Avis juridique important

Judgment of the Court of 13 December 1990. - Commission of the European Communities v Italian Republic. - Failure of a Member State to fulfil its obligations - Failure to transpose a directive. - Case C-240/89. European Court reports 1990 Page I-04853

Summary Parties Grounds Decision on costs Operative part

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Member States - Obligations - Implementation of directives - Failure - Justification - Not acceptable

( 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 the obligations and time-limits laid down in Community directives .

In Case C-240/89,

Commission of the European Communities, represented by Dimitrios Gouloussis and Giuliano Marenco, Legal Advisers, acting as Agents, with an address for service in Luxembourg at the office of Guido Berardis, a member of its Legal Department, Wagner Centre, Kirchberg,

applicant,

v

Italian Republic, represented by Luigi Ferrari Bravo, Head of the Diplomatic Legal Service in the Ministry of Foreign Affairs, acting as Agent, assisted by Pier Giorgio Ferri, avvocato dello Stato, and Ivo Braguglia, 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 measures necessary to implement in national law Council Directive 83/477/EEC of 19 September 1983 on the protection of workers from the risks relating to exposure to asbestos at work ( Official Journal 1983 L 263, p . 25 ), other than measures relating to asbestos-mining activities, the Italian Republic has failed to fulfil its obligations under the EEC Treaty,

THE COURT,

composed of : O . Due, President, G . F . Mancini, T . F . O' Higgins and J . C . Moitinho de Almeida ( Presidents of Chambers ), C . N . Kakouris, F . A . Schockweiler, F . Grévisse, M . Zuleeg and P . J . G . Kapteyn, Judges,

Advocate General : F . G . Jacobs

Registrar : J . A . Pompe, Deputy Registrar,

having regard to the Report for the Hearing,

after hearing argument from the parties at the hearing on 20 November 1990,

after hearing the Opinion of the Advocate General delivered at the sitting on 20 November 1990,

gives the following

Judgment

1 By application lodged at the Court Registry on 31 July 1989, 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 measures necessary to implement in national law Council Directive 83/477/EEC of 19 September 1983 on the protection of workers from the risks relating to exposure to asbestos at work ( Official Journal 1983 L 263, p . 25 ), other than measures relating to asbestos-mining activities, the Italian Republic had failed to fulfil its obligations under the EEC Treaty .

2 Under Article 18(1 ) of Directive 83/477, Member States are to adopt the laws, regulations and administrative provisions necessary to comply with the directive before 1 January 1987, and they are forthwith to inform the Commission thereof . That paragraph also specifies that the date 1 January 1987 is postponed to 1 January 1990 in the case of asbestos-mining activities . Under Article 18(2 ), Member States are to communicate to the Commission the provisions of national law which they adopt in the field covered by the directive .

3 Since the Commission had not received any communication from the Italian Republic within the prescribed period, on 16 November 1987 it served formal notice on the Italian Republic requesting it to submit its observations on the subject within two months . As the Italian Republic' s answer dated 5 February 1988 was not satisfactory, the Commission delivered a reasoned opinion on 18 January 1989 . When no answer was received to that opinion, the Commission brought the present action .

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 or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

5 The Italian Republic, while essentially acknowledging that measures necessary to transpose the directive into national law have not yet been adopted, claims that Italian law already contains a number of general provisions aimed at safeguarding the health of workers and that it has also taken the specific step of applying to Parliament for a delegation of legislative powers in order to adopt, by a decree of the President of the Republic, the rules necessary to transpose the many directives concerning the health and protection of workers, including the directive in question . At the hearing it stated that, as a result, Law No 112 was promulgated and published on 30 July 1990, but points out that some time will be necessary in order to implement the directive in issue .

6 As the Court has consistently held, 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 and time-limits laid down in directives .

7 It must therefore be found that by failing to adopt within the prescribed period measures to implement in national law Council Directive 83/477 of 19 September 1983 on the protection of workers from the risks relating to exposure to asbestos at work, other than measures relating to asbestos-mining activities, the Italian Republic has failed to fulfil its obligations under the EEC Treaty .

Costs

8 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 pleading . Since the Italian republic 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 measures to implement in national law Council Directive 83/477/EEC of 19 September 1983 on the protection of workers from the risks relating to exposure to asbestos at work, other than measures relating to asbestos-mining activities, the Italian Republic has failed to fulfil its obligations under the EEC Treaty;

( 2 ) Orders the Italian republic to pay the costs .