1. By application lodged at the Court Registry on 23 October 2001, the Commission of the European Communities brought an action under Article 226 EC for a declaration that, by identifying sensitive areas in only some regions of its territory, the Kingdom of Spain has failed to fulfil its obligations under Article 5 of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment (OJ 1991 L 135, p. 40, hereinafter "the Directive" ). Legal framework
2. According to Article 1, the Directive concerns the collection, treatment and discharge of urban waste water and the treatment and discharge of waste water from certain industrial sectors. Its objective is to protect the environment from the adverse effects of waste water discharges.
3. Article 2 of the directive defines "urban waste water" as "domestic waste water or the mixture of domestic waste water with industrial waste water and/or run-off rain water" .
4. Article 5(1) and (2) of the Directive provides: "1. For the purposes of paragraph 2, Member States shall by 31 December 1993 identify sensitive areas according to the criteria laid down in Annex II. 2. Member States shall ensure that urban waste water entering collecting systems shall before discharge into sensitive areas be subjected to more stringent treatment than that described in Article 4, by 31 December 1998 at the latest for all discharges from agglomerations of more than 10 000 p.e. [population equivalent]. "
5. Under Article 19(1) of the Directive, the Member States were to bring into force the laws, regulations and administrative provisions necessary to comply with it no later than 30 June 1993 and forthwith inform the Commission thereof. Pre-litigation procedure
6. By letter of 16 April 1997, the Commission requested the Spanish Government to inform it of the measures taken to comply with the obligations in Articles 5, 11 and 13 of the Directive. Having received no reply, the Commission sent it a letter of formal notice on 7 August 1997.
7. The Spanish Government sent the Commission numerous letters between 24 November 1997 and 2 July 1998 in which it stated that the designation of sensitive areas located in continental waters belonging to intercommunal catchment areas came under State jurisdiction, while the Autonomous Communities were proceeding to designate sensitive waters situated both in intracommunal continental waters and in coastal waters. It also communicated various information concerning both the implementation of certain provisions of the Directive and the date when that implementation was to be carried out in the various Autonomous Communities.
8. Since it considered that, notwithstanding that information, the Kingdom of Spain had not adopted all the measures necessary to ensure compliance with the obligations laid down in Articles 5, 11 and 13 of the Directive, the Commission sent the Spanish Government a reasoned opinion on 11 December 1998, allowing it two months to comply with the Directive.
9. The Spanish Government replied to the reasoned opinion on 8 June 1999, stating that four Autonomous Communities(Galicia, the Balearic Islands, Catalonia and Andalusia) had already identified sensitive areas in coastal regions, that two others (Asturia and the Canary Islands) had no sensitive areas and that the Autonomous Communities of Valencia and the Basque Country would identify them shortly.
10. Since it considered that there was a continuing failure to comply with Article 5, the Commission brought the present action, in which it claims that the Court should grant the application and order the Kingdom of Spain to pay the costs. The Spanish Government contends that the application should be dismissed and the Commission be ordered to pay the costs. Substance
11. The Commission points out that its application concerns only the infringement of Article 5 of the Directive, which requires Member States to identify sensitive areas by 31 December 1998 at the latest, and no longer, as in the pre-litigation procedure, the infringement of Articles 11 and 13 of that directive.
12. It states that, according to the information provided by the Spanish authorities, the identification of sensitive areas in Spain can fall to either the State or to the Autonomous Communities. The designation of sensitive areas located in continental waters belonging to intercommunal catchment areas comes under State jurisdiction, while the Autonomous Communities designate sensitive areas situated both in intracommunal continental waters and in coastal waters.
13. According to the Commission, identification of the waters which come under State jurisdiction was carried out by a decision of 25 May 1998, published in the BOE No 155 of 30 June 1998, p. 21761, which was notified to it by letter of 2 July 1998.
14. In addition, the Commission states that the Autonomous Communities of Andalusia, Murcia, Galicia and Cantabria have identified their sensitive areas, published them in their official gazette and notified it of them.
15. By contrast, other Autonomous Communities have failed to designate areas located in waters within their jurisdiction.
16. First, as regards intracommunal continental waters, the Commission states that the Autonomous Community of Catalonia has not identified sensitive areas in the intracommunal catchment area within its jurisdiction.
17. Secondly, as regards coastal waters, the Commission maintains that the Autonomous Communities of Catalonia, the Balearic Islands, the Basque Country, Valencia, Asturia and the Canary Islands and the autonomous cities of Ceuta and Melilla have not identified sensitive areas for the purpose of Article 5 of the Directive.
18. Accordingly, the Commission considers that, by failing to identify the sensitive areas on the Spanish coast, with the exception of those of the Autonomous Communities of Andalusia, Murcia, Galicia and Cantabria, the Kingdom of Spain has infringed Article 5 of the Directive.
19. The Spanish Government identifies the Autonomous Communities which include parts of the coast: they are the Autonomous Communities of Galicia, Asturia, Cantabria, the Basque country, Catalonia, Valencia, Murcia, Andalusia, the Balearic Islands, the Canary Islands and the autonomous cities of Ceuta and Melilla.
20. The Spanish Government points out that the Commission has acknowledged that the Autonomous Communities of Andalusia, Murcia, Galicia and Cantabria have designated the sensitive areas located in their coastal waters.
21. The Spanish Government in essence states that the sensitive areas should soon be designated by the Autonomous Communities of the Basque Country, Catalonia, Valencia, the Balearic Islands and the Canary Islands and the autonomous city of Ceuta.
22. It is sufficient to point out that, according to 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 the Member State at the end of the period laid down in the reasoned opinion and that a Member State cannot rely on provisions, practices or circumstances in its own legal order to justify failure to implement a directive within the prescribed period (Case C-392/01 Commission v Spain [2002] ECR I-11111, paragraph 9).
23. In those circumstances, the application must be granted as regards the Autonomous Communities referred to in paragraph 21 of the present judgment and the autonomous city of Ceuta.
24. On the other hand, the Spanish Government disputes the claim put forward as regards the autonomous city of Melilla and the Autonomous Community of Asturia, on the ground that the authorities of Melilla have no jurisdiction over territorial marine waters and that the Autonomous Community of Asturia has no sensitive areas.
25. Since the Commission has not lodged a reply, it is not possible to arrive at a definitive opinion concerning those points.
26. It is settled case-law that in proceedings under Article 226 EC for failure to fulfil an obligation, it is incumbent upon the Commission to prove the allegation that the obligation has not been fulfilled and to place before the Court the information needed to enable it to determine whether the obligation has not been fulfilled (see, inter alia , Case C-159/94 Commission v France [1997] ECR I-5815, paragraph 10, and Case C-236/99 Commission v Italy [2001] ECR I-4195, paragraph 27).
27. Therefore, it must be held that, by failing to identify sensitive areas in the intracommunal catchment area of the Autonomous Community of Catalonia and the coastal waters of the Autonomous Communities of the Basque Country, Catalonia, Valencia, the Balearic Islands and the Canary Islands, and of the autonomous city of Ceuta, the Kingdom of Spain has failed to fulfil its obligations under Article 5 of the Directive. The remainder of the application is dismissed.