61994J0182

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1. Actions against Member States for failure to fulfil obligations ° Interest in bringing proceedings ° Not necessary for an interest to be shown in the case of the Commission

(EC Treaty, Art. 169)

2. Member States ° Obligations ° Implementation of directives ° Failure ° Justification on the ground of the subsequent adoption of amending directives ° Not permissible

(EC Treaty, Art. 169)

1. In the exercise of its powers under Article 169 of the Treaty, the Commission does not have to show the existence of an interest in bringing proceedings since, in the general interests of the Community, its function is to ensure that the provisions of the Treaty are applied by the Member States.

2. The fact that the Community institutions amend directives is not sufficient to release Member States from their obligation to comply with those directives within the prescribed period.

In Case C-182/94,

Commission of the European Communities, represented by Antonio Aresu, of its Legal Service, acting as Agent, with an address for service in Luxembourg at the office of Georgios Kremlis, of its Legal Service, Wagner Centre, Kirchberg,

applicant,

v

Italian Republic, represented by Umberto Leanza, Head of the Department for Legal Affairs in the Ministry for Foreign Affairs, acting as Agent, assisted by Maurizio Fiorilli, Avvocato dello Stato, with an address for service in Luxembourg at the Italian Embassy, 5 Rue Marie-Adélaïde,

defendant,

APPLICATION for a declaration that, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with Council Directive 89/392/EEC of 14 June 1989 on the approximation of the laws of the Member States relating to machinery (OJ 1989 L 183, p. 9) and Council Directive 91/368/EEC of 20 June 1991 amending Directive 89/392/EEC (OJ 1991 L 198, p. 16), the Italian Republic has failed to fulfil its obligations under Community law,

THE COURT (Fifth Chamber),

composed of: C. Gulmann (Rapporteur), President of the Chamber, P. Jann, D.A.O. Edward, J.-P. Puissochet and L. Sevón, Judges,

Advocate General: C.O. Lenz,

Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 30 March 1995,

gives the following

Judgment

1 By application lodged at the Court Registry on 29 June 1994 the Commission of the European Communities brought an action under Article 169 of the EC Treaty for a declaration that, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary in order to comply with Council Directive 89/392/EEC of 14 June 1989 on the approximation of the laws of the Member States relating to machinery (OJ 1989 L 183, p. 9) and Council Directive 91/368/EEC of 20 June 1991 amending Directive 89/392/EEC (OJ 1991 L 198, p. 16), the Italian Republic has failed to fulfil its obligations under Community law.

2 Under Article 13(1) of Directive 89/392/EEC and Article 3(1) of Directive 91/368/EEC, Member States are to adopt before 1 January 1992 the laws, regulations and administrative provisions necessary in order to comply with those directives.

3 The Commission submits that, by failing to adopt the provisions necessary for compliance with the directives before 1 January 1992, the Italian Republic has failed to fulfil its obligations under Community law.

4 The Italian Government does not dispute that Directives 89/392/EEC and 91/368/EEC were not transposed within the prescribed period. It argues, however, that the reasoned opinion of 28 May 1993 was issued when two directives amending Directive 89/392/EEC, namely Council Directive 93/44/EEC of 14 June 1993 (OJ 1993 L 175, p. 12) and Council Directive 93/68/EEC of 22 July 1993 (OJ 1993 L 220, p. 1), were in the course of being adopted. The action was then brought, although the period for transposing the two amending directives had not expired. It follows, in the defendant' s opinion, that through its action before the Court the Commission is seeking a declaration of failure to make the Italian legal system comply with Community legislation which is no longer current. The failure in question is therefore a merely formal failure to fulfil obligations, which cannot form the basis of an action under Article 169 of the Treaty. The Italian Government submits that the Commission' s application is inadmissible for lack of an interest in bringing proceedings.

5 On this point, it must be stated firstly that, as the Commission argues, it is settled case-law that in the exercise of its powers under Article 169 of the Treaty, the Commission does not have to show the existence of an interest in bringing proceedings since, in the general interests of the Community, its function is to ensure that the provisions of the Treaty are applied by the Member States (Judgment in Case 167/73 Commission v France [1974] ECR 359, paragraph 15).

6 Secondly, the fact that the Community institutions amend directives is not sufficient to release Member States from their obligation to comply with those directives within the prescribed period.

7 The Italian Government further observes that transposition of all the legislation in point was provided for by Law No 146/94 and that the measure effecting that transposition is in the process of being adopted.

8 Since transposition of the directives has not been effected, the Commission' s complaint of failure to fulfil obligations must be regarded as well founded.

9 Consequently, it must be held that, by not adopting within the prescribed period the laws, regulations and administrative provisions necessary in order to comply with Directives 89/392/EEC and 91/368/EEC, the Italian Republic has failed to fulfil its obligations under Community law.

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, it must be ordered to pay the costs.

On those grounds,

THE COURT (Fifth Chamber)

hereby:

1. Declares that, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary in order to comply with Council Directive 89/392/EEC of 14 June 1989 on the approximation of the laws of the Member States relating to machinery and Council Directive 91/368/EEC of 20 June 1991 amending Directive 89/392/EEC, the Italian Republic has failed to fulfil its obligations under Community law;

2. Orders the Italian Republic to pay the costs.