Court of Justice of the European Communities (including Court of First Instance Decisions)

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Actions against Member States for failure to fulfil obligations ° Preliminary stage ° Formal letter of notice ° Definition of the subject-matter of the dispute ° Reasoned opinion ° Detailed statement of complaints ° Permissibility
(EEC Treaty, Art. 169; EAEC Treaty, Art. 141)

In the light of the purpose assigned by Article 169 of the EEC Treaty, the wording of which is identical to that of Article 141 of the EAEC Treaty, to the preliminary stage of the Treaty infringement procedure, of which the formal letter of notice forms a part, that formal letter is intended to define the subject-matter of the dispute and to indicate to the Member State which is invited to submit its observations the factors enabling it to prepare its defence. The opportunity for the Member State concerned to submit its observations constitutes an essential guarantee required by the Treaty and, even if the Member State does not consider it necessary to avail itself thereof, observance of that guarantee is an essential formal requirement of the Treaty infringement procedure.
Although it follows that the reasoned opinion provided for in Article 169 of the EEC Treaty must contain a coherent and detailed statement of the reasons which led the Commission to conclude that the State in question has failed to fulfil one of its obligations under the Treaty, it is not possible to impose such strict requirements as regards the formal letter of notice, which of necessity will contain only an initial brief summary of the complaints.

In Case C-135/94,
Commission of the European Communities, represented by Antonio Aresu, of the Legal Service, acting as Agent, with an address for service in Luxembourg at the office of Georgios Kremlis, of the Legal Service, Wagner Centre, Kirchberg,
applicant,
v
Italian Republic, represented by Umberto Leanza, Head of the Department for Contentious Diplomatic Affairs in the Ministry for Foreign Affairs, assisted by Pier Giorgio Ferri, Avvocato dello Stato, with an address for service in Luxembourg at the Italian Embassy, 5 Rue Marie-Adélaïde,
defendant,
APPLICATION for a declaration that, by failing to adopt the laws, regulations and administrative measures necessary to comply with Council Directive 89/618/Euratom of 27 November 1989 on informing the general public about health protection measures to be applied and steps to be taken in the event of a radiological emergency (OJ 1989 L 357, p. 31), the Italian Republic has failed to fulfil its obligations under that directive and under the third paragraph of Article 161 and the first paragraph of Article 192 of the EAEC Treaty,
THE COURT (Sixth Chamber),
composed of: F.A. Schockweiler, President of the Chamber, P.J.G. Kapteyn (Rapporteur), C.N. Kakouris, J.L. Murray and G. Hirsch, Judges,
Advocate General: M.B. Elmer,
Registrar: R. Grass,
having regard to the report of the Judge-Rapporteur,
after hearing the Opinion of the Advocate General at the sitting on 6 April 1995,
gives the following
Judgment

1 By application lodged at the Court Registry on 11 May 1994, the Commission of the European Communities brought an action under Article 141 of the EAEC Treaty for a declaration that, by failing to adopt the laws, regulations and administrative measures necessary to comply with Council Directive 89/618/Euratom of 27 November 1989 on informing the general public about health protection measures to be applied and steps to be taken in the event of a radiological emergency (OJ 1989 L 357, p. 31, hereinafter "the Directive"), the Italian Republic has failed to fulfil its obligations under that directive and under the third paragraph of Article 161 and the first paragraph of Article 192 of the EAEC Treaty.
2 Article 12 of the Directive provides: "Member States shall take the measures necessary to comply with this Directive not later than 24 months after its adoption. They shall forthwith inform the Commission thereof as well as of any further amendments thereto."
Admissibility
3 The Italian Government argues that the letter of formal notice of 20 May 1992 does not constitute a valid institution of the infringement procedure under Article 141 of the Treaty. It claims in particular that the Commission sent a standardized formal letter of notice, an annex to which listed a number of directives, including the Directive in issue in the present proceedings, and stated that it was acting in accordance with Article 169 of the EEC Treaty rather than Article 141 of the EAEC Treaty. The present action is therefore, in the Italian Government' s view, inadmissible.
4 Article 141 of the EAEC Treaty is couched in terms identical to those of Article 169 of the EEC Treaty.
5 With regard to Article 169 of the EEC Treaty, the Court has held that, in view of the purpose assigned to the preliminary stage of the Treaty infringement procedure, the formal letter of notice is intended to define the subject-matter of the dispute and to indicate to the Member State which is invited to submit its observations the factors enabling it to prepare its defence (Case 274/83 Commission v Italy [1985] ECR 1077, paragraph 19).
6 The opportunity for the Member State concerned to submit its observations constitutes an essential guarantee required by the Treaty and, even if the Member State does not consider it necessary to avail itself thereof, observance of that guarantee is an essential formal requirement of the Treaty infringement procedure (ibid., paragraph 20).
7 Although it follows that the reasoned opinion provided for in Article 169 of the EEC Treaty must contain a coherent and detailed statement of the reasons which led the Commission to conclude that the State in question has failed to fulfil one of its obligations under the Treaty, it is not possible to impose such strict requirements as regards the formal letter of notice, which of necessity will contain only an initial brief summary of the complaints (ibid., paragraph 21).
8 It is clear from the papers before the Court that in its letter of formal notice of 20 May 1992, the Commission informed the Italian Government that it was led to assume, on the basis of the information at its disposal, that the directives listed in the annex had not been transposed into Italian law. The list included, inter alia, the Directive in issue in the present proceedings, which was specifically mentioned as a Euratom Directive. The Commission made good its failure to cite the relevant provisions of the EAEC Treaty in its reasoned opinion of 25 May 1993, which referred solely to the infringement proceedings under Article 141 of the EAEC Treaty and, in the body of the opinion, to the third paragraph of Article 161 and the first paragraph of Article 192 of that Treaty. In its application to the Court, the Commission also referred to those same provisions.
9 It follows that the Commission' s substantive complaint, that the Directive has not been transposed, was not altered during the course of the pre-litigation procedure.
10 The Italian Government cannot, therefore, have been in any doubt that the Commission was charging it with a failure to comply with its obligations under the EAEC Treaty by failing to transpose the Directive.
11 In those circumstances, the omission of any reference to the relevant provisions of the EAEC Treaty in the letter of formal notice did not adversely affect the Italian Republic' s rights of defence.
12 The application must accordingly be held admissible.
Substance
13 The Commission submits that, by failing to adopt the measures necessary to comply with the Directive by 27 November 1991, the Italian Republic failed to fulfil its obligations thereunder. In its reply in the present case, the applicant withdrew its allegations of a breach of the third paragraph of Article 161 and the first paragraph of Article 192 of the EAEC Treaty, which were not mentioned in the operative part of the reasoned opinion.
14 The Italian Republic does not deny that the Directive was not transposed within the prescribed period.
15 The failure to fulfil obligations alleged by the Commission must therefore be held to be established.
16 It must accordingly be held that, by failing to adopt the laws, regulations and administrative measures necessary to comply with the Directive, the Italian Republic has failed to fulfil its obligations thereunder.

Costs
17 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party' s pleadings. Since the Italian Republic has been unsuccessful, it must be ordered to pay the costs.

On those grounds,
THE COURT (Sixth Chamber)
hereby:
1. Declares that, by failing to adopt the laws, regulations and administrative measures necessary to comply with Council Directive 89/618/Euratom of 27 November 1989 on informing the general public about health protection measures to be applied and steps to be taken in the event of a radiological emergency, the Italian Republic has failed to fulfil its obligations under that directive;
2. Orders the Italian Republic to bear the costs.