JUDGMENT OF THE COURT (Fifth Chamber)
5 September 2019 (*)
(Failure of a Member State to fulfil obligations – Protection of plant health – Directive 2000/29/EC – Protection against the introduction into and the spread within the European Union of organisms harmful to plants or plant products – Article 16(1) and (3) – Implementing Decision (EU) 2015/789 – Measures to prevent the introduction into and the spread within the European Union of Xylella fastidiosa (Wells et al.) – Article 7(2)(c) – Containment measures – Obligation to remove immediately infected plants in a 20 km strip in the infected zone – Article 7(7) – Obligation to monitor – Annual surveys – Article 6(2), (7) and (9) – Eradication measures – Persistent and general failure to fulfil obligations – Article 4(3) TEU – Obligation of sincere cooperation)
In Case C‑443/18,
ACTION under Article 258 TFEU for failure to fulfil obligations, brought on 4 July 2018,
European Commission, represented by B. Eggers and D. Bianchi, acting as Agents,
applicant,
v
Italian Republic, represented by G. Palmieri, acting as Agent, assisted S. Fiorentino and G. Caselli, avvocati dello Stato,
defendant,
THE COURT (Fifth Chamber),
composed of E. Regan (Rapporteur), President of the Chamber, C. Lycourgos, E. Juhász, M. Ilešič and I. Jarukaitis, Judges,
Advocate General: Y. Bot,
Registrar: A. Calot Escobar,
having regard to the written procedure,
having regard to the decision taken by the President of the Court, at the request of the European Commission, that the case is to be given priority over others, in accordance with Article 53(3) of the Court’s Rules of Procedure,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1 By its application, the European Commission asks the Court to find that the Italian Republic,
– by failing to ensure, in the containment area, the immediate removal of at least all plants which have been found to be infected by Xylella fastidiosa (‘Xf’) if they are situated in the infected zone, within a distance of 20 kilometres from the border of that infected zone with the rest of the territory of the European Union, has failed to fulfil its obligations under Article 7(2)(c) of Commission Implementing Decision (EU) 2015/789 of 18 May 2015 as regards measures to prevent the introduction into and the spread within the Union of Xylella fastidiosa (Wells et al.) (OJ 2015 L 125, p. 36), as amended by Commission Implementing Decision (EU) 2016/764 of 12 May 2016 (OJ 2016 L 126, p. 77) (‘amended Implementing Decision 2015/789’);
– by failing to ensure, in the containment area, the monitoring of the presence of Xf by annual surveys at appropriate times of the year, has failed to fulfil its obligations under Article 7(7) of Implementing Decision 2015/789; and
– moreover, by continuously failing to take immediate measures to prevent the spread of Xf and, in so doing, by repeatedly infringing the specific obligations laid down in amended Implementing Decision 2015/789 concerning the respective infected zones, with the result that the bacterium was able to spread, has failed to fulfil its obligations under Article 6(2), (7) and (9), Article 7(2)(c) and Article 7(7) of amended Implementing Decision 2015/789, as well as the fundamental obligations referred to in Article 16(1) of Council Directive 2000/29/EC of 8 May 2000 on protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community (OJ 2000 L 169, p. 1), as amended by Commission Implementing Directive (EU) 2017/1279 of 14 July 2017 (‘Directive 2000/29’), and the obligation of sincere cooperation set out in Article 4(3) TEU.
Legal context
Directive 2000/29
2 Under Article 16 of Directive 2000/29:
‘1. Each Member State shall immediately notify in writing the Commission and the other Member States of the presence in its territory of any of the harmful organisms listed in Annex I, Part A, Section I …
It shall take all necessary measures to eradicate [or,] if that is impossible, inhibit the spread of the harmful organisms concerned. It shall inform the Commission and the other Member States of the measures taken.
…
3. In cases referred to in paragraphs 1 and 2, the Commission shall examine the situation as soon as possible within the Standing Committee on Plant Health. On-site investigations may be made under the authority of the Commission and in accordance with the relevant provisions of Article 21. The necessary measures based on a pest risk analysis or a preliminary pest risk analysis in cases referred to in paragraph 2 may be adopted, including those whereby it may be decided whether measures taken by the Member States should be rescinded or amended, under the procedure laid down in Article 18(2). The Commission shall follow the development of the situation and, under the same procedure, shall amend or repeal, as that development requires, the said measures. …
…’
3 Part A of Annex I to Directive 2000/29 lists the ‘harmful organisms whose introduction into, and spread within, all Member States shall be banned’. Under the heading ‘Harmful organisms known to occur in the Community and relevant for the entire Community’, Section II of Part A in paragraph (b), headed ‘Bacteria’, contains a point 3, which is worded ‘Xylella fastidiosa (Wells et al.)’.
Implementing Decisions 2014/87/EU and 2014/497/EU
4 Commission Implementing Decision 2014/87/EU of 13 February 2014 as regards measures to prevent the spread within the Union of Xylella fastidiosa (Well[s] and Raju) (OJ 2014 L 45, p. 29), which was adopted on the basis of Directive 2000/29, and, in particular, of the fourth sentence of Article 16(3) of that directive, states in recitals 2 to 4, and 7 and 8:
‘(2) On 21 October 2013 Italy informed the other Member States and the Commission of the presence of [Xf (“the specified organism”)] in its territory, in two separate areas of the province [of] Lecce, in the region of Apulia. Subsequently two further separate outbreaks have been identified in the same province. The presence of the specified organism was confirmed in respect of several plant species, including Olea europaea L., …[,] showing leaf scorching and rapid decline symptoms. …
(3) On 29 October 2013 the region [of] Apulia took emergency measures for the prevention and eradication of the specified organism …[,] in accordance with Article 16(1) of Directive 2000/29 …
(4) Italy reported that the inspections it had carried out showed no presence of the specified organism in the neighbouring provinces of Brindisi and Taranto.
…
(7) In view of the nature of the specified organism, it is likely to spread rapidly and widely. In order to ensure that the specified organism does not spread to the rest of the Union, it is necessary to take measures immediately. Until more specific information becomes available concerning host range, vectors, pathways and risk reduction options, it is appropriate to prohibit movement [of plants for planting] out of areas possibly containing infected plants.
(8) Taking into consideration the locations of the presence of the specified organism, the particular geographical situation of the administrative province of Lecce and the uncertainties concerning the criteria for demarcation, that entire province should be the subject of that prohibition, in order to apply that prohibition rapidly and effectively.’
5 Under that first implementing decision, the Commission consequently prohibited, in Article 1, ‘the movement, out of the province of Lecce, [in the] region of Apulia, Italy, of plants for planting’, prescribed, in Article 2, the conduct of official annual surveys for the presence of the bacterium Xf and required Member States, in Article 3, to ensure that where any person becomes aware of the presence of that bacterium or has reason to suspect such a presence, that person is to notify the competent authority within ten days.
6 That implementing decision was repealed by Commission Implementing Decision 2014/497/EU of 23 July 2014 as regards measures to prevent the introduction into and the spread within the Union of Xylella fastidiosa (Well[s] and Raju) (OJ 2014 L 219, p. 56).
7 Under that second implementing decision, which has the same legal basis as the first, the Commission restricted the movement of plants which are host plants of the bacterium Xf and established various conditions for their introduction into the European Union where they originate in third countries where that bacterium is known to be present (Articles 2 and 3). Moreover, in order to eradicate the bacterium Xf and to prevent its spread, the Commission, where necessary, imposed ‘demarcated areas’ on Member States, consisting of an ‘infected zone’ and a ‘buffer zone’, in which Member States were required, in particular, to remove all plants infected by the bacterium Xf, as well as all plants showing symptoms indicating possible infection by that bacterium and all plants which had been identified as likely to be infected (Article 7 and Annex III, Section 2(a)).
Implementing Decision 2015/789
8 Implementing Decision 2014/497 was repealed by Implementing Decision 2015/789, which was adopted on the same legal basis as the first two implementing decisions and contains the following recitals:
‘(1) In view of the audits carried out by the Commission and notifications of new outbreaks by the Italian authorities[,] the measures provided for in [Implementing Decision 2014/87] should be strengthened.
…
(4) In order to eradicate the specified organism and prevent its further spread in the rest of the Union, Member States should establish demarcated areas consisting of an infected zone and a buffer zone, and apply eradication measures. …
…
(7) In the province of Lecce, the specified organism is already widely established. Where evidence shows that in certain parts of that area the specified organism has been present for more than 2 years and it is no longer possible to eradicate it, the responsible official body should have the possibility to apply containment measures, instead of eradication measures, to protect at least production sites, plants with particular cultural, social or scientific value, as well as the border with the rest of the Union territory. The containment measures should aim to minimise the amount of bacterial inoculum in that area and keep the vector population at the lowest level possible.
(8) In order to ensure effective protection of the rest of the Union territory from the specified organism, taking into account the possible spread of the specified organism by natural and human assisted means other than the movement of the specified plants for planting, it is appropriate to establish a surveillance zone immediately outside the buffer zone surrounding the infected zone of the province of Lecce.
…’
9 Implementing Decision 2015/789 was amended by Commission Implementing Decision (EU) 2015/2417 of 17 December 2015 (OJ 2015 L 333, p. 43), and subsequently by Implementing Decision 2016/764, recitals 1 to 4 of which are worded as follows:
‘(1) Since the adoption of [Implementing Decision 2015/789], and until February 2016, several outbreaks of [Xf] (hereinafter “the specified organism”) in different parts of the area surrounding the province of Lecce have been notified by Italy to the Commission. Those outbreaks have taken place in many different municipalities located in the provinces of Taranto and Brindisi. Furthermore, the last audit carried out by the Commission in November 2015 confirmed that the survey activities required by Implementing Decision [2015/789] were conducted only to a very limited extent in the area surrounding the province of Lecce (Apulia region, Italy). That audit also confirmed that the current programme of surveys still does not ensure the timely detection of new outbreaks or the accurate determination of the true extent of the spread of the specified organism in the area.
(2) The last audit confirmed the risk of a rapid spread of the specified organism in the rest of the area concerned. For this reason, and given the size of that area, it is appropriate to expand the infected zone where containment measures may apply beyond the borders of the province of Lecce, and allow the move[ment] of specified plants out of that area only under very strict conditions. Such expansion should take place without delay taking into account that the risk of further spreading of the specified organism in the rest of the Union territory increases with the start of the flight season of the insect vectors in early spring. The infected zone should therefore be extended to cover those municipalities, or parts of certain municipalities, of the provinces of Brindisi and Taranto where outbreaks of the specified organism have taken place or where it is likely that that organism is already [wide]spread and established. That infected zone, however, should not include the area that has been declared by Italy as free from the specified organism before the adoption of this Decision.
(3) For purposes of legal certainty, the wording of [Article 7(2)(c)] should be amended to make clear that the measures to be taken in accordance with that Article apply in the infected zone and not outside of it.
(4) In order to ensure effective protection of the rest of the Union territory from the specified organism, and in view of the enlargement of the containment area, it is appropriate to replace the surveillance zone with new requirements for surveys in that containment area. Those requirements should apply to an area of a width of 20 km from the borders of the buffer zone and extending into that containment area, and within the surrounding buffer zone of 10 km.’
10 Article 1 of amended Implementing Decision 2015/789, headed ‘Definitions’, provides:
‘For the purposes of this Decision, the following definitions shall apply:
(a) “specified organism” means any subspecies of [Xf];
(b) “host plants” means plants for planting, other than seeds, belonging to the genera and species listed in the Commission database of host plants susceptible to [Xf] in the Union territory, as having been found to be susceptible in the Union territory to the specified organism or, where a Member State has demarcated an area with regard to only one or more subspecies of the specified organism pursuant to the second subparagraph of Article 4(1), as having been found to be susceptible to that or those subspecies;
(c) “specified plants” means host plants and all plants for planting …;
…’
11 Article 4 of amended Implementing Decision 2015/789, headed ‘Establishment of demarcated areas’, provides:
‘1. Where the presence of the specified organism is confirmed, the Member State concerned shall without delay demarcate an area in accordance with paragraph 2, hereinafter “demarcated area”.
…
2. The demarcated area shall consist of an infected zone and a buffer zone.
The infected zone shall include all plants known to be infected by the specified organism, all plants showing symptoms indicating possible infection by that organism, and all other plants liable to be infected by that organism due to their close proximity to infected plants, or common source of production, if known, with infected plants, or plants grown from them.
As regards the presence of the specified organism in the province of Lecce, and in the municipalities listed in Annex II, the infected zone shall at least include that province and those municipalities or[,] as applicable, the land registry plots (“Fogli”) of those municipalities.
The buffer zone shall be of a width of at least 10 km, surrounding the infected zone.
…’
12 Article 6 of amended Implementing Decision 2015/789, headed ‘Eradication measures’, is worded as follows:
‘1. The Member State having established the demarcated area referred to in Article 4 shall take in that area the measures as set out in paragraphs 2 to 11.
2. The Member State concerned shall, within a radius of 100 m around the plants which have been tested and found to be infected by the specified organism, immediately remove:
(a) host plants, regardless of their health status;
(b) plants known to be infected by the specified organism;
(c) plants showing symptoms indicating possible infection by that organism or suspected to be infected by that organism.
…
7. The Member State concerned shall monitor the presence of the specified organism by annual surveys at appropriate times. It shall carry out visual inspections of the specified plants and sample and test symptomatic plants, as well as asymptomatic plants in the proximity of the symptomatic ones.
In buffer zones, the surveyed area shall be based on a grid split into 100 m x 100 m squares. Visual inspections shall take place in each of those squares.
…
9. The Member State concerned shall, where necessary, take measures addressing any particularity or complication that could reasonably be expected to prevent, hinder or delay eradication, in particular those related to the accessibility and adequate destruction of all plants that are infected or suspected of infection, irrespective of their location, public or private ownership or the person or entity responsible for them.
…’
13 Under Article 7 of amended Implementing Decision 2015/789, headed ‘Containment measures’:
‘1. By way of derogation from Article 6, only in the infected zone referred to in the third subparagraph of Article 4(2), the responsible official body of the Member State concerned may decide to apply the containment measures set out in paragraphs 2 to 7 …
2. The Member State concerned shall immediately remove at least all plants which have been found to be infected by the specified organism if they are situated in any of the following locations:
…
(c) a location within the infected zone referred to in the third subparagraph of Article 4(2), situated within a distance of 20 km from the border of that infected zone with the rest of the Union territory.
…
7. The Member State concerned shall monitor the presence of the specified organism by annual surveys at appropriate times during the year in the areas situated within the distance of 20 km as referred to in [paragraph 2(c)].
…’
14 Annex II to amended Implementing Decision 2015/789, which contains the list of municipalities referred to in Article 4(2) of that decision, includes municipalities located in the provinces of Brindisi and Taranto.
Pre-litigation procedure
15 On 11 December 2015, in view of the spread of the bacterium Xf in the region of Apulia and the continual deterioration of the situation since October 2013, the Commission sent the Italian authorities a letter of formal notice, claiming that they had, on one hand, failed to remove infected plants and those subject to specific obligations, in accordance with Article 6(2) and Article 7(2)(c) of Implementing Decision 2015/789, and, on the other, failed to comply with the obligation to conduct surveys, in accordance with Articles 6(7) and 8(2) of that implementing decision.
16 On 10 February 2016, the Italian authorities replied to that letter of formal notice by emphasising, in particular, that the Tribunale amministrativo regionale del Lazio (Regional Administrative Court, Lazio, Italy) had adopted suspensive measures and, on 22 January 2016, had referred to the Court a request for a preliminary ruling, under Article 267 TFEU, concerning the validity of Article 6(2)(a) of Implementing Decision 2015/789, which relates to the obligation to cut down plants within a radius of 100 m around the infected plants. The Italian authorities indicated that, on account of those judicial developments, the cutting down of trees had been significantly delayed and that the implementation of part of Implementing Decision 2015/789 had become legally impossible.
17 On 25 July 2016, as Implementing Decision 2016/764 had altered the geographic scope of the complaints raised in the letter of formal notice of 11 December 2015, the Commission sent the Italian authorities a further letter of formal notice, in which it noted the continual and persistent failure by the Italian Republic to fulfil its specific obligations under amended Implementing Decision 2015/789 and the general obligation referred to in Article 16(1) of Directive 2000/29. The Commission argued, moreover, that the Italian Republic was in breach of the principle of sincere cooperation laid down in Article 4(3) TEU. In addition, that letter of formal notice referred, in particular, to the failure to immediately remove infected plants, and deficiencies with regard to the conducting of surveys.
18 On 26 August 2016, the Italian authorities, in reply to the further letter of formal notice, stated that the judicial obstacles to the implementation of the monitoring and the removal measures provided for by amended Implementing Decision 2015/789 had been removed and that those activities had recommenced or were about to be, and provided additional information concerning the implementation of the containment measures and the monitoring activities conducted in 2015 and 2016.
19 On 14 July 2017, the Commission issued a reasoned opinion, in which it alleged a number of failures on the part of the Italian Republic to comply with EU law. First, it alleged that the Italian Republic had failed, in breach of Article 7(2)(c) of amended Implementing Decision 2015/789, to immediately cut down infected plants in the containment area. Secondly, the Commission claimed that the Italian Republic had infringed Article 6(3), (7) and (9) and Article 7(2), (3) and (7) of amended Implementing Decision 2015/789, on the grounds that that Member State had failed to fulfil its obligation to ensure, both in the containment area and in the buffer zone, that samples were taken within a radius of 100 m around the infected plants and that the presence of Xf was monitored by means of annual surveys carried out at appropriate times. Thirdly, the Commission argued that the Italian Republic had continually and generally failed to fulfil the obligation to adopt the necessary measures to prevent the spread of Xf, in breach of Article 16(1) of Directive 2000/29, and of Articles 6(2) and 7(2) of amended Implementing Decision 2015/789. Fourthly, it alleged that that Member State had failed to have regard to the obligation of sincere cooperation, provided for in Article 4(3) TEU, on account of various omissions as a result of which that Member State had been unable to prevent the spread of the disease over more than 40 km by as early as 2015.
20 On 14 September 2017, the Italian authorities replied to that reasoned opinion. Whilst acknowledging the seriousness of the situation, and their obligation to immediately remove plants, those authorities emphasised, in particular, the fact that there had been considerable improvement in the cutting down of plants as a result of new procedures adopted at regional level.
21 Since it took the view that, by May 2018, the Italian Republic had not complied with the request for immediate action set out in the reasoned opinion with a view to preventing the spread of Xf and that, on account of the ongoing nature of the failures listed, the harmful organism had spread significantly in the containment area and the buffer zone, the Commission brought the present action.
The action
First complaint, alleging infringement of Article 7(2)(c) of amended Implementing Decision 2015/789
Arguments of the parties
22 By its first complaint, the Commission claims that the Italian Republic failed to comply with the obligation to immediately remove infected plants laid down in Article 7(2)(c) of amended Implementing Decision 2015/789 by leaving numerous plants in place for several months, and even sometimes more than a year, after the infection had been detected and during the flight season of the insect vectors. The period of time that elapses between the detection of the disease and the time when the infected plants are in fact cut down should be just a few days and, in any event, not exceed ten working days, according to the circumstances.
23 In this case, at the expiry of the time limit set by the reasoned opinion, namely 14 September 2017, the Italian authorities had cut down only 78% of the infected plants identified during the monitoring exercise relating to 2016 and there still remained, at that date, 191 trees to be removed. Moreover, analysis of the information provided by those authorities highlights considerable delays between the identification of infected plants and the issue and notification of an order to cut them down, namely around eight weeks. The need to identify the owners and notify them of the cutting-down measure is one of the principal reasons for the delay. Where such identification is not possible, there is no notification of the measure and the authorities cannot therefore cut down the plants. In addition, if the owner objects to the measure, the Italian authorities cannot ensure the immediate removal of the infected plants.
24 The obligation to immediately remove such plants does, however, require the competent authorities to act without delay. In that regard, experience acquired in Italy and other Member States in which the presence of the bacterium Xf has been detected shows that it is possible to remove an infected tree in less than a week. By contrast, where the time that elapses between the detection of the bacterium and the cutting down of infected plants is significantly more than that, the bacterium will continue to spread. Since the majority of insect vectors can travel a distance of up to 100 m in the space of 12 days, it is crucial to act immediately. That is all the more so in the case of containment measures in the part of the infected zone referred to in Article 7(2)(c) of amended Implementing Decision 2015/789, in which the removal obligation relates solely to infected plants.
25 Reducing to a minimum the period of time between the detection of infected plants and their removal therefore constitutes the only means of preventing the spread of the harmful organism within the rest of the European Union. Member States have an obligation as to the result to be achieved in that regard. As it is directly applicable, amended Implementing Decision 2015/789 does not leave the Member State any discretion as to its implementation. The obligation to remove infected plants cannot therefore be interpreted as meaning that it is limited to making provision for measures for the removal of plants, and not the implementation of those measures.
26 In the judgment of 9 June 2016, Pesce and Others (C‑78/16 and C‑79/16, EU:C:2016:428), the Court confirmed that the Commission was entitled to take the view that the obligation to remove infected plants immediately was an appropriate and necessary measure to prevent the spread of the bacterium Xf. It also acknowledged that the Commission had weighed up the various interests at stake. That applies a fortiori to the measure referred to in Article 7(2)(c) of amended Implementing Decision 2015/789, under which only infected trees must be removed. Moreover, quickly removing infected plants before the start of the flight season of the insect vectors is even more crucially important in view of the continual and permanent delay observed in relation to annual surveys.
27 The legal and practical problems cited by the Italian Republic, arising from identifying the owners of the land and from the actions brought by some of those owners, cannot justify the fact that infected trees were not removed until several months after the infection was detected. That Member State can rely still less on general national provisions, irrespective of whether they were adopted pursuant to other provisions of EU law. The Commission does not mean to object to the appropriate involvement of the owners and the exercise of their rights and remedies. However, in accordance with Article 6(9) of amended Implementing Decision 2015/789, the obligation as to the result to be achieved in relation to the cutting down of trees requires the Italian Republic to adopt all the necessary measures to be able to act immediately as soon as an infected tree is detected. Thus, in 2015, the Italian authorities used national emergency measures to tackle the first outbreak.
28 The Italian Republic maintains that the term ‘immediately’ used in Article 7(2) of amended Implementing Decision 2015/789 must be understood in the light of the content of the obligation itself and the legal conditions which govern it.
29 As the adoption of a measure such as the removal of infected plants has a significant impact on the individual right to property, it is essential to identify the owner in advance and to notify him or her of the measure. However, in the present case, in the light of the region of Apulia’s particular system of ownership and management of agricultural land, it was very difficult to identify the owners since, in a significant number of cases, they are deceased or live outside the region of Apulia, which delayed the notifications. Moreover, a considerable number of very large olive trees were involved.
30 Moreover, the order of 18 December 2015 of the Procura della Repubblica di Lecce (Public Prosecutor, Lecce, Italy), who issued an emergency attachment order in respect of all the olive trees which should have been cut down, made it legally impossible to implement the measures between 28 December 2015, the date on which that order was confirmed by the Giudice delle indagini preliminari presso il Tribunale di Lecce (judge responsible for preliminary investigations at the District Court, Lecce, Italy), and 25 July 2016, the date on which the order was lifted.
31 The adoption of the removal measures at issue was also the subject of strong objections, fuelled by the lack of sufficient certainty, during the period of application of those measures, as to the link between the phenomenon of the desiccation of olive trees and the bacterium Xf. That uncertainty was dispelled only by the scientific opinion of the European Food Safety Authority (EFSA) of 31 March 2016. There is still, however, at national level, a campaign of misinformation suggesting that infected plants must be not cut down, but treated.
32 In addition, according to the Italian Republic, it is wrong to consider that amended Implementing Decision 2015/789 lays down an obligation on the part of Member States as to the result to be achieved, consisting of ensuring that infected trees are cut down within a very limited timeframe after it has been established that they are infected. The wording of Article 7(2) of amended Implementing Decision 2015/789 refers to an action, namely to ‘remove’, and not to the result of that action. In the absence of such an obligation as to the result to be achieved, establishing whether a Member State has failed to fulfil its obligations requires, as is apparent from paragraphs 107 and 108 of the judgment of 5 April 2017, Commission v Bulgaria (C‑488/15, EU:C:2017:267), a case-by-case analysis of whether the Member State has acted with all due diligence, irrespective of whether the aim of the rules has been achieved. In this case, the complex operation of regulating, organising and managing resources carried out by the Italian Republic in connection with the adoption and implementation of the measures in question demonstrates that it complied with its obligations under amended Implementing Decision 2015/789.
Findings of the Court
33 Under Article 7(2)(c) of amended Implementing Decision 2015/789, the Member State concerned was obliged, in what is known as the ‘containment’ area, corresponding to the part of the infected zone including the province of Lecce and the municipalities listed in Annex II to that decision, all located in the provinces of Brindisi and Taranto, to ‘immediately’ remove, by way of containment measure, at least all plants which have been found to be infected by the specified organism, namely the bacterium Xf, if they were situated in a location within that zone situated within a distance of 20 km from the border of that zone with the rest of the EU territory (‘the 20 km strip of the containment area’).
34 According to Court’s the settled case-law, the existence of a failure to fulfil obligations must be assessed by reference to the situation in the Member State as it stood at the end of the period laid down in the reasoned opinion, so that subsequent changes cannot be taken into account by the Court (see, in particular, judgment of 21 March 2019, Commission v Italy, C‑498/17, EU:C:2019:243, paragraph 29 and the case-law cited).
35 In this case, the period laid down in the reasoned opinion expired on 14 September 2017.
36 The Italian Republic does not dispute that, at that date, of a total of 886 infected plants identified during the survey carried out by way of the monitoring exercise relating to 2016, a significant proportion of those plants, namely 191, representing nearly 22% of the total number of infected plants, had not yet been removed in the 20 km strip of the containment area.
37 Moreover, neither does that Member State dispute that, where infected plants were removed in that 20 km strip, that was not carried out until after a period of several months had passed following the finding that those plants were infected.
38 However, the wording of Article 7(2) of amended Implementing Decision 2015/789 is drafted, in that regard, in terms which do not leave room for any reasonable doubt. The term ‘immediately’, used in that provision, cannot, in view of its usual meaning in everyday language, be reconciled with a period of several weeks or even, as in this case, of several months.
39 That interpretation is all the more compelling given that, according to the EFSA’s opinions of 6 January 2015 and 17 March 2016, the findings of which were not disputed on that point, only the rapid removal of infected plants is capable of preventing the spread of the bacterium Xf. As is apparent from the scientific data provided by the Commission in support of its action, which were not called into question by the Italian Republic, the insect vector, in this case the leafhopper, travels nearly 100 m in the space of only 12 days.
40 Thus, the audit report drawn up by the Commission for 2018 (Final report of an audit carried out in Italy from 28 May 2018 to 1 June 2018 in order to evaluate the situation and official controls for Xylella fastidiosa, DG (SANTE) 2018-6485, pp. 23-24) (‘the 2018 audit report’) explicitly mentions that over 90% of the positive cases of infection identified during the monitoring exercise relating to 2016, which was brought to a close in May 2017, were discovered near plants identified as infected in 2015, the removal of which was significantly delayed.
41 Contrary to what the Italian Republic argues, the requirement of immediacy imposed in Article 7(2) of amended Implementing Decision 2015/789 cannot be interpreted as relating solely to the adoption of measures by national authorities with a view to having such removal carried out.
42 It follows both from the wording of that provision, which clearly requires the Member State to ‘remove’ infected plants, and from the need for it to be effective that that requirement can relate only to the removal itself, since only the actual removal of infected plants, and not the adoption of measures requiring it, is capable of preventing the spread of the bacterium Xf, which, as is apparent, in particular, from recitals 4, 7 and 8 of Implementing Decision 2015/789 and recitals 1, 2 and 4 of Implementing Decision 2015/2417, is the objective pursued by amended Implementing Decision 2015/789 and, in particular, by the containment measures (see, by analogy, judgment of 9 June 2016, Pesce and Others, C‑78/16 and C‑79/16, EU:C:2016:428, paragraph 54).
43 Such removal is thus capable of achieving the aim pursued by Directive 2000/29, on the basis of which amended Implementing Decision 2015/789 was adopted, which is to ensure a high level of phytosanitary protection against the bringing into the European Union of harmful organisms in produce imported from non-member countries (see, to that effect, judgment of 30 September 2003, Anastasiou and Others, C‑140/02, EU:C:2003:520, paragraph 45).
44 It follows that Article 7(2) of amended Implementing Decision 2015/789 imposes on Member States a precise obligation as to the result to be achieved relating to the removal of plants infected by the bacterium Xf and that an objective finding that that obligation has been infringed is sufficient, by itself, to demonstrate that a Member State has failed to fulfil its obligations. The situation at issue in the present case is not therefore comparable to the situation examined by the Court in paragraphs 107 and 108 of the judgment of 5 April 2017, Commission v Bulgaria (C‑488/15, EU:C:2017:267), cited by the Italian Republic.
45 With regard to the various practical, administrative and legal obstacles put forward by the Italian Republic in order to justify the delay in removing infected plants situated in the 20 km strip of the containment area, as a result of the high number of very large olive trees, the obligation, under national law, to identify the owners of the land concerned and notify them of the removal measures, and the legal actions brought with a view to preventing the cutting down of plants, it should be recalled that, according to the Court’s settled case-law, a Member State may not plead situations in its internal legal order in order to justify a failure to comply with obligations and time limits arising under EU law (see, in particular, judgment of 21 March 2019, Commission v Italy, C‑498/17, EU:C:2019:243, paragraph 35 and the case-law cited).
46 Moreover, the Italian Republic did not dispute that it would have been free, as the Commission argued, to adopt national emergency measures providing, like those adopted in 2015, for more rapid procedures in order to overcome such administrative and legal obstacles.
47 In addition, whilst it is true that the attachment order issued, in the context of criminal proceedings, by the Procura della Repubblica di Lecce (Public Prosecutor, Lecce) and approved by the Giudice delle indagini preliminari presso il Tribunale di Lecce (judge responsible for preliminary investigations at the District Court, Lecce), was likely to prevent the removal of infected olive trees throughout the area concerned in the first part of 2016, it must, however, be found, as the Commission argued without being properly challenged by the Italian Government, that the Italian authorities, following the lifting of that order, failed to adopt the immediate measures required in Article 7(2)(c) of amended Implementing Decision 2015/789.
48 Consequently, the first complaint must be upheld.
Second complaint, alleging infringement of Article 7(7) of amended Implementing Decision 2015/789
Arguments of the parties
49 By its second complaint, the Commission claims that the Italian Republic failed to comply with the obligation to monitor the presence of the bacterium Xf in the 20 km strip of the containment area, in accordance with Article 7(7) of amended Implementing Decision 2015/789.
50 In this case, for 2016, the survey for the presence of the bacterium Xf began in August 2016 and ended in May 2017. As to the survey carried out by way of the monitoring exercise relating to 2017, it started in July 2017 and was completed in April 2018. Those surveys were thus partly conducted at times of the year which were not favourable to the detection of symptoms of an infection on deciduous plants and trees, namely during the winter months, when deciduous trees and herbaceous plants no longer had leaves. Consequently, the effectiveness of visual inspections, as a means of detecting suspected cases of infection, was compromised.
51 The obligation to carry out an annual survey ‘at appropriate times during the year’ within the meaning of Article 7(7) of amended Implementing Decision 2015/789, requires, in accordance with the aim of that implementing decision and of Directive 2000/29, which is to prevent the spread of the disease, that that survey be carried out during a period of the year when that disease can be detected, namely, in the case of olive trees, during the summer period. Moreover, in view of the obligation to provide a report by 31 December and in order to allow infected plants to be removed before the beginning of spring, when the insect vector of the bacterium Xf starts to spread, the survey must be brought to a close before the end of the year.
52 Amended Implementing Decision 2015/789 therefore obliges Member States to complete their annual monitoring campaign in such a way as to be able to submit a report and a new action plan for the following year before the end of December. That implementing decision thus clearly indicates that the monitoring must be conducted at the time which is not only the most appropriate from a scientific perspective for identifying infected trees, but which also ensures that trees can be cut down immediately and with certainty before the following flight season begins.
53 The Italian Republic argues that the start of monitoring in August 2016 coincided with the period regarded as optimal for the majority of Xf hosts, namely the period when the typical symptoms of leaf scorching appear on leaves which have reached maturity.
54 In addition, the infections caused by Xf vary in their symptoms and severity according to the hosts and the subspecies of the bacterium. Thus, in the case of the olive tree, the damage caused by the infection appears not in the form of the typical symptoms of scorching of leaves which have reached maturity at the end of the summer season, but principally in the form of a typical desiccation of branches affecting a greater or lesser number of branches.
55 Evidence gathered in the field indicates that symptoms can appear throughout the year. That is also apparent from the Commission’s Directorate-General for Health and Food Safety’s Guidelines for the survey of Xf in the Union territory of 16 December 2015, published on its website. In addition, infections arising during the summer season can be detected on olive tree from the third month following transmission. It is therefore possible to pick up early, during the winter period, infections which were at the initial stage and occurred during the preceding summer season.
Findings of the Court
56 Under Article 7(7) of amended Implementing Decision 2015/789, the Member State concerned was obliged to monitor the presence of the specified organism by annual surveys ‘at appropriate times during the year’ in the 20 km strip of the containment area.
57 Whilst that provision does not require, according to its wording, that the annual surveys in question take place at a set time of the year, thus leaving the competent national authorities a margin of discretion in that regard, the fact remains that, according to that wording, those annual surveys must be conducted at an ‘appropriate’ time.
58 In the light of the objective pursued by amended Implementing Decision 2015/789, and, in particular, by the containment measures referred to in Article 7(2)(c) thereof, which, as is apparent from paragraph 42 above, is to prevent the spread of the bacterium Xf, those surveys must be carried out at a time of the year which makes it possible both to detect the infection of plants and to implement the containment measures in respect of that infection, consisting, under that provision, in immediately removing infected plants.
59 In this case, it is not disputed that the survey carried out by way of the monitoring exercise relating to 2016 in order to determine the presence of the bacterium Xf in the 20 km strip of the containment area was initiated in August 2016 and ended in May 2017.
60 It is clear that, as the Commission rightly argues, such a survey, brought to a close in spring, which corresponds to the flight season of the insect vector and, which is not disputed, to the period when the spread of the bacterium Xf resumes, in practice makes it impossible for the competent national authorities to effectively implement the containment measures in the 20 km strip of the containment area by removing infected plants before the beginning of that period of spread.
61 Consequently, even assuming, as the Italian Republic argues, that the bacterium Xf can be detected throughout the year, which the Commission disputes, the fact remains that the annual survey provided for in Article 7(7) of amended Implementing Decision 2015/789 should be finished at a sufficiently early time of the year, before the beginning of spring, in order to allow, in accordance with the requirement laid down in Article 7(2)(c) thereof, the timely removal of infected plants.
62 Consequently, the second complaint must be upheld.
Third complaint, alleging persistent and general failure to comply with the obligation to adopt the necessary measures to prevent the spread of the bacterium Xf
Arguments of the parties
63 By its third complaint, the Commission claims that the Italian Republic has persistently and generally failed to comply with the obligation to prevent the spread of Xf, that failure taking the form of repeated and distinct infringements of the measures laid down by amended Implementing Decision 2015/789. That failure infringes not only the obligations arising under Article 6(2), (7) and (9), Article 7(2)(c) and Article 7(7) of that implementing decision, but also the fundamental obligation set out in Article 16(1) of Directive 2000/29 and the obligation of sincere cooperation referred to in Article 4(3) TEU.
64 A Member State can be found to have generally and persistently failed to fulfil its obligations not only where it fails to comply with its obligations under EU law relating to specific situations which have been remedied before the infringement proceedings are sufficiently advanced, but also, and a fortiori, where, as in the present case, as the Member State concerned failed to remedy earlier failures to fulfil its obligations, those failures have led to the spread of a bacterium and, consequently, made it necessary to amend the measures adopted by the Commission with regard to the specific areas subject to eradication and containment obligations.
65 Thus, in this case, finding that the Member State concerned has failed to fulfil only the specific obligations arising under the implementing decision applicable to the areas concerned at a given time is tantamount, for the Commission, to attempting to hit a moving target. The Commission’s goal is to eradicate the bacterium Xf or, at least, to prevent the spread of that bacterium outside the zone currently infected. Consequently, the fundamental obligation to remove infected plants remains the same over time, even if it has to apply to different areas under successive implementing decisions. Moreover, the adoption of such a decision does not exempt Member States from their fundamental obligation, arising under Article 16(1) of Directive 2000/29, to adopt all necessary measures to prevent the spread of the bacterium Xf.
66 The fact that the Italian authorities persistently failed to immediately remove infected plants as soon as they were notified, in October 2013, of the first outbreak detected in the very south of the region of Apulia, little by little allowed the bacterium Xf to spread all along the ‘heel of the Italian boot’. That spread was exacerbated by the failure of the Italian authorities to fulfil their obligation to conduct annual surveys in a timely manner before the beginning of the flight season of the insect vector.
67 Thus, the data supplied by the Italian authorities in 2018 concerning the results of the survey conducted, late, in the containment area in respect of 2017 reveal the presence of several thousand infected trees and demonstrate, once again, considerable delays in cutting down infected trees during the flight period of the insect vector. In particular, those data, as they appear in the 2018 audit report, show that, during the flight season of the insect vector in 2018, there was still a large number of infected trees that had not been cut down, which contributed to the spread of the bacterium Xf. In that context, given that the containment area and the buffer zone required under amended Implementing Decision 2015/789 were no longer, performing their functions, those areas were twice moved northward. That movement demonstrates that the bacterium Xf spread from the province of Lecce throughout the territory of the provinces of Brindisi and Taranto.
68 The simple fact that the authorities of a Member State were not capable of taking the necessary measures to prevent a given situation from arising, such as the deterioration of the environment, is, by itself, proof of failure by that Member State to fulfil its obligations. Thus, the spread of the bacterium Xf throughout the region of Apulia and towards the rest of the continent between 2013 and 2018, without the Italian authorities having been able to prevent it, is sufficient to demonstrate that those authorities continually failed to adopt the necessary measures to prevent the spread of Xf, in breach of the rules to which the third complaint refers.
69 The Italian Republic maintains that the gradual spread of the infection over the territory of the region of Apulia, which is clearly undesirable from the point of view of amended Implementing Decision 2015/789, is not attributable to it alone and is not in itself capable of demonstrating a general and persistent failure on the part of that Member State to fulfil its obligations.
70 That spread is a natural phenomenon which, as such, is not automatically preventable through human action, but can only be controlled and slowed down. Whilst the activity of regulating, organising and managing the measures, carried out by the public authorities, is one of the things that must be done in order to limit the spread of the bacterium, it is not reasonable to assert that that activity must in itself prevent the undesirable spread of the infection. That spread is dependent precisely on factors which are also exogenous to the steps taken by the administrative authorities and, in any event, inherent in the very nature of infection affecting plant health.
Findings of the Court
71 By the present complaint, the Commission argues, in essence, that the very fact that the bacterium Xf has been spreading continuously in the region of Apulia since 2013 and the Italian Republic has therefore failed to achieve the result sought by amended Implementing Decision 2015/789 demonstrates that that Member State has generally and persistently failed to fulfil the obligation to adopt the necessary measures to prevent the spread of that bacterium.
72 The Commission infers from this that the Italian Republic has repeatedly infringed both the specific obligations laid down in Article 7(2)(c) and Article 7(7) of that implementing decision, which were the subject of the first two complaints, and those laid down in Article 6(2), (7) and (9) of that implementing decision. As a result, that Member State has also infringed the fundamental obligation set out in Article 16(1) of Directive 2000/29 and the obligation of sincere cooperation referred to in Article 4(3) TEU.
73 In that regard, it should be noted that it is clear from the Court’s settled case-law that the Commission may seek in parallel a finding that specific provisions of EU law have not been complied with by reason of the conduct of a Member State’s authorities with regard to particular specifically identified situations and a finding that those provisions have not been complied with because its authorities have adopted a general practice contrary to those provisions, which is illustrated in some cases by the particular situations (see, in particular, judgments of 26 April 2005, Commission v Ireland, C‑494/01, EU:C:2005:250, paragraph 27, and of 2 December 2014, Commission v Italy, C‑196/13, EU:C:2014:2407, paragraph 33).
74 An administrative practice can be the subject matter of an action for failure to fulfil obligations when it is, to some degree, of a consistent and general nature (see, in particular, judgments of 29 April 2004, Commission v Germany, C‑387/99, EU:C:2004:235, paragraph 42; of 26 April 2005, Commission v Ireland, C‑494/01, EU:C:2005:250, paragraph 28; and of 26 April 2007, Commission v Italy, C‑135/05, EU:C:2007:250, paragraph 21).
75 According to the Court’s case-law, in so far as the action seeks a declaration that there has been a general failure on the part of the competent national authorities to fulfil obligations, the fact that the deficiencies identified in any particular case have been remedied does not necessarily mean that the general and continuous approach of those authorities, as evidenced by those specific deficiencies in some cases, has come to an end. In such a case, the production of additional evidence intended, at the stage of proceedings before the Court, to support the proposition that the failure thus alleged is general and consistent cannot therefore be ruled out in principle (see, in particular, judgments of 26 April 2005, Commission v Ireland, C‑494/01, EU:C:2005:250, paragraphs 32 and 37; of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraph 42; and of 22 February 2018, Commission v Poland, C‑336/16, EU:C:2018:94, paragraphs 47 and 48).
76 In particular, the subject matter of an action for allegedly persistent failure to fulfil obligations may extend to events which took place after the reasoned opinion, provided that they are of the same kind as the events to which the opinion referred and constitute the same conduct (judgments of 5 April 2017, Commission v Bulgaria, C‑488/15, EU:C:2017:267, paragraph 43, and of 22 February 2018, Commission v Poland, C‑336/16, EU:C:2018:94, paragraph 49).
77 In addition, it should also be recalled that the Commission, as it argues in support of the present complaint, may ask the Court to find that, by not having achieved the result intended by an act of EU law, a Member State has failed to fulfil its obligations (see, to that effect, in particular, judgment of 27 April 2006, Commission v Germany, C‑441/02, EU:C:2006:253, paragraph 45 and the case-law cited).
78 That said, the fact remains that, according to settled case-law relating to the burden of proof in proceedings under Article 258 TFEU for failure to fulfil obligations, it is for the Commission to prove the existence of the infringement alleged. It is the Commission that must provide the Court with the information necessary for it to determine whether the infringement is made out, and the Commission may not rely on any presumption for that purpose (see, in particular, judgments of 27 April 2006, Commission v Germany, C‑441/02, EU:C:2006:253, paragraph 48, and of 2 May 2019, Commission v Croatia (Biljane Donje landfill site), C‑250/18, not published, EU:C:2019:343, paragraph 33).
79 Thus, as the Commission correctly pointed out, the Court has indeed previously held that the persistence of a situation which leads to a significant deterioration in the environment over a protracted period without any action being taken by the competent authorities may be an indication that the Member States have exceeded the discretion which is conferred on them by a specific provision of a directive to achieve the objective prescribed by that provision. However, the Court also stated that it cannot, in principle, be directly inferred from the fact that a situation is not in conformity with that objective that the Member State concerned has necessarily failed to fulfil its obligations under that provision (see, to that effect, judgments of 26 April 2007, Commission v Italy, C‑135/05, EU:C:2007:250, paragraph 37, and of 16 July 2015, Commission v Slovenia, C‑140/14, not published, EU:C:2015:501, paragraph 69 and the case-law cited).
80 In particular, in view of its obligation, referred to in paragraph 78 above, to prove the alleged failure by a Member State to fulfil its obligations, the Commission cannot, under the guise of claiming that the Member State concerned has generally and persistently failed to fulfil its obligations under EU law on the grounds that the objective set by EU law has not been achieved, avoid complying with that obligation to prove the alleged failure on the basis of concrete evidence of the infringement of the specific provisions which it invokes, and rely on simple presumptions or schematic causations (see, to that effect, judgment of 22 February 2018, Commission v Poland, C‑336/16, EU:C:2018:94, paragraph 78).
81 Therefore, in this case, the mere fact that the objective sought by amended Implementing Decision 2015/789 has not been achieved does not allow the Commission to infer from that that the Italian Republic has infringed the specific obligations imposed by that implementing decision in order to achieve that objective, unless it demonstrates, in addition, relying on concrete evidence, that that Member State has in fact committed such an infringement.
82 Whilst it is apparent from the examination of the first two complaints that the Commission has established that the Italian Republic has infringed the specific obligations laid down in Article 7(2)(c) and Article 7(7) of amended Implementing Decision 2015/789, and whilst the evidence put forward by the Commission in support of the third complaint, in particular the 2018 audit report, shows that that infringement continued after the date on which the time limit set in the reasoned opinion expired, the Commission has not provided any concrete evidence whatsoever capable of demonstrating that that Member State has infringed the specific obligations laid down in Article 6(2), (7) and (9) of that implementing decision.
83 Nevertheless, under no circumstances can infringement of those provisions, concerning eradication measures in the demarcated area, including the infected zone and the buffer zone, which relate both to infected plants and plants situated within a radius of 100 m of the infected plants, including, in particular, host plants of the bacterium Xf, regardless of their state of health, be established by evidence demonstrating infringement of the separate provisions laid down in Article 7(2)(c) and Article 7(7) of that implementing decision, which relate only to infected plants in the 20 km strip of the containment area, which is situated in the infected zone alone and constitutes only a part of that zone.
84 It follows that, by thus purporting to infer that the Italian Republic has infringed the specific obligations laid down in Article 6(2), (7) and (9) of Implementing Decision 2015/789 from the observation that the bacterium Xf has been spreading continuously in the region of Apulia since 2013, the Commission has relied on the presumption that such infringement has taken place and that there is a causal link between that infringement and the spread of the bacterium Xf.
85 In the absence of such concrete evidence of infringement of those specific obligations, it is possible however, that, as the Italian Republic correctly argues, the spread of the bacterium Xf may result, at least in part, from circumstances other than infringement of those obligations by that Member State.
86 Consequently, it must be found that the Commission has failed to establish that the Italian Republic has repeatedly infringed the specific obligations laid down in Article 6(2), (7) and (9) of amended Implementing Decision 2015/789.
87 As a result, the Commission cannot claim that the Italian Republic has infringed Article 16(1) of Directive 2000/29 and Article 4(3) TEU, as the complaints formulated in that regard by the Commission are based, in the same way, on the mere fact that the bacterium Xf has been spreading in the region of Apulia since 2013.
88 In those circumstances, it is apparent that the Commission has failed to establish that the Italian Republic has generally and persistently failed to comply with the obligation to adopt the necessary measures to prevent the spread of the bacterium Xf by repeated and distinct infringements of the measures laid down by amended Implementing Decision 2015/789.
89 Consequently, the third complaint must be rejected.
90 In the light of all the foregoing considerations, it must be found that the Italian Republic,
– by failing to ensure, in the containment area, the immediate removal of at least all plants which have been found to be infected by Xf if they are situated in the infected zone, within a distance of 20 km from the border of that infected zone with the rest of the territory of the European Union, has failed to fulfil its obligations under Article 7(2)(c) of amended Implementing Decision 2015/789, and
– by failing to ensure, in the containment area, the monitoring of the presence of Xf by annual surveys at appropriate times of the year, has failed to fulfil its obligations under Article 7(7) of that implementing decision.
Costs
91 Under Article 138(3) of the Rules of Procedure of the Court, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. In the present case, as the parties have succeeded on some and failed on other heads, they must be ordered each to bear their own costs.
On those grounds, the Court (Fifth Chamber) hereby:
1. Declares that the Italian Republic,
– by failing to ensure, in the containment area, the immediate removal of at least all plants which have been found to be infected by Xylella fastidiosa if they are situated in the infected zone, within a distance of 20 km from the border of that infected zone with the rest of the territory of the European Union, has failed to fulfil its obligations under Article 7(2)(c) of Commission Implementing Decision (EU) 2015/789 of 18 May 2015 as regards measures to prevent the introduction into and the spread within the Union of Xylella fastidiosa (Wells et al.), as amended by Commission Implementing Decision (EU) 2016/764 of 12 May 2016, and
– by failing to ensure, in the containment area, the monitoring of the presence of Xylella fastidiosa by annual surveys at appropriate times of the year, has failed to fulfil its obligations under Article 7(7) of that implementing decision;
2. Dismisses the action as to the remainder;
3. Orders the European Commission and the Italian Republic each to bear their own costs.
[Signatures]