Report for the Hearing in Case C-139/92

I — Legislative background

Council Directive 83/189/EEC of 28 March 1893 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1983 L 109, p. 8, as amended by Council Directive 88/182/EEC of 22 March 1988, OJ 1988 L 81, p. 75) has the aim of identifying and eliminating or reducing potential barriers to trade, even before technical rules are actually adopted by the Member States. To that end, Article 8(1) of the directive provides that Member States are immediately to communicate to the Commission any draft technical regulation, except where such technical regulation merely transposes the full text of an international or European standard, and to indicate the grounds which make the enactment of such a technical regulation necessary. The Commission is to notify the other Member States immediately of any draft it has received.

Article 8(2) provides that the Commission and the Member States may make comments to the Member State which has forwarded a draft technical regulation and that that Member State is to take such comments into account as far as possible in the subsequent preparation of the technical regulation.

Furthermore, Article 9 of the directive provides that Member States are to postpone the adoption of a draft technical regulation for six months from the date of the notification referred to in Article 8(1) if the Commission or another Member State delivers a detailed opinion, within three months of that date, to the effect that the measure envisaged must be amended in order to eliminate or reduce any barriers which it might create to the free movement of goods.

Article 10 of the directive provides that Articles 8 and 9 are not to apply where Member States honour their obligations arising out of Community directives or commitments arising out of an international agreement where they result in the adoption of uniform technical specifications in the Community.

II — The facts

1. On 5 November 1987 the Italian Ministry of Merchant Shipping adopted Ministerial Decree No 514 laying down the Rules for the definition and verification of the maximum output, the construction and installation of engines for pleasure craft. That decree was chiefly intended to implement Council Directive 80/181/EEC of 20 December 1979 on the approximation of the laws of the Member States relating to units of measurement (OJ 1980 L 39, p. 40). The provisions of the decree, which contained no transposition whatsoever of that directive, were essentially aimed at:

2. The Commission took the view that those provisions contained technical rules which had not been communicated to the Commission prior to their adoption as provided for in Directive 83/189/EEC and initiated the procedure laid down in Article 169 of the Treaty against the Italian Republic.

III — Procedure and forms of order sought by the parties

The Commission's application was lodged at the Court Registry on 30 April 1992.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.

The Commission claims that the Court should:

The Italian Republic contends that the Court should:

IV — Submissions and arguments of the parties

The Commission states by way of preliminary observation that the Italian Government does not dispute the fact that it did not communicate Decree No 514 to the Commission at the draft stage and, accordingly, that it infringed Articles 8 and 9 of Directive 83/189/EEC.

According to the Commission, there is a difference of opinion as to the best way of bringing the infringement to an end.

In the Commission's view the Italian Republic should have suspended the provisions of the Ministerial Decree at issue, which did not constitute the mere transposition of Directive 80/181/EEC. Subsequently those provisions could be notified at the draft stage.

The Commission states that the idea of sanatoria ex post represented by the belated communication of a provision which is already in force cannot constitute an appropriate way of complying with the directive, since the procedural mechanism of that directive (Articles 8 and 9) provides that the technical rule submitted for examination must not yet be in force. The notification of a technical rule which is already in force therefore deprives the Community procedure of any effectiveness and renders it void.

Moreover, Member States would be strongly tempted to make a habit of breaching the obligation to notify their technical rules prior to adopting them and simply to forward to the Commission where necessary the texts of the rules already in force in the event of the infringement's coming to light.

Consequently, the Commission stresses that in the event of a manifest breach of the obligation of prior communication to the Commission laid down in the directive in question, it is essential for the Member State which is in default to suspend the contested technical rules as quickly as possible and to submit the measure, at the draft stage, to the Commission in the customary manner. That is the only way in which a Member State can retroactively eliminate a situation in which there is a breach of Community law, which would otherwise last throughout the entire period of validity of the contested national rules.

The decision to suspend or repeal the contentious part of Decree No 514 would not automatically revive the rules previously in force and, consequently, there would be neither an infringement of Article 30 of the EEC Treaty nor a breach of the general principles of the protection of legitimate expectations, legal certainty and proportionality.

In order to avoid the creation of a legal void, however, the Commission suggests the following solutions:

The Commission accepts that those solutions would not be very convenient and would not facilitate the task of the administration; they would, however, be practicable at the strictly legal level, which is the only level to be taken into account for the procedure in question.

The Italian Government accepts the validity of the charge that it did not formallv implement Directive 83/189/EEC. It therefore notified the Commission of the decree, albeit out of time, for the purpose of activating the procedure for the provision of information.

Since, however, the judgment which the Commission asks the Court to deliver would require the Italian Government, under Arti cle 171 of the Treaty, to comply with that judgment by nullifying the decree (retroactively) for the whole period during which, the Government was and is obliged, under Directive 83/189/EEC, not to implement the technical rules, this application mujt be regarded as inadmissible for lack of interest or, in any event, as unfounded.

As regards the inadmissibility of the action, the Italian Government claims that the result which the action seeks to achieve, in so far as it concerns the retroactive suspension of the technical rules which were not notified in advance, is contrary to the purpose? of Directive 83/189/EEC, which are to eliminate barriers to trade arising from technical rules. If the action were admissible that would have the effect of creating rather than eliminating such barriers, since, contrary to the Commission's claims, the suspension of Decree No 514 would have the elf cet, as faias national law is concerned, of bringing back into force the previous technical rules, which arc not compatible with Community law.

As regards the claim that the action is unfounded, the Italian Government observes that the application of Directive 83/189/EEC, in so far as it would eliminate a liberalizing effect, is contrary to Article 30 of the Treaty, to the principles of the protection of legitimate expectations and legal certainty and to the principle of proportionality.

Lastly, the Italian Government considers that in so far as the infringement alleged by the Commission consists not only in the failure to communicate to it at the draft stage the new technical rules envisaged by the Ministerial Decree (or, failing that, in not communicating to it the text of the decree after nullifying it) but also in not repealing the rules in force at the same time, that constitutes a new complaint, which is inadmissible because it was not covered by either the reasoned opinion or the form of order sought by the Commission in its application.

In both the reasoned opinion and the application the Commission complained only of the breach of Articles 8 and 9 of Directive 83/189/EEC. Those provisions concern only the notification in draft form of the measures to be adopted and in no way relate to an alleged obligation to repeal the provisions in force. The obligation to repeal the technical rules which the Member State decides to replace by submitting a draft of new rules can presumably arise only under Article 30 of the Treaty, the infringement of which was not alleged by the Commission.

Moreover, if the reasoned opinion had been formulated in the terms which have only just been disclosed by the Commission, the Italian Government could easily have satisfied the Commission's requirements by making use of the options granted by Directive 83/189/EEC, that is by:

1 Language of the case: Italian.