33As regards, in the first place, the Italian Republic’s argument that Article 12(2) of Directive 2004/80, as interpreted by the Commission, is invalid on the ground that, in essence, the European Union is not competent to adopt, on the basis of Article 308 EC, a provision governing, in particular, purely internal situations, suffice it to recall that, according to the Court’s settled case-law, in the absence of a provision of the FEU Treaty expressly permitting it to do so, a Member State cannot properly plead the unlawfulness of a directive addressed to it as a defence in an action for a declaration that it has failed to fulfil its obligations arising out of its failure to implement that directive. The position could be different only if the act in question contained such particularly serious and manifest defects that it could be categorised as a non-existent act (see, inter alia, judgments of 29 July 2010, Commission v Austria, C‑189/09, not published, EU:C:2010:455, paragraphs 15 and 16 and the case-law cited, and 5 March 2015, Commission v Luxembourg, C‑502/13, EU:C:2015:143, paragraph 56).
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