Case C-278/01: Action brought on 13 July 2001 by the Commission of the European Communities against the Kingdom of Spain
Date: 2001-09-01
Institutions: Court of Justice
Subjects: European Commission, Spain, action for failure to fulfil an obligation, bathing water, environmental standard, quality standard

C 245/16

EN

Official Journal of the European Communities

1.9.2001

The Court of First Instance was wrong to find, at paragraph 47
of the judgment, that
the assessment of the Promotions
Committee was based on the view that the applicant experi-
enced difficulties in adjusting to his duties as Head, of the
Madrid Information Office. According to the minutes of the
Committee’s meeting, that assessment, however, is no more
than an assessment by the Chair of the Committee who does
not even have a vote on the Committee.

Finally, the Court of First Instance was wrong to find, at
paragraph 48 of the judgment, that the Promotions Committee
based itself solely on the marks awarded in the staff reports. It
follows,
in fact, from the minutes of the meeting of the
Committee, that it had decided to take into account the level
of responsibility of the duties carried out by the applicant and
to uprate the applicant’s marks accordingly.

Limits of judicial review:

The Court of First Instance has replaced the assessment of the
Promotions Committee with its own subjective assessment of
the applicant’s merits.

The Court of First Instance wrongly found, at paragraph 52 of
the judgment, that the applicant carried out the duties of Head
of the Information Office with success and failed, in so doing,
to make an objective comparison between the applicant and
his colleagues.

The Court of First
Instance wrongly takes the view, at
paragraph 53 of the judgment, that the appointing authority
failed to take proper account of the duties actually carried out
by the applicant with success. That subjective assessment does
not however support the conclusion that the Promotions
Committee committed a manifest error of assessment.

Action brought on 13 July 2001 by the Commission of
the European Communities against the Kingdom of Spain

(Case C-278/01)

(2001/C 245/29)

An action against Kingdom of Spain was brought before the
Court of Justice of the European Communities on 13 July
2001 by the Commission of the European Communities,
represented by Gregorio Valero Jordana, acting as Agent, with
an address for service in Luxembourg.

The applicant claims that the Court should:

— Declare that, by failing to adopt, contrary to its obligations
under Article 4 of Council Directive 76/160/EEC (1) of
8 December 1975 concerning the quality of bathing
water, measures to ensure that the quality of inshore
bathing water in Spain conforms to the limit values set
by Article 3 of that directive, the Kingdom of Spain has
failed to comply with the judgment of the Court of Justice
of the European Communities of 12 February 1998 in
Case C-92/96 (2), and thus failed to fulfil its obligations
under Article 228 of the EC Treaty;

— order the Kingdom of Spain to pay to the Commission of
the European Communities, into the ‘European Com-
munity own resources’ account, a penalty payment of
EUR 45 600 in respect of every day it delays in taking the
measures necessary to comply with the judgment in Case
C-92/96, from the date on which judgment is delivered
in the present case until such time as the judgment in
Case C-92/96 is complied with;

— order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

In Case C-92/96 Commission v Spain, the Court of Justice
held that by failing to take all necessary measures to ensure
that the quality of inshore bathing waters in Spain conforms
to the limit values set in accordance with Article 3 of Council
Directive 76/160/EEC of 8 December 1975 concerning the
quality of bathing water, the Kingdom of Spain had failed to
fulfil its obligations under Article 4 thereof.

Article 228(1) of the EC Treaty requires the Kingdom of Spain
to take the measures necessary to comply with the judgment.

There is no doubt whatsoever that the Kingdom of Spain
should long ago have adopted the measures necessary to
ensure that the quality of bathing water conformed to the limit
values set in Article 3 of the directive; more than two years
elapsed between the judgment and the reasoned opinion
the Spanish Government having adopted any
without
measures.

Pursuant to Article 228(2) EC, the Commission asks the Court
to order the Kingdom of Spain to pay a penalty payment of
EUR 45 600 in respect of every day it delays in taking the
measures necessary to comply with the judgment in Case
C-92/96, as from the date of delivery of the judgment in the
present case.

(1) OJ 1976 L 31, p. 1.
(2) Case C-92/96 Commission v Spain [1998] ECR I-505.