Case C-68/11: Judgment of the Court (First Chamber) of 19 December 2012 — European Commission vs. Italian Republic (Failure of a Member State to fulfil obligations — Environment — Directive 1999/30/EC — Pollution control — Limit values for concentrations of PM 10 in ambient air).

The European Court of Justice condemned – once again one might say - the Republic of Italy for having unjustifiably failed to fulfil its obligations under Article 5 paragraph 1 of Directive 1999/30/EC relating to limit values of PM 10 in ambient air during years 2006 and 2007, relating to 55 zones and areas of the Italian territory.

The Italian State, despite having demonstrated a good knowledge of the rules in question - the proceedings before the Commission was triggered as a consequence of a report where Italy self-denounced its defaulted compliance with the Directive – was unable to convince the Commission at a first instance, and secondly the Court, that there were at least five good reasons why in 55 areas of the Italian territory, compliance with the stringent regulatory limits for PM 10 was impossible to be achieved.

The decision shows also some demoralising elements in relation to the timeliness and responsiveness of the Italian country in the application of the derogation regime allowed under Directive 2008/50/EC: which was effectively never properly requested.  Surprisingly the Italian State omitted request an extension / exemption under Article 22 of this latter Directive.

Therefore our Country should expect in this matter further condemnations, since – on one side – the Republic of Italy has confessed during the proceedings the persistence of the failure to comply with the PM 10 values in many areas of our country and – on the other side – the Commission has transparently declared that such failure shall be pursued in Court.

In detail, those arguments put forward in this case by the Italian Republic were deemed too generic and insufficient.  In essence the defensive arguments brought with a view to demonstrating that limiting the values under the regulatory threshold would have been impossible were as follows:

  1. The phenomenon of formation of particles PM 10 is too complex;
  2. The influence of weather conditions on the concentrations of PM 10 in ambient air is very complex too;
  3. The lack of scientific data on the formation of particles resulted in the provision of unreasonable limits within an unrealistic period;
  4. The practices adopted by the European Union on the so called "Precursors" of PM 10 have been ineffective;
  5. The European Union policy in the field of air quality and, in particular, that relating to ozone depleting substances was not properly coordinated with that of ambient air.

Those defenses brought by the Italian State on the basis of which the limit values applicable to PM 10 concentrations could not be complied with within the time allowed by Council Directive 1999/30/EC of 22 April 1999 are too general and imprecise to base the force majeure.

The procedure of infringement of European regulations set forth under section 258 TFEU is based on the objective assessment that a Member State failed to comply with the obligations imposed by the Treaty or by the derived European regulations: once the assessment is achieved it is not relevant whether the failure was intentional or was caused by its negligence or by technical difficulties.

In any event, a Member State who is facing overwhelming difficulties that prevent to comply with an  obligation under EU Regulation can claim to be in a situation of force majeure only for the period necessary to remedy such difficulty.