Avis juridique important

Judgment of the Court of 8 May 1991. - Commission of the European Communities v Italian Republic. - Failure of a State to fulfil its obligations - Statistical returns in respect of carriage of goods by road - Non-compliance with a judgment of the Court. - Case C-266/89. European Court reports 1991 Page I-02411

Parties Grounds Decision on costs Operative part

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Actions against Member States for failure to fulfil obligations - Judgment of the Court declaring that a Member State had failed to fulfil its obligations - Non-compliance

(EEC Treaty, Arts 169 and 171)

In Case C-266/89,

Commission of the European Communities, represented by Sergio Fabro, a member of its Legal Department, acting as Agent, 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 Professor Luigi Ferrari Bravo, Head of the Servizio del Contenzioso Diplomatico at the Ministry for Foreign Affairs, acting as Agent, assisted by 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 persisting in not implementing Council Directive 78/546/EEC of 12 June 1978 on statistical returns in respect of carriage of goods by road, as part of regional statistics (OJ L 168, p. 29) notwithstanding the judgment of the Court of Justice of 11 July 1985, Case 101/84 Commission v Italy [1985] ECR 2629, the Italian Republic has failed to fulfil its obligations under Article 171 of the EEC Treaty.

THE COURT,

composed of O. Due, President, G. F. Mancini, T. F. O' Higgins and G. C. Moitinho de Almeida, Presidents of Chambers, C. N. Kakouris, F. A. Schockweiler and M. Zuleeg, Judges,

Advocate General: M. Darmon,

Registrar: H. A. Ruehl, Principal Administrator,

having regard to the Report for the Hearing,

having heard oral argument for the parties at the hearing on 23 January 1991, at which the Commission was represented by Antonio Aresu and Guido Berardis, members of its Legal Department, acting as Agents, and the Italian Republic by Ivo Braguglia, acting as Agent,

having heard the Opinion of the Advocate General delivered at the sitting on 28 February 1991,

gives the following

Judgment

1 By an application lodged at the Court Registry on 23 August 1989, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that the Italian Republic, by not taking the necessary measures to comply with the judgment of the Court of 11 July 1985, in Case 101/84 Commission v Italy [1985] ECR 2629, has failed to fulfil its obligations under Article 171 of the EEC Treaty.

2 In that judgment, the Court declared that

"by failing to compile statistical returns in respect of carriage of goods by road in accordance with the rules laid down in Council Directive 78/546/EEC of 12 June 1978 on statistical returns in respect of carriage of goods by road, as part of regional statistics (OJ 1978 L 168, p. 29), the Italian Republic has failed to fulfil its obligations under that directive".

3 Several months after the judgment of the Court, the Commission, considering that the Italian Republic had not complied with the judgment, gave the Italian Republic formal notice, by a letter of 22 June 1988, to fulfil its obligations. The Commission regarded the Italian Republic' s response as insufficient and on 10 April 1989 delivered a reasoned opinion. The Italian Republic replied by letter of 28 June 1989 sending further information. The Commission considered that information to be incomplete and 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 did not contest the Commission' s allegations of fact that it did not comply satisfactorily with the said judgment.

6 However, for the first time at the oral procedure, the Italian Republic claimed that the failure forming the subject-matter of this action concerned its omission relating to statistical returns in respect of carriage of goods by road required by Council Directive 78/546/EEC for the years subsequent to the judgment of 11 July 1985. If this does constitute a failure to fulfil obligations under the directive it is a new failure and is not, in any event, an infringement of Article 171 of the EEC Treaty, as the failure established in the 11 July 1985 judgment related to the years prior to that judgment.

7 The Italian Republic' s argument is based on the idea that for each year there is a separate obligation on the Member States to compile the statistical data required by Directive 78/546. As the compilation is annual, there is a separate failure for each year. Consequently, the Commission' s complaints regarding the non-compliance with the directive for the years subsequent to 1985 are not covered by the judgment of 11 July 1985 and the action, being based on Article 171 of the Treaty, should be dismissed.

8 Irrespective of the late stage at which it was raised, the Italian Republic' s argument cannot be accepted.

9 It is true that, in support of its complaints, the Commission relies only, in its application, on failures in the years 1986 to 1988 and it does not complain of the Italian Republic not having compiled statistical returns for the years prior to 1985. It is also true that Directive 78/546 requires Member States to compile the statistical data it prescribes annually.

10 However, it should be noted that Article 10 of the directive imposes the general duty on Member States to take the measures necessary to comply with the directive not later than 1 January 1979.

11 It follows from that provision that Member States are obliged to implement a system for regular, specific transmission of the statistical data provided for by the directive. Thus, the duty incumbent on Member States in this regard is a single obligation even if its effects are manifest each year.

12 The judgment of the Court of 11 July 1985 refers to this fundamental duty. It follows that the Italian Republic' s persistence in not compiling the statistical data for the years subsequent to 1985 is a failure to fulfil that same duty, as found in that judgment.

13 In the light of the foregoing, it should be declared that by persisting in not compiling the statistical returns in respect of carriage of goods by road in accordance with the rules laid down in Directive 78/546 on statistical returns in respect of carriage of goods by road, as part of regional statistics, the Italian Republic has failed to fulfil its obligations under that directive and under Article 171 of the EEC Treaty.

Costs

14 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 failed in its submissions, it must be ordered to pay the costs.

On those grounds,

THE COURT

hereby:

(1) Declares that by persisting in not compiling the statistical returns in respect of carriage of goods by road in accordance with the rules laid down in Council Directive 78/546/EEC of 12 June 1978 on statistical returns in respect of carriage of goods by road, as part of regional statistics, the Italian Republic has failed to fulfil its obligations under that directive and under Article 171 of the EEC Treaty;

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