61985J0017

MEMBER STATES - OBLIGATIONS - FAILURE TO IMPLEMENT DIRECTIVES - JUSTIFICATION - NONE

( EEC TREATY , ART . 169 )

A MEMBER STATE MAY NOT PLEAD PROVISIONS , PRACTICES OR CIRCUMSTANCES EXISTING IN ITS OWN LEGAL SYSTEM IN ORDER TO JUSTIFY FAILURE TO MEET OBLIGATIONS AND TIME-LIMITS LAID DOWN IN DIRECTIVES .

IN CASE 17/85

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY GUIDO BERARDIS , A MEMBER OF ITS LEGAL DEPARTMENT , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF GEORGES KREMLIS , JEAN MONNET BUILDING , KIRCHBERG ,

APPLICANT ,

V

ITALIAN REPUBLIC , REPRESENTED BY LUIGI FERRARI BRAVO , HEAD OF DIPLOMATIC CONTENTIOUS AFFAIRS , ACTING AS AGENT , ASSISTED BY OSCAR FIUMARA , AVVOCATO DELLO STATO , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE ITALIAN EMBASSY ,

DEFENDANT ,

APPLICATION FOR A DECLARATION THAT THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY BY NOT ADOPTING WITHIN THE PRESCRIBED PERIOD THE MEASURES NEEDED TO COMPLY WITH COUNCIL DIRECTIVE NO 78/660/EEC OF 25 JULY 1978 ON THE ANNUAL ACCOUNTS OF CERTAIN TYPES OF COMPANIES ( OFFICIAL JOURNAL L 222 , P . 11 ),

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 22 JANUARY 1985 THE COMMISSION OF THE EUROPEAN COMMUNITIES BROUGHT PROCEEDINGS UNDER ARTICLE 169 OF THE EEC TREATY TO OBTAIN A DECLARATION THAT THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THAT TREATY BY NOT ADOPTING WITHIN THE PRESCRIBED PERIOD THE MEASURES NECESSARY TO COMPLY WITH COUNCIL DIRECTIVE NO 78/660 OF 25 JULY 1978 ON THE ANNUAL ACCOUNTS OF CERTAIN TYPES OF COMPANIES ( THE FOURTH COUNCIL DIRECTIVE ).

2 THE FOURTH COUNCIL DIRECTIVE , WHICH WAS BASED ON ARTICLE 54 ( 3 ) ( G ) OF THE TREATY , CONTAINS MEASURES TO COORDINATE NATIONAL PROVISIONS CONCERNING THE PRESENTATION AND CONTENT OF ANNUAL ACCOUNTS AND ANNUAL REPORTS , THE VALUATION METHOD USED THEREIN AND THEIR PUBLICATION IN RESPECT OF CERTAIN COMPANIES WITH LIMITED LIABILITY . THERE WAS AN URGENT NEED FOR SUCH COORDINATING MEASURES , AS IS STATED IN THE SECOND RECITAL IN THE PREAMBLE TO THE DIRECTIVE , BECAUSE THE ACTIVITIES OF SUCH COMPANIES FREQUENTLY EXTEND BEYOND THE FRONTIERS OF THEIR NATIONAL TERRITORIES AND THEY OFFER NO SAFEGUARDS TO THIRD PARTIES BEYOND THE AMOUNTS OF THEIR NET ASSETS .

3 ARTICLE 55 OF THE DIRECTIVE PROVIDES THAT THE MEMBER STATES SHALL BRING INTO FORCE THE LAWS , REGULATIONS AND ADMINISTRATIVE PROVISIONS NECESSARY FOR THEM TO COMPLY WITH THE DIRECTIVE WITHIN TWO YEARS OF ITS NOTIFICATION AND THAT THEY ARE TO INFORM THE COMMISSION THEREOF . THE DIRECTIVE WAS NOTIFIED ON 31 JULY 1978 , SO THAT THAT PERIOD EXPIRED TWO YEARS THEREAFTER .

4 THE COMMISSION RECEIVED NO COMMUNICATION ON THE SUBJECT FROM THE ITALIAN GOVERNMENT AND THEREFORE INITIATED THE PROCEDURE UNDER ARTICLE 169 . NEITHER ITS LETTER OF 19 OCTOBER 1982 CALLING UPON THE ITALIAN GOVERNMENT TO ACT NOR THE REASONED OPINION ISSUED ON 14 JUNE 1984 ELICITED A RESPONSE FROM THE ITALIAN AUTHORITIES . ACCORDINGLY , THE COMMISSION BROUGHT THIS APPLICATION ON 22 JANUARY 1985 .

5 THE ITALIAN GOVERNMENT CONCEDES THAT IT HAS FAILED TO FULFIL ITS OBLIGATIONS BUT SUBMITS THAT THE SUBJECT-MATTER IS A COMPLEX ONE WHICH WILL ENTAIL AN AMENDMENT TO ITS CIVIL CODE . IT CLAIMS THAT DRAFT LEGISLATION TO IMPLEMENT THE DIRECTIVE IN QUESTION IS AT AN ADVANCED STAGE OF CONSIDERATION AND IT HOPES THAT THE DRAFT WILL BE ADOPTED WITHIN A REASONABLE PERIOD OF TIME . AT THE HEARING IT STATED THAT THAT COULD BE DONE FAIRLY SOON , BUT IT COULD NOT BE SURE PRECISELY WHEN THE PROBLEM WOULD FINALLY BE RESOLVED .

6 THE COURT WOULD POINT OUT THAT IT HAS CONSISTENTLY HELD THAT MEMBER STATES MAY NOT PLEAD PROVISIONS , PRACTICES OR CIRCUMSTANCES EXISTING IN THEIR INTERNAL LEGAL SYSTEMS IN ORDER TO JUSTIFY FAILURE TO COMPLY WITH OBLIGATIONS AND TIME-LIMITS LAID DOWN IN DIRECTIVES .

7 ACCORDINGLY , THE COURT FINDS THAT BY FAILING TO ADOPT , OR INFORM THE COMMISSION OF , THE MEASURES REFERRED TO IN COUNCIL DIRECTIVE NO 78/660/EEC OF 25 JULY 1978 WITHIN THE PRESCRIBED PERIOD THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY .

COSTS

8 ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE PROVIDES THAT THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . SINCE THE DEFENDANT HAS BEEN UNSUCCESSFUL IN ITS ARGUMENTS IT MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,

THE COURT

HEREBY DECLARES :

( 1 ) BY FAILING TO ADOPT , OR TO INFORM THE COMMISSION OF THE ADOPTION OF , THE MEASURES REFERRED TO IN COUNCIL DIRECTIVE NO 78/660/EEC OF 25 JULY 1978 ON THE ANNUAL ACCOUNTS OF CERTAIN TYPES OF COMPANIES WITHIN THE PRESCRIBED PERIOD THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY .

( 2)THE ITALIAN REPUBLIC IS ORDERED TO PAY THE COSTS .