Opinion of Mr Advocate General Mayras

Mr President,

Members of the Court,

These actions for failure to fulfil obligations, brought by the Commission against Italy, are not without some legal interest in so far as they are of such a nature as to provide the Court with the opportunity to reply to implied criticism of its settled case-law by reaffirming a number of principles which it has already established concerning this type of proceedings.

As far as the facts are concerned, the situation which gave rise to these actions is straightforward. The Commission is accusing Italy of a failure to fulfil its obligations under Council Directives No 73/404 of 22 November 1973 on the approximation of the laws of the Member States relating to detergents and No 75/716 of 24 November 1975 relating to the sulphur content of certain liquid fuels.

These directives, both of which relate to Article 100 of the Treaty, come under both the General Programme for the elimination of technical barriers to trade which result from disparities between the provisions laid down by law, regulation or administrative action in Member States as well as under the Community's Programme of Action on the Environment.

The object of Directive No 73/404 is to eliminate disparities between the laws of the Member States on the biodegradability of detergents in order, in particular, to reduce water pollution.

Directive No 75/716 is intended to approximate national laws on the maximum sulphur content of fuels, in particular of gas oils, in order to reduce pollution of the atmosphere by sulphur dioxide.

Article 8 (1) of both regulations provides that the Member States shall put into force the national legal measures necessary to comply with the directives within a certain period from their notification and shall forthwith inform the Commission thereof, and Article 8 (2) provides that they must communicate the text of these measures to that institution.

The period allowed by the first directive, on detergents, was eighteen months and as the directive was notified on 27 November 1973, the period expired on 27 May 1975. The period prescribed by the directive on sulphur was nine months and since the directive was notified on 25 November 1975, it ran out on 26 August 1976.

On those dates the Commission had not received from the Italian Republic any of the required communications. However, it did not begin the administrative stage of the procedure provided for by Article 169 of the Treaty until 29 October 1976 in the case of sulphur and 23 November 1976 in the case of detergents.

The Italian Government replied in both cases that it had drawn up draft laws taking into account the provisions of the directives in order to transpose them into national law. But the Commission never received the text of the legislative instruments adopted or any information leading it to believe that Italy had actually taken the required measures. Therefore, on 23 December 1977 in the case of detergents, and on 23 January 1978 in the case of sulphur, it sent the reasoned opinions provided for under the first paragraph of Article 169.

In the case of detergents, Italy replied by requesting an extension of two months for the period which it had been allowed for compliance with the directive. This was granted. On 28 February 1978 it further reported that the draft law needed to introduce the directive into Italian law was under scrutiny by the Senate. No further information was subsequently received by the Commission.

The Commission, however, waited until June 1979 before starting the judicial stage of the procedure for failure to fulfil obligations.

After receipt of the reasoned opinion in the sulphur case, all Italy did was to send off, as late as 16 March 1979, the text of a draft law designed to delegate to the Government the power to adopt the legislative measures needed to comply with a series of directives, including the one in question. In this case, too, no further information was received by the Commission.

The Commission showed some understanding once again in this case by waiting until June 1979 before bringing an action before the Court.

In its defence the Italian Government first of all puts forward an objection of inadmissibility derived from the lack of any real reasons for initiating the actions for failure to fulfil obligations or for the opinions which preceded them.

As regards the opinion required by the first paragraph of Article 169, longestablished case-law states that it is to be considered to contain a sufficient statement of reasons to satisfy the law when it contains ... a coherent statement of the reasons which led the Commission to believe that the State in question has failed to fulfil an obligation under the Treaty (judgment of 19 December 1961, Case 7/61, [1961] ECR 327) or under an instrument adopted for its application. It seems to me that this statement must be extended to these two cases.

In these cases, in fact, the belief of the Commission is based upon the failure by Italy to take, within the required time, the required measures to comply with the directives and to inform the Commission thereof. In actual fact, a mere reading of the reasoned opinions and even the Commission's first letters shows that these complaints, which by their nature do not require long arguments, were clearly and concisely set out.

However, the defendant criticizes the applicant on account of the essentially formal nature of the complaints consisting of a somewhat mechanical recital of a delay in compliance, ignoring the actual circumstances which in its view justified such a delay. The Commission should have set out all the political, economic and administrative considerations which led it to bring its actions.

This line of argument does not take into account the provisions contained in each directive which oblige Member States to take all necessary measures to comply with them and to inform the Commission thereof. Moreover these obligations are merely an instance of the general duty to cooperate imposed by Article 5 of the Treaty which States must exercise in regard to the Community.

In addition they seem to me to be justified by a genuine practical reason. The number and complexity of directives would make it impossible for the Commission without the active assistance of the Member States to check that they had all been implemented.

It is even more clear that the Commission could not be required, before starting the procedure for failure to fulfil obligations at a time when it is already satisfied that the national law of a Member State does not comply with a directive, to ascertain further whether traders in the Member State concerned have in fact already complied with the directive.

Basically the Italian Republic admits the failure but makes a number of submissions in its defence many of which overlap. It consequently requests you to declare that it is only slow to adapt its law to Directives Nos 72/404 and 75/716 for reasons not involving any lack of diligence, and to order the parties to pay their own costs.

Clearly, at the stage of legal proceedings, it had no choice but to admit the failure which it had acknowledged throughout the administrative stage. Ample evidence of this is provided by the correspondence between its Permanent Representation and the Commission, and indeed by the submission to Parliament of draft laws intended precisely to bring this irregular situation to an end.

Consequently the Italian Government asks the Court to have regard to the circumstances giving rise to its delay in adopting the directives in question, namely the short duration and the premature end of Parliament's seventh legislature. In doing so the Court is asked to fall into line with the view of the majority of academic writers on international law that the assessment of the international liability of a State must take into account the factual circumstances which brought about the breach of its obligations.

This attempt to induce the Court to go back upon case-law whose consistency is a sure indication of its soundness does not seem acceptable to me. The Italian line of argument seems to me in fact to be ill-founded inasmuch as it pretends to ignore the specific object of the procedure for failure to fulfil obligations. It is not to call in question the liability of a State under the machinery of general international law; a judgment finding a failure to fulfil an obligation does not constitute a condemnation as I have already said in my opinion in Case 30/72 (Commission v Italy [1973] ECR 179), but only the objective establishment of a situation. The object of the procedure, is to ensure the uniform application of Community law in all Member States, a condition that is necessary to give a solid basis to the free movement of goods, the foundation of the Community. That is why any distinction between delay and refusal and the taking into account of the circumstances explaining factually the reasons existing in a country for its failure are incompatible with the very nature of the procedure.

As regards Council Directive No 73/404 of 23 November 1973, on the approximation of the laws of the Member States relating to detergents and No 75/716 of 24 November 1975 on the approximation of the laws of the Member States relating to the sulphur content of certain liquid fuels, I can only propose:

1 Translated from the French.