Opinion of the Advocate General — ECLI:EU:C:2013:354
Date: 2013-05-30
Language of the case: Spanish
Subject matter: Environment
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: Spain

Summary — Judgment of the Court (Fifth Chamber), 24 October 2013 1. Acts of the institutions — Directives — Implementation by Member States — Transposition of a directive without legislative action — Conditions — Existence of a general legal context ensuring the full application of the directive (Art. 288, third para. TFEU) 2. Environment — European Union water policy — Directive 2000/60 — Obligation to monitor the ecological and chemical condition of surface waters — Lack of transposing measures by the Autonomous Communities of a Member State — Application of State transposing measures by way of a constitutional supplementing clause — Unlawful — Failure to fulfil obligations (European Parliament and Council Directive 2000/60, Arts. 4(8), 7(2), 8(2), 10(1) and (2) and Annex V, section 1.3 and subsection 1.4.1, points (i) to (iii)) 3. Actions for failure to fulfil obligations — Proof of failure — Onus on the Member State — Presentation of sufficient elements enabling the failure to fulfil obligations to be refuted (Art. 258 TFEU) 4. Actions for failure to fulfil obligations — Examination of the merits by the Court — Situation to be taken into consideration — Situation on expiry of the period laid down in the reasoned opinion — Transposing measures in force before that time-limit but not relied on during the pre-litigation procedure — Taking into account (Art. 4(3) TEU; Art. 258 TFEU) 5. Environment — European Union water policy — Directive 2000/60 — Time-limit for instituting emission controls — Legal nature (European Parliament and Council Directive 2000/60, Art. 10(2)) 1. 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. (see paras 26-28) 2. A Member State fails to fulfil its obligations under Directive 2000/60 establishing a framework for Community action in the field of water policy by failing to adopt all the measures necessary to transpose Articles 4(8), 7(2) and 10(1) and (2) of that directive 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 a particular Autonomous Community, and Articles 7(2) and 10(1) and (2) of that directive in respect of the intracommunal river basins inside that Community. The Member State in question cannot rely on a supplementing clause in its Constitution, according to which clause, where the Autonomous Communities have not exercised their legislative power to transpose, the national legislation also applies, since that legislation expressly restricts its scope to intercommunal river basins. An interpretation extending the application of that legislation to the intracommunal river basins would have the effect of creating a legal situation which would not satisfy the demands of clarity and precision required in respect of national implementing measures, all the more so if there is uncertainty in the law of the Member State concerned as regards the scope of the supplementing clause as a instrument ensuring the implementation of EU law. (see paras 30-35, operative part 1) 3. See the text of the decision. (see para. 36) 4. 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 the Court cannot take account of any subsequent changes. Although the fact that a Member State refers to those transposing measures for the first time at the stage of the defence cannot be reconciled with the duty of loyal cooperation on Member States under Article 4(3) TEU, an action for failure to fulfil obligations, none the less, concerns not a failure to fulfil the obligation to provide information but a failure to fulfil the obligation to transpose certain EU law. The mere fact that the Member State did not inform the Commission during the pre-litigation procedure that the directive had already been transposed cannot be sufficient to prove the alleged failure to fulfil an obligation. In so far as the domestic legal provisions 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. (see paras 40, 45, 49, 50) 5. Article 10(2) of Directive 2000/60 establishing a framework for Community action in the field of water policy does not lay down a period for transposition of that provision, but a period within which the controls laid down in that provision must have been carried out. (see para. 41)