Opinion of Mr Advocate General Saggio delivered on 9 March 2000. - Commission of the European Communities v Portuguese Republic. - Failure by a Member State to fulfil its obligations - Directive 76/464/EEC - Aquatic pollution - Failure to transpose. - Case C-261/98.



European Court reports 2000 Page I-05905



Opinion of the Advocate-General

1 By application lodged at the Court Registry on 17 July 1998, the Commission complains that the Portuguese Republic has failed to adopt or at least communicate summaries of programmes for the reduction of aquatic pollution incorporating appropriate quality objectives in relation to certain polluting substances and to set adequate deadlines for their implementation in accordance with Article 7 of Council Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community (1) (hereinafter `the Directive').

Relevant Community law

2 The purpose of the Directive is, firstly, to eliminate aquatic pollution caused by the discharge of various dangerous substances in a first list, `List I', and, secondly, to reduce aquatic pollution caused by substances in a second list, `List II'. (2) The two lists of harmful substances are contained in an Annex to the Directive. Under Article 1(1) the Directive applies to internal surface waters (fresh water) and coastal waters (salt water), to territorial waters and to ground water. The word `discharge' is defined in Article 1(2)(d) as `the introduction into the waters referred to in paragraph 1 of any substances in List I or List II of the Annex'. `Pollution' is described in (e) of the same Article as `the discharge by man, directly or indirectly, of substances or energy into the aquatic environment, the results of which are such as to cause hazards to human health, harm to living resources and to aquatic ecosystems, damage to amenities or interference with other legitimate uses of water'.

3 In order to achieve the objectives established by the Directive concerning purification, Member States, under Article 2 of the Directive, must take `the appropriate steps to eliminate pollution of the waters referred to in Article 1 by the dangerous substances in the families and groups of substances in List I of the Annex and to reduce pollution of the said waters by the dangerous substances in the families and groups of substances in List II of the Annex, in accordance with this Directive, the provisions of which represent only a first step towards this goal'.

4 Article 7(1) of the Directive provides: `In order to reduce pollution of the waters referred to in Article 1 by the substances within List II, Member States shall establish programmes in the implementation of which they shall apply in particular the methods referred to in paragraphs 2 and 3'. Paragraph 2 of the same Article establishes a system of prior authorisation for polluting discharges, while paragraph 3 provides that the abovementioned programmes `shall include quality objectives for water; these shall be laid down in accordance with Council Directives, where they exist'. Under paragraphs 4 and 5 of this Article the programmes mentioned may also `include specific provisions governing the composition and use of substances or groups of substances and products', taking into account the latest economically feasible technical developments, and must set `deadlines for their implementation'. Lastly, paragraph 6 of Article 7 requires summaries of the programmes and the results of their implementation to be `communicated to the Commission'.

5 It should be noted that List II includes substances `which have a deleterious effect on the aquatic environment, which can, however, be confined to a given area and which depend on the characteristics and location of the water into which they are discharged'. These substances are divided into two categories. The first includes the substances in List I `for which the limit values have not been determined'; there are at present 99 of these substances which are to be eliminated as a matter of priority. The second list includes a series of substances or compounds listed individually.

6 The text of the Directive, which was adopted on 4 May 1976 and communicated the following day to Member States, does not indicate any deadline for its transposition. As regards the programmes for the reduction of pollution, Article 7(7) provides that the Commission is to arrange for regular comparisons of the programmes in order to ensure sufficient coordination in their implementation and, if it sees fit, to submit relevant proposals to the Council to this end. Article 12(2) establishes that the first such proposals should be forwarded to the Council, where possible, `within 27 months following notification of this Directive'. Thus, the requirement on Member States to adopt programmes under Article 7(1) of the Directive and to forward these proposals in writing to the Commission should, in principle, have been carried out by 5 August 1978 at the latest. The Commission, however, on 3 November 1976, had proposed that Member States should adopt the programmes by 15 September 1981 and implement them by 15 September 1986. (3)

7 The Directive became binding on the Portuguese Republic on its accession to the European Communities, (4) on 1 January 1986. From this date, therefore, Portugal was obliged to establish the relevant purification programmes.

Infringement proceedings and forms of order sought by the parties

8 On 26 September 1989 the Commission asked the Portuguese Government to communicate by 31 December 1989 a summary of the programmes for the reduction of pollution adopted under Article 7(1) of the Directive. In the absence of a reply from the Portuguese Government, the request was repeated on 4 April 1990, without obtaining, however, any response.

9 Following this, the Commission sent the Portuguese Government a letter of formal notice on 2 April 1991 inviting that Government to submit observations on the matter within a month in accordance with the first paragraph of Article 169 of the EEC Treaty (which later became the first paragraph of Article 169 of the EC Treaty, and subsequently the first paragraph of Article 226 EC). Portugal replied with two letters from its Permanent Representative, of 25 April 1991 and 25 June 1992 respectively, which described the implementation of a technical study on the polluting substances mentioned in the Directive, as well as a number of programmes to reduce aquatic pollution. Neither of these replies was considered by the Commission to be satisfactory.

10 The Commission therefore decided to send the Portuguese Government a reasoned opinion, in a letter dated 25 May 1993, pursuant to the above-mentioned first paragraph of Article 169 of the EEC Treaty, calling on Portugal to take the requisite measures to comply therewith within two months. Portugal replied to the reasoned opinion by letter from its Permanent Representative of 9 June 1993; that letter contained a new list of programmes for reducing aquatic pollution which were either being carried out or in the planning stage. Further additional replies followed in a series of letters from the Permanent Representative of 26 August 1993, 21 June 1994, 12 December 1994, 29 May 1995, 30 May 1996 and, finally, 5 December 1996. None of those replies was deemed by the Commission to be entirely satisfactory.

11 Accordingly, on 17 July 1998, the Commission brought an action under Article 169(2) of the EC Treaty claiming that the Court should:

- declare that, by failing to adopt or at least communicate summaries of, water pollution reduction programmes laying down appropriate quality objectives in relation to particular polluting substances and a suitable timetable for their implementation in accordance with Article 7 of the Directive, the Portuguese Republic had failed to fulfil its obligations under that Directive and under the EC Treaty;

- order the Portuguese Republic to pay costs.

12 In its defence, lodged on 14 October 1998, the Portuguese Government contended that the Court should:

- `allow it until 31 December 1998 to submit the additional information referred to in Article 7 of Directive 76/464 and, having received them, to find the present action devoid of purpose and dismiss it';

- order the Commission to pay costs.

Failure to fulfil obligations

13 First, in accordance with settled case-law, (5) whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that Member State at the end of the period prescribed by the reasoned opinion and that subsequent changes (whether legislative or administrative) cannot be taken into account. Thus, as in this case the period in question expired on 25 July 1993, what must be established is whether or not at that time the Portuguese Government had fulfilled the obligation to adopt programmes to reduce pollution as set out in Article 7(1) of the Directive. As the Directive became binding on Portugal on 1 January 1986, the Portuguese Government enjoyed a period of more than seven and a half years in which to adopt such programmes. This period seems reasonable and adequate, given its length and the time presumably needed to set up programmes of this kind.

14 It is clear from the case file that, by 25 July 1993, the Portuguese Government had sent to the Commission: (a) a technical study on the polluting substances mentioned in the Directive; (6) (b) a schematic list of `programmes for the reduction of pollution'; (7) and (c) a document entitled `Directive 76/464/EEC. Programmes for the reduction of pollution'. (8)

15 As regards the technical study on the polluting substances mentioned in the Directive, this is not a proper programme within the meaning of Article 7 of the Directive, but a preparatory measure of a general nature, as, moreover, the Portuguese Government itself specifically recognises. (9) Moreover, the Court has previously stressed that the programmes for the reduction of pollution set out in the Directive for the protection of the environment and aquatic resources must be of a specific nature as `the objective of reducing pollution pursued by general purification programmes does not necessarily correspond to the more specific objective of the Directive in issue'. (10)

16 The same can be said of the schematic list of `programmes for the reduction of pollution', sent on 9 June 1993. This is simply a list of projects indicating the title, the catchment basin in question, the district concerned and an estimate of costs, without any mention of the content, objectives and duration of the projects. Therefore, this document also is clearly not adequate to enable the correct implementation of the obligations deriving from Article 7 of the Directive under which summaries of the purification programmes must be communicated to the Commission with a clear indication of the `quality objectives for water' and the `deadlines for [their] implementation'.

17 It remains to consider the document entitled `Directive 76/464/EEC. Programmes for the reduction of pollution', sent by the Portuguese Government to the Commission on 25 June 1992. The programmes - of which there are five - listed in the document contain a very general description of the projects to be carried out, without any indication of the quality objectives to be pursued with reference to the substances in List II, nor to the deadlines for implementation of the projects in question. As the applicant observes, programmes of this kind, while demonstrating that the Portuguese Government is devoting attention to the protection of the aquatic environment, do not comply with the terms of Article 7 of the Directive as they indicate neither the quality objectives to be achieved nor the deadlines for their implementation.

18 It follows that on 25 July 1993 the Portuguese Government had not fully complied with its obligations under Article 7 of the Directive as, moreover, that Government acknowledges in its defence. (11) The Court must therefore make the declaration sought by the applicant in its application.

Costs

19 Under Article 69(2) of the Rules of Procedure the unsuccessful party is to be ordered to pay costs if they have been applied for in the successful party's pleadings. Since the Commission has applied for costs I would propose that the Portuguese Republic, as the unsuccessful party, be ordered to pay the costs.

Conclusions

20 In the light of the foregoing considerations, I propose that the Court should rule as follows:

(1) By failing to adopt, or at least communicate to the Commission summaries of, water pollution reduction programmes laying down appropriate quality objectives in respect of certain polluting substances and a suitable timetable for their implementation in accordance with Article 7(1) of Council Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community, the Portuguese Republic has failed to fulfil its obligations under that Directive.

(2) The Portuguese Republic is ordered to pay costs.

(1) - OJ L 129, p. 23.

(2) - See the seventh and ninth recitals.

(3) - See paragraph 5 of the application.

(4) - See Articles 392 and 395 of the Act of Accession.

(5) - With regard to the Directive in question, see the recent judgment in Joined Cases C-232/95 and C-233/95 Commission v Greece [1998] ECR I-3343, paragraph 38.

(6) - `Levantamento nacional dos quantitativos de produçao, importaçao e exportaçao de produtos quimicos', technical study annexed to letter from Portuguese Permanent Representative of 25 June 1992.

(7) - `Programas de reduçao de poluiçao', document annexed to the letter from the Portuguese Permanent Representative of 9 June 1993.

(8) - `Directiva 76/464/EEC. Programas de reduçao de poluiçao', document annexed to letter of 25 June 1992 cited above.

(9) - See abovementioned letter of 9 June 1993, page 2.

(10) - Commission v Greece cited above, paragraph 35. See also Case C-298/95 Commission v Germany [1996] ECR I-6747, paragraph 26.

(11) - Paragraph 6.