose the Directive and undertakes to ensure its transposition in full.

9In its reply, the Commission argues that Law 319/76 and Decree Law 79/95 do not constitute measures transposing Directive 91/271. Law 319/76, as amended, merely lays down general rules concerning the discharge of waste waters, leaving the Regions and Provinces with the task of introducing supplementary legislation and giving effect to the criteria and general rules laid down by that Law. The Commission adds that the regional rules implementing Law 319/76 have not been communicated to it and, consequently, it possesses no evidence that the Italian Republic has complied with the Directive.

10It should be noted that the Italian Republic does not deny that when the period prescribed in Directive 91/271 expired, it had not adopted the laws, regulations and administrative provisions necessary to comply with that Directive.

11As regards the amendments made to Law 319/76 by Decree Law 79/95 providing that the Regions must comply with the principles and criteria laid down by the Directive, the Italian Government acknowledges that full transposition requires further measures to be adopted.

12The amendments made in 1995 could not in any case be taken into account in determining whether the Italian Republic has failed to fulfil its obligations: Decree Law 79/95 was adopted after the expiry of the two-month period set by the reasoned opinion which, according to the documents before the Court, was notified on 11 January 1995 at the latest.

13According to established case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation in the Member State as it stood at the end of the period laid down in the reasoned opinion, and the Court cannot take account of any subsequent changes (see, in particular, Case C-289/94 Commission v Italy [1996] ECR I-4405, paragraph 20).

14It must therefore be held that, by not adopting the laws, regulations and administrative provisions necessary to comply with Directive 91/271, the Italian Republic has failed to fulfil its obligations under Article 19 of that Directive.

Costs

15Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. The Commission asked for the Italian Republic to be ordered to pay the costs. Since the Italian Republic has been unsuccessful, it must be ordered to pay the costs.

Operative part

On those grounds,THE COURT (Fifth Chamber)hereby:

1.Declares that, by not adopting the laws, regulations and administrative provisions necessary to comply with Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment, the Italian Republic has failed to fulfil its obligations under Article 19 of that Directive;

2.Orders the Italian Republic to pay the costs.

Delivered in open court in Luxembourg on 12 December 1996.