C-279/83 Commission v Italy

JUDGMENT OF THE COURT

Legal context and the dispute

3 OCTOBER 1984 '

Commission of the European Communities v Italian Republic

(Implementation of a directive — Mutual assistance in relation to VAT)

Case 279/83

Member States — Obligations — Failure to implement directives — Justification — Insufficiency (EEC Treaty, Art. 169)

A Member State cannot rely on to comply with obligations or time-limits provisions, practices or situations in its imposed by Community directives. internal legal system to justify a failure

In Case 279/83

represented by Guido Berardis, COMMISSION OF THE EUROPEAN COMMUNITIES, a member of its Legal Department, acting as Agent, with an address for service in Luxembourg at the office of Manfred Beschel, a member of its Legal Department, Jean Monnet Building, Kirchberg,

applicant,

v

represented by its Government in the person of Arnaldo ITALIAN REPUBLIC, Squillante, President of Chamber at the State Council, Head of the Department for Contentious Diplomatic Affairs, Treaties and Legislative Matters at the Ministry of Foreign Affairs, acting as Agent, assisted by O. Fiumara, Avvocato dello Stato, with an address for service in Luxembourg at the Italian Embassy, 5 Rue Marie-Adélaïde,

defendant,

1 — Language of the Case: Italian.

APPLICATION for a declaration that the Italian Republic, by failing to adopt within the period prescribed the measures needed to comply with Council Directive No 79/1071/EEC of 6 December 1979 amending Directive No 76/308/EEC on mutual assistance for the recovery of claims resulting from operations forming part of the system of financing of the European Agricultural Guidance and Guarantee Fund, and of agricultural levies and customs duties (Official Journal 1979, L 331, p. 10), has failed to fulfil its obligations under the EEC Treaty,

THE COURT

composed of Lord Mackenzie Stuart, President, T. Koopmans and K. Bahlmann (Presidents of Chambers), A. O'Keeffe, G. Bosco, O. Due and R. Joliét, Judges,

Advocate General: C. O. Lenz Registrar: D. Lou termán, Administrator

gives the following

JUDGMENT

Facts and Issues

Member States, in the recovery of claims The facts of the case, the course of the resulting from operations forming part of procedure, the conclusions, submissions the system for financing the European and arguments of the parties may be Agricultural Guidance and Guarantee summarized as follows:

Fund, and in the recovery of agricultural levies and customs duties. The system in question was established by Council

I — Facts and written procedure

Directive No 76/308 of 15 March 1976 (Official Journal 1976, L 73, p. 18).

1. Council Directive No 79/1071 of

6 December 1979 provides for the Article 3 of Directive No 79/1071 extension to valued-added tax of the provides that the Member States shall system of mutual assistance, between take the measures necessary to comply with the directive by 1 January 1981.

Grounds

2By a letter dated 28 July 1980 the permanent representative of the Italian Republic. informed the Commission of the intention of the Italian Government to adopt the measures needed to comply with Directive No 79/1071. There was no follow-up to that letter, for the Italian Republic did not inform the Commission of any provisions taken to comply with the directive in question.

3By a letter dated 1 October 1981 the Commission informed the Italian Government that it considered that Italy had failed to fulfil its obligations under the Treaty and invited it to submit its observations within one month.

4By a letter dated 4 January 1982 the Permanent Representation of Italy informed the Commission that the Italian Government was in the process of preparing the measures needed to implement the directive.

5The Commission took the view that the answer from the Italian Government was unsatisfactory since no mesure had yet 'been adopted. On 13 July 1982 it delivered a reasoned opinion, pursuant to the first paragraph of Article 169 of the Treaty, inviting it to adopt within a period of two months the measures needed to fulfil its obligations.

6By a letter dated 28 July 1982 the Permanent Representation of Italy confined itself to acknowledging receipt of the reasoned opinion. In a telex message of 21 September 1982 it stated that for internal reasons relating to the legislative procedure a new bill had been submitted to the Italian Parliament.

7The present application dated 14 December 1983 was received at the Court Registry on 19 December 1983. In a latter dated 6 February 1984 the Commission waived its right to lodge a reply.

8Upon 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.

II — Conclusions of the parties

The Commission claims that the Court should:

Declare that, by failing to adopt within the period prescribed the measures needed to comply with Council Directive No 79/1071 of 6 December 1979, which extends to value-added tax the system of mutual assistance between Member States established by Directive No 76/308 in relation to the recovery of claims resulting from operations forming part of the system of financing the European Agricultural Guidance and Guarantee Fund, and in relation to the recovery of agricultural levies and customs duties, the Italian Republic has failed to fulfil its obligations under the EEC Treaty;

Order the Italian Republic to pay the costs.

The Italian Republic did not submit formal conclusions.

III — Submissions and arguments of the parties

1. In its application the Commission emphasizes that pursuant to the third paragraph of Article 189 of the Treaty a directive is binding, as to the result to be achieved, upon each Member State to which it is addressed. Further, the first paragraph of Article 5 of the Treaty provides that Member States are to take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of the Treaty or resulting from action taken by the institutions of the Community.

According to the Commission, there is established case-law to the effect that the above-mentioned provisions of the Treaty mean that Member States to which directives are addressed are under an obligation to amend their legislation in conformity with the directives within the period stipulated therein and that a Member State cannot rely on provisions, practices or situations in its national legal system to justify a failure to comply with its obligations or with time-limits laid down in Community directives. It has not been denied, and is undeniable, that although the period for doing so has expired the Italian Republic has adopted no internal provision to comply with Directive No 79/1071.

2. In its defence the Italian Government states that, as it has already informed the Commission, bills were prepared to implement the directive in question. Nothing however came of them because the legislature was dissolved. However, a new bill is now in preparation and the Italian Government hopes to see the legislative process relating thereto speedily concluded so that the present action may be regarded basically as having lost its purpose.

IV — Oral procedure

At the sitting on 10 July 1984 the Italian Government, represented by Mr Cara-mazza, Avvocato dello Stato, acting as Agent, and the Commission, represented by Mr Marenco, acting as Agent, presented oral argument.

The Advocate General delivered his opinion at the sitting on the same day. Decision

1 By an application received at the Court Registry on 19 December 1983 the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that the Italian Republic had failed to fulfil its obligations under that Treaty by not adopting within the period prescribed the measures needed to comply with Council Directive No 79/1071 of 6 December 1979 amending Directive No 76/308 on mutual assistance for the recovery of claims resulting from operations forming part of the system of financing of the European Agricultural Guidance and Guarantee Fund, and of agricultural levies and customs duties (Official Journal 1979, L 331, p. 10).

2 Directive No 79/1071 provides for the extension to value-added tax of the system of mutual assistance between the Member States, in relation to the recovery of claims, established by Directive No 76/308 of the Council of 15 March 1976 (Official Journal 1976, L 73, p. 18). Article 3 of Directive No 79/1071 required Member States to take the measures necessary to comply with the directive by 1 January 1981.

3 The Italian Government does not deny that it has not fulfilled that obligation. It states that the delay in the implementation of the directive is due to the fact that the bill introduced into the Italian Parliament for that purpose came to nothing because of the dissolution of Parliament. It adds that a new bill is at present in the process of preparation for the purpose of implementing the directive in question as quickly as possible.

4 Those circumstances cannot expunge the failure with which the Italian Republic is charged. The Court has consistently held that a Member State cannot rely on provisions, practices or situations in its internal legal system to justify a failure to comply with obligations or time-limits imposed by Community directives.

s It must therefore be declared that by failing to adopt within the period prescribed the measures needed to comply with Council Directive No 79/1071 of 6 December 1979 the Italian Republic has failed to fulfil its obligations under the Treaty.

Costs

Costs

6 Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. Since the defendant has been unsuccessful it must be ordered to pay the costs.

Operative part

On those grounds,

THE COURT

hereby:

1. Declares that by failing to adopt within the period prescribed the measures needed to comply with Council Directive No 79/1071 of 6 December 1979 amending Directive No 76/308 on mutual assistance for the recovery of claims resulting from operations forming part of the system of financing of the European Agricultural Guidance and Guarantee Fund, and of agricultural levies and customs duties, the Italian Republic has failed to fulfil its obligations under the EEC Treaty;

2. Orders the defendant to pay the costs.

Mackenzie Stuart Koopmans Bahlmann

O'Keeffe Bosco Due Joliét

Delivered in open court in Luxembourg on 3 October 1984.

A. J. Mackenzie Stuart P. Heim

President Registrar

COMMISSION v ITALY

O P I N I ON OF MR A D V O C A TE GENERAL LENZ DELIVERED ON

Mr President, Members of the Court, By an application received at the Court on 19 December 1983 the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that the Italian Republic had failed to fulfil its obligations under the EEC Treaty by not adopting within the specified period the requisite provisions to comply with Council Directive No 79/1071/EEC of 6 December 1979 (Official Journal 1979, L 331, p. 10), which extends to value-added tax the system of mutual assistance between Member States, established by Directive No 76/308/ EEC, for the recovery of claims resulting from operations forming part of the system of financing of the European Agricultural Guidance and Guarantee Fund and for the recovery of agricultural levies and customs duties.

l 10 JULY 1984

Under Article 3 of the directive in question the Member States had to adopt the requisite measures no later than

1January 1981 in order to comply with the directive.

The Italian Republic admits that it did not fulfil that obligation within the period stipulated. It justifies its omission basically on the grounds of the difficulties in the legislative process. It says that a new bill is in preparation for the purpose of implementing the directive.

Those circumstances cannot however exonerate the Italian Republic from the infringement of the Treaty with which it is reproached. The Court has consistently held that a Member State cannot rely on provisions, practices or circumstances of its internal legal order to justify a failure to comply with its obligations under Community directives. Accordingly, I request the Court to declare that the Italian Republic has failed to fulfil its obligations under the period prescribed the measures needed Treaty by not adopting within the to comply with Council Directive No 70/1071/EEC of 6 December 1979. Under Article 69 (2) of the Rules of Procedure the unsuccessful party must be ordered to pay the costs.

Notes

(1) Translated from the German.