61992J0139

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Member States ° Obligations ° Implementation of directives ° Failure to fulfil obligations not contested

(EEC Treaty, Art. 169)

In Case C-139/92,

Commission of the European Communities, represented by Antonio Aresu, of its Legal Service, and Virginia Melgar, a national official on secondment to its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Nicola Annecchino, of its Legal Service, Wagner Centre, Kirchberg,

applicant,

v

Italian Republic, represented by Professor Luigi Ferrari Bravo, Head of the Legal Department at the Ministry of Foreign Affairs, assisted by Pier Giorgio Ferri, Avvocato dello Stato, acting as Agents, with an address for service in Luxembourg at the Italian Embassy, 5 Rue Marie-Adelaïde,

defendant,

APPLICATION for a declaration that by failing to communicate, at the draft stage, Ministerial Decree No 514 of 5 November 1987, the Italian Republic has failed to fulfil its obligations under Articles 8 and 9 of Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations,

THE COURT,

composed of: O. Due, President, G.C. Rodríguez Iglesias, M. Zuleeg and J.L. Murray (Presidents of Chambers), G.F. Mancini, R. Joliet, F.A. Schockweiler, J.C. Moitinho de Almeida and F. Grévisse, Judges,

Advocate General: C. Gulmann,

Registrar: J.-G. Giraud,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 13 July 1993,

after hearing the Opinion of the Advocate General at the sitting on 14 July 1993,

gives the following

Judgment

1 By an application lodged at the Court Registry on 30 April 1992 the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that by failing to communicate, at the draft stage, Ministerial Decree No 514 of 5 November 1987, the Italian Republic has failed to fulfil its obligations under Articles 8 and 9 of Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1983 L 109, p. 8). Those provisions were amended and supplemented by Council Directive 88/182/EEC of 22 March 1988 (OJ 1988 L 81, p. 75).

2 The contested Ministerial Decree lays down "Rules for the definition and verification of the maximum output, the construction and installation of engines for pleasure craft".

3 Article 8(1) of the directive provides that Member States are immediately to communicate to the Commission any draft technical regulation, except where such technical regulation merely transposes the full text of an international or European standard, and also to indicate the grounds which make the enactment of such a technical regulation necessary. The Commission is immediately to notify the other Member States of the draft.

4 Article 8(2) provides that the Commission and the Member States may make comments to the Member State which has forwarded a draft technical regulation and that that Member State is to take such comments into account as far as possible in the subsequent preparation of the technical regulation.

5 Article 9 of the directive requires Member States to postpone the adoption of a draft technical regulation for six months from the date of the notification referred to in Article 8(1) if the Commission or another Member States delivers a detailed opinion, within three months of that date, to the effect that the measure envisaged must be amended in order to eliminate or reduce any barriers which it might create to the free movement of goods.

6 The Commission found that Italian Ministerial Decree No 514 contained technical rules which were not communicated to it pursuant to Directive 83/189 prior to their adoption and initiated the procedure under Article 169 of the Treaty against the Italian Government.

7 Reference is made to the Report for the Hearing for a fuller account of the facts, the procedure and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

8 The Italian Government does not deny that it failed to communicate the ministerial decree in question to the Commission at the draft stage.

9 Since it is established that Articles 8 and 9 of the directive have been infringed, a declaration must be given in the terms sought by the Commission that there has been a failure to fulfil obligations.

Costs

10 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Italian Republic has been unsuccessful in its submissions, it must be ordered to pay the costs.

On those grounds,

THE COURT

hereby:

1. Declares that, by failing to communicate Ministerial Decree No 514 of 5 November 1987 at the draft stage, the Italian Republic has failed to fulfil its obligations under Articles 8 and 9 of Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations;

2. Orders the Italian Republic to pay the costs.