OPINION OF ADVOCATE GENERAL

delivered on 30 March 1995 (*1)

1.Council Directive 89/392/EEC of 14 June 1989 on the approximation of the laws of the Member States relating to machinery (1) and Council Directive 91/368/EEC of 20 June 1991 amending Directive 89/392/EEC on the approximation of the laws of the Member States relating to machinery (2) were to be transposed by the Member States into national law before 1 January 1992. (3)

2.In the present Treaty infringement proceedings, the Commission seeks a declaration that, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with those two directives, the Italian Republic has failed to fulfil its obligations under Community law. It also asks that the Italian Republic be ordered to bear the costs of the proceedings.

3.The Italian Republic does not dispute that it has not fulfilled its obligation to adopt the measures necessary for the transposition of those directives within the prescribed period.

4.In its defence, however, the Italian Republic points out that the Commission, in its reasoned opinion of 28 May 1993, laid down a period of two months within which it was to fulfil its obligations. During that period, however, the Council adopted two further directives — Directive 93/44/EEC of 14 June 1993 (4) and Directive 93/68/EEC of 22 July 1993 (5) — amending Directive 89/392. The Community rules with which the Commission complains the defendant has not brought its legislation into conformity were therefore no longer current at the material time. The Treaty infringement in question is thus a purely formal one and may not serve as a basis for proceedings under Article 169 of the EC Treaty. The Commission's action should therefore be dismissed as inadmissible for lack of a legal interest.

5.The Italian Republic's argument in that regard cannot be accepted. The Commission has rightly submitted that it does not have to show any interest in bringing an action under Article 169 of the EC Treaty. (6) Its objection that the Member States may not be allowed to evade their obligation to transpose a directive, even where it has in the meantime been updated on a number of occasions, is also justified. Were that not so, the whole system of the approximation of laws would indeed be called into question. At most, there might be some justification in the defendant's point of view if a failure to transpose a directive were to become irrelevant by reason of a subsequent amendment to Community law — that is to say, if the directive in issue were to be repealed by a subsequent directive. Such is manifestly not the case here (nor does the defendant contend that it is).

6.In its letter of formal notice of 20 May 1992, the Commission not only referred to Directives 89/392 and 91/368 but also complained that six other directives had not been transposed. In its defence, the Italian Republic claims that such an approach by the Commission is likely to cause confusion, whilst Article 169 of the EC Treaty lays down a strictly formal procedure. It is not clear whether the defendant is thereby seeking to cast doubt on the admissibility of the action. If it is, its contention must in any event be unsuccessful. There is nothing to prevent the Commission from pursuing several breaches of the Treaty together in the same infringement proceedings under Article 169. Nor can there be any doubt that the Italian Republic was clear as to the import of the Treaty infringement of which it was accused, as may be seen from the statement in the defence to the effect that the transposition of both the directives in question had been deferred because Directives 93/44 and 93/68 had been adopted in the meantime.

Conclusion

7.I therefore propose that the Court should uphold the Commission's application and order the Italian Republic to bear the costs of the proceedings.

(*1) Original language: German.

(1) OJ 1989 L 183, p. 9.

(2) OJ 1991 L 198, p. 16.

(3) See Article 13(1) of Directive 89/392 and Article 3(1) of Directive 91/368.

(4) OJ 1993 L 175, p. 12.

(5) OJ 1993 L 220, p. 1.

(6) See Case 167/73 Commission v France [1974] ECR 359, paragraph 15.