OPINION OF MR ADVOCATE GENERAL

   VERLOREN VAN THEMAAT

   DELIVERED ON 6 JUNE 1984 ( [1]1 )

   Mr President,

   Members of the Court,

   By Decision 82/401 of 5 May 1982 ([2]Official Journal 1982, L 173, p.
   20) the Commission declared that certain measures providing for aid
   laid down by the Sicilian authorities in Regional Law No 16/81 were
   incompatible with Article 92 of the EEC Treaty and the common
   organization of the markets in wine and vegetables and fruit. That
   decision was not contested by the Italian Government. It urged the
   Sicilian regional authorities to repeal the legislative provisions in
   question, which, however, has not so far been done. In Article 2 of the
   decision the Italian Republic was directed to take the necessary
   measures within one month of notification of the decision and to inform
   the Commission thereof. The Commission's application seeks a
   declaration from the Court that by not adopting the necessary measures
   within the prescribed period the Italian Republic has failed to fulfil
   its obligations under the Treaty. The facts which gave rise to the
   decision and also the content of the decision are set out in full in
   the Report for the Hearing. Therefore I shall refrain from bringing
   that information once more to the attention of the Court. The Italian
   Government asks the Court to dismiss the Commission's application or in
   the alternative to declare that the application has become devoid of
   purpose.. As regards the aid provided for in Article 13 of Regional Law
   No 16/81, whereby an amount of LIT 3000 million is made available to
   the Istituto Regionale della Vite e del Vino [Regional Wine Board] for
   the 1981 wine year, the Italian Government states that the aid is not a
   production aid of the kind referred to by the Commission in its
   decision. I share the Commission's view that that defence is directed
   against the decision itself, which is no longer open to challenge, with
   the result that it must be dismissed as inadmissible.

   As regards the aid measures provided for in Articles 1, 2 and 7 of
   Regional Law No 16/81, the Italian Government maintains that the aid
   has never been paid and cannot be paid in the future because the 1981
   wine year is over. It considers that the Commission's application is
   thereby rendered devoid of purpose.

   The Commission recognizes that the aid provided for in the provisions
   in question has not been paid. However, the Commission requires the
   legislative provisions in question to be repealed. Its insistence that
   they should be repealed is based not only on the formal ground of their
   incompatibility with Community law but also on the desire to preclude
   the possibility of any subsequent payment of aid. At the hearing the
   parties took different views as to whether such later payments were
   possible. However, we need not, I think, dwell long on this matter.
   Provisions which are contrary to Community law must be repealed. By
   virtue of Article 189 of the EEC Treaty a decision is binding in its
   entirety upon those to whom it is addressed. That applies also to
   Article 2 of the decision in question, which clearly required the
   repeal of the regional legislation and against which no application to
   the Court was lodged.

   Accordingly, I am of the opinion that the Court should decide that by
   not complying within the prescribed period with the Commission's
   decision of 5 May 1982 the Italian Republic has failed to fulfil its
   obligations under the EEC Treaty. The Italian Republic should also be
   ordered to pay the costs.
     __________________________________________________________________

   ( [3]1 ) Translated from the German.

References

   1. file:///tmp/lynxXXXXF2o0UK/L110172-3971TMP.html#t-ECRCJ1984ENA.0700286101-E0001
   2. file:///../../legal-content/EN/AUTO/?uri=OJ:L:1982:173:TOC
   3. file:///tmp/lynxXXXXF2o0UK/L110172-3971TMP.html#c-ECRCJ1984ENA.0700286101-E0001