61979J0092

1 . MEMBER STATES - OBLIGATIONS - IMPLEMENTATION OF DIRECTIVES - PARTIAL IMPLEMENTATION - FAILURE TO FULFIL

( EEC TREATY , ART . 169 )

2 . MEASURES ADOPTED BY INSTITUTIONS - LEGAL NATURE - DECISIONS AND DIRECTIVES - TREATMENT AS INTERNATIONAL AGREEMENT - NOT PERMISSIBLE

( EEC TREATY , ART . 189 )

3 . HARMONIZATION OF LAWS - PROTECTION OF THE ENVIRONMENT - LEGAL BASIS OF DIRECTIVES - ARTICLE 100 OF THE TREATY - PERMISSIBILITY

( EEC TREATY , ART . 100 )

4 . MEMBER STATES - OBLIGATIONS - IMPLEMENTATION OF DIRECTIVES - FAILURE TO FULFIL - JUSTIFICATION - NOT PERMISSIBLE

( EEC TREATY , ART . 169 )

1 . MEMBER STATES ARE OBLIGED TO ENSURE THE FULL AND EXACT APPLICATION OF THE PROVISIONS OF ANY DIRECTIVE . CONSEQUENTLY THERE IS A FAILURE ON THE PART OF THE MEMBER STATE CONCERNED TO FULFIL ITS OBLIGATIONS SO LONG AS IT HAS NOT COMPLETELY COMPLIED WITH A DIRECTIVE EVEN IF IT HAS TO A LARGE EXTENT ALREADY SECURED THE OBJECTIVES OF THE DIRECTIVE .

2 . A MEASURE WHICH HAS THE FEATURES OF A COMMUNITY DECISION OR DIRECTIVE WHEN VIEWED IN THE LIGHT OF ITS OBJECTIVE AND THE INSTITUTIONAL FRAMEWORK WITHIN WHICH IT HAS BEEN DRAWN UP CANNOT BE DESCRIBED AS AN ' ' INTERNATIONAL AGREEMENT ' ' .

3 . DIRECTIVES ON THE ENVIRONMENT MAY BE BASED UPON ARTICLE 100 OF THE TREATY SINCE PROVISIONS WHICH ARE MADE NECESSARY BY CONSIDERATIONS RELATING TO THE ENVIRONMENT AND HEALTH MAY BE A BURDEN UPON THE UNDERTAKINGS TO WHICH THEY APPLY AND IF THERE IS NO HARMONIZATION OF NATIONAL PROVISIONS ON THE MATTER COMPETITION MAY BE APPRECIABLY DISTORTED .

4 . A MEMBER STATE MAY NOT PLEAD PROVISIONS , PRACTICES OR CIRCUMSTANCES EXISTING IN ITS INTERNAL SYSTEM IN ORDER TO JUSTIFY A FAILURE TO COMPLY WITH OBLIGATIONS AND TIME-LIMITS RESULTING FROM COMMUNITY DIRECTIVES .

IN CASE 92/79

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ALBERTO PROZZILLO AND AUKE HAAGSMA , ACTING AS AGENTS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO , LEGAL ADVISER TO THE COMMISSION , JEAN MONNET BUILDING , KIRCHBERG ,

APPLICANT ,

V

ITALIAN REPUBLIC , REPRESENTED BY ARNALDO SQUILLANTE , ACTING AS AGENT , ASSISTED BY FRANCO FAVARA , AVVOCATO DELLO STATO ( STATE ADVOCATE ), WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE ITALIAN EMBASSY ,

DEFENDANT ,

APPLICATION FOR A DECLARATION THAT THE ITALIAN REPUBLIC , BY FAILING TO PUT INTO FORCE WITHIN THE PRESCRIBED PERIOD THE LAWS , REGULATIONS AND ADMINISTRATIVE PROVISIONS NECESSARY IN ORDER TO COMPLY WITH COUNCIL DIRECTIVE NO 75/716/EEC OF 24 NOVEMBER 1975 ON THE APPROXIMATION OF THE LAWS OF THE MEMBER STATES RELATING TO THE SULPHUR CONTENT OF CERTAIN LIQUID FUELS ( OFFICIAL JOURNAL NO L 307 OF 27 NOVEMBER 1975 , P . 22 ), HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE TREATY ,

1 BY AN APPLICATION RECEIVED AT THE COURT REGISTRY ON 14 JUNE 1979 THE COMMISSION APPLIED TO THE COURT UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT THE ITALIAN REPUBLIC HAD FAILED TO FULFIL AN OBLIGATION UNDER THE TREATY BY FAILING TO ADOPT , WITHIN THE PRESCRIBED PERIOD , THE PROVISIONS NEEDED IN ORDER TO COMPLY WITH COUNCIL DIRECTIVE NO 75/716/EEC OF 24 NOVEMBER 1975 ON THE APPROXIMATION OF THE LAWS OF THE MEMBER STATES RELATING TO THE SULPHUR CONTENT OF CERTAIN LIQUID FUELS ( OFFICIAL JOURNAL NO L 307 , P . 22 ).

2 ACCORDING TO ARTICLE 8 OF THE DIRECTIVE , MEMBER STATES WERE REQUIRED TO PUT INTO FORCE THE MEASURES NEEDED TO COMPLY WITH IT WITHIN NINE MONTHS OF ITS NOTIFICATION ; THE PERIOD EXPIRED IN THIS CASE ON 26 AUGUST 1976 .

3 IN ITS DEFENCE THE ITALIAN GOVERNMENT ARGUES THAT ITS NATIONAL LEGISLATION ALREADY CONTAINS PROVISIONS WHICH TO A LARGE EXTENT SECURE THE REALIZATION OF THE OBJECTS OF THE DIRECTIVE .

4 IT FEELS MOREOVER THAT THE SUBJECT-MATTER OF THE DIRECTIVE LIES ' ' AT THE FRINGE ' ' OF COMMUNITY POWERS AND THAT IT IS ACTUALLY A CONVENTION DRAWN UP IN THE FORM OF A DIRECTIVE .

5 IT ARGUES THAT THE DELAY IN APPLYING THE DIRECTIVE IN QUESTION AROSE FROM THE FACT THAT ITS EFFORTS TO FULFIL ITS OBLIGATIONS UNDER THE DIRECTIVE WERE THWARTED BY THE VICISSITUDES WHICH WERE A FEATURE OF THE BRIEF EXISTENCE OF THE SEVENTH LEGISLATURE OF THE ITALIAN PARLIAMENT , AND PARTICULARLY ITS PREMATURE END .

6 EVEN IF IT IS TRUE THAT ITALIAN DOMESTIC LAW HAS TO A LARGE EXTENT ALREADY SECURED THE OBJECTIVES OF THE DIRECTIVE , NEVERTHELESS THE POSITION REMAINS THAT THE ITALIAN REPUBLIC HAS NOT COMPLETELY COMPLIED WITH IT , WHICH IT MOREOVER DOES NOT DENY , AND IT HAS NOT NOTIFIED THE COMMISSION OF THE NATIONAL MEASURES ADOPTED . IT SHOULD BE NOTED IN THIS RESPECT THAT THE MEMBER STATES ARE OBLIGED TO ENSURE THE FULL AND EXACT APPLICATION OF THE PROVISIONS OF ANY DIRECTIVE .

7 AS REGARDS THE ITALIAN GOVERNMENT ' S ARGUMENT THAT THE DIRECTIVE IS ACTUALLY A CONVENTION DRAWN UP IN THIS SPECIAL FORM , IT NEED ONLY BE RECALLED THAT THE COURT HAS ALREADY SAID IN ITS JUDGMENT OF 18 FEBRUARY 1970 ( CASE 38/79 , COMMISSION V ITALY ( 1970 ) ECR 47 ) THAT A MEASURE WHICH HAS THE FEATURES OF A DECISION WHEN VIEWED IN THE LIGHT OF ITS OBJECTIVE AND THE INSTITUTIONAL FRAMEWORK WITHIN WHICH IT HAS BEEN DRAWN UP , CANNOT BE DESCRIBED AS AN ' ' INTERNATIONAL AGREEMENT ' ' . THE SAME CONSIDERATIONS APPLY WHERE A COUNCIL DIRECTIVE IS CONCERNED .

8 AS REGARDS THE OBSERVATIONS OF THE ITALIAN GOVERNMENT CONCERNING THE POWERS OF THE COMMUNITY IN THE MATTER , IT SHOULD BE OBSERVED THAT THE DIRECTIVE HAS BEEN ADOPTED NOT ONLY WITHIN THE PROGRAMME OF ACTION OF THE COMMUNITIES ON THE ENVIRONMENT ; IT ALSO COMES UNDER THE GENERAL PROGRAMME FOR THE ELIMINATION OF TECHNICAL BARRIERS TO TRADE WHICH RESULT FROM DISPARITIES BETWEEN THE PROVISIONS LAID DOWN BY LAW , REGULATION OR ADMINISTRATIVE ACTION IN MEMBER STATES , ADOPTED BY THE COUNCIL ON 28 MAY 1969 . IN THIS SENSE IT IS VALIDLY FOUNDED UPON ARTICLE 100 . FURTHERMORE IT IS BY NO MEANS RULED OUT THAT PROVISIONS ON THE ENVIRONMENT MAY BE BASED UPON ARTICLE 100 OF THE TREATY . PROVISIONS WHICH ARE MADE NECESSARY BY CONSIDERATIONS RELATING TO THE ENVIRONMENT AND HEALTH MAY BE A BURDEN UPON THE UNDERTAKINGS TO WHICH THEY APPLY AND IF THERE IS NO HARMONIZATION OF NATIONAL PROVISIONS ON THE MATTER , COMPETITION MAY BE APPRECIABLY DISTORTED .

9 FINALLY IT SHOULD BE RECALLED THAT A MEMBER STATE MAY NOT PLEAD PROVISIONS , PRACTICES OR CIRCUMSTANCES EXISTING IN ITS INTERNAL SYSTEM IN ORDER TO JUSTIFY A FAILURE TO COMPLY WITH OBLIGATIONS AND TIME-LIMITS RESULTING FROM COMMUNITY DIRECTIVES .

10 THERE ARE THEREFORE GROUNDS FOR DECLARING THAT BY FAILING TO ADOPT WITHIN THE PRESCRIBED PERIOD THE PROVISIONS NECESSARY IN ORDER TO COMPLY WITH COUNCIL DIRECTIVE NO 75/716 OF 24 NOVEMBER 1975 , THE ITALIAN REPUBLIC HAS FAILED TO FULFIL AN OBLIGATION UNDER THE TREATY .

11 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

12 SINCE THE DEFENDANT HAS BEEN UNSUCCESSFUL IT MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,

THE COURT

HEREBY :

1 . DECLARES THAT THE ITALIAN REPUBLIC , BY FAILING TO ADOPT WITHIN THE PRESCRIBED PERIOD THE PROVISIONS NEEDED IN ORDER TO COMPLY WITH COUNCIL DIRECTIVE NO 75/716/EEC OF 24 NOVEMBER 1975 ON THE APPROXIMATION OF THE LAWS OF THE MEMBER STATES RELATING TO THE SULPHUR CONTENT OF CERTAIN LIQUID FUELS ( OFFICIAL JOURNAL NO L 307 , P . 22 ), HAS FAILED TO FULFIL AN OBLIGATION UNDER THE TREATY ;

2 . ORDERS THE DEFENDANT TO PAY THE COSTS .