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

JUDGMENT OF THE COURT (Second Chamber)

9 March 2000 (1)

(Failure of a Member State to fulfil its obligations - Directive 93/104/EC - Organisation of working time - Failure to transpose into national law)

In Case C-386/98,

Commission of the European Communities, represented by P.J. Kuijper, Legal Adviser, and A. Aresu, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of C. Gómez de la Cruz, also of its Legal Service, Wagner Centre, Kirchberg,

applicant,

v

Italian Republic, represented by Professor U. Leanza, Head of the Legal Department in the Ministry of Foreign Affairs, acting as Agent, assisted by D. Del Gaizo, Avvocato dello Stato, with an address for service in Luxembourg at the Italian Embassy, 5 Rue Marie-Adélaďde,

defendant,

APPLICATION for a declaration that, by failing to adopt the laws, regulations or administrative provisions necessary to comply with Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time(OJ 1993 L 307, p. 18), and/or by failing to inform the Commission thereof, the Italian Republic has failed to fulfil its obligations under the EC Treaty,

THE COURT (Second Chamber),

composed of: R. Schintgen, President of the Chamber, G. Hirsch and V. Skouris (Rapporteur), Judges,

Advocate General: F.G. Jacobs,

Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 16 November 1999,

gives the following

Judgment

1. By application lodged at the Registry of the Court of Justice on 26 October 1998 the Commission of the European Communities brought an action under Article 169 of the EC Treaty (now Article 226 EC) for a declaration that, by failing to adopt the laws, regulations or administrative provisions necessary to comply with Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time (OJ 1993 L 307, p. 18, hereinafter 'the Directive), and/or by failing to inform the Commission thereof, the Italian Republic has failed to fulfil its obligations under the EC Treaty.

2. Article 18(1)(a) and (c) of the Directive provides that Member States are to adopt the laws, regulations and administrative provisions necessary to comply with the Directive by 23 November 1996 or to ensure by that date that the two sides of industry establish the necessary measures by agreement, the Member States being obliged to take any necessary steps to enable them to guarantee at all times that the provisions laid down by the Directive are fulfilled, and to inform the Commission thereof immediately.

3. It is clear from the documents before the Court that the Italian Republic did not give notice to the Commission of the provisions adopted in order to comply with the Directive.

4. In the absence of any other information enabling it to conclude that the Italian Republic had taken the measures needed for that purpose, the Commission initiated the procedure under Article 169 of the Treaty and, by letter dated 30 May 1997, asked the Italian Republic to submit within two months its observations on the infringement of which it was accused.

5. By letter of 11 July 1997 the Italian authorities sent their observations to the Commission, from which it appears that preparations were being made for the measures needed to comply with the Directive.

6. Since the Commission received no communication concerning the measures adopted, by letter of 24 June 1998 it sent a reasoned opinion to the Italian Republic.

7. At a meeting with Commission officials in Rome on 15 and 16 October 1998, the Italian authorities provided some information concerning preparatory work for transposition of the Directive.

8. According to the Commission, Article 46 of Draft Law No 128, which was enacted as the Law on Community Matters 1995-1997 on 24 April 1998 and was published in the ordinary supplement to Gazzetta Ufficiale della Repubblica Italiana No 104 of 7 May 1998, which referred to the Directive, was withdrawn, with the result that the definitive text of that Law no longer mentions the Directive. The Italian authorities chose rather to refer to the Directive in another draft law, concerning the organisation of working time.

9. Subsequently, further information concerning progress with transposition of the Directive into Italian domestic law was forwarded to the Commission. However, the Commission was given no notice of any legislation, regulation or administrative provision adopted with a view to complying with the Directive.

10. In those circumstances, the Commission brought the present proceedings.

11. The Italian Republic, although contending that national legislation already complies with certain provisions of the Directive and announcing that, on 11 November 1997, both sides of industry had initialled a common declaration concerning implementation of the Directive, which is being generally applied in the manufacturing sector, does not deny the infringement with which it is charged and maintains that rules ensuring complete transposition of the Directive are in the course of being adopted.

12. Since the Directive has thus not been completely transposed within the prescribed period, the Commission's action must be regarded as well founded.

13. Consequently, it must be held that, by failing to adopt within the prescribed period the laws, regulations or administrative provisions necessary to comply with the Directive, the Italian Republic has failed to fulfil its obligations under the Directive.

    Costs

14. Article 69(2) of the Rules of Procedure provides that the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has applied for costs and the Italian Republic has been unsuccessful, the Italian Republic must be ordered to pay the costs.

On those grounds,

THE COURT (Second Chamber)

hereby:

1. Declares that, by failing to adopt within the prescribed period the laws, regulations or administrative provisions necessary to comply with Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time, the Italian Republic has failed to fulfil its obligations under that directive;

2 Orders the Italian Republic to pay the costs.

SchintgenHirsch Skouris

Delivered in open court in Luxembourg on 9 March 2000.

R. Grass R. Schintgen

Registrar President of the Second Chamber

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1: Language of the case: Italian.