(Failure of a Member State to fulfil obligations – Article 10 EC – Cooperation with the Community institutions – Failure to forward information to the Commission)

Summary of the Judgment

Member States – Obligations – Supervisory task conferred on the Commission – Duty on the part of Member States – Cooperation in investigations relating to a failure by a Member State to fulfil obligations

(Arts 10 EC and 226 EC)

—

JUDGMENT OF THE COURT (Second Chamber) 13 July 2004(1)

(Failure of a Member State to fulfil obligations – Article 10 EC – Cooperation with the Community institutions – Failure to forward information to the Commission)

In Case C-82/03,

Commission of the European Communities, represented by A. Aresu, acting as Agent, with an address for service in Luxembourg,

applicant,

Italian Republic, represented by I.M. Braguglia, acting as Agent, assisted by A. Cingolo and P. Gentili, avvocati dello Stato, with an address for service in Luxembourg,

defendant,

APPLICATION for a declaration that, by failing genuinely to cooperate with the Commission in a case concerning the health and safety of workers, the Italian Republic has failed to fulfil its obligations under Article 10 EC,

THE COURT (Second Chamber),

composed of: C.W.A. Timmermans, President of the Chamber, C. Gulmann, J.N. Cunha Rodrigues, F. Macken and N. Colneric (Rapporteur), Judges,

Advocate General: M. Poiares Maduro, Registrar: R. Grass,

after hearing the Opinion of the Advocate General at the hearing on 1 April 2004,

gives the following

By application lodged at the Court Registry on 25 February 2003, the Commission of the European Communities brought an action under Article 226 EC in which it seeks a declaration that, by failing genuinely to cooperate with the Commission in a case concerning the health and safety of workers, the Italian Republic has failed to fulfil its obligations under Article 10 EC.

Article 10 EC provides:

‘Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community’s tasks. They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty.’

Pre-litigation procedure

In 2000 the Commission received a complaint from an economic operator concerning the application, within the Italian legal system, of Council Directive 89/655/EEC of 30 November 1989 concerning the minimum safety and health requirements for the use of work equipment by workers at work (second individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1989 L 393, p. 13). The complainant submitted that the safety requirements set out in points 2.5, 2.8, 2.14, 2.16 and 2.19 of Annex I to Directive 89/655 had not been complied with in one waste water treatment plant.

The Commission wrote to the Italian Republic on 3 August 2000 requesting information in regard to the matters under complaint to enable it to examine the situation in greater detail.

5

In the absence of any reply by the Italian authorities to this first letter, the Commission sent a second letter to the Italian Republic on 19 March 2001 requesting information. No answer to this second letter was forthcoming either.

6

According to those letters, the infringements set out in the complaint received by the Commission relate to a ‘waste water treatment plant in the commune of Mandello del Lario in Lombardy’.

7

As it formed the view, in particular, that the lack of any reply by the Italian authorities pointed to an absence of genuine cooperation, for the purposes of Article 10 EC, on the part of the Italian Government, the Commission instituted the procedure laid down in Article 226 EC. After putting the Italian Republic on notice to submit its observations, the Commission issued a reasoned opinion on 18 July 2002 in which it called on that Member State to adopt the measures necessary for compliance within two months of its notification.

In the absence of any reply from the Italian authorities, the Commission brought the present action.

The action

Arguments of the parties

9

The Commission submits that it has established that there has been no cooperation on the part of the Italian authorities, which, despite the numerous contacts made by the Commission, has not forwarded any information on the matters highlighted by the complainant. By its persistent silence, the Italian Government has frustrated efforts to uncover the facts vital to a detailed examination of the complaint. This lack of cooperation is at variance with both the spirit and the wording of the obligation to provide genuine cooperation which Article 10 EC imposes on the Member States.

The Italian Government submits that the action is inadmissible and in any event unfounded.

11

It argues that the application does not set out the minimum factual context which is vital for the exercise of the rights of the defence and for the subsequent judicial decision. Neither the application nor any of the documents annexed to it provides any information on the name and location of the plant which is the subject of the complaint.

12

This, the Italian Government submits, creates an objective difficulty for the Italian authorities in identifying the supervisory bodies responsible for safeguarding workers with a view to being able rapidly to conduct targeted inspections. Responsibility for the deadlock reached in this case rests exclusively with the Commission.

Findings of the Court

The action is admissible in so far as the application meets the requirements of the first paragraph of Article 21 of the Statute of the Court of Justice and Article 38(1) of the Rules of Procedure, in particular with regard to the identification of the subject-matter of the dispute and the brief statement of the pleas in law on which the application is based. The head of complaint in issue is that of infringement of Article 10 EC through failure to provide any information on the matters which are the subject of a complaint and which were first set out in the letter of 3 August 2000. The Italian Republic was perfectly able to exercise its rights of defence in regard to that head of complaint.

14

The action is also well founded.

15

Article 10 EC makes it clear that the Member States are required to cooperate in good faith with the enquiries of the Commission pursuant to Article 226 EC, and to provide the Commission with all the information requested for that purpose (see, inter alia, Case 192/84 Commission v Greece [1985] ECR 3967, paragraph 19, and Case C-478/01 Commission v Luxembourg [2003] ECR I-2351, paragraph 24).

16

Even after being requested to do so on several occasions, the Italian Republic failed to provide the information sought.

17

The place which is the subject of the complaint is clearly identified in the letters which the Commission sent before it instituted the pre-litigation procedure and to which it refers in its letter of formal notice of 23 October 2001 and in the reasoned opinion of 18 July 2002. The Italian authorities thus had at their disposal the facts enabling them to reply to the Commission’s request.

18

It must accordingly be held that, by failing genuinely to cooperate with the Commission in a case concerning the health and safety of workers in a waste water treatment plant situated in the commune of Mandello del Lario in Lombardy (Italy), the Italian Republic has failed to fulfil its obligations under Article 10 EC.

Costs

19

Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the Commission has asked that costs be awarded against the Italian Republic, and as the latter has been unsuccessful, the Italian Republic must be ordered to pay the costs.

On those grounds,

THE COURT (Second Chamber) hereby:

—

Timmermans

Gulmann

Cunha Rodrigues

Macken

Colneric

Delivered in open court in Luxembourg on 13 July 2004.

—

1 – Language of the case: Italian.