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

JUDGMENT OF THE COURT (First Chamber)

16 January 2003 (1)

(Failure of a Member State to fulfil its obligations - Failure to transpose Directive 98/83/EC)

In Case C-29/02,

Commission of the European Communities , represented by G. Valero Jordana, acting as Agent, with an address for service in Luxembourg,

applicant,

v

Kingdom of Spain, represented by L. Fraguas Gadea, acting as Agent, with an address for service in Luxembourg,

defendant,

APPLICATION for a declaration that, by failing to adopt or, in any event, to communicate to the Commission the laws, regulations and administrative provisions necessary to comply with Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human consumption (OJ 1998 L 330, p. 32), the Kingdom of Spain has failed to fulfil its obligations under that directive,

THE COURT (First Chamber),

composed of: M. Wathelet, President of the Chamber, P. Jann and A. Rosas (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 5 November 2002,

gives the following

Judgment

1. By application lodged at the Court Registry on 1 February 2002, the Commission of the European Communities brought an action under Article 226 EC for a declaration that, by failing to adopt or, in any event, to communicate to the Commission the laws, regulations and administrative provisions necessary to comply with Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human consumption (OJ 1998 L 330, p. 32; 'the Directive'), the Kingdom of Spain has failed to fulfil its obligations under that directive.

   Legal context

2. Article 17(1) of the Directive provides that Member States are to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive within two years of its entry into force and that they are forthwith to inform the Commission thereof.

3. Article 18 states that the Directive 'shall enter into force on the 20th day following its publication in the Official Journal of the European Communities'. Since the Directive was published on 5 December 1998, it entered into force on 25 December 1998 and the period for transposition expired on 25 December 2000.

   Pre-litigation procedure

4. Taking the view that the Directive had not been transposed into Spanish law within the period prescribed, the Commission initiated the procedure provided for in Article 226 EC. On 18 July 2001, having given the Kingdom of Spain formal notice to submit its observations, the Commission issued a reasoned opinion calling on that Member State to take the necessary measures to comply with the reasoned opinion within two months of its notification.

5. By letter of 12 October 2001, the Spanish authorities replied that in August of that year a draft royal decree laying down health parameters for the quality of water intended for human consumption had been forwarded to the Council of State for its opinion, and that another royal decree, relating to bottled water, was soon to be sent to it for its opinion.

6. Taking the view that the Kingdom of Spain had not taken the measures necessary to transpose the Directive, the Commission brought the present action.

   The failure to fulfil obligations

7. The Commission states that the drawing up of draft royal decrees cannot be regarded as a valid and sufficient measure for transposing the Directive and that the Kingdom of Spain has therefore failed to comply with its provisions.

8. The Kingdom of Spain does not deny that it did not transpose the Directive within the period prescribed, and gives details of the stage reached in the procedure for the adoption of the measures transposing the Directive.

9. It is settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion (see, inter alia, Case C-29/01 Commission v Spain [2002] ECR I-2503, paragraph 11).

10. In the present case, no legislation transposing the Directive into the Spanish legal system had been adopted on the expiry of the period prescribed in the reasoned opinion.

11. Accordingly, the Commission's action must be considered well founded.

12. It must therefore be held that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with the Directive, the Kingdom of Spain has failed to fulfil its obligations under that directive.

    Costs

13. 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 Kingdom of Spain has been unsuccessful, the latter must be ordered to pay the costs.

On those grounds,

THE COURT (First Chamber)

hereby:

1. Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human consumption, the Kingdom of Spain has failed to fulfil its obligations under that directive;

2. Orders the Kingdom of Spain to pay the costs.

Wathelet Jann Rosas

Delivered in open court in Luxembourg on 16 January 2003.

R. Grass M. Wathelet

Registrar President of the First Chamber

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1: Language of the case: Spanish.