Opinion of Mr Advocate General Mischo delivered on 26 March 1998. - Commission of the European Communities v Kingdom of Spain. - Failure by a Member State to fulfil its obligations - Failure to transpose a directive. - Case C-71/97.



European Court reports 1998 Page I-05991



Opinion of the Advocate-General

1 In these proceedings for failure to fulfil obligations, brought pursuant to Article 169 of the EC Treaty, the Commission claims that the Kingdom of Spain has failed to fulfil its obligations under Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources (1) (hereinafter `the Directive').

2 More specifically, the Commission claims that the defendant Government:

- failed to designate the zones considered to be vulnerable and to notify it of those designations as required by Article 3 of the Directive

and, second,

- failed to establish the codes of good agricultural practice and to notify it thereof, as required by Article 4 of the Directive.

3 Article 3(2) of the Directive provides that, within a two-year period following the notification of the Directive, Member States are to designate as vulnerable zones all known areas of land in their territories which drain into the waters identified according to paragraph 1 and which contribute to pollution. Member States are to notify the Commission of that initial designation within six months.

4 According to Article 4 of the Directive, Member States are to establish a code or codes of good agricultural practice within a two-year period following the notification of the Directive and to submit details of those codes to the Commission.

5 A note under Article 12(1) states that the Directive was notified to the Member States on 19 December 1991. The time-limit for designating vulnerable zones and establishing codes of good agricultural practice therefore expired on 18 December 1993. The time-limit for notifying vulnerable zones expired on 18 June 1994.

6 It is apparent from the application that, on 17 February 1997, the Kingdom of Spain had still not notified the Commission of the designations provided for in Article 3 of the Directive or of the codes of good agricultural practice.

7 The Spanish Government points out that the implementation of the Directive was delayed, first, as a result of technical difficulties and, also, the fact that the State and the autonomous communities have concurrent powers in this field.

8 In that respect, it is sufficient to recall that, according to settled case-law, on the one hand, `the mandatory nature of directives entails the obligation for all Member States to comply with the time-limits contained therein in order that the implementation shall be achieved uniformly within the whole Community' (2) and, on the other, `a Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with the obligations and time-limits laid down in a directive'. (3)

9 Similarly, the Court has held (4) that `the governments of the Member States participate in the preparatory work for directives and must therefore be in a position to prepare within the period prescribed the legislative provisions necessary for their implementation. If, nevertheless, the period allowed for the implementation of a directive proves to be too short, the only means of action compatible with Community law available to the Member State concerned consists in taking the appropriate initiatives within the Community in order to obtain the necessary extension of the period by the competent Community institution'.

10 The defendant Government further points out that, in the present case, it is not appropriate to speak of a failure to fulfil obligations since, in its view, that implies the intention not to do something which ought to be done.

11 I cannot accept that argument since, as the Court has held, (5) `the admissibility of an action based on Article 169 of the Treaty depends only on an objective finding of a failure to fulfil obligations and not on proof of any inertia or opposition on the part of the Member State concerned'. The assessment of any element of intention is irrelevant to a finding by the Court of Justice that a Member State has failed to fulfil its obligations.

12 As regards the obligation to establish codes of good agricultural practice, the Spanish Government states, in its defence, that six of the 17 autonomous communities have established such codes and that those six codes have been notified to the Commission.

13 In its reply, the Commission acknowledges that it has indeed received those six codes relating to the autonomous communities of Andalusia, Cantabria, Madrid, Murcia, Navarra and Valencia respectively. It considers that it is therefore not necessary for the Court to rule on the compliance by those autonomous communities with the obligation to establish and notify the Commission of the codes of good agricultural practice.

14 In its rejoinder, the Spanish Government again contends that the application should be dismissed, this time on the ground that 14 autonomous communities have, in the meantime, established and notified codes of good agricultural practice. Similarly, seven autonomous communities have designated the vulnerable zones, five others have stated that no such zones exist in their respective territories and the community of Andalusia has designated vulnerable zones but has not yet notified that designation to the Commission.

15 It is clear, however, from the case-law of the Court (6) that the Court cannot take account of measures adopted by a Member State after the commencement of an action for failure to fulfil obligations in order to comply with its obligations. Those measures adopted out of time could however lead the Commission to reduce the scope of its allegations or even to withdraw the action. In this instance, that was not the case as regards the measures referred to by the Spanish Government in its rejoinder.

16 I therefore propose that the Court should give judgment for the Commission in the terms sought by it in the reply.

Conclusion

17 In the light of the foregoing I propose that the Court:

- declare that, by failing to establish and to communicate to the Commission the codes of good agricultural practice required by Article 4 of Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources as regards the autonomous communities other than Andalusia, Cantabria, Madrid, Murcia, Navarra and Valencia, and by failing to designate the zones considered to be vulnerable and to notify those designations to the Commission as required by Article 3 of that directive, the Kingdom of Spain has failed to fulfil its obligations under the said directive;

- order the Kingdom of Spain to pay the costs.

(1) - OJ 1991 L 375, p. 1.

(2) - Case 10/76 Commission v Italy [1976] ECR 1359, paragraph [12].

(3) - See, for example, Case C-259/94 Commission v Greece [1995] ECR I-1947, paragraph 5.

(4) - See, for example, Case 301/81 Commission v Belgium [1983] ECR 467, paragraph 11.

(5) - Ibid., paragraph 8.

(6) - See, for example, Case 291/84 Commission v Netherlands [1987] ECR 3483.