European Commission v Kingdom of Spain.
Date: 2013-10-24
26. In that regard, it must be borne in mind that, according to settled case-law, the provisions of directives must be implemented with unquestionable binding force, and the specificity, precision and clarity necessary to satisfy the requirements of legal certainty (see, in particular, Case C‑296/01 Commission  v France  [2003] ECR I‑13909, paragraph 54, and Case C‑427/07 Commission  v Ireland  [2009] ECR I‑6277, paragraph 55).
28. Thus, the Court has repeatedly held that 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 (Case C‑32/05 Commission  v Luxembourg  [2006] ECR I‑11323, paragraph 34 and the case-law cited).
33. Next, it must be noted that if the supplementing application of the national decree of 2008 is to be understood as meaning that the implementing provisions laid down in section 5.1 thereof apply, as the Advocate General notes in points 23 to 25 of her Opinion, beyond the wording of paragraph 2 of the single article of that decree, to the intracommunal river basins, the legal situation which would ensue would not satisfy the demands of clarity and precision required in respect of national implementing measures (see, to that effect, Case C‑372/99 Commission  v Italy  [2002] ECR I‑819, paragraph 18).
36. With regard to the reference in the management plans for intracommunal river basins to the national decree of 2008, relied upon to show that that decree is fully applicable to those basins, having regard to the foregoing, the Kingdom of Spain has failed to demonstrate that the Autonomous Communities have acted pursuant to a legal obligation when they referred to the national decree of 2008 in the management plans for those basins. If the reference reflects merely an administrative practice, which by its nature is alterable at will by the authorities and is not given appropriate publicity, it cannot be regarded as constituting the proper fulfilment of obligations under the Treaty (see, to that effect, Case C‑490/09 Commission  v Luxembourg  [2011] ECR I‑247, paragraph 47 and the case-law cited).
40. In its written submissions, the Kingdom of Spain refers to the transposition of those provisions by the national decree of 2011 together with the supplementing clause. In that regard, it must be pointed out that the national decree of 2011 did not, in any event, enter into force until after the period laid down in the reasoned opinion had expired. 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 the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (Case C‑286/12 Commission  v Hungary  [2012] ECR I‑0000, paragraph 41 and the case-law cited).
49. In that regard, it is indeed appropriate to note that the Kingdom of Spain referred to those measures for the first time at the stage of the defence, which cannot be reconciled with the duty of loyal cooperation on Member States under Article 4(3) TEU. However, the present action concerns not a failure to fulfil the obligation to provide information but a failure to fulfil the obligation to transpose certain provisions of Directive 2000/60. The mere fact that the Kingdom of Spain did not inform the Commission during the pre-litigation procedure that the Directive was already transposed cannot be sufficient to prove the alleged failure to fulfil an obligation (see, to that effect, Case C‑456/03 Commission  v Italy  [2005] ECR I‑5335, paragraphs 46 and 47).
50. In so far as the domestic legal provisions pleaded by the Kingdom of Spain 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 ( Commission  v Italy , paragraph 48).