OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 30 May 2013 ( 1 )

Case C‑151/12

European Commission

v

Kingdom of Spain

‛Directive 2000/60/EC — Water policy of the Union — Classification and presentation of ecological status of surface waters — River basins within an Autonomous Community — Legislative competence of the Spanish State — Legislation in Catalonia’

I – Introduction

1. The Commission seeks a declaration that, with regard to its intracommunal river basins, the Kingdom of Spain has failed to fulfil its obligations under Articles 4(8), 7(2) and 10(1) and (2), as well as Sections 1.3 and 1.4 of Annex V, of Directive 2000/60. ( 2 )

2. Pursuant to Article 2(13) of Directive 2000/60, 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.

3. With respect to Spain’s intracommunal river basins, all of the waters concerned are situated within an individual Autonomous Community. It appears that in relation to those areas the legislative competence to implement Directive 2000/60 lies with the relevant Autonomous Community.

4. By contrast, pursuant to point 22 of Article 149(1) of the Spanish Constitution, the Spanish State has exclusive competence in relation to the legislation, regulation and concession of water resources and use thereof where the waters flow through more than one Autonomous Community. This applies in particular to Spain’s ‘intercommunal river basins’ which straddle more than one Autonomous Community.

5. The Commission’s criticisms relate only to intracommunal river basins. The complaints can be divided into three groups. First, consideration must be given to the complaint that the measures notified by Spain which implement, with regard to its intracommunal river basins save for those in Catalonia, Articles 4(8), 7(2) and 10(1) and (2), and Section 1.3 of Annex V, of Directive 2000/60 were not adopted within the prescribed time-limits (on this point, see section II of this Opinion). Second, although the measures notified by Spain which implement with regard to those areas Section 1.4 of Annex V were adopted within the prescribed time-limits, it remains uncertain whether, in fact, they ensure an effective implementation (on this point, see section III of this Opinion). Finally, the implementation of the specified provisions in Catalonia with regard to the river basins located wholly within that Autonomous Community must also be examined (on this point, see section IV of this Opinion).

II – Complaint in relation to Articles 4(8), 7(2) and 10(1) and (2) and Section 1.3 of Annex V of Directive 2000/60

6. Under the first subparagraph of Article 24(1) of Directive 2000/60, the Member States were to bring into force the laws, regulations and administrative provisions necessary to comply with that directive at the latest by 22 December 2003. ( 3 ) This applies also to Articles 4(8), 7(2) and 10(1) and (2), and Section 1.3 of Annex V, of Directive 2000/60

7. Admittedly, Article 10 of Directive 2000/60 establishes a special time-limit of 12 years for the establishment and/or implementation of certain emission controls. However, as the Commission has argued, without objection, this does not concern the time-limit for the transposition of that provision but the period within which certain specific controls specified in that provision are to be brought about. In substantive terms, Article 10 establishes the obligation to implement emission controls. Emission controls that are simply established but not implemented do not result in any practical consequences and, hence, are scarcely compatible with the Union’s objective, set out in Article 191 TFEU and Article 37 of the Charter of Fundamental Rights, to ensure a high level of environmental protection. Consequently, it is intended that these controls should be put into effect within a period of 12 years.

8. By contrast, the reference to the possibility that controls will have to be established cannot be interpreted as meaning that the creation of the legal framework for the measures that Article 10 requires is also subject to a 12-year transposition period. Instead, that legal framework must be adopted within the general period prescribed in the first subparagraph of Article 24(1).

9. From a procedural perspective, however, a different date is relevant. 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 that Member State at the end of the period laid down in the reasoned opinion. Changes which have occurred subsequently cannot be taken into account by the Court. ( 4 ) In its reasoned opinion of 22 March 2010, the Commission granted Spain a final period within which to implement the provisions specified, which expired on 22 May 2010.

10. However, in relation to the intracommunal river basins save for those in Catalonia, Spain relies on a domestic provision which took effect only after the expiry of that period laid down, that is, on Spanish Regulation ARM/1195/2011 of 11 May 2011. ( 5 ) Since in the present proceedings no consideration can be given to that regulation, to this extent, the action is well founded.

III – Complaint in relation to Section 1.4 of Annex V to Directive 2000/60

11. Conversely, in relation to the implementation of Section 1.4 of Annex V to Directive 2000/60, Spain relies on a provision which took effect before the expiry of the period specified above, that is, on Section 5.1 of Spanish Regulation ARM/2656/2008 of 10 September 2008. ( 6 )

12. At the hearing on 25 April 2013, the Commission limited its complaint in this regard to Section 1.4.1(i) to (iii) of Annex V to Directive 2000/60. Those provisions require the Member States to establish certain monitoring systems.

13. It is true that those obligations form part of the overall scheme of Directive 2000/60 and, for that reason, various provisions also make reference to Annex V. However, the mandatory effect of Section 1.4.1(i) to (iii) of Annex V does not depend on those other provisions but follows from its very wording.

14. Section 5.1 of Regulation ARM/2656/2008 concerns the same issues. However, the provisions of that regulation apply – pursuant to Article 1(2) thereof – only to intercommunal river basins. This appears to reflect the division of competence between the Spanish State and the Autonomous Communities. It appears that it is for each Autonomous Community to adopt the rules concerning intracommunal river basins.

15. That is why, in the Commission’s view, with respect to intracommunal river basins, Section 1.4.1(i) to (iii) of Annex V to Directive 2000/60 has not been implemented.

16. However, Spain contends that, where no rules have been adopted by Autonomous Communities, the effect of Spanish constitutional law will be that Section 5.1 of Regulation ARM/2656/2008 itself ensures the implementation of Section 1.4.1(i) to (iii) of Annex V to Directive 2000/60 in relation to intracommunal river basins. In that regard, Spain relies on Article 149(3) of the Spanish Constitution, in particular, the third sentence of that provision: ‘Matters not expressly assigned to the State by this Constitution may fall within the competence of the Autonomous Communities by virtue of their Statutes of Autonomy. Competence on matters not covered by Statutes of Autonomy shall belong to the State, whose laws shall prevail, in case of conflict, over those of the Autonomous Communities in all matters in which exclusive competence has not been conferred upon the latter. State law shall in all cases supplement that of the Autonomous Communities.’

17. The Court cannot determine whether, pursuant to the third sentence of Article 149(3) of the Spanish Constitution, Section 5.1 of Regulation ARM/2656/2008 applies, in fact, to the intracommunal river basins specified. That is a matter of Spanish law which must ultimately be resolved by Spanish courts. According to the case-file, that has not yet happened.

18. However, a determination of that kind is not required in order to reach a finding on the present complaint. Instead, in support of the Commission’s argument, it must be observed that, according to its wording, Regulation ARM/2656/2008 does not apply to intracommunal river basins. Consequently, it is necessary to examine whether Spain has demonstrated that the third sentence of Article 149(3) of the Spanish Constitution overcomes that limit on the regulation’s scope.

19. In that context, it is correct to observe that, according to the wording of the third paragraph of Article 288 TFEU, a directive, in binding all addressee Member States as to the result to be achieved, leaves it to the national authorities to decide the form and methods. Consequently, Spain, just like any other Member State, may choose the form and methods for implementing Directive 2000/60. ( 7 )

20. That is why the transposition of Community legislation into national law does not necessarily require the relevant provisions to be enacted in precisely the same words in a specific express legal provision. A general legal context may be sufficient for the purpose if it actually ensures the full application of the directive in a sufficiently clear and precise manner. ( 8 )

21. 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. ( 9 )

22. Thus, the possibility cannot be precluded that a provision such as the third sentence of Article 149(3) of the Spanish Constitution ensures an adequate transposition of directives even if there are no measures expressly aimed at transposition.

23. Irrespective of the question whether Section 1.4.1(i) to (iii) of Annex V to Directive 2000/60 – possibly in conjunction with the Environmental Information Directive ( 10 ) – creates rights for individuals, this form of transposition presupposes, however, that full application of the directive by the national authorities is effectively ensured.

24. In that regard, the primarily hurdle is the fact that Regulation ARM/2656/2008 is expressly limited to intercommunal river basins. An extension of the law of the Autonomous Communities with respect to intracommunal river basis would require an interpretation going beyond the provision’s wording.

25. However, in the transposition and application of a directive, the Member State must respect the principles of EU law, ( 11 ) in particular, the principle of legal certainty. This limits the obligation of interpretation in conformity with EU law such that it cannot serve as the basis for an interpretation of national law contra legem. ( 12 ) For that reason, it is uncertain whether it would be at all compatible with EU law, in the implementation of Directive 2000/60, to apply Regulation ARM/2656/2008 contrary to its wording to cover intracommunal river basins.

26. This reservation applies in particular if the interpretation of national law contra legem might create obligations or disadvantages for individuals, something which, in the present case, cannot be readily ascertained. None the less, a transposition whose compatibility with the principle of legal certainty is in doubt can hardly be regarded as ensuring the full application of the directive by the national authorities. There will always be the risk that the competent authorities act primarily in accordance with the wording of the provisions.

27. Spain argues that, with respect to intracommunal river basins, constitutional reasons preclude clearer transposition at national level. Any national measure expressly applicable to those areas – even only on a subsidiary basis – would interfere with the competence of the Autonomous Communities.

28. That argument illustrates, however, the weakness of a transposition based on the third sentence of Article 149(3) of the Spanish Constitution. The subsidiary application of Spanish national law precisely does not aim to achieve clarity of the kind required for the transposition of a directive but will operate only in exceptional cases where no alternative exists.

29. This underlines the nature of the approach – advanced by Spain – according to which national legislation may apply on a subsidiary basis. According to the case-law of the Spanish Constitutional Court laid before this Court, national legislation does not automatically apply in matters on which there are national rules but an Autonomous Community has not adopted rules of its own, but only in situations where those applying the law have identified a gap. ( 13 )

30. Although one could clearly regard the non-transposition of EU law as constituting a gap in the law, in this case, the subsidiary application of national law cannot, by its nature, be ensured with any greater certainty than the direct application of the relevant provision of the directive. However, the Court does not accept direct applicability as an adequate substitute for implementation. ( 14 )

31. The fact that, in relation to the areas in question, the river basin management plans of the Autonomous Communities make reference to Regulation ARM/2656/2008 also does not suffice to hold that that regulation represents adequate transposition as regards intracommunal river basins. It cannot be determined whether the Autonomous Communities have acted on the basis of a legal obligation. The references to the regulation could have been made merely for reasons of expediency. In that case, those references simply document administrative practice, something which is also not recognised by the Court as it can be altered at any time. ( 15 )

32. Moreover, as the Commission rightly observes, the Autonomous Communities could very easily provide for the national rules to apply by analogy and thus establish the legal certainty required. However, that has not happened.

33. Thus, the possibility cannot be entirely ruled out that Section 5.1 of Regulation ARM/2656/2008 in conjunction with the third sentence of Article 149(3) of the Spanish Constitution will ensure, in practice, the full application by the Spanish authorities of Section 1.4.1(i) to (iii) of Annex V to Directive 2000/60. However, it cannot be determined that such application is, guaranteed.

34. Contrary to the argument advanced by Spain, this conclusion does not entail a failure to respect – contrary to Article 4(2) TEU – its national identity, inherent in its fundamental political and constitutional structures, including regional and local self-government. The possibility cannot be ruled out that EU law may, in federal or decentralised systems, be transposed through the subsidiary application of national rules is not precluded. However, such subsidiary application must be beyond question. Spanish law does not satisfy those requirements.

35. Quite the contrary, to accept the subsidiary application of national law as transposing a directive would entail a failure to respect the reservations expressed in Spanish constitutional law in relation to this method. It would not acknowledge sufficiently the legislative responsibility associated with the legislative competence accorded to the Autonomous Communities.

36. In conclusion, it may be stated, therefore, that with regard to the intracommunal river basins save for those in Catalonia, Spain has failed to fulfil its obligations under Section 1.4.1(i) to (iii) of Annex V to Directive 2000/60.

IV – The complaint concerning transposition in Catalonia

37. I now turn to examine implementation in Catalonia. It was in its defence that Spain first advanced the argument that Catalonia had implemented the provisions of Directive 2000/60 contested by the Commission.

38. The Commission asserts – in my view, correctly – that Spain infringed its obligation to cooperate in good faith as laid down in Article 4(3) TEU at the stage of the pre-litigation procedure. In principle, it was incumbent on Spain to notify the Catalonian measures to the Commission at the pre-litigation stage. ( 16 ) However, that infringement of EU law is not at issue in the present proceedings.

39. None the less, as a result of that infringement, the Commission contends that the Court is precluded from considering the information provided concerning implementation in Catalonia. However, the case it relies on in support of that contention ( 17 ) concerned information first introduced at the hearing and, thus, pursuant to Article 42(1) of the Rules of Procedure then in force (now Article 128(1) of the current Rules of Procedure), out of time.

40. By contrast, an infringement of Article 4(3) TEU at the pre-litigation stage, does not, in principle, preclude Spain from producing new evidence and information in support of its position in its defence. In particular, that includes information on implementation not mentioned at the stage of the pre-litigation procedure. ( 18 )

41. Since Spain contends that the Catalonian legislation to which it refers implements the contested provisions of Directive 2000/60, it is for the Commission to rebut that argument. In an action for failure to fulfil obligations it is for the Commission to prove the allegation that the obligations have not been fulfilled. It is its responsibility to place before the Court the information needed to enable the Court to establish that the obligation has not been fulfilled, and in so doing the Commission may not rely on any presumption. ( 19 )

42. In response to the new argument put forward by Spain, the Commission limited itself, correctly, to indicating that the river basin management plan for the river district of Catalonia of 5 September 2011 ( 20 ) was adopted out of time for the purposes of the present proceedings. The same applies to the set of measures adopted by Catalonia on 23 November 2010 ( 21 ) and relied on by Spain.

43. Spain advances those two measures in addition to legislative provisions adopted within the prescribed period in order to transpose Article 7(2) and Article 10(1) and (2) of Directive 2000/60. Consequently, according to Spain’s own submission, even in relation to Catalonia, at the time relevant for the present proceedings, those provisions of the directive had been transposed only in part but not in full.

44. Conversely, as regards the transposition of Article 4(8) and Sections 1.3 and 1.4.1(i) to (iii) of Annex V of Directive 2000/60 in Catalonia, Spain simply refers to Catalonian Decree 380/2006 of 10 October 2006 ( 22 ) and a Catalonian programme of 3 June 2008. ( 23 ) Both measures were already in force on the expiry of the period set out in the reasoned opinion. Consequently, it is possible to examine in the present proceedings whether they transpose the provisions in question.

45. Spain described those measures in outline but did not present them to the Court. However, as the Commission does not raise any substantive objections or dispute the transposition on the basis of lack of information, it would be inappropriate to conclude that those provisions do not satisfy the requirements of Article 4(8) and Sections 1.3 and 1.4.1(i) to (iii) of Annex V of Directive 2000/60.

46. Consequently, it may be stated that at the relevant time in Catalonia Article 7(2) and Article 10(1) and (2) of Directive 2000/60 had not been implemented in full.

V – Costs

47. Under Article 138(1) of the Rules of Procedure of the Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the Commission has applied for costs and the Kingdom of Spain has been for the most part unsuccessful and, inasmuch as it has been successful, at the stage of the pre-litigation procedure, did not provide all the information that was relevant in relation to the provisions of its domestic law by means of which it considered that it had complied with the various obligations imposed on it by the directive, ( 24 ) it must be ordered to pay the costs.

VI – Conclusion

48. I therefore propose that the Court rule as follows: (1) With regard to its intracommunal river basins save for those in Catalonia, the Kingdom of Spain has failed to take all the measures necessary to implement Articles 4(8), 7(2) and 10(1) and (2), together with Sections 1.3 and 1.4.1(i) to (iii) of Annex V, of Directive 2000/60/EC establishing a framework for Community action in the field of water policy. (2) With regard to its river basins situated wholly within Catalonia, the Kingdom of Spain has failed to take all the measures necessary to implement Article 7(2) and Article 10(1) and (2) of Directive 2000/60. (3) The remainder of the action is dismissed. (4) The Kingdom of Spain is ordered to pay the costs.

( 1 ) Original language: German.

( 2 ) 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).

( 3 ) Case C‑43/10 Nomarchiaki Aftodioikisi Aitoloakarnanias and Others [2012] ECR, paragraphs 43 to 46.

( 4 ) Case C-235/04 Commission v Spain [2007] ECR I-5415, paragraph 52; Case C‑150/11 Commission v Belgium [2012] ECR, paragraph 43; and Case C‑286/12 Commission v Hungary [2012] ECR, paragraph 41.

( 5 ) Orden ARM/1195/2011, de 11 de mayo, por la que se modifica la Orden ARM/2656/2008, de 10 de septiembre, por la que se aprueba la instrucción de planificación hidrológica, BOE No 114 of 13 May 2011, p. 48584.

( 6 ) Orden ARM/2656/2008, de 10 de septiembre, por la que se aprueba la instrucción de planificación hidrológica, BOE No 229 of 22 September 2008, p. 38472.

( 7 ) Case C-418/04 Commission v Ireland [2007] ECR I-10947, paragraph 157, and Case C-535/07 Commission v Austria [2010] ECR I-9483, paragraph 60.

( 8 ) Case 252/85 Commission v France [1988] ECR 2243, paragraph 5; Case C-507/04 Commission v Austria [2007] ECR I-5939, paragraph 89; and Case C‑311/10 Commission v Poland [2012] ECR, paragraph 40.

( 9 ) Case 29/84 Commission v Germany [1985] ECR 1661, paragraph 23; Case C-296/01 Commission v France [2003] ECR I-13909, paragraph 55; and Case C-475/08 Commission v Belgium [2009] ECR I-11503, paragraph 41.

( 10 ) Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (OJ 2003 L 41, p. 26).

( 11 ) Case C-107/97 Rombi and Arkopharma [2000] ECR I-3367, paragraph 65; Case C-540/03 Parliament v Council [2006] ECR I-5769, paragraph 105; Case C-275/06 Promusicae [2008] ECR I-271, paragraph 68; and Joined Cases C‑356/11 and C‑357/11 O and S [2012] ECR, paragraph 80.

( 12 ) Case C-212/04 Adeneler and Others [2006] ECR I-6057, paragraph 110; Case C-268/06 Impact [2008] ECR I-2483, paragraph 100; Case C-12/08 Mono Car Styling [2009] ECR I-6653, paragraph 61; and Case C‑282/10 Dominguez [2012] ECR, paragraph 25.

( 13 ) See Case C-152/09 Grootes [2010] ECR I-11285, paragraph 41, on the application of a provision by analogy under EU law.

( 14 ) Case 102/79 Commission v Belgium [1980] ECR 1473, paragraph 12; Case C-253/95 Commission v Germany [1996] ECR I-2423, paragraph 13; and Case C-475/08 Commission v Belgium [2009] ECR I-11503, paragraph 44.

( 15 ) Case C-80/92 Commission v Belgium [1994] ECR I-1019, paragraph 20; Commission v France, cited in footnote 9, paragraph 54; and Case C-490/09 Commission v Luxembourg [2011] ECR I-247, paragraph 47.

( 16 ) Case C-494/01 Commission v Ireland [2005] ECR I-3331, paragraph 44 et seq., and Case C-135/05 Commission v Italy [2007] ECR I-3475, paragraph 27 et seq.

( 17 ) Case C-474/99 Commission v Spain [2002] ECR I-5293, paragraph 42 et seq.

( 18 ) Case C-456/03 Commission v Italy [2005] ECR I-5335, paragraph 41, and Case C-32/05 Commission v Luxembourg [2006] ECR I-11323, paragraphs 52 to 56.

( 19 ) Case 96/81 Commission v Netherlands [1982] ECR 1791, paragraph 6; Case C-342/05 Commission v Finland [2007] ECR I-4713, paragraph 23; and Case C‑577/10 Commission v Belgium [2012] ECR, paragraph 34.

( 20 ) Real Decreto 1219/2011, de 5 de septiembre, por el que se aprueba el Plan de gestión del distrito de cuenca fluvial de Cataluña, BOE No 228 of 22 September 2011.

( 21 ) Programa de Medidas, aprobado por Acuerdo del Gobierno de la Generalidad de Cataluña de 23 de noviembre de 2010.

( 22 ) Decreto 380/2006, de 10 de octubre, por el que se aprueba el Reglamento de la planificación hidrológica, DOGC No 4740 of 16 October 2006, p. 42776.

( 23 ) Programa de Seguimiento y Control del Distrito de Cuenca Fluvial de Cataluña, aprobado por acuerdo del Gobierno de la Generalidad de Cataluña (GOV/128/2008) de 3 de Junio de 2008.

( 24 ) See, to that effect, Commission v Luxembourg, cited in footnote 18, paragraph 87.