Avis juridique important

61981J0136

European Court reports 1982 Page 03547

Summary

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 OBLIGATIONS RESULTING FROM COMMUNITY DIRECTIVES .

SINCE THE GOVERNMENTS OF MEMBER STATES PARTICIPATE IN THE PREPARATORY WORK FOR DIRECTIVES THEY MUST BE IN A POSITION TO PREPARE , WITHIN THE PERIOD PRESCRIBED , THE DRAFT LEGISLATIVE PROVISIONS NECESSARY FOR THEIR IMPLEMENTATION .

Parties

IN CASE 136/81

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , ANTONINO ABATE , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

APPLICANT ,

ITALIAN REPUBLIC , REPRESENTED BY ARNALDO SQUILLANTE , PRESIDENT OF SECTION OF THE CONSIGLIO DI STATO ( STATE COUNCIL ) AND HEAD OF THE DEPARTMENT FOR CONTENTIOUS DIPLOMATIC AFFAIRS , TREATIES AND LEGISLATIVE MATTERS , ACTING AS AGENT , ASSISTED BY PIER GIORGIO FERRI , AVVOCATO DELLO STATO ( STATE ADVOCATE GENERAL ), WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE ITALIAN EMBASSY ,

DEFENDANT ,

Subject of the case

APPLICATION FOR A DECLARATION THAT BY NOT ADOPTING , WITHIN THE PRESCRIBED PERIOD , THE PROVISIONS NEEDED TO COMPLY WITH DIRECTIVE 77/91 , THE SECOND COUNCIL DIRECTIVE OF 13 DECEMBER 1976 ON COORDINATION OF SAFEGUARDS WHICH , FOR THE PROTECTION OF THE INTERESTS OF MEMBERS AND OTHERS , ARE REQUIRED BY MEMBER STATES OF COMPANIES WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 58 OF THE TREATY , IN RESPECT OF THE FORMATION OF PUBLIC LIMITED LIABILITY COMPANIES AND THE MAINTENANCE AND ALTERATION OF THEIR CAPITAL , WITH A VIEW TO MAKING SUCH SAFEGUARDS EQUIVALENT , THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ONE OF ITS OBLIGATIONS UNDER THE EEC TREATY,

Grounds

1 BY APPLICATION RECEIVED AT THE COURT REGISTRY ON 5 JUNE 1981 THE COMMISSION BROUGHT AN ACTION UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT BY NOT ADOPTING WITHIN THE PRESCRIBED PERIOD THE NATIONAL PROVISIONS NEEDED TO COMPLY WITH DIRECTIVE 77/91/EEC , THE SECOND COUNCIL DIRECTIVE OF 13 DECEMBER 1976 ON COORDINATION OF SAFEGUARDS WHICH , FOR THE PROTECTION OF THE INTERESTS OF MEMBERS AND OTHERS , ARE REQUIRED BY MEMBER STATES OF COMPANIES WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 58 OF THE TREATY , IN RESPECT OF THE FORMATION OF PUBLIC LIMITED LIABILITY COMPANIES AND THE MAINTENANCE AND ALTERATION OF THEIR CAPITAL , WITH A VIEW TO MAKING SUCH SAFEGUARDS EQUIVALENT , ( OFFICIAL JOURNAL , 1977 , L 26 , P . 1 ), THE ITALIAN REPUBLIC HAD FAILED TO FULFIL ONE OF ITS OBLIGATIONS UNDER THE EEC TREATY.

2 PURSUANT TO ARTICLE 43 OF THE DIRECTIVE , MEMBER STATES WERE REQUIRED TO BRING INTO FORCE THE LAWS , REGULATIONS AND ADMINISTRATIVE PROVISIONS NEEDED IN ORDER TO COMPLY WITH THE DIRECTIVE WITHIN TWO YEARS OF ITS NOTIFICATION . IT WAS NOTIFIED TO THE ITALIAN REPUBLIC ON 16 DECEMBER 1976 AND THE ABOVE-MENTIONED PERIOD ACCORDINGLY EXPIRED ON 16 DECEMBER 1978.

3 THE ITALIAN GOVERNMENT DOES NOT CONTEST THAT IT HAS NOT FULFILLED THAT OBLIGATION . IT STATES THAT IT INITIATED THE NECESSARY LEGISLATIVE PROCEDURE BY LAYING THE APPROPRIATE BILL BEFORE PARLIAMENT BUT THAT , DESPITE ITS REPEATED INTERVENTIONS , THE BILL , WHICH HAS ALREADY BEEN APPROVED BY THE SENATE , IS STILL UNDER DEBATE IN THE CHAMBER OF DEPUTIES . ITS FIRM INTENTION OF INCORPORATING THE DIRECTIVE INTO NATIONAL LAW HAS NOT BEEN CALLED IN QUESTION IN ANY WAY AND THE DELAY STEMS FROM THE DIFFICULTIES INHERENT IN THE LEGISLATIVE PROCEDURES.

4 THOSE CIRCUMSTANCES CANNOT EXPUNGE THE FAILURE TO FULFIL ONE OF ITS OBLIGATIONS WITH WHICH THE ITALIAN REPUBLIC IS CHARGED . ACCORDING TO WELL-ESTABLISHED CASE-LAW OF THE COURT , 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 OBLIGATIONS AND TIME-LIMITS RESULTING FROM COMMUNITY DIRECTIVES.

5 ATTENTION SHOULD ALSO BE DRAWN TO THE FACT THAT THE GOVERNMENTS OF THE MEMBER STATES PARTICIPATE IN THE PREPARATORY WORK FOR DIRECTIVES AND MUST THEREFORE BE IN A POSITION TO PREPARE , WITHIN THE PERIOD PRESCRIBED , THE DRAFT LEGISLATIVE PROVISIONS NECESSARY FOR THEIR IMPLEMENTATION . IT APPEARS , HOWEVER , FROM INFORMATION PRODUCED IN THE COURSE OF THE PROCEEDINGS THAT NO DRAFT LAW HAD YET BEEN PLACED BEFORE THE ITALIAN PARLIAMENT WITHIN THE PERIOD PRESCRIBED FOR IMPLEMENTATION OF THE DIRECTIVE.

6 IT MUST THEREFORE BE DECLARED THAT BY FAILING TO ADOPT WITHIN THE PRESCRIBED PERIOD THE PROVISIONS NEEDED IN ORDER TO COMPLY WITH COUNCIL DIRECTIVE 77/91 OF 13 DECEMBER 1976 , THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ONE OF ITS OBLIGATIONS UNDER THE TREATY.

Decision on costs

COSTS

7 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS , IT MUST BE ORDERED TO PAY THE COSTS .

Operative part

ON THOSE GROUNDS ,

HEREBY :

1 . DECLARES THAT BY NOT ADOPTING WITHIN THE PRESCRIBED PERIOD THE PROVISIONS NEEDED IN ORDER TO COMPLY WITH COUNCIL DIRECTIVE 77/91/EEC , THE SECOND COUNCIL DIRECTIVE OF 13 DECEMBER 1976 ON COORDINATION OF SAFEGUARDS WHICH , FOR THE PROTECTION OF THE INTERESTS OF MEMBERS AND OTHERS , ARE REQUIRED BY MEMBER STATES OF COMPANIES WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 58 OF THE TREATY , IN RESPECT OF THE FORMATION OF PUBLIC LIMITED LIABILITY COMPANIES AND THE MAINTENANCE AND ALTERATION OF THEIR CAPITAL , WITH A VIEW TO MAKING SUCH SAFEGUARDS EQUIVALENT , THE ITALIAN REPUBLIC HAS FAILED TO FULFIL ONE OF ITS OBLIGATIONS UNDER THE EEC TREATY ;