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

JUDGMENT OF THE COURT (Sixth Chamber)

15 October 1998 (1)

(Failure of a Member State to fulfil its obligations - Failure to transpose fully Directive 76/869/EEC)

In Case C-229/97,

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 Department of the National Water Institute, acting as Agents, 1 Rua da Cova da Moura, Lisbon,

defendant,

APPLICATION for a declaration that, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with Council Directive 79/869/EEC of 9 October 1979 concerning the methods of measurement and frequencies of sampling and analysis of surface water intended

for the abstraction of drinking water in the Member States (OJ 1979 L 271, p. 44), and, in the alternative, by not informing the Commission of those measures forthwith, the Portuguese Republic has failed to fulfil its obligations under the third paragraph of Article 189 of the EC Treaty and the combined provisions of Article 13 of that directive, Article 395 of and Annex XXXVI to 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 COURT (Sixth Chamber),

composed of: P.J.G. Kapteyn, President of the Chamber, G. Hirsch, G.F. Mancini, H. Ragnemalm and R. Schintgen (Rapporteur), Judges,

Advocate General: S. Alber,

Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 16 July 1998,

gives the following

Judgment

1. By application lodged at the Court Registry on 24 June 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 within the prescribed period the laws, regulations and administrative provisions necessary to comply with Council Directive 79/869/EEC of 9 October 1979 concerning the methods of measurement and frequencies of sampling and analysis of surface water intended for the abstraction of drinking water in the Member States (OJ 1979 L 271, p. 44, hereinafter 'the Directive'), and, in the alternative, by not informing the Commission of those measures forthwith, the Portuguese Republic has failed to fulfil its obligations under the third paragraph of Article 189 of the EC Treaty and the combined provisions of Article 13 of the Directive, Article 395 of and Annex XXXVI to 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, hereinafter 'the Act of Accession').

2. Under Article 13 of the Directive the Member States were to bring into force the laws, regulations and administrative provisions necessary to comply with the

   Directive within two years of its notification and to forthwith inform the Commission thereof.

3. The Directive was notified to the Member States on 11 October 1979.

4. Under the combined provisions of Article 395 of and Annex XXXVI(III)(5) to the Act of Accession, the period prescribed for the transposition of the Directive expired on 1 January 1989 in the case of the Portuguese Republic.

5. By letter of 14 March 1990 the Portuguese Republic informed the Commission that the Directive had been transposed into national law by Decree-Law No 74/90 of 7 March 1990.

6. As it considered that the Decree-Law had not fully transposed the Directive into Portuguese law, inasmuch as it did not implement the obligations deriving from Articles 3(3), 4(2) and 5 of the Directive, and from columns C, D and E and footnote No 10 of Annex I thereto, the Commission gave the Portuguese Republic formal notice by letter of 6 July 1993, calling on it to submit its observations within a period of two months.

7. By letter of 10 June 1994 the Portuguese Republic replied that a review of Decree-Law No 74/90 was being undertaken in order to complete the transposition of the Directive. According to the Portuguese authorities, a draft order concerning the quality of water supply sources had already been prepared to that end. The supplementary provisions necessary to comply with all the obligations incumbent upon the Portuguese Republic under the Directive would be adopted and the Commission informed thereof within three months.

8. As it had received no futher information from the Portuguese authorities, the Commission, on 10 June 1996, sent a reasoned opinion to the Portuguese Republic, calling on it to take the measures necessary to comply with its obligations under Articles 3(3), 4(2) and 5 of the Directive, and columns C, D and E and footnote No 10 of Annex I thereto, within two months of its notification.

9. By letter of 9 December 1996 the Portuguese Republic replied that the national legislation to complete the transposition of the Directive had again undergone a thorough technical analysis, but that, because of changes since the last elections, the drafts had to be reconsidered by the competent government departments.

10. As the Portuguese Republic took no further action on the reasoned opinion, the Commission brought the present procedings.

11. The Portuguese Republic does not dispute that it has failed to fulfil its obligations as the Commission alleges and confines itself to pointing out that a draft review of Decree-Law No 74/90 is currently awaiting publication in the Diário da República.

12. As the Directive was not fully transposed within the period prescribed therein, the Commission's action must be considered well founded.

13. Accordingly, it must be held that, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with the Directive, the Portuguese Republic has failed to fulfil its obligations under the combined provisions of the Directive and the Act of Accession.

    Costs

14. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has applied for costs and the Portuguese Republic has been unsuccessful, the latter 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 the laws, regulations and administrative provisions necessary to comply with Council Directive 79/869/EEC of 9 October 1979 concerning the methods of measurement and frequencies of sampling and analysis of surface water intended for the abstraction of drinking water in the Member States, the Portuguese Republic has failed to fulfil its obligations under the combined provisions of that directive and of the Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic and the adjustments to the Treaties;

2. Orders the Portuguese Republic to pay the costs.

KapteynHirsch Mancini RagnemalmSchintgen

Delivered in open court in Luxembourg on 15 October 1998.

R. Grass P.J.G. Kapteyn

Registrar President of the Sixth Chamber

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1: Language of the case: Portuguese.