61980J0133

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

( EEC TREATY , ART . 169 )

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

IN CASE 133/80

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ALBERTO PROZILLO , A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT , ACTING AS AGENT , 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 , HEAD OF THE DEPARTMENT FOR DIPLOMATIC DISPUTES , TREATIES AND LEGISLATIVE MATTERS , ACTING AS AGENT , ASSISTED BY PIER GIORGIO FERRI , 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 PERIODS THE PROVISIONS NEEDED TO COMPLY WITH COUNCIL DIRECTIVE 77/62/EEC COORDINATING PROCEDURES FOR THE AWARD OF PUBLIC SUPPLY CONTRACTS ( OFFICIAL JOURNAL 1977 , L 13 , P . 1 ),

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 2 JUNE 1980 THE COMMISSION OF THE EUROPEAN COMMUNITIES BROUGHT AN ACTION UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT BY FAILING TO ADOPT WITHIN THE PRESCRIBED PERIOD THE PROVISIONS NEEDED TO COMPLY WITH COUNCIL DIRECTIVE 77/62/EEC OF 21 DECEMBER 1976 COORDINATING PROCEDURES FOR THE AWARD OF PUBLIC SUPPLY CONTRACTS ( OFFICIAL JOURNAL 1977 , L 13 , P . 1 ) THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY .

2 COUNCIL DIRECTIVE 77/62/EEC CONTAINS A NUMBER OF PROVISIONS INTENDED TO ENSURE THAT THE PROHIBITION OF RESTRICTIONS ON THE FREE MOVEMENT OF GOODS LAID DOWN BY ARTICLES 30 TO 37 OF THE EEC TREATY IS OBSERVED IN THE FIELD OF PUBLIC SUPPLY CONTRACTS . THE OBJECT OF THE PROVISIONS OF THE DIRECTIVE IS TO COORDINATE NATIONAL PROCEDURES CONCERNING PUBLIC SUPPLY CONTRACTS , IN PARTICULAR BY INTRODUCING EQUAL CONDITIONS OF COMPETITION FOR SUCH CONTRACTS IN ALL THE MEMBER STATES , AND TO ENSURE A DEGREE OF TRANSPARENCY ALLOWING THE OBSERVANCE OF THE PROHIBITION CONTAINED IN ARTICLES 30 TO 37 MENTIONED ABOVE TO BE BETTER SUPERVISED .

3 UNDER ARTICLE 30 OF THE DIRECTIVE MEMBER STATES WERE OBLIGED TO ADOPT THE MEASURES NECESSARY TO COMPLY WITH IT WITHIN 18 MONTHS OF ITS NOTIFICATION AND TO INFORM THE COMMISSION THEREOF FORTHWITH . UNDER ARTICLE 31 THEY WERE , AND STILL ARE , FURTHER OBLIGED TO COMMUNICATE TO THE COMMISSION THE TEXTS OF THE BASIC PROVISIONS OF DOMESTIC LAW , WHETHER LAWS , REGULATIONS OR ADMINISTRATIVE PROVISIONS , WHICH THEY ADOPT IN THE FIELD IN QUESTION .

4 THE PERIOD LAID DOWN BY ARTICLE 30 EXPIRED ON 23 JUNE 1978 WITHOUT THE ITALIAN REPUBLIC ' S HAVING ADOPTED THE NECESSARY MEASURES AND THE COMMISSION GAVE IT A FIRST REMINDER OF ITS OBLIGATION BY A LETTER OF 27 OCTOBER 1978 . IT TOOK UP THE MATTER AGAIN AT THE MEETING ON 9 AND 10 NOVEMBER 1978 OF THE ADVISORY COMMITTEE FOR PUBLIC CONTRACTS .

5 SEEING THAT ITS REMINDERS HAD NOT LED TO THE ADOPTION OF THE NECESSARY MEASURES , ON 13 MARCH 1979 THE COMMISSION INVITED THE GOVERNMENT OF THE ITALIAN REPUBLIC IN ACCORDANCE WITH THE PROCEDURE LAID DOWN BY ARTICLE 169 OF THE EEC TREATY TO SUBMIT ITS OBSERVATIONS WITHIN A PERIOD OF 20 DAYS . THE GOVERNMENT DID SO BY A TELEX MESSAGE OF 9 APRIL 1979 . IN THAT MESSAGE IT WAS EXPLAINED THAT THE DRAFT LAW TO INCORPORATE THE DIRECTIVE INTO THE ITALIAN LEGAL SYSTEM HAD BEEN PASSED ONCE BY THE CHAMBER OF DEPUTIES ON 27 SEPTEMBER 1978 AND THEN BY THE SENATE ON 13 DECEMBER 1978 , BUT THAT CERTAIN AMENDMENTS HAD MADE IT NECESSARY FOR THE DRAFT TO BE REMITTED TO THE CHAMBER OF DEPUTIES . OWING TO THE DISSOLUTION OF THE LEGISLATURE PARLIAMENT COULD NOT COMPLETE ITS SCRUTINY OF THE DRAFT LAW . THE SITUATION REMAINED UNCHANGED THROUGHOUT 1979 AND ON 6 DECEMBER OF THAT YEAR THE COMMISSION ISSUED A REASONED OPINION DECLARING THAT THERE HAD BEEN A FAILURE ON THE PART OF THE ITALIAN REPUBLIC TO FULFIL ITS OBLIGATIONS UNDER THE TREATY AND INVITING IT TO COMPLY WITH THAT OPINION WITHIN A PERIOD OF TWO MONTHS .

6 THAT INVITATION WAS NOT ACTED UPON AND ON 2 JUNE 1980 THE COMMISSION LODGED AN APPLICATION FOR A DECLARATION ESTABLISHING THE NON-COMPLIANCE . THE ITALIAN REPUBLIC POINTED OUT IN ITS DEFENCE THAT THE DELAY WAS DUE TO THE DISSOLUTION OF THE LEGISLATURE , CAUSING ALL DRAFT LAWS UNDER DISCUSSION TO LAPSE AND THEREBY RENDERING NECESSARY A NEW DRAFT , WHICH HAD BEEN PRESENTED TO THE SENATE ON 9 DECEMBER 1979 ; BUT IT DID NOT CLAIM THAT THE APPLICATION SHOULD BE DISMISSED .

7 THE CIRCUMSTANCES WHICH HAVE BEEN DESCRIBED CANNOT EXPUNGE THE NON-COMPLIANCE COMPLAINED OF . ACCORDING TO WELL-ESTABLISHED CASE-LAW A MEMBER STATE MAY NOT PLEAD PROVISIONS , PRACTICES OR CIRCUMSTANCES EXISTING IN ITS INTERNAL LEGAL SYSTEM IN ORDER TO JUSTIFY A FAILURE TO COMPLY WITH THE OBLIGATIONS IMPOSED BY COMMUNITY DIRECTIVES .

8 IT IS THEREFORE NECESSARY TO DECLARE THAT BY NOT ADOPTING WITHIN THE PRESCRIBED PERIOD THE PROVISIONS NEEDED TO COMPLY WITH COUNCIL DIRECTIVE 77/62/EEC OF 21 DECEMBER 1976 THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ONE OF ITS OBLIGATIONS UNDER THE TREATY .

9 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY ' S PLEADINGS . SINCE THE DEFENDANT HAS BEEN UNSUCCESSFUL IT MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,

THE COURT ,

HEREBY :

1 . DECLARES THAT , BY NOT ADOPTING WITHIN THE PRESCRIBED PERIOD THE PROVISIONS NEEDED TO COMPLY WITH COUNCIL DIRECTIVE 77/62/EEC OF 21 DECEMBER 1976 COORDINATING PROCEDURES FOR THE AWARD OF PUBLIC SUPPLY CONTRACTS ( OFFICIAL JOURNAL 1977 , L 13 , P . 1 ), THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY ;

2.ORDERS THE DEFENDANT TO PAY THE COSTS .