OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN

My Lords,

This is an application by the Commission, pursuant to Article 169 of the EEC Treaty, for a declaration that the Republic of Italy has failed to fulfil its obligations under the Treaty in that it has not brought into force the measures needed in order to comply with the second Council Directive on Company Law Harmonization (Directive 77/91 of 13 December 1976, OJ 1977, L 26, p. 1) within the period fixed for doing so by Article 43 of the latter. That period expired on 16 December 1978, two years after the date on which the directive was notified to the Member States.

The Republic of Italy has not denied, either in the written procedure or in its oral submissions, that it has failed to comply with the directive. It has explained that a bill, designed to enable the directive to be implemented, was presented to the seventh Parliament but it proved impossible to secure its adoption before the dissolution of that Parliament in 1979. A similar bill was presented to the eighth Parliament, on 4 or 24 September 1979 and after consideration by the appropriate Commissions was duly approved by the Senate on 16 July 1980. It is currently being considered in the Chamber of Deputies. The Italian Government has on several occasions called for a prompt conclusion of the Parliamentary process and has given an assurance that this directive will be implemented as soon as possible.

It is well established, in my view, by the cases decided by the Court that a Member State is not entitled to rely on circumstances or practices existing in its own internal system to justify failing to comply with the obligations imposed on it by a directive.

In consequence, in my opinion, the declaration sought by the Commission should be granted in this case and the Republic of Italy should be ordered to pay the costs of the action.