JUDGMENT OF THE COURT (Sixth Chamber)

17 June 1999 (1)

(Failure by a Member State to fulfil obligations — Incomplete transposition ofDirective 82/501/EEC)

In Case C-336/97,

Commission of the European Communities, represented by Paolo Stancanelli, ofits Legal Service, acting as Agent, assisted by Claudio Tesauro, of the Naples Bar,with an address for service in Luxembourg at the office of Carlos Gómez de laCruz, of the same service, Wagner Centre, Kirchberg,

applicant,

v

Italian Republic, represented by Umberto Leanza, Head of the Legal Departmentin the Ministry of Foreign Affairs, acting as Agent, assisted by Danilo Del Gaizo,Avvocato dello Stato, with an address for service in Luxembourg at the ItalianEmbassy, 5 Rue Marie-Adélaïde,

defendant,

APPLICATION for a declaration that, by failing to ensure that emergency plansare drawn up for action outside the establishments in respect of whose industrialactivity notification has been given pursuant to Article 5 of Council Directive

82/501/EEC of 24 June 1982 on the major-accident hazards of certain industrialactivities (OJ 1982 L 230, p. 1), and by failing to organise inspections or othermeasures of control proper to the type of industrial activity concerned, in breachof the third indent of Article 7(1) and Article 7(2) of that directive, the ItalianRepublic has failed to fulfil its obligations under the EC Treaty,

THE COURT (Sixth Chamber),

composed of: P.J.G. Kapteyn, President of the Chamber, G.F. Mancini,J.L. Murray, H. Ragnemalm and R. Schintgen (Rapporteur), Judges,

Advocate General: F.G. Jacobs,

Registrar: L. Hewlett, Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 4 February 1999,

after hearing the Opinion of the Advocate General at the sitting on 25 March 1999,

gives the following

Judgment

1.

    By application lodged at the Registry of the Court on 26 September 1997, theCommission of the European Communities brought an action under Article 226 EC(ex Article 169) for a declaration that, by failing to ensure that emergency plans aredrawn up for action outside the establishments in respect of whose industrialactivity notification has been given pursuant to Article 5 of Council Directive82/501/EEC of 24 June 1982 on the major-accident hazards of certain industrialactivities (OJ 1982 L 230, p. 1), and by failing to organise inspections or othermeasures of control proper to the type of industrial activity concerned, in breachof the third indent of Article 7(1) and Article 7(2) of that directive, the ItalianRepublic has failed to fulfil its obligations under the EC Treaty.

2.

    Article 1(1) of Directive 82/501 provides that the directive is 'concerned with theprevention of major accidents which might result from certain industrial activitiesand with the limitation of their consequences for man and the environment. It isdirected in particular towards the approximation of the measures taken by MemberStates in this field.‘

3.

    Article 1(2) of the directive defines the terms 'industrial activity‘, 'manufacturer‘,'major accident‘, and 'dangerous substances‘. Under Article 1(2)(b),manufacturer means 'any person in charge of an industrial activity‘.

4.

    Article 3 of the directive provides: 'Member States shall adopt the provisionsnecessary to ensure that, in the case of any of the industrial activities specified inArticle 1, the manufacturer is obliged to take all the measures necessary to preventmajor accidents and to limit their consequences for man and the environment.‘

5.

    Article 4 of the directive provides: 'Member States shall take the measuresnecessary to ensure that all manufacturers are required to prove to the competentauthority at any time, for the purposes of the controls referred to in Article 7(2),that they have identified existing major-accident hazards, adopted the appropriatesafety measures, and provided the persons working on the site with information,training and equipment in order to ensure their safety.‘

6.

    Article 5(1) provides that, without prejudice to Article 4, Member States are tointroduce the necessary measures to require the manufacturer to notify thecompetent authorities specified in Article 7 if one or more of the dangeroussubstances listed in Annex III to the directive are involved in an industrial activity,or it is recognised that they may be involved, in the quantities laid down in thatannex or if, in an industrial activity, one or more of the dangerous substances listedin Annex II to the directive are stored in the quantities laid down in that annex.The notification must contain information relating to:

(a)    the substances listed, respectively, in Annex II and Annex III,

(b)    the installations,

(c)    possible major-accident situations, including 'any information necessary tothe competent authorities to enable them to prepare emergency plans foruse outside the establishment in accordance with Article 7(1)‘ (secondindent of Article 5(1)(c)).

7.

    Article 7 of the directive provides as follows:

'1. The Member States shall set up or appoint the competent authority orauthorities who, account being taken of the responsibility of the manufacturer, areresponsible for:

—    ...

—    ...

—    ensuring that an emergency plan is drawn up for action outside theestablishment in respect of whose industrial activity notification has beengiven

...

2. The competent authorities shall organise inspections or other measures ofcontrol proper to the type of activity concerned, in accordance with nationalregulations.‘

8.

    Under Article 20(1) of Directive 82/501, Member States are to take the measuresnecessary to comply with the directive at the latest on 8 January 1984 and to informthe Commission thereof forthwith. Under Article 20(2), Member States are alsoto communicate to the Commission the provisions of national law which they adoptin the field covered by the directive.

9.

    Directive 82/501 was transposed into the Italian legal system by Presidential DecreeNo 175 of 17 May 1988 (Gazzetta Ufficiale della Repubblica Italiana No 127 of 1June 1988, p. 3, hereinafter 'Presidential Decree No 175/88‘).

10.

    The Commission, which was notified of Presidential Decree No 175/88, took theview that Directive 82/501 had not been fully implemented in Italy. That being so,by letter of 27 September 1991, it requested the Italian authorities to provide itwith further information on the application of the directive, and in particular of thethird indent of Article 7(1) and Article 7(2).

11.

    In a letter of 14 January 1992 the Italian Minister for the Environment stated thathe had received the requisite notifications from manufacturers in respect ofapproximately 210 industrial sites, corresponding to approximately 710establishments or depots, but that, because of the delay in transposing the directiveinto Italian law and the large number of industrial activities notified, the emergencyplans and inspections and other measures of control referred to in Article 7, thoughin hand, had not yet been completed.

12.

    Finding that reply to be unsatisfactory, and taking the view that Directive 82/501was still not being properly applied, in particular as regards Article 7, theCommission, by letter of 27 November 1992, placed the Italian Government onformal notice to submit its observations on the matter within two months.

13.

    The Italian Government did not immediately respond to that letter of formal noticebut informed the Commission by letter of 3 March 1994 that the National Agencyfor the Protection of the Environment, established by the law converting Decree-Law No 496 of 4 December 1993 (Gazzetta Ufficiale della Repubblica Italiana No285 of 4 December 1993, p. 40) into law, would be responsible for carrying out theinvestigations provided for by Presidential Decree No 175/88, as amended by

Decree-Law No 13 of 10 January 1994 (Gazzetta Ufficiale della Repubblica ItalianaNo 6 of 10 January 1994, p. 14).

14.

    Having received no further information as to the implementation of the obligationsprovided for, in particular, in Article 7 of Directive 82/501, the Commission sent a reasoned opinion to the Italian Government on 21 November 1995 requesting itto adopt the measures necessary to comply with the terms of the opinion withintwo months of receipt thereof.

15.

    The Italian Government replied to the Commission's reasoned opinion by letter of21 May 1997 in which it informed the Commission that, as at that date, 110emergency plans for action outside the establishments had been drawn up pursuantto the provisions of Presidential Decree No 175/88, compared to the 443 planswhich should have been adopted, and 179 establishments had been inspected. Subsequently, under cover of a note of 8 July 1997, the Italian authorities sent tothe Commission the text of Law No 137 of 19 May 1997 (Gazzetta Ufficiale dellaRepubblica Italiana No 120 of 26 May 1997, p. 4), which regularised the effects ofthe decree-laws amending Presidential Decree No 175/88.

16.

    Notwithstanding all of the foregoing, the Commission remained of the opinion thatDirective 82/501 was still not being properly applied in Italy, at least as regardsArticle 7, and brought this action.

17.

    The Commission argues in support of its action that, despite the adoption ofPresidential Decree No 175/88 and subsequent amendments thereto, the emergencyplans for action outside the establishments which have to be drawn up under thethird indent of Article 7(1) of Directive 82/501 have not all been completed, norhave all the inspections and other measures of control provided for by Article 7(2)been carried out. It emphasises that the Italian Government itself recognised inits letter of 14 January 1992 the delay in completing those emergency plans,inspections and measures of control.

18.

    The Italian Republic contends that, in order to transpose those provisions ofDirective 82/501 properly, the Member States merely have to appoint thecompetent authorities responsible for ensuring that the emergency plans for actionare drawn up and organising the relevant inspections and measures of control. Itargues that, although it is an objective of Directive 82/501 to ensure that emergencyplans are actually drawn up and that inspections and controls are in fact carriedout, those tasks cannot in themselves constitute specific obligations imposed on theMember States by the directive; rather, they are merely a logical consequence ofits application in practice.

19.

    In that connection, it should be borne in mind that, under the first paragraph ofArticle 10 EC (ex first paragraph of Article 5), the Member States are to take allappropriate measures, whether general or particular, to ensure fulfilment of the

obligations arising out of the Treaty or resulting from action taken by theinstitutions of the Community. Such action includes directives which, pursuant tothe third paragraph of Article 249 EC (ex third paragraph of Article 189), arebinding as to the result to be achieved upon each Member State to which they areaddressed. Under the Court's case-law, that obligation implies, for each MemberState to which a directive is addressed, adopting, within the framework of itsnational legal system, all the measures necessary to ensure that the directive is fullyeffective, in accordance with the objective which it pursues (see Case C-208/90Emmott [1991] ECR I-4269, paragraph 18).

20.

    According to Article 1 of the directive, and as the Court confirmed in its judgmentin Case C-190/90 Commission v Netherlands [1992] ECR I-3265, paragraph 18, thepurpose of the directive is, inter alia, to ensure that the necessary measures areadopted to prevent major accidents caused by certain industrial activities, and tolimit the consequences of any such accidents.

21.

    To that end, Directive 82/501 not only provides for obligations which the MemberStates are under a duty to impose on manufacturers, such as those arising underArticles 3, 4 and 5, but also imposes certain obligations on the Member Statesdirectly, such as those in Article 7(1) and Article 7(2), which are at issue here.

22.

    In addition, under Articles 4 and 5 of Directive 82/501 the obligations imposed bythe directive on manufacturers are expressly intended to contribute to the fulfilmentof the Member States' obligations under Article 7.

23.

    First, it is in order to enable the competent authorities appointed by the MemberStates pursuant to Article 7 of Directive 82/501 to draw up emergency plans foraction outside the establishment referred to in the third indent of Article 7(1), thatthe second indent of Article 5(1)(c) requires the information relating to possiblemajor-accident situations which manufacturers are to notify to those authorities toinclude any details necessary to enable such plans to be prepared.

24.

    Secondly, it is for the purposes of the inspections and controls referred to in Article7(2) of Directive 82/501 that Article 4 imposes an obligation on manufacturers toprove to the competent authorities of the Member States at any time that theyhave identified existing major-accident hazards and adopted the measures referredto in that provision.

25.

    Accordingly, the objective pursued by Directive 82/501, namely to prevent majoraccidents and limit their consequences by means of the measures favoured by thedirective, would be in danger of being seriously compromised if it were open to theMember States merely to set up or appoint the competent authorities for drawingup emergency plans for action outside the establishments and organising inspectionsand measures of control, without ensuring that those plans and inspections wereactually completed.

26.

    According to the Italian Republic's reply to the reasoned opinion, which post-datesthe time-limit within which it was to comply with its obligations under Directive82/501, only 110 out of a total of 443 emergency plans for action outside theestablishments had been drawn up as at that date.

27.

    Furthermore, whilst the Italian Republic stated in its defence that the number ofindustrial establishments which were notified to the competent authorities underDirective 82/501 and should accordingly have been inspected or subject to othermeasures of control only amounted to 391 instead of 710, the figure which it gavein its letter of 14 January 1992, it acknowledged at the same time that only 220establishments had in fact been inspected.

28.

    In those circumstances, it is appropriate to allow the Commission's action and declare that, by failing to ensure that emergency plans are drawn up for actionoutside the establishments in respect of whose industrial activity notification hasbeen given pursuant to Article 5 of Directive 82/501, and by failing to organiseinspections or other measures of control proper to the type of industrial activityconcerned, in breach of the third indent of Article 7(1) and Article 7(2) of thedirective, the Italian Republic has failed to fulfil its obligations thereunder.

Costs

29.

    Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to beordered to pay the costs if they have been applied for in the successful party'spleadings. Since the Commission has applied for costs against the Italian Republicand the latter 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 ensure that emergency plans are drawn up foraction outside the establishments in respect of whose industrial activitynotification has been given pursuant to Article 5 of Council Directive82/501/EEC of 24 June 1982 on the major-accident hazards of certainindustrial activities, and by failing to organise inspections or othermeasures of control proper to the type of industrial activity concerned, inbreach of the third indent of Article 7(1) and Article 7(2) of the directive,the Italian Republic has failed to fulfil its obligations thereunder;

2.    Orders the Italian Republic to pay the costs.

Kapteyn Mancini Murray Ragnemalm Schintgen

Delivered in open court in Luxembourg on 17 June 1999.

R. Grass

P.J.G. Kapteyn

Registrar

President of the Sixth Chamber

1: Language of the case: Italian.