CELEX: 62012CJ0151
Failure of a Member State to fulfil obligations
Environment
Directive 2000/60/EC
Framework for Community action in the field of water policy
Transposition of Articles 4(8), 7(2), 10(1) and (2) of and sections 1.3 and 1.4 of Annex V to Directive 2000/60
Intracommunal and intercommunal river basins
Article 149(3) of the Spanish Constitution
Supplementing clause

By its application, the European Commission asks the Court to declare that, by failing to adopt all the measures necessary to transpose Articles 4(8), 7(2), 10(1) and (2) of and sections 1.3 and 1.4 of Annex V to Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (
OJ 2000 L 327, p. 1
), in respect of intracommunal river basins, the Kingdom of Spain has failed to fulfil its obligations under that directive.
Legal context
European Union law
In accordance with Article 1 of Directive 2000/60, the purpose of that directive is to establish a framework for the protection of inland surface waters, transitional waters, coastal waters and groundwater.
Under Article 2(13) of that directive, a ‘river basin’ is ‘the area of land from which all surface run-off flows through a sequence of streams, rivers and, possibly, lakes into the sea at a single river mouth, estuary or delta’.
Article 4 of that directive, ‘Environmental objectives’, provides in paragraph 8:
‘When applying paragraphs 3, 4, 5, 6 and 7, a Member State shall ensure that the application does not permanently exclude or compromise the achievement of the objectives of this Directive in other bodies of water within the same river basin district and is consistent with the implementation of other Community environmental legislation.’
Article 7 of that directive, entitled ‘Waters used for the abstraction of drinking water’, provides in paragraph 2:
‘For each body of water identified under paragraph 1, in addition to meeting the objectives of Article 4 in accordance with the requirements of this Directive, for surface water bodies including the quality standards established at Community level under Article 16, Member States shall ensure that under the water treatment regime applied, and in accordance with Community legislation, the resulting water will meet the requirements of Directive 80/778/EEC as amended by Directive 98/83/EC.’
Article 8 of Directive 2000/60, entitled ‘Monitoring of surface water status, groundwater status and protected areas’, states, in paragraph 2:
‘[Programmes for the monitoring of water status] shall be operational at the latest six years after the date of entry into force of this Directive unless otherwise specified in the legislation concerned. Such monitoring shall be in accordance with the requirements of Annex V.’
Article 10 of that directive, entitled ‘The combined approach for point and diffuse sources’, provides, in paragraphs 1 and 2:
‘1.   Member States shall ensure that all discharges referred to in paragraph 2 into surface waters are controlled according to the combined approach set out in this Article.
2.   Member States shall ensure the establishment and/or implementation of:
(a)
the emission controls based on best available techniques, or
(b)
the relevant emission limit values, or
(c)
in the case of diffuse impacts the controls including, as appropriate, best environmental practices
set out in:
—
Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control [(
OJ 1996 L 257, p. 26
)],
—
Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment [(
OJ 1991 L 135, p. 40
)],
—
Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources [(
OJ 1991 L 375, p. 1
)],
—
the Directives adopted pursuant to Article 16 of this Directive,
—
the Directives listed in Annex IX,
—
any other relevant Community legislation,
at the latest 12 years after the date of entry into force of this Directive, unless otherwise specified in the legislation concerned.’
Annex V to Directive 2000/60 contains section 1.3, which is entitled ‘Monitoring of ecological status and chemical status for surface waters’. That section provides:
‘The surface water monitoring network shall be established in accordance with the requirements of Article 8. The monitoring network shall be designed so as to provide a coherent and comprehensive overview of ecological and chemical status within each river basin and shall permit classification of water bodies into five classes consistent with the normative definitions in section 1.2. Member States shall provide a map or maps showing the surface water monitoring network in the river basin management plan.
On the basis of the characterisation and impact assessment carried out in accordance with Article 5 and Annex II, Member States shall for each period to which a river basin management plan applies, establish a surveillance monitoring programme and an operational monitoring programme. Member States may also need in some cases to establish programmes of investigative monitoring.
Member States shall monitor parameters which are indicative of the status of each relevant quality element. In selecting parameters for biological quality elements Member States shall identify the appropriate taxonomic level required to achieve adequate confidence and precision in the classification of the quality elements. Estimates of the level of confidence and precision of the results provided by the monitoring programmes shall be given in the plan.’
Subsections 1.3.1 to 1.3.6 of Annex V to that directive lay down rules concerning the design of surveillance monitoring, design of operational monitoring, design of investigative monitoring, frequency of monitoring, additional monitoring requirements for protected areas and standards for monitoring of quality elements.
Section 1.4 of Annex V to Directive 2000/60, entitled ‘Classification and presentation of ecological status’, contains sub-section 1.4.1, entitled ‘Comparability of biological monitoring results’, which provides as follows:
‘(i)
Member States shall establish monitoring systems for the purpose of estimating the values of the biological quality elements specified for each surface water category or for heavily modified and artificial bodies of surface water. In applying the procedure set out below to heavily modified or artificial water bodies, references to ecological status should be construed as references to ecological potential. Such systems may utilise particular species or groups of species which are representative of the quality element as a whole.
(ii)
In order to ensure comparability of such monitoring systems, the results of the systems operated by each Member State shall be expressed as ecological quality ratios for the purposes of classification of ecological status. These ratios shall represent the relationship between the values of the biological parameters observed for a given body of surface water and the values for these parameters in the reference conditions applicable to that body. The ratio shall be expressed as a numerical value between zero and one, with high ecological status represented by values close to one and bad ecological status by values close to zero.
(iii)
Each Member State shall divide the ecological quality ratio scale for their monitoring system for each surface water category into five classes ranging from “high” to “bad” ecological status, as defined in Section 1.2, by assigning a numerical value to each of the boundaries between the classes. The value for the boundary between the classes of high and good status, and the value for the boundary between good and moderate status shall be established through the intercalibration exercise described below.
…’
Spanish law
For the purposes of water management, Spanish legislation distinguishes between two categories of river basin, that is to say, between ‘intercommunal’ river basins which designate the waters flowing through more than one Autonomous Community and in respect of which only the State may legislate, and ‘intracommunal’ river basins in which all of the waters concerned are situated within an individual Autonomous Community and in respect of which the Autonomous Communities have legislative competence.
Article 149(3) of the Constitution states:
‘Matters not expressly assigned to the State by virtue of the Constitution may fall under the jurisdiction of the Autonomous Communities by virtue of their respective Statutes. Matters for which jurisdiction has not been assumed by the Statutes of Autonomy shall fall within the jurisdiction of the State, whose laws shall prevail, in case of conflict, over those of the Autonomous Communities regarding all matters over which exclusive jurisdiction has not been conferred upon the latter. State law shall, in all cases, be supplementary to that of the Autonomous Communities.’
With regard to the intercommunal river basins, the relevant provisions of Directive 2000/60 were implemented by Decree ARM/2656/2008 of 10 September 2008 approving the instructions concerning water planning (BOE No 229, 22 September 2008, p. 38472; ‘the national decree of 2008’).
Paragraph 2 of the single article of the national decree of 2008 provides that ‘the approved instructions shall apply to intercommunal river basins’.
Certain aspects of the national decree of 2008 have been amended by Decree ARM/1195/2011 of 11 May 2011 (BOE No 114, 13 May 2011, p. 48584; ‘the national decree of 2011’).
As regards the intracommunal river basins, only the Autonomous Community of Catalonia has used its legislative powers to implement the relevant provisions of Directive 2000/60. To that end, it has adopted two measures, namely Decree 380/2006 of 10 October 2006 approving the rules for water planning in Catalonia (Diario Oficial de la Generalidad de Cataluña No 4740, 16 October 2006, p. 42776; ‘Decree 380/2006’) and Government Accord GOV/128/2008 of 3 June 2008 on the monitoring and checking programme of the Catalonia river basin (‘the Governmental Accord of 2008’).
The pre-litigation procedure
By a letter of formal notice of 24 February 2009, the Commission informed the Kingdom of Spain that it considered that Spain had failed to fulfil its obligations under certain provisions of Directive 2000/60, in particular Articles 4(8), 7(2), 10(1) and (2) and sections 1.3 and 1.4 of Annex V thereto, in that it had incorrectly transposed and wrongly applied those provisions in the Spanish legal order.
The Kingdom of Spain replied by letter dated 23 June 2009.
Taking the view that that response did not permit the conclusion that Directive 2000/60 had been fully transposed, on 22 March 2010 the Commission sent a reasoned opinion to the Kingdom of Spain, requesting it to adopt the measures necessary to comply with that opinion within two months of receipt thereof. That period expired on 22 May 2010.
The Kingdom of Spain replied, after the time-limit set in the reasoned opinion had expired, by four letters in which it announced the measures which it was soon to adopt to comply with that opinion. Similarly, that Member State sent the Commission progress reports on the preparation of those measures and a number of acts adopted for that purpose. The acts sent to the Commission include, in particular, the national decree of 2011.
In the light of those replies, the Commission took the view that the situation remained unsatisfactory as regards the transposition of Articles 4(8), 7(2) and 10(1) and (2) of and sections 1.3 and 1.4 of Annex V to Directive 2000/60 concerning the intracommunal river basins. It therefore decided to bring this action.
The action
The complaints alleging a failure to transpose the provisions of Directive 2000/60 concerning the intracommunal river basins situated outside Catalonia
Arguments of the parties
The Commission accepts that section 1.4 of Annex V to Directive 2000/60, on the one hand, and Articles 4(8), 7(2) and 10(1) and (2) of and section 1.3 of Annex V to that directive, on the other, have been transposed into the Spanish legal order by section 5.1 of the national decree of 2008 and by paragraphs 2 to 6 of the single article of the national decree of 2011 respectively. However, since those decrees apply only to intercommunal river basins, the Commission deduces therefrom that the abovementioned articles of Directive 2000/60 have not been transposed as regards the intracommunal river basins.
The Kingdom of Spain submits that the transposition into national law of the obligations which follow from the provisions in question of Directive 2000/60 for intracommunal river basins outside Catalonia is ensured by the supplementing clause in Article 149(3) of the Constitution. It follows from that supplementing clause in particular that, where the Autonomous Community, having legislative power in a certain field, does not make use of that power or exercises it only in part, the State rules remain in force, either in full or in part, as regards those points which are not regulated by the Autonomous Community. The Kingdom of Spain also submits, referring to the national decree of 2008, that the full application of the State rules is ensured in the present case as regards the intracommunal river basins. Furthermore, the Kingdom of Spain complains that the Commission, disregarding Article 4(2) TEU and the third paragraph of Article 288 TFEU, sought to stipulate the manner in which the transposition was to be achieved in that Member State.
The Commission, in its turn, refutes the latter allegation. As regards the supplementing application of the State rules to the intracommunal river basins, it argues that the interpretation of the supplementing clause proposed by the Kingdom of Spain does not constitute an interpretation which is accepted in Spanish constitutional case-law. In any event, in the view of the Commission, there is no effective application of the abovementioned decrees as regards the intracommunal river basins in the present case.
Findings of the Court
– The first complaint, alleging failure to transpose section 1.4 of Annex V to Directive 2000/60, to which Article 8(2) of that directive refers
First of all, it must be noted, with regard to the Commission’s complaint alleging a failure to transpose section 1.4 of Annex V to Directive 2000/60, that, at the hearing, the Commission limited that complaint to the non-transposition of subsection 1.4.1(i) to (iii) of Annex V to that directive.
In that regard, it must be borne in mind that, according to settled case-law, the provisions of directives must be implemented with unquestionable binding force, and the specificity, precision and clarity necessary to satisfy the requirements of legal certainty (see, in particular, Case
C-296/01
Commission
v
France
[2003] ECR I-13909
, paragraph 54, and Case
C-427/07
Commission
v
Ireland
[2009] ECR I-6277
, paragraph 55).
The fact remains, however, that, according to the very terms of the third paragraph of Article 288 TFEU, the Member States are entitled to choose the form and methods for implementing directives which best ensure the result to be achieved by the directives. It follows from that provision that the implementation in domestic law of a directive does not necessarily require legislative action in each Member State.
Thus, the Court has repeatedly held that it is not always necessary formally to enact the requirements of a directive in a specific express legal provision, since the general legal context may be sufficient for implementation of a directive, depending on its content. In particular, the existence of general principles of constitutional or administrative law may render superfluous transposition by specific legislative or regulatory measures provided, however, that those principles actually ensure the full application of the directive by the national authorities and that, where the relevant provision of the directive seeks to create rights for individuals, the legal situation arising from those principles is sufficiently precise and clear and that the persons concerned are put in a position to know the full extent of their rights and, where appropriate, to be able to rely on them before the national courts (Case
C-32/05
Commission
v
Luxembourg
[2006] ECR I-11323
, paragraph 34 and the case-law cited).
It is in the light of that case‑law that the Commission’s complaint must be considered.
It is not in dispute that the Kingdom of Spain did not adopt the legislative measures to transpose section 1.4 of Annex V to Directive 2000/60 as regards the intracommunal river basins outside Catalonia, since the national decree of 2008 applied only to intercommunal river basins.
The Kingdom of Spain states that that transposition is ensured by the supplementing clause in Article 149(3) of the Constitution, according to which clause, where the Autonomous Communities have not exercised their legislative power to transpose Directive 2000/60, the national decree of 2008 also applies to those intracommunal river basins.
Firstly, even if the supplementing clause is capable of applying in the present case, the Kingdom of Spain has, none the less, failed to explain how that principle can remedy the lack of legislation as regards intracommunal river basins, having regard to the express restriction of the scope of the national decree of 2008 to intercommunal river basins.
Next, it must be noted that if the supplementing application of the national decree of 2008 is to be understood as meaning that the implementing provisions laid down in section 5.1 thereof apply, as the Advocate General notes in points 23 to 25 of her Opinion, beyond the wording of paragraph 2 of the single article of that decree, to the intracommunal river basins, the legal situation which would ensue would not satisfy the demands of clarity and precision required in respect of national implementing measures (see, to that effect, Case
C-372/99
Commission
v
Italy
[2002] ECR I-819
, paragraph 18).
It is also appropriate to add that the Commission, without being contradicted on that point by the Kingdom of Spain, notes, in reliance on a report of the Consejo de Estado of 15 December 2010, that the scope of the supplementing clause as an instrument guaranteeing the implementation of European Union law is uncertain in the present state of Spanish constitutional law.
Finally, it must be noted that, in accordance with the case-law of the Tribunal Constitucional (Constitutional Court), which the Kingdom of Spain cites in its observations, Article 149(3) of the Constitution does not appear to permit the application of national rules in a supplementing manner in the absence of legislation by the Autonomous Communities, but only to fill identified gaps. It is appropriate to add that, at the hearing, the Kingdom of Spain confirmed that, in the present case, the Autonomous Communities, with the exception of the Autonomous Community of Catalonia, have not exercised their legislative powers. In those circumstances, the application of the supplementing clause in the present case would not be appropriate as regards the intracommunal river basins outside Catalonia.
With regard to the reference in the management plans for intracommunal river basins to the national decree of 2008, relied upon to show that that decree is fully applicable to those basins, having regard to the foregoing, the Kingdom of Spain has failed to demonstrate that the Autonomous Communities have acted pursuant to a legal obligation when they referred to the national decree of 2008 in the management plans for those basins. If the reference reflects merely an administrative practice, which by its nature is alterable at will by the authorities and is not given appropriate publicity, it cannot be regarded as constituting the proper fulfilment of obligations under the Treaty (see, to that effect, Case
C-490/09
Commission
v
Luxembourg
[2011] ECR I-247
, paragraph 47 and the case-law cited).
With regard to the argument put forward by the Kingdom of Spain that the Commission attempted to impose, in breach of Article 4(2) TEU and the third paragraph of Article 288 TFEU, the manner in which the transposition of the provisions at issue was to be achieved, it must be held that that argument is based on a misreading of the Commission’s application. In its application, the Commission neither stated nor suggested to the Court the manner in which the provisions in question of Directive 2000/60 ought to be transposed into the Spanish legal order.
In the light of the foregoing, the complaint, alleging failure to transpose subsection 1.4.1(i) to (iii) of Annex V to Directive 2000/60, to which Article 8(2) of that directive refers, must be considered well founded.
– The complaint alleging the non-transposition of Articles 4(8), 7(2) and 10(1) and (2) of Directive 2000/60 and section 1.3 of Annex V thereto, to which Article 8(2) of that directive refers
It is not in dispute that, in the version in force at the date on which the period set in the reasoned opinion expired, the national decree of 2008 did not provide for any implementing provision of Articles 4(8), 7(2) or 10(1) and (2) of Directive 2000/60 or of section 1.3 of Annex V thereto, to which Article 8(2) of that directive refers.
In its written submissions, the Kingdom of Spain refers to the transposition of those provisions by the national decree of 2011 together with the supplementing clause. In that regard, it must be pointed out that the national decree of 2011 did not, in any event, enter into force until after the period laid down in the reasoned opinion had expired. 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 and that the Court cannot take account of any subsequent changes (Case C‑286/12
Commission
v
Hungary
[2012] ECR, paragraph 41 and the case-law cited).
Furthermore, with regard to the period of 12 years laid down in Article 10(2) of Directive 2000/60 for the establishment or implementation of certain emission controls set out in that provision, it must be pointed out that Article 24(1) of that directive determines the period in which it is to be transposed, including Article 10 thereof. Clearly, therefore, as the Advocate General stated in point 7 of her Opinion, Article 10(2) of Directive 2000/60 does not lay down a period for transposition of that provision, but a period within which the controls must have been carried out.
In consequence, the complaint alleging non-transposition of Articles 4(8), 7(2) and 10(1) and (2) of Directive 2000/60 and section 1.3 of Annex V thereto, to which Article 8(2) of that directive refers, is well founded.
The complaints alleging non-transposition of the provisions of Directive 2000/60 as regards the intracommunal river basins located in Catalonia
Arguments of the parties
The Kingdom of Spain relies on two measures adopted by that Autonomous Community within the period laid down in the reasoned opinion, namely Decree 380/2006 and the Governmental Accord of 2008, to show that the obligations which follow from Directive 2000/60 as regards the intracommunal river basins in Catalonia have been met. In addition, it refers to three other measures adopted by that Autonomous Community, namely the management plan for the river district of Catalonia of 23 November 2010, the programme of measures approved by the Governmental Accord of the Generalidad de Cataluña of 23 November 2010 (‘the programme of measures of 2010’) and Royal Decree 1219/2011 approving the management plan for the river basin district of Catalonia (BOE, 22 September 2011; ‘Royal Decree 1219/2011’), without, however, stating, with regard to the latter measure, which provisions of Directive 2000/60 it seeks to implement.
The Commission points out that, disregarding its duty of loyal cooperation, the Kingdom of Spain has not communicated to the Commission, as regards the intracommunal river basins in Catalonia, the measures transposing Directive 2000/60 and nor has it annexed them to its defence. In the alternative, it points out in particular that Royal Decree 1219/2011 cannot be taken into consideration since it was adopted after the period laid down in the reasoned opinion had expired.
Findings of the Court
First of all, it must be noted that it is not possible to take account of the programme of measures of 2010 or Royal Decree 1219/2011 which the Kingdom of Spain claims are measures transposing the provisions of Directive 2000/60, since those measures were adopted after the period laid down in the reasoned opinion had expired.
In respect of the transposition of Articles 7(2) and 10(1) and (2) of Directive 2000/60, the Kingdom of Spain relies, in that regard, in addition to Decree 380/2006 and the Governmental Accord of 2008, on the programme of measures of 2010. It follows that those provisions of Directive 2000/60 were transposed only in part within the period laid down in the reasoned opinion.
Accordingly, it is clear that the Commission’s complaints alleging a failure by the Kingdom of Spain to transpose those provisions of Directive 2000/60 are well founded.
With regard to the transposition of Article 4(8) of that directive, the Kingdom of Spain submits that that provision was transposed by Decree 380/2006. As regards the transposition of section 1.3 and subsection 1.4.1(i) to (iii) of Annex V to the directive, to which Article 8(2) thereof refers, the Member State relies, in that regard, on the Governmental Accord of 2008.
In that regard, it is indeed appropriate to note that the Kingdom of Spain referred to those measures for the first time at the stage of the defence, which cannot be reconciled with the duty of loyal cooperation on Member States under Article 4(3) TEU. However, the present action concerns not a failure to fulfil the obligation to provide information but a failure to fulfil the obligation to transpose certain provisions of Directive 2000/60. The mere fact that the Kingdom of Spain did not inform the Commission during the pre-litigation procedure that the Directive was already transposed cannot be sufficient to prove the alleged failure to fulfil an obligation (see, to that effect, Case
C-456/03
Commission
v
Italy
[2005] ECR I-5335
, paragraphs 46 and 47).
In so far as the domestic legal provisions pleaded by the Kingdom of Spain were in force when the period set in the reasoned opinion expired, the Court must take them into account when determining whether that obligation has not been fulfilled (
Commission
v
Italy
, paragraph 48).
With regard to Article 4(8) of Directive 2000/60 and section 1.3 and subsection 1.4.1(i) to (iii) of Annex V thereto, clearly the Commission does not raise any substantive objection in respect of Decree 380/2006 or the Governmental Accord of 2008 which, in the submission of the Kingdom of Spain, have transposed the abovementioned provisions of Directive 2000/60.
Accordingly, the complaint alleging a failure to transpose Article 4(8) of Directive 2000/60 and section 1.3 and subsection 1.4.1(i) to (iii) of Annex V thereto, to which Article 8(2) thereof refers, must be rejected.
In those circumstances, the action must be dismissed to the extent that it seeks a declaration that the Kingdom of Spain failed to transpose Article 4(8) of Directive 2000/60 and section 1.3 and subsection 1.4.1(i) to (iii) of Annex V thereto, to which Article 8(2) thereof refers, in respect of the intracommunal river basins in Catalonia.
In the light of all of the foregoing considerations, the Court finds that, by having failed to adopt all the measures necessary to transpose Articles 4(8), 7(2) and 10(1) and (2) of Directive 2000/60 and section 1.3 and subsection 1.4.1(i) to (iii) of Annex V thereto, to which Article 8(2) of that directive refers, in respect of the intracommunal river basins outside Catalonia, and Articles 7(2) and 10(1) and (2) of Directive 2000/60 in respect of the intracommunal river basins in Catalonia, the Kingdom of Spain has failed to fulfil its obligations under that directive.
The remainder of the action must be dismissed.
Costs
Under Article 138(1) of the Rules of Procedure of the Court of Justice, the unsuccessful party must be ordered to pay the costs if they have been applied for in the other party’s pleadings. Article 138(3) of those rules states that where each party succeeds on some and fails on other heads, the parties are to bear their own costs. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing its own costs, pay a proportion of the costs of the other party.
In the present case, since the Commission has applied for costs against the Kingdom of Spain, which has been, in essence, unsuccessful, and since that Member State refrained from supplying, during the pre-litigation procedure, all the relevant information concerning the provisions of domestic law by which it considered that it had fulfilled its various obligations under Directive 2000/60, the Kingdom of Spain must be ordered to pay all the costs.

On those grounds, the Court (Fifth Chamber) hereby:

1.
Declares that, by having failed to adopt all the measures necessary to transpose Articles 4(8), 7(2) and 10(1) and (2) of Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy and section 1.3 and subsection 1.4.1(i) to (iii) of Annex V thereto, to which Article 8(2) of that directive refers, in respect of the intracommunal river basins outside Catalonia, and Articles 7(2) and 10(1) and (2) of Directive 2000/60 in respect of the intracommunal river basins in Catalonia, the Kingdom of Spain has failed to fulfil its obligations under that directive;

2.
Dismisses the action as to the remainder;

3.
Orders the Kingdom of Spain to pay the costs.

[Signatures]
(
*1
)	Language of the case: Spanish.