61981J0028

1 . MEMBER STATES - OBLIGATIONS - IMPLEMENTATION OF DIRECTIVES - ABSENCE - JUSTIFICATION - NOT POSSIBLE

( EEC TREATY , ART . 169 )

2 . APPLICATIONS FOR A DECLARATION THAT A MEMBER STATE HAS FAILED TO FULFIL ITS OBLIGATIONS - POWERS OF THE COURT - LIMITS - EXTENSION OF THE PERIOD LAID DOWN IN THE REASONED OPINION - POWERS OF THE COMMISSION

( EEC TREATY , ART . 169 )

1 . 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 RESULTING FROM COMMUNITY DIRECTIVES .

2 . THE POWERS CONFERRED ON THE COURT IN RELATION TO APPLICATIONS UNDER ARTICLE 169 OF THE TREATY DO NOT INCLUDE THE POWER TO SUBSTITUTE A DIFFERENT PERIOD FOR THAT LAID DOWN BY THE COMMISSION PURSUANT TO ARTICLE 169 OF ITS REASONED OPINION , ALTHOUGH THE LEGALITY OF THAT OPINION IS SUBJECT TO REVIEW BY THE COURT . SUBJECT TO THE SAME RESERVATION , IT IS FOR THE COMMISSION TO DECIDE WHETHER SUCH A REQUEST FROM A MEMBER STATE IS TO BE GRANTED .

IN CASE 28/81

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY GIAN PIERO ALESSI , A MEMBER OF THE LEGAL DEPARTMENT , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF THE LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

APPLICANT ,

V

ITALIAN REPUBLIC , REPRESENTED BY ITS AGENT , ARNALDO SQUILLANTE , CAPO DEL SERVIZIO CONTENZIOSO DIPLOMATICO , TRATTATI ED AFFARI LEGISLATIVI ( HEAD OF THE DEPARTMENT OF DIPLOMATIC LEGAL AFFAIRS , TREATIES AND LEGISLATIVE BUSINESS ) REPRESENTED AND ASSISTED BY GUIDO FIENGA , 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 FAILING TO ADOPT WITHIN THE PRESCRIBED PERIOD THE PROVISIONS NEEDED TO COMPLY WITH COUNCIL DIRECTIVE NO 74/561/EEC OF 12 NOVEMBER 1974 ON ADMISSION TO THE OCCUPATION OF ROAD HAULAGE OPERATOR IN NATIONAL AND INTERNATIONAL TRANSPORT OPERATIONS ( OFFICIAL JOURNAL L 308 , P . 18 ),

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 18 FEBRUARY 1981 THE COMMISSION BROUGHT AN ACTION UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT THE ITALIAN REPUBLIC HAD FAILED TO FULFIL ONE OF ITS OBLIGATIONS UNDER THE TREATY BY FAILING TO ADOPT WITHIN THE PRESCRIBED PERIOD THE PROVISIONS NEEDED IN ORDER TO COMPLY WITH COUNCIL DIRECTIVE NO 74/561 OF 12 NOVEMBER 1974 ON ADMISSION TO THE OCCUPATION OF ROAD HAULAGE OPERATOR IN NATIONAL AND INTERNATIONAL TRANSPORT OPERATIONS ( OFFICIAL JOURNAL L 308 , P . 18 ).

2 BY VIRTUE OF ARTICLE 7 OF COUNCIL DIRECTIVE NO 74/561 MEMBER STATES WERE REQUIRED TO ADOPT THE MEASURES NECESSARY FOR IMPLEMENTATION OF THE DIRECTIVE WITHIN A PERIOD EXPIRING ON 1 JANUARY 1977 .

3 THE ITALIAN GOVERNMENT DOES NOT DISPUTE THE FACT THAT IT HAS NOT SATISFIED THAT OBLIGATION . IT EXPLAINS THAT THE DIRECTIVE IN QUESTION HAS BEEN INCLUDED FOR IMPLEMENTATION IN A DRAFT LAW WHICH IS NOW UNDER CONSIDERATION BY THE CHAMBER OF DEPUTIES . THE DRAFT WAS NOT TABLED UNTIL 12 DECEMBER 1980 OWING TO THE DETAILED SCRUTINY TO WHICH IT WAS FIRST SUBJECTED BY ALL THE ADMINISTRATIVE AUTHORITIES CONCERNED . THE ITALIAN GOVERNMENT STATES THAT IT HAS ASKED THE AUTHORITIES CONCERNED TO EXPEDITE THE PROCEDURE FOR APPROVING THE DRAFT LAW AND HOPES TO OBTAIN APPROVAL WITHIN THE SHORTEST POSSIBLE TIME . THE ITALIAN GOVERNMENT CLAIMS THAT IN THE CIRCUMSTANCES IT MAY BE CONSIDERED THAT THE OBJECT OF THE ACTION HAS BEEN ELIMINATED IN SUBSTANCE SO THAT THIS APPLICATION HAS BECOME DEVOID OF PURPOSE .

4 THOSE CIRCUMSTANCES DO NOT EXPUNGE THE FAILURE OF THE ITALIAN REPUBLIC TO FULFIL ITS OBLIGATIONS . ACCORDING TO THE WELL-ESTABLISHED CASE-LAW A MEMBER STATE MAY NOT PLEAD PROVISIONS , PRACTICES OR CIRCUMSTANCES IN ITS INTERNAL LEGAL SYSTEM IN ORDER TO JUSTIFY A FAILURE TO COMPLY WITH OBLIGATIONS UNDER COMMUNITY DIRECTIVES .

5 IN THE COURSE OF THE HEARING THE ITALIAN GOVERNMENT REQUESTED THE COURT TO GRANT IT AN EXTENSION OF THE PERIOD ALLOWED BY THE COMMISSION PURSUANT TO ARTICLE 169 OF THE TREATY FOR FULFILLING THE OBLIGATIONS UNDER THE DIRECTIVE IN QUESTION .

6 THE POWERS CONFERRED ON THE COURT IN RELATION TO APPLICATIONS UNDER ARTICLE 169 OF THE TREATY DO NOT INCLUDE THE POWER TO SUBSTITUTE A DIFFERENT PERIOD FOR THAT LAID DOWN BY THE COMMISSION PURSUANT TO ARTICLE 169 IN ITS REASONED OPINION , ALTHOUGH THE LEGALITY OF THAT OPINION IS SUBJECT TO REVIEW BY THE COURT . SUBJECT TO THE SAME RESERVATION , IT IS FOR THE COMMISSION TO DECIDE WHETHER SUCH A REQUEST FROM A MEMBER STATE IS TO BE GRANTED .

7 IT MUST THEREFORE BE HELD THAT BY FAILING TO ADOPT WITHIN THE PRESCRIBED PERIOD THE PROVISIONS NEEDED IN ORDER TO COMPLY WITH COUNCIL DIRECTIVE NO 74/561 OF 12 NOVEMBER 1974 THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ONE OF ITS OBLIGATIONS UNDER THE TREATY .

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

9 SINCE THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS , IT MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,

THE COURT

HEREBY :

1 . DECLARES THAT , BY FAILING TO ADOPT WITHIN THE PRESCRIBED PERIOD THE PROVISIONS NEEDED IN ORDER TO COMPLY WITH COUNCIL DIRECTIVE NO 74/561 OF 12 NOVEMBER 1974 ON ADMISSION TO THE OCCUPATION OF ROAD HAULAGE OPERATOR IN NATIONAL AND INTERNATIONAL TRANSPORT OPERATIONS ( OFFICIAL JOURNAL L 308 , P . 18 ), THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ONE OF ITS OBLIGATIONS UNDER THE TREATY ;

2 . ORDERS THE DEFENDANT TO PAY THE COSTS .