Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE COURT (Sixth Chamber)

18 June 1998 (1)

(Failure of a Member State to fulfil its obligations - Failure to transpose Directive 80/68/EEC)

In Case C-183/97,

Commission of the European Communities, represented by Francisco de Sousa Fialho and Nicholas Khan, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

applicant,

v

Portuguese Republic, represented by Luís Fernandes, Director of the Legal Service of the European Communities Directorate-General in the Ministry of Foreign Affairs, and João Lopes Fernandes, Director of the Legal Office of the National Water Institute, acting as Agents, with an address for service in Luxembourg at the Portuguese Embassy, 33 Allée Scheffer,

defendant,

APPLICATION for a declaration that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply fully and properly with Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater

against pollution caused by certain dangerous substances (OJ 1980 L 20, p. 43), in particular with Articles 8, 9, 10, 11 and 15 thereof, and, in the alternative, by failing to inform the Commission of such measures forthwith, the Portuguese Republic has failed to fulfil its obligations under Article 21(1) of that directive,

THE COURT (Sixth Chamber),

composed of: H. Ragnemalm, President of the Chamber, R. Schintgen, G.F. Mancini, G. Hirsch and K.M. Ioannou (Rapporteur), Judges,

Advocate General: A. La Pergola,

Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 31 March 1998,

gives the following

Judgment

1. By application lodged at the Court Registry on 12 May 1997, the Commission of the European Communities brought an action under Article 169 of the EC Treaty for a declaration that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply fully and properly with Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances (OJ 1980 L 20, p. 43, 'the Directive'), in particular with Articles 8, 9, 10, 11 and 15 thereof, and, in the alternative, by failing to inform the Commission of such measures forthwith, the Portuguese Republic has failed to fulfil its obligations under Article 21(1) of the Directive.

2. The purpose of the Directive is to prevent the pollution of groundwater by substances belonging to the families and groups of substances in lists I or II in the Annex thereto.

3. Under Article 3 Member States are to take the necessary steps to:

   (a) prevent the introduction into groundwater of substances in list I; and

   (b) limit the introduction into groundwater of substances in list II so as to avoid pollution of this water by these substances.

4. Articles 4 and 5 of the Directive provide that, subject to certain conditions being fulfilled, the Member States may authorise the direct or indirect discharge of substances in list I (Article 4) or in list II (Article 5).

5. Article 6 provides that, notwithstanding Articles 4 and 5, artificial recharges for the purpose of groundwater management are to be subject to a special authorisation issued by the Member States on a case-by-case basis.

6. Article 8 provides that the authorisations referred to in Articles 4, 5 and 6 may not be issued by the competent authorities of the Member States until it has been checked that the groundwater, and in particular its quality, will undergo the requisite surveillance.

7. Articles 9 and 10 define the matters which the authorisations provided for by Articles 4 and 5 must specify in particular.

8. Article 11 states that the authorisations referred to in Articles 4 and 5 may be granted for a limited period only and will be reviewed at least every four years. They may be renewed, amended or withdrawn.

9. Article 15 provides: 'The competent authorities of the Member States shall keep an inventory of the authorisations referred to in Article 4 of discharges of substances in list I, the authorisations referred to in Article 5 of direct discharges of substances in list II and the authorisations referred to in Article 6'.

10. According to Article 21(1), the Member States are to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive within two years of its notification and immediately inform the Commission thereof. Since the Directive was notified to the Member States on 20 December 1979, that period expired on 20 December 1981.

11. By virtue of Articles 392 and 395 of the Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic and the adjustments to the Treaties (OJ 1985 L 302, p. 23), the Portuguese Republic was required to put into effect the measures necessary for it to comply with the Directive from the date of its accession to the European Economic Community, that is to say 1 January 1986.

12. After the Portuguese Government had informed the Commission that the Directive had been transposed into Portuguese law by Decree-Law No 74/90 of 7 March 1990, the Commission asked the Portuguese authorities by letter of 12 August 1991 to provide it with additional information on that legislation.

13. In the absence of a reply to that request and since it considered that Decree-Law No 74/90 did not fully and correctly transpose the Directive, the Commission

    initiated against the Portuguese Republic the infringement procedure under Article 169 of the Treaty by sending it, on 6 July 1993, a letter of formal notice.

14. By letter of 9 June 1994 the Portuguese Government replied that the Directive was transposed not only by Decree-Law No 74/90 but also by Decree-Law No 488/85 of 25 November 1985 on waste produced by the processing industry and Decree-Law No 446/91 of 22 November 1991 laying down arrangements for the agricultural use of sludge from urban waste water treatment plants, which pursue the same objectives as those laid down by the Directive.

15. Since it considered that the legislation relied upon by the Portuguese Government did not justify the conclusion that the Directive had been fully and properly transposed into Portuguese law, the Commission sent the Portuguese Republic a reasoned opinion by letter of 5 September 1996 in which it called upon it to take the necessary steps to comply with the Directive, in particular Articles 8, 9, 10, 11 and 15 thereof, within two months of the notification of the opinion.

16. In its reply of 9 December 1996 the Portuguese Republic stated that it was in the course of examining new draft legislation intended to transpose the Directive. It also forwarded Decree-Law No 45/94 of 22 February 1994, which constitutes a framework law for planning in the matter of water resources, and Orders No 176/96 and No 177/96 intended to supplement the scheme provided for by Decree-Law No 446/91, previously notified.

17. Since it considered that the measures communicated by the Portuguese authorities did not bring to an end any of the infringements complained of in the reasoned opinion, the Commission brought the present action.

18. The Portuguese Government does not deny before the Court the infringement with which it is charged, but claims that a decree-law designed to complete the transposition of the Directive into domestic law is being adopted.

19. Since transposition of the Directive was not completed within the prescribed period, the action brought in this connection by the Commission must be held to be well founded.

20. Accordingly, it must be held that, by failing to adopt, within the prescribed period, all the laws, regulations and administrative provisions necessary to comply fully and properly with the Directive, in particular with Articles 8, 9, 10, 11 and 15 thereof, the Portuguese Republic has failed to fulfil its obligations under Article 21(1) of the Directive.

    Costs

21. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Portuguese Republic 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 adopt, within the prescribed period, all the laws, regulations and administrative provisions necessary to comply fully and properly with Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances, in particular with Articles 8, 9, 10, 11 and 15 thereof, the Portuguese Republic has failed to fulfil its obligations under Article 21(1) of the Directive;

2. Orders the Portuguese Republic to pay the costs.

RagnemalmSchintgen Mancini HirschIoannou

Delivered in open court in Luxembourg on 18 June 1998.

R. Grass H. Ragnemalm

Registrar President of the Sixth Chamber

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1: Language of the case: Portuguese.