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

JUDGMENT OF THE COURT (Sixth Chamber)

28 May 1998 (1)

(Failure by a Member State to fulfil its obligations - Directives 86/280/EEC and 88/347/EEC - Failure to transpose within the period prescribed)

In Case C-213/97,

Commission of the European Communities, represented by Francisco de Sousa Fialho, of its Legal Service, acting as Agent, 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, 1 Rua da Cova da Moura, Lisbon,

defendant,

APPLICATION for a declaration, first, that by failing to adopt all the laws, regulations and administrative provisions necessary fully and properly to implement

Council Directive 86/280/EEC of 12 June 1986 on limit values and quality objectives for discharges of certain dangerous substances included in List I of the Annex to Directive 76/464/EEC (OJ 1986 L 181, p. 16), as amended by Council Directive 88/347/EEC of 16 June 1988 (OJ 1988 L 158, p. 35) and, in the alternative, that by failing immediately to inform the Commission of those measures, the Portuguese Republic has failed to fulfil its obligations under the third paragraph of Article 189 of the EC Treaty and under Article 7(1) of Directive 86/280 and the first paragraph of Article 2 of Directive 88/347 respectively,

THE COURT (Sixth Chamber),

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

Advocate General: F.G. Jacobs,

Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 12 March 1998,

gives the following

Judgment

1. By application lodged at the Court Registry on 4 June 1997, the Commission of the European Communities brought an action under Article 169 of the EC Treaty for a declaration, first, that by failing to adopt all the laws, regulations and administrative provisions necessary fully and properly to implement Council Directive 86/280/EEC of 12 June 1986 on limit values and quality objectives for discharges of certain dangerous substances included in List I of the Annex to Directive 76/464/EEC (OJ 1986 L 181, p. 16), as amended by Council Directive 88/347/EEC of 16 June 1988 (OJ 1988 L 158, p. 35) and, in the alternative, that by failing immediately to inform the Commission of those measures, the Portuguese Republic has failed to fulfil its obligations under the third paragraph of Article 189 of the EC Treaty and under Article 7(1) of Directive 86/280 and the first paragraph of Article 2 of Directive 88/347 respectively.

2. Directive 86/280, as amended by Directive 88/347, constitutes a specific directive implementing Council Directive 76/464 of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the

   Community (OJ 1976 L 129, p. 23). Annex I to Directive 86/280 sets out the general provisions governing the establishment of limit values for emission standards, quality objectives and reference methods of measurement, whilst Annex II clarifies and completes those general provisions by a series of specific provisions applicable to each substance.

3. Directive 86/280 thus lays down the limit values and quality objectives for three of the substances in List I in Directive 76/464, carbon tetrachloride, DDT and pentachlorophenol (Annex II), to which Directive 88/347 added aldrin, dieldrin, endrin, isodrin, hexachlorobenzene, hexachlorobutadiene and chloroform.

4. Article 3 of Directive 86/280 governs, more particularly, the authorisations referred to in Article 3 of Directive 76/464, which are granted by the Member States in respect of discharges of the above substances by existing or new plant.

5. In particular, Article 3(3) of Directive 86/280 provides that the authorisations referred to in Article 3 of Directive 76/464 must contain provisions as stringent as those set out under heading A in the Annexes, except where a Member State is complying with Article 6(3) of Directive 76/464 on the basis of heading B in the Annexes. Those authorisations must be reviewed at least every four years.

6. Furthermore, Article 3(5) of Directive 86/280 provides that the reference method of analysis to be used in determining the presence of the substances referred to in Article 2(a) is given under heading C in Annex II. Other methods may be used provided that the limits of detection, precision and accuracy of such methods are at least as good as those laid down under heading C.

7. As regards the substances referred to in Annex II, Article 5 of Directive 86/280 requires Member States to draw up specific programmes to avoid or eliminate pollution from significant sources of those substances (including multiple and diffuse sources) other than sources of discharges subject to Community limit value rules or national emission standards. According to Article 5(3), those programmes must be implemented not later than five years after the date of notification of the Directive which relates specifically to the substance concerned.

8. According to Article 7(1) thereof, Directive 86/280 was to be transposed into national law by 1 January 1988.

9. Pursuant to the first paragraph of Article 2 thereof, Directive 88/347 was to be transposed into national law by 1 January 1989 with regard to aldrin, dieldrin, endrin and isodrin and by 1 January 1990 with regard to the other substances added to Annex II to Directive 86/280.

10. The Portuguese Government informed the Commission that Directive 86/280, as amended by Directive 88/347, had been transposed into domestic law by Decree-Law No 74/90 of 7 March 1990. By letter of 4 February 1993 the Commission drew its attention to the fact that those directives could not be considered to have been fully and properly transposed into Portuguese law.

11. In its reply of 24 June 1993 the Portuguese Government provided further particulars concerning Decree-Law No 74/90.

12. The Commission considered that the explanations provided did not enable it to consider that the Portuguese Republic had complied with the directives in question and initiated the procedure for failure to fulfil obligations provided for in Article 169 of the Treaty by sending a letter of formal notice on 16 May 1994.

13. Having received no written communication, except a letter dated 12 July 1995 in which the Portuguese authorities requested that the time-limit for replying to the letter of formal notice be extended by 90 days, the Commission sent a reasoned opinion to the Portuguese Republic by letter of 2 July 1996 requesting it to take the necessary measures to comply with its obligations under Directives 86/280 and 88/347 within two months of its notification.

14. Since that reasoned opinion had no effect, the Commission brought the present proceedings.

15. In its application, the Commission sets out its grounds for complaint against the Portuguese Republic and states that:

    - Article 44(3) of Decree-Law No 74/90 provides that the authority with power to grant authorisations may lay down less stringent emission standards than those contained under heading A of the Annexes to Directive 86/280, as amended, and does not impose any obligation to review those authorisations, thereby infringing Article 3(3) of Directive 86/280, as amended;

    - Decree-Law No 74/90 does not lay down any emission limit values for discharges of certain substances from industrial plant not referred to in heading A of Annex II to Directive 86/280, as amended;

    - Decree-Law No 74/90 does not transpose Article 3(5) of Directive 86/280 as regards the reference method of analysis to be used in determining the presence of the substances referred to in Article 2(a) of that directive;

    - Decree-Law No 74/90 does not transpose paragraph 5 of heading A of Annex I to Directive 86/280 on the monitoring procedure which must be instituted to check whether the discharges of the substances referred to in Article 2(a) of that directive comply with the emission standards;

    - Decree-Law No 74/90 does not establish any specific programme referred to in Article 5 of Directive 86/280, as amended, intended to avoid or eliminate pollution from significant sources of substances to which specific reference is made in Annex II.

16. In its defence, the Portuguese Republic does not specifically comment on those allegations and does not dispute the alleged failure to fulfil its obligations. It states however that Directives 86/280 and 88/347 will be fully transposed by means of an amendment to Decree-Law No 74/90. That revision, which is currently taking place, rectifies and supplements the transposition of those two directives.

17. As regards the specific programmes to avoid or eliminate pollution from significant sources of substances specifically referred to in Annex II to Directive 86/280, as amended, the Portuguese Government claims that it endeavoured to implement the provisions of Article 5 of that directive. However, in view of the complexity of the matter and the practical and technical difficulties confronted by the competent authorities, the work has not yet been completed.

18. It follows from the foregoing that Directives 86/280 and 88/347 were not transposed within the periods prescribed therein.

19. The action brought by the Commission must therefore be considered well founded.

20. It must therefore be held that, by failing to adopt all the laws, regulations and administrative provisions necessary fully and properly to implement Directive 86/280, as amended by Directive 88/347, the Portuguese Republic has failed to fulfil its obligations under Article 7(1) of Directive 86/280 and the first paragraph of Article 2 of Directive 88/347 respectively.

    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 all the laws, regulations and administrative provisions necessary fully and properly to implement Council Directive 86/280/EEC of 12 June 1986 on limit values and quality objectives for discharges of certain dangerous substances included in List I of the Annex to Directive 76/464/EEC, as amended by Council Directive 88/347/EEC of 16 June 1988, the Portuguese Republic has failed to fulfil its obligations under Article 7(1) of Directive 86/280 and the first paragraph of Article 2 of Directive 88/347 respectively;

2. Orders the Portuguese Republic to pay the costs.

RagnemalmMancini Kapteyn Murray Ioannou

Delivered in open court in Luxembourg on 28 May 1998.

R. Grass H. Ragnemalm

Registrar President of the Sixth Chamber

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1: Language of the case: Portuguese.