Commission of the European Communities v Grand Duchy of Luxemburg.
Date: 2006-11-30
16. As it considered that the Directive had not been implemented in Luxembourg law within the prescribed period, the Commission, after giving the Grand Duchy of Luxembourg formal notice on 26 January 2004 to submit its observations in accordance with Article 226 EC, issued a reasoned opinion by letter of 9 July 2004 requesting that Member State to adopt the measures necessary to comply with its obligations under the directive within two months of notification of the opinion.
17. In their reply to the reasoned opinion of 27 September 2004, the Luxembourg authorities gave a number of reasons to justify the delay in transposing the directive, including the lack of clarity of some of the terms contained in it and the decision of the Luxembourg Government to use the transposition procedure to undertake a fundamental review of the existing national legislation. However, the authorities stated that the delay in formal transposition of the directive did not constitute any form of obstacle to compliance with the various deadlines laid down under it.
22. In accordance with settled case-law, 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 and the Court cannot take account of any subsequent changes (see, inter alia, Case C‑168/03 Commission v Spain [2004] ECR I-8227, paragraph 24, and judgment of 12 January 2006 in Case C‑118/05 Commission v Portugal , not published in the ECR, paragraph 7).
32. As regards, in the first place, the question whether the directive obliges Member States to adopt framework legislation in order to implement the requirements of the directive in national law, it should be noted that, according to settled case-law, each of the Member States to which a directive is addressed is obliged to adopt, within the framework of its national legal system, all the measures necessary to ensure that the directive is fully effective, in accordance with the objective it pursues (see, inter alia, Case C‑478/99 Commission v Sweden [2002] ECR I‑4147, paragraph 15, and Case C‑233/00 Commission v France [2003] ECR I‑6625, paragraph 75).
34. The third paragraph of Article 249 EC expressly provides that Member States may choose the form and methods for implementing directives which best ensures the result to be achieved by the directives. It follows from that provision that the implementation in domestic law of a directive does not necessarily require legislative action in each Member State. 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 (see, inter alia, Case 29/84 Commission  v Germany [1985] ECR 1661, paragraphs 22 and 23; Case C‑217/97 Commission  v Germany [1999] ECR I‑5087, paragraphs 31 and 32; and Case C‑233/00 Commission  v France , paragraph 76).
35. The Court has also held that a provision which concerns only the relations between the Member States and the Commission does not, in principle, have to be transposed. However, given that the Member States are obliged to ensure that Community law is fully complied with, it is open to the Commission to demonstrate that compliance with a provision of a directive governing those relations requires the adoption of specific transposing measures in national law (see, to that effect, Case C‑72/02 Commission v Portugal [2003] ECR I-6597, paragraphs 19 and 20, and Case C-296/01 Commission v France [2003] ECR I‑13909, paragraph 92).
36. It is accordingly necessary in every case to determine the nature of the provisions of a directive to which infringement proceedings relate, in order to assess the extent of the obligation as to transposition which is imposed on the Member States.
37. Community legislative practice shows that there may be great differences in the types of obligations which directives impose on the Member States and therefore in the results which must be achieved (Case C‑60/01 Commission  v France  [2002] ECR I‑5679, paragraph 25).
38. Some directives require legislative measures to be adopted at national level and compliance with those measures to be the subject of judicial or administrative review (see, in that regard, Case C‑360/88 Commission v Belgium [1989] ECR 3803; Case C-329/88 Commission  v Greece  [1989] ECR 4159; and Case C‑60/01 Commission v France , paragraph 26).
39. Other directives provide that the Member States are to take the necessary measures to ensure that certain objectives formulated in general and unquantifiable terms are attained, whilst leaving the Member States some discretion as to the nature of the measures to be taken (see, in that regard, Case C‑365/97 Commission v Italy (the ‘San Rocco’  case) [1999] ECR I‑7773, paragraphs 67 and 68, and Case C‑60/01 Commission v France , paragraph 27).
40. Yet other directives require the Member States to obtain very precise and specific results after a certain period (see, in that regard, Case C‑56/90 Commission v United Kingdom [1993] ECR I-4109, paragraphs 42 to 44; Case C‑268/00 Commission v Netherlands [2002] ECR I‑2995, paragraphs 12 to 14; and Case C‑60/01 Commission v France , paragraph 28).
41. As regards the present case, it must be noted that Directive 2000/60 is a framework directive adopted on the basis of Article 175(1) EC. It establishes the common principles and an overall framework for action in relation to water protection and coordinates, integrates and, in a longer perspective, develops the overall principles and structures for protection and sustainable use of water in the European Community. The common principles and overall framework for action which it lays down are to be developed subsequently by the Member States, which are to adopt a series of individual measures in accordance with the timescales laid down in the directive. However, the directive does not seek to achieve complete harmonisation of the rules of the Member States concerning water.
51. Since it is for the Commission to prove that the Member State has failed to fulfil its obligations, by placing the information necessary to establish the failure before the Court, and in so doing the Commission may not rely on any presumption (see, inter alia, Case 96/81 Commission v Netherlands [1982] ECR 1791, paragraph 6; Case C-404/00 Commission v Spain [2003] ECR I-6695, paragraph 26; Case C‑434/01 Commission v United Kingdom [2003] ECR I‑13239, paragraph 21; and Case C-194/01 Commission  v Austria [2004] ECR I‑4579, paragraph 34), and since the Commission has not, in the present case, indicated either the provisions of the directive requiring Member States to adopt framework legislation or established that such a measure is necessary in order to ensure the result which the directive seeks to achieve, it must be held that the first part of the second complaint is not well founded.
– Implementation of the directive by the Law of 1993
54. However, that lack of precision in the application is the result of the conduct of the Luxembourg authorities themselves, as they did not claim during the pre-litigation procedure that the Law of 1993 was sufficient to implement the directive and let it be understood that the provisions required for that implementation were about to be adopted.
55. Since the Luxembourg Government claimed for the first time in its defence that the Law of 1993 complied with the directive, the Commission likewise put forward arguments in its reply to show that the implementation claimed by the Grand Duchy of Luxembourg is, in any event, incorrect or incomplete as regards a number of the provisions of the directive, and did so in order to take account of information notified at a late stage by the Luxembourg Government in its defence.
56. The Court has already held in similar circumstances that if the pre‑litigation procedure has attained its objective of protecting the rights of the Member State in question, that Member State, which did not inform the Commission during the pre-litigation procedure that the directive should be regarded as having already been implemented in its domestic law, cannot complain that the Commission has extended or altered the subject-matter of the action as defined by the pre-litigation procedure. According to the Court, the Commission may, after alleging that a Member State has failed to transpose a directive at all, specify in its reply that the implementation pleaded for the first time by the Member State concerned in its defence is in any event incorrect or incomplete so far as certain provisions of the directive are concerned, as such a complaint is necessarily included in the complaint alleging a complete failure to transpose and is subsidiary to that complaint (Case C‑456/03 Commission  v Italy [2005] ECR I‑5335, paragraphs 23 to 42, and, in particular, paragraph 40).
60. However, in accordance with the case-law of the Court which provides that the State concerned should have the opportunity to avail itself of its right to defend itself against the objections formulated by the Commission (see, inter alia, Case C-117/02 Commission v Portugal [2004] ECR I-5517, paragraph 53, and Case C‑456/03 Commission v Italy , paragraph 36), the second part of the Commission’s second complaint should be restricted to those provisions of the directive which the Commission has referred to in its reply and which it did not subsequently abandon (namely Articles 2, 3, 4, 7(2) and 14 of the directive), since the Grand Duchy of Luxembourg has not had the opportunity to avail itself of its right to defend itself as regards the other provisions of the directive referred to by the Commission for the first time at the hearing.
64. The incompatibility of national legislation with Community provisions, even provisions which are directly applicable, can be finally remedied only by means of national provisions of a binding nature (see, to that effect, Case C-334/94 Commission v France [1996] ECR I-1307, paragraph 30, and Case C-197/96 Commission v France [1997] ECR I‑1489, paragraph 14).
65. It must be held that, by excluding from the Law of 1993 the definitions of the terms in Article 2 of the directive and the timescales within which the standards of water quality are to be met, as set out in Articles 4 to 6 and 8 of the directive, the obligations under Article 2, read in conjunction with the latter provisions, have not been implemented with the binding force required. The Commission’s argument based on infringement of Article 2 of the directive must therefore be held to be well founded.