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

JUDGMENT OF THE COURT (Third Chamber)

30 May 2002 (1)

(Failure by a Member State to fulfil its obligations - Directive 98/101/EC - Batteries and accumulators containing certain dangerous substances)

In Case C-323/01,

Commission of the European Communities, represented by R. Wainwright and R. Amorosi, acting as Agents, with an address for service in Luxembourg,

applicant,

v

Italian Republic, represented by U. Leanza, acting as Agent, and M. Fiorilli, avvocato dello Stato, with an address for service in Luxembourg,

defendant,

APPLICATION for a declaration that, by failing to adopt the laws, regulations and adminstrative provisions necessary to comply with Commission Directive 98/101/EC of 22 December 1998 adapting to technical progress Council Directive 91/157/EEC on batteries and accumulators containing certain dangerous substances (OJ 1999 L 1, p. 1) or, in any event, by failing to inform the Commission thereof, Italy has failed to fulfil its obligations under that directive,

THE COURT (Third Chamber),

composed of: F. Macken, President of the Chamber, C. Gulmann (Rapporteur) and J.-P. Puissochet, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

Registrar: R. Grass,

having regard to the Report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 14 March 2002,

gives the following

Judgment

1. By application lodged at the Court Registry on 24 August 2001, the Commission of the European Communities brought an action under Article 226 EC for a declaration that, by failing to adopt the laws, regulations and adminstrative provisions necessary to comply with Commission Directive 98/101/EC of 22 December 1998 adapting to technical progress Council Directive 91/157/EEC on batteries and accumulators containing certain dangerous substances (OJ 1999 L 1, p. 1, hereinafter the Directive) or, in any event, by failing to inform the Commission thereof, the Italian Republic has failed to fulfil its obligations under that directive.

2. The first paragraph of Article 2 of the Directive states:

   Member States shall adopt and publish, before 1 January 2000, the provisions necessary to comply with this Directive. They shall forthwith inform the Commission thereof.

3. On 13 July 2000, having received no notification from the Italian Government relating to the adoption of the measures necessary to implement the Directive and in the absence of any other information from which it could conclude that Italy had taken such measures, the Commission sent the Italian Government a letter of formal notice, calling on it to submit its observations within two months of receipt of that letter.

4. In the absence of a reply from the Italian Government, on 17 January 2001 the Commission sent a reasoned opinion to the Italian Republic calling upon it to take the measures needed to comply with the reasoned opinion within two months from the date of its notification.

5. There was no response to that reasoned opinion either.

6. In those circumstances, since it had no other information from which it could conclude that the provisions necessary to implement the directive had been adopted, the Commission decided to bring the present action.

7. In its defence, the Italian Government did not dispute the fact that it had failed to implement the Directive within the prescribed period. Nonetheless, it pointed out that the interministerial decree intended to implement the directive in national law was to be approved at the end of November 2001 and that that decree would then immediately be notified to the Commission so that it could verify that it was technically correct.

8. It is settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation obtaining in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see, in particular, Case C-103/00 Commission v Greece [2002] ECR I-1147, paragraph 23).

9. In this case, the time-limit laid down in the reasoned opinion, which was issued on 17 January 2001, was two months from its date of notification. When that time-limit expired, the Italian Republic had not initiated implementation of the Directive.

10. It must therefore be held that the Commission's application is well founded and that, by not adopting the laws, regulations and administrative provisions necessary to comply with the Directive, the Italian Republic has failed to fulfil its obligations under the Directive.

    Costs

11. Under Article 69(2) of the Rules of Procedure, 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 (Third Chamber)

hereby:

1. Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 98/101/EC of 22 December 1998 adapting to technical progress Council Directive 91/157/EEC on batteries and accumulators containing certain dangerous substances, the Italian Republic has failed to fulfil its obligations under Directive 98/101;

2. Orders the Italian Republic to pay the costs.

Macken Gulmann Puissochet

Delivered in open court in Luxembourg on 30 May 2002.

R. Grass F. Macken

Registrar President of the Third Chamber

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1: Language of the case: Italian.