61986J0113

++++

1 . ACTION FOR FAILURE BY A MEMBER STATE TO FULFIL ITS OBLIGATIONS - SUBJECT-MATTER OF THE DISPUTE - DETERMINATION DURING THE PROCEDURE PRIOR TO THE ACTION - CONSIDERATION OF EVENTS WHICH TOOK PLACE AFTER THE DELIVERY OF THE REASONED OPINION - CONDITIONS - FACTS OF THE SAME KIND AND CONSTITUTING THE SAME CONDUCT AS THOSE REFERRED TO ORIGINALLY - OBSERVANCE OF THE RIGHTS OF THE DEFENCE

( EEC TREATY, ART . 169 )

2 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - EGGS - COLLECTION AND COMMUNICATION OF DATA ON THE STRUCTURE AND ACTIVITY OF HATCHERIES - OBLIGATIONS OF THE MEMBER STATES

( REGULATION NO 2782/75 OF THE COUNCIL, ART . 10; COMMISSION REGULATION NO 1868/77, ARTS 4 ( 1 ) AND 6 )

1 . THE SCOPE OF AN ACTION BROUGHT UNDER ARTICLE 169 OF THE TREATY IS DELIMITED BOTH BY THE PRELIMINARY ADMINISTRATIVE PROCEDURE PROVIDED FOR BY THAT ARTICLE AND BY THE CONCLUSIONS SET OUT IN THE APPLICATION, SINCE THE COMMISSION' S REASONED OPINION AND ITS APPLICATION MUST BE FOUNDED ON THE SAME GROUNDS AND SUBMISSIONS .

HOWEVER, WHERE THE ALLEGED BREACH OF OBLIGATIONS LIES IN A MEMBER STATE' S CONSISTENT DELAYS IN COMMUNICATING INFORMATION WHICH IT IS REQUIRED TO FORWARD TO THE COMMISSION ON A REGULAR BASIS, ANY DELAYS WHICH OCCUR AFTER THE DELIVERY OF THE REASONED OPINION ARE FACTS OF THE SAME KIND AS THOSE TO WHICH THE OPINION REFERRED AND WHICH CONSTITUTE THE SAME CONDUCT; THE SUBJECT-MATTER OF THE DISPUTE MAY THEREFORE ENCOMPASS THOSE DELAYS, IN PARTICULAR WHERE THE MEMBER STATE CONCERNED HAS, IN SUBMITTING ITS DEFENCE, CONCENTRATED ON THE COMMUNICATION OF DATA IN GENERAL, SO THAT THE RIGHTS OF THE DEFENCE ARE NOT IMPAIRED .

2 . THE PERIODS LAID DOWN IN ARTICLE 10 OF REGULATION NO 2782/75 AND ARTICLES 4 ( 1 ) AND 6 OF REGULATION NO 1868/77 FOR THE COMMUNICATION BY THE MEMBER STATES TO THE COMMISSION OF STATISTICAL RETURNS ON THE STRUCTURE AND ACTIVITY OF HATCHERIES ARE MANDATORY BUT THIS DOES NOT PRECLUDE A DEGREE OF FLEXIBILITY WHERE EXCEPTIONAL CIRCUMSTANCES EXIST .

THE NATIONAL AUTHORITIES ARE UNDER AN OBLIGATION TO ENSURE, BY MEANS OF AN APPROPRIATE SYSTEM OF VERIFICATION, THAT THE HATCHERIES FORWARD THE DATA TO THEM IN GOOD TIME SO AS TO ENABLE THE AUTHORITIES THEMSELVES TO PASS ON THE DATA TO THE COMMISSION WITHIN THE PRESCRIBED PERIODS, AND THEY CANNOT THEREFORE PLEAD IN THEIR OWN DEFENCE THE DELAYS CAUSED BY THE HATCHERIES IN ORDER TO JUSTIFY NON-OBSERVANCE OF THE PERIODS PRESCRIBED BY THE AFORESAID PROVISIONS .

IN CASE 113/86

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, GIANLUIGI CAMPOGRANDE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS, A MEMBER OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,

APPLICANT,

V

ITALIAN REPUBLIC, REPRESENTED BY LUIGI FERRARI BRAVO, HEAD OF THE DEPARTMENT FOR CONTENTIOUS DIPLOMATIC AFFAIRS IN THE MINISTRY OF FOREIGN AFFAIRS, ACTING AS AGENT, ASSISTED BY PIER GIORGIO FERRI, AVVOCATO DELLO STATO, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE ITALIAN EMBASSY, 5 RUE MARIE-ADELAIDE,

DEFENDANT,

APPLICATION FOR A DECLARATION THAT THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLE 10 OF REGULATION ( EEC ) NO 2782/75 OF THE COUNCIL OF 29 OCTOBER 1975 ON THE PRODUCTION AND MARKETING OF EGGS FOR HATCHING AND OF FARMYARD POULTRY CHICKS ( OFFICIAL JOURNAL 1975, L 282, P . 100 ) AND ARTICLES 4 ( 1 ) AND 6 OF COMMISSION REGULATION ( EEC ) NO 1868/77 OF 29 JULY 1977 LAYING DOWN DETAILED RULES OF APPLICATION FOR REGULATION ( EEC ) NO 2782/75 ( OFFICIAL JOURNAL 1977, L 209, P . 1 ),

THE COURT

COMPOSED OF : G . BOSCO, PRESIDENT OF CHAMBER, ACTING AS PRESIDENT, O . DUE ( PRESIDENT OF CHAMBER ), U . EVERLING, K . BAHLMANN, R . JOLIET, T . F . O' HIGGINS AND F . SCHOCKWEILER, JUDGES,

ADVOCATE GENERAL : J.L . DA CRUZ VILACA

REGISTRAR : B . PASTOR, ADMINISTRATOR

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 16 JUNE 1987,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 10 NOVEMBER 1987,

GIVES THE FOLLOWING

JUDGMENT

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 16 MAY 1986, THE COMMISSION OF THE EUROPEAN COMMUNITIES BROUGHT AN ACTION UNDER THE SECOND PARAGRAPH OF ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT BY FAILING TO COMMUNICATE WITHIN THE PRESCRIBED PERIODS THE STATISTICAL DATA PROVIDED FOR :

( I ) IN ARTICLE 10 OF REGULATION NO 2782/75 OF THE COUNCIL OF 29 OCTOBER 1975 ON THE PRODUCTION AND MARKETING OF EGGS FOR HATCHING AND OF FARMYARD POULTRY CHICKS,

( II ) AND IN ARTICLES 4 ( 1 ) AND 6 OF REGULATION NO 1868/77 OF 29 JULY 1977 LAYING DOWN DETAILED RULES OF APPLICATION FOR REGULATION NO 2782/75,

THE ITALIAN REPUBLIC HAD FAILED TO FULFIL ITS OBLIGATIONS UNDER THE AFORESAID REGULATIONS .

2 IN ORDER TO FACILITATE THE ADAPTATION OF SUPPLY TO DEMAND ON THE MARKET, REGULATION NO 2782/75 OF THE COUNCIL PROVIDES FOR MEASURES TO PERMIT THE INTRODUCTION OF SHORT-TERM AND LONG-TERM FORECASTS BASED ON THE KNOWLEDGE OF THE MEANS OF PRODUCTION EMPLOYED . FOR THAT PURPOSE, ARTICLE 9 OF THE REGULATION REQUIRES IN PARTICULAR EACH HATCHERY TO COMMUNICATE MONTHLY TO THE COMPETENT AGENCY OF THE MEMBER STATE THE NUMBER OF EGGS PLACED IN INCUBATION, THE NUMBER OF CHICKS HATCHED AND THE NUMBER OF CHICKS INTENDED FOR ACTUAL USE . ACCORDING TO ARTICLE 10 OF THAT REGULATION, THE MEMBER STATES ARE TO COMMUNICATE TO THE COMMISSION, AS SOON AS THE DATA REFERRED TO IN ARTICLE 9 ARE RECEIVED AND ANALYSED, A MONTHLY SUMMARY BASED ON THE DATA FOR THE PREVIOUS MONTH .

3 COMMISSION REGULATION NO 1868/77 FURTHER PROVIDES, IN ARTICLE 4 ( 1 ), THAT THE AFORESAID SUMMARY IS TO BE FORWARDED BY MEMBER STATES TO THE COMMISSION EACH CALENDAR MONTH NOT LATER THAN FOUR WEEKS AFTER THE END OF THE MONTH TO WHICH THE FIGURES REFER . FINALLY, ARTICLE 6 PROVIDES THAT BEFORE 30 JANUARY EACH YEAR, MEMBER STATES ARE TO SEND TO THE COMMISSION STATISTICS ON THE STRUCTURE AND ACTIVITY OF HATCHERIES .

4 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE FACTS OF THE CASE, THE PROCEDURE AND THE SUBMISSIONS AND ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .

SUBJECT-MATTER OF THE DISPUTE

5 WITH REGARD TO THE SUBJECT-MATTER OF THIS DISPUTE, IT MUST BE BORNE IN MIND THAT THE SCOPE OF AN ACTION BROUGHT UNDER ARTICLE 169 OF THE TREATY IS DELIMITED BOTH BY THE PRELIMINARY ADMINISTRATIVE PROCEDURE PROVIDED FOR BY THAT ARTICLE AND BY THE CONCLUSIONS SET OUT IN THE APPLICATION, SINCE THE COMMISSION' S REASONED OPINION AND ITS APPLICATION MUST BE FOUNDED ON THE SAME GROUNDS AND SUBMISSIONS ( SEE THE JUDGMENT OF 7 FEBRUARY 1984 IN CASE 166/82 COMMISSION V ITALIAN REPUBLIC (( 1984 )) ECR 459 ). IT IS CLEAR FROM THE DOCUMENTS BEFORE THE COURT THAT SOME OF THE DELAYS COMPLAINED OF IN THE APPLICATION OCCURRED AFTER THE REASONED OPINION WAS DELIVERED ON 24 APRIL 1985, INASMUCH AS THEY RELATE TO THE COMMUNICATION OF DATA THAT WERE TO BE FORWARDED AFTER THAT DATE .

6 IT MUST BE POINTED OUT, HOWEVER, THAT IN THE OPERATIVE PART OF ITS REASONED OPINION, THE COMMISSION ALLEGED IN GENERAL TERMS THAT, "BY NOT SENDING IT WITHIN THE PERIODS LAID DOWN THE STATISTICAL DATA" REFERRED TO IN ARTICLE 10 OF REGULATION NO 2782/75 OF THE COUNCIL AND ARTICLES 4 ( 1 ) AND 6 OF COMMISSION REGULATION NO 1868/77, THE ITALIAN REPUBLIC HAD FAILED TO FULFIL ITS OBLIGATIONS . IN THE STATEMENT OF REASONS FOR ITS OPINION, THE COMMISSION STATED THAT IT HAD SO FAR RECEIVED, FOLLOWING AN EXCHANGE OF LETTERS WITH THE ITALIAN GOVERNMENT IN 1983, ONLY COMPLETE MONTHLY DATA FOR JANUARY AND FEBRUARY 1983 AND SOME DATA FOR FEBRUARY, MARCH AND APRIL 1984, AND THAT THE LAST DULY COMPLETED ANNUAL STATISTICAL RETURN IT HAD RECEIVED WAS FOR 1982 .

7 THE COMMISSION SIMILARLY CONCLUDED IN ITS APPLICATION THAT THE COURT SHOULD DECLARE THAT "BY NOT SENDING, WITHIN THE PRESCRIBED PERIODS, THE STATISTICAL DATA ...", THE ITALIAN REPUBLIC HAD FAILED TO FULFIL ITS OBLIGATIONS .

8 IN SUPPORT OF THAT CONCLUSION, THE COMMISSION RELIES ON THE FACT THAT THE ITALIAN REPUBLIC HAS STILL NOT FORWARDED THE STATISTICAL RETURNS ON THE STRUCTURE AND ACTIVITY OF HATCHERIES FOR 1984 AND 1985, WHICH SHOULD HAVE BEEN FORWARDED BEFORE 30 JANUARY 1985 AND 30 JANUARY 1986 RESPECTIVELY . FURTHERMORE, THE MONTHLY DATA ARE STILL CONSISTENTLY BEING RETURNED APPROXIMATELY TWO MONTHS AFTER THE EXPIRY OF THE PERIOD PRESCRIBED BY ARTICLE 4 ( 1 ) OF REGULATION NO 1868/77 .

9 IT FOLLOWS THAT IN ITS APPLICATION THE COMMISSION IS REFERRING NOT TO SPECIFIC ACTS BUT TO A CONTINUING FAILURE ON THE PART OF THE ITALIAN GOVERNMENT TO FULFIL ITS OBLIGATION TO FORWARD THE DATA CONCERNED IN DUE TIME .

10 IN ITS REPLY THE COMMISSION ADMITS THAT WHEN ITS ACTION WAS BROUGHT THE STATISTICAL RETURNS FOR 1984 AND 1985 HAD ALREADY BEEN COMMUNICATED TO IT; HOWEVER, THE ITALIAN GOVERNMENT ACKNOWLEDGES THAT THOSE RETURNS, LIKE THE OTHER DATA REFERRED TO IN THE APPLICATION, WERE COMMUNICATED ONLY AFTER THE EXPIRY OF THE AFORESAID PERIODS . MOREOVER, THE ITALIAN GOVERNMENT HAS NOT CHALLENGED THE COMMISSION' S ALLEGATION, MADE IN ITS APPLICATION, TO THE EFFECT THAT THE MONTHLY DATA ARE STILL BEING SENT LATE .

11 IT MUST THEREFORE BE CONSIDERED THAT THE DELAYS IN THE COMMUNICATION OF DATA WHICH CONTINUED TO OCCUR AFTER THE REASONED OPINION WAS DELIVERED ARE FACTS OF THE SAME KIND AS THOSE TO WHICH THE OPINION REFERRED AND WHICH CONSTITUTE THE SAME CONDUCT . AS THE COURT HELD IN ITS JUDGMENT OF 22 MARCH 1983 IN CASE 42/82 COMMISSION V FRENCH REPUBLIC (( 1983 )) ECR 1013 ), THE SUBJECT-MATTER OF THE DISPUTE MAY, IN SUCH CIRCUMSTANCES, BE EXTENDED TO EVENTS WHICH TOOK PLACE AFTER THE REASONED OPINION WAS DELIVERED .

12 THE ARGUMENTS RAISED BY THE ITALIAN GOVERNMENT IN THE PROCEEDINGS BEFORE THE COURT LIKEWISE DO NOT RELATE TO SPECIFIC COMMUNICATIONS OF DATA BUT CONCERN THE COMMUNICATION OF DATA IN GENERAL . ACCORDINGLY, THE ITALIAN GOVERNMENT' S RIGHTS OF DEFENCE ARE NOT IMPAIRED BY THE COMMISSION' S APPROACH OF CRITICIZING IN GENERAL TERMS THE LATE COMMUNICATION OF THE DATA .

13 IT IS THEREFORE APPROPRIATE IN THIS CASE TO REGARD THE SUBJECT-MATTER OF THE DISPUTE AS BEING THE ITALIAN AUTHORITIES' FAILURE TO COMPLY WITH THE AFOREMENTIONED PERIODS, AS EVIDENCED BY THE CONTINUOUS DELAYS, WITHOUT THERE BEING ANY NEED TO CONSIDER EACH CASE OF LATE COMMUNICATION OF DATA OR TO EXCLUDE EVENTS WHICH TOOK PLACE AFTER THE DELIVERY OF THE REASONED OPINION .

THE ALLEGED BREACH OF OBLIGATIONS

14 IN RESPONSE TO THE CLAIM MADE AGAINST IT, AS SO DEFINED, CONCERNING THE OBLIGATION TO FORWARD THE STATISTICAL DATA IN QUESTION WITHIN THE PERIODS LAID DOWN IN ARTICLES 4 ( 1 ) AND 6 OF REGULATION NO 1868/77, THE ITALIAN GOVERNMENT CONTENDS THAT THOSE PERIODS ARE NOT RIGID AND MANDATORY BUT MERELY INDICATE THE LENGTH OF TIME WHICH MAY BE CONSIDERED SUFFICIENT IF THE HATCHERIES THEMSELVES FORWARD THE DATA IN QUESTION TO THE NATIONAL AUTHORITIES ON TIME . ACCORDING TO THE ITALIAN GOVERNMENT, THE COMMISSION IS ALSO CONFUSING THE MEMBER STATES' OBLIGATION TO FORWARD THE DATA SUPPLIED BY THE HATCHERIES TO THE COMMISSION QUICKLY, WHICH IS THE ONLY MATTER CONCERNED BY THIS APPLICATION, WITH THE MEMBER STATES' UNDERTAKING TO ENSURE THAT THE HATCHERIES COMPLY WITH THEIR OWN OBLIGATION IMPOSED UPON THEM BY THE REGULATION TO FORWARD THE DATA TO THE COMPETENT BODY IN GOOD TIME .

15 THAT REASONING CANNOT BE ACCEPTED . WITH REGARD TO THE QUESTION WHETHER THE PERIODS IN QUESTION ARE BINDING, IT MUST BE STATED THAT IN ARTICLE 17 OF REGULATION NO 2782/75 THE COUNCIL AUTHORIZED THE COMMISSION TO ADOPT DETAILED RULES FOR IMPLEMENTING THAT REGULATION AND THAT THE COMMISSION USED THAT AUTHORIZATION IN ARTICLES 4 ( 1 ) AND 6 OF REGULATION NO 1868/77 . THE WORDING OF THOSE PROVISIONS IS CLEAR AND UNEQUIVOCAL . SINCE THE SYSTEM OF FORECASTING MARKET TRENDS FOR THE PRODUCTS IN QUESTION, AS LAID DOWN BY REGULATION NO 2782/75, CAN FUNCTION ONLY IF THE RELEVANT DATA FOR THE COMMUNITY AS A WHOLE ARE COMPLETE AND REGULARLY UPDATED, THE PERIODS PRESCRIBED MUST BE REGARDED AS BEING MANDATORY .

16 HOWEVER, EXCEPTIONAL CIRCUMSTANCES MAY WARRANT A DEGREE OF FLEXIBILITY IN THE APPLICATION OF THOSE PERIODS . THE COMMISSION, BEARING SUCH CIRCUMSTANCES IN MIND, HAS BEEN PREPARED IN THE PAST, AS IT STATED AT THE HEARING, TO TOLERATE THE OCCASIONAL EXCEEDING OF PERIODS TO A SLIGHT EXTENT . HOWEVER, REPEATED DELAYS OVER A LONG PERIOD, SUCH AS THOSE AT ISSUE IN THIS CASE, WHICH MAY UNDERMINE THE SYSTEM OF FORECASTING MARKET TRENDS, MAY NOT BE JUSTIFIED ON THOSE GROUNDS .

17 IT IS TRUE THAT THE DATA IN QUESTION ARE PROVIDED BY THE HATCHERIES AND CANNOT BE PASSED ON TO THE COMMISSION WITHIN THE PERIODS PRESCRIBED UNLESS THE HATCHERIES FORWARD THEM TO THE NATIONAL AUTHORITIES ON TIME, PURSUANT TO ARTICLE 9 OF COUNCIL REGULATION NO 2782/75 . HOWEVER, IT IS FOR THE NATIONAL AUTHORITIES TO ENSURE, BY MEANS OF AN APPROPRIATE SYSTEM OF VERIFICATION, THAT THE HATCHERIES FORWARD THE DATA TO THEM IN GOOD TIME SO AS TO ENABLE THE AUTHORITIES THEMSELVES TO PASS ON THE DATA TO THE COMMISSION WITHIN THE PERIODS PRESCRIBED . ARTICLE 16 OF REGULATION NO 2782/75, WHICH ENTERED INTO FORCE ON 1 NOVEMBER 1975, EXPRESSLY PROVIDES THAT CHECKS TO ENSURE THAT THE PROVISIONS IN QUESTION ARE OBSERVED ARE TO BE CARRIED OUT BY THE AGENCIES APPOINTED BY EACH MEMBER STATE .

18 IT MUST THEREFORE BE HELD THAT IN NOT COMMUNICATING WITHIN THE PRESCRIBED PERIODS THE STATISTICAL DATA PROVIDED FOR IN ARTICLE 10 OF REGULATION NO 2782/75 OF THE COUNCIL AND IN ARTICLES 4 ( 1 ) AND 6 OF COMMISSION REGULATION NO 1868/77, THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY .

COSTS

19 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . AS 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 IN NOT COMMUNICATING WITHIN THE PRESCRIBED PERIODS THE STATISTICAL DATA PROVIDED FOR IN ARTICLE 10 OF REGULATION ( EEC ) NO 2782/75 OF THE COUNCIL AND IN ARTICLES 4 ( 1 ) AND 6 OF COMMISSION REGULATION ( EEC ) NO 1868/77, THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY;

( 2 ) ORDERS THE ITALIAN REPUBLIC TO PAY THE COSTS .