Court of Justice 28-01-1981 ECLI:EU:C:1981:22

Opinion of Mr Advocate General Reischl

delivered on 28 January 1981 ⁽¹⁾

Mr President,

Members of the Court,

The proceedings on which I now give my opinion concern the implementation of Council Directive 77/62/EEC coordinating procedures for the award of public supply contracts, issued on 21 December 1976 (Official Journal L 13 of 15 January 1977, p. 1).

For the detailed content of that directive I refer to the Commission's application and to the Report for the Hearing. Article 30 of the directive provided that the Member States were to adopt the measures necessary to comply with it within 18 months of its notification; that period expired on 23 June 1978. The Italian Republic did not discharge that obligation and so in March 1979 the Commission brought proceedings under Article 169 of the EEC Treaty, in regard to which I again refer to the Report for the Hearing.

During these proceedings it was disclosed that a draft Law to implement the directive was actually in the process of going through Parliament at the end of 1978; however, after amendments required by the Senate had necessitated further scrutiny by the Chamber of Deputies, it could not be passed owing to the premature dissolution of Parliament early in 1979. A new draft was submitted to the Senate in December 1979. As we were told at the hearing, that draft was passed by the Senate on 4 December 1980 and remitted to the Chamber of Deputies for final enactment. This has been delayed, apparently on account of the fact that on 1 January 1981 a new directive on the same subject (Directive 80/767/EEC) entered into force. As Counsel for the Italian Government explained, the bill will have to be amended accordingly; it must then be remitted once again to the Senate before it can finally be enacted, for which it is not possible to indicate a date.

An assessment of those defence arguments is to be found in the extensive case-law of the Court of Justice cited by the Commission in its application. In particular it is clear that the issue of a new directive and the. necessity of implementing it cannot afford any justification for the failure to implement the directive concerned in these proceedings within the prescribed period.

In view of those facts we therefore have no choice but to grant the application lodged by the Commission. It must accordingly be declared that the Italian Republic has failed to fulfil its obligations under the Treaty by not adopting within the prescribed period provisions to implement Directive 77/62/EEC. Furthermore, the costs of the proceedings should be borne by the defendant as claimed in the application.