Commission of the European Communities v Federal Republic of Germany.
Date: 1991-02-28
6 It should be pointed out first of all that according to the case-law of the Court (see, in particular, the judgment in Case 363/85 Commission v Italy [1987] ECR 1733), the transposition of a directive into domestic law does not necessarily require that its provisions be incorporated formally and verbatim in express, specific legislation; a general legal context may, depending on the content of the directive, be adequate for the purpose provided that it does indeed guarantee the full application of the directive in a sufficiently clear and precise manner so that, where the directive is intended to create rights for individuals, the persons concerned can ascertain the full extent of their rights and, where appropriate, rely on them before the national courts.
8 It should be pointed out that the fact that a practice is consistent with the protection afforded under a directive does not justify failure to implement that directive in the national legal order by means of provisions which are capable of creating a situation which is sufficiently precise, clear and open to permit individuals to be aware of and enforce their rights. As the Court held in its judgment in Case C-339/87 (Commission v Netherlands [1990] ECR I-851, paragraph 25), in order to secure full implementation of directives in law and not only in fact, Member States must establish a specific legal framework in the area in question.
9 It follows from the foregoing that the argument of the Federal Republic of Germany that there has been no case in practice in which the directive was infringed cannot be accepted.
19 In order to guarantee complete and effective protection of groundwater, it is vital that the prohibitions set out in the directive be expressly embodied in national law (see the judgment in Case 252/85 Commission v France [1988] ECR 2243, paragraph 19). Paragraph 34(1) of the Wasserhaushaltsgesetz, which is relied on by the Federal Republic of Germany, does not contain a general prohibition; it permits the competent authority to grant, subject to certain conditions, authorization to introduce substances into groundwater, on the basis, moreover, of rather vague criteria, such as "harmful pollution" and "detrimental effect on the properties" of the water.
38 That argument cannot be accepted because in view of the importance of the purpose of the investigation as regards the protection of the groundwater, the directive requires that after each investigation and in the light of the results thereof an express measure, either prohibition or authorization, must be adopted.
60 The Federal Republic of Germany makes the preliminary point that the directive's provisions are implemented by rules already in force, adopted at both federal and Land level, so that it is not necessary to adopt special legislation. It points out that in any event the framework provisions of the Federal Law on administrative procedure apply. It also claims that, as regards the detailed rules for applying the provisions, there are adequate administrative provisions which do not require publication because they do not impose substantive rules of law. The existence of an administrative practice or interpretation which complies with the directive is sufficient, consequently, to meet its requirements.
71 The first remark which that calls for is that the Court has held, notably in Joined Cases 227 to 230/85 (Commission v Belgium [1988] ECR 1), that each Member State is free to delegate powers to its domestic authorities as it sees fit and to implement directives by means of measures adopted by regional or local authorities. That division of powers does not, however, release it from the obligation to ensure that the provisions of the directive are properly implemented in national law.