1. By its action, the Commission of the European Communities asks the Court to declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2000/60/EC of the European Parliament and the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (OJ 2000 L 327, p. 1) (‘the directive’), except for Article 3(1) to (3) and (5) to (7) and Article 7(3), and, in any event, by failing to communicate such texts to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive. Legal framework Community legislation
2. Recital 18 in the preamble to the directive states: ‘Community water policy requires a transparent, effective and coherent legislative framework. The Community should provide common principles and the overall framework for action. This Directive should provide for such a framework and coordinate and integrate, and, in a longer perspective, further develop the overall principles and structures for protection and sustainable use of water in the Community in accordance with the principles of subsidiarity.’
3. Recital 29 in the preamble to the directive states that, in aiming to achieve the objectives set out in the Directive and in establishing a programme of measures to that end, Member States may phase implementation of the programme of measures in order to spread the costs of implementation.
4. According to Article 1 of the directive, its purpose is ‘to establish a framework for the protection of inland surface waters, transitional waters, coastal waters and groundwater’.
5. Article 2 of the directive defines 41 relevant terms for the purposes of the directive. Some of those terms relate to the standards of water quality that Member States are required to achieve under the directive, in particular Article 4. The timescales in which those standards are to be achieved are specified in Articles 4 to 6 and 8 of the directive, in particular.
6. Article 3 of the directive, entitled ‘Coordination of administrative arrangements within river basin districts’, provides as follows: ‘1. Member States shall identify the individual river basins lying within their national territory and, for the purposes of this Directive, shall assign them to individual river basin districts. … 2. Member States shall ensure the appropriate administrative arrangements, including the identification of the appropriate competent authority, for the application of the rules of this Directive within each river basin district lying within their territory. 3. Member States shall ensure that a river basin covering the territory of more than one Member State is assigned to an international river basin district. At the request of the Member States involved, the Commission shall act to facilitate the assigning to such international river basin districts. … 4. Member States shall ensure that the requirements of this Directive for the achievement of the environmental objectives established under Article 4, and in particular all programmes of measures are coordinated for the whole of the river basin district. For international river basin districts the Member States concerned shall together ensure this coordination and may, for this purpose, use existing structures stemming from international agreements. At the request of the Member States involved, the Commission shall act to facilitate the establishment of the programmes of measures. … 6. Member States may identify an existing national or international body as competent authority for the purposes of this Directive.
7. Member States shall identify the competent authority by the date mentioned in Article 24. …’ 7. Article 4 of the directive lays down the environmental objectives which Member States are required to achieve when making operational the programmes of measures specified in the river basin management plans for surface waters, for groundwater and for protected areas. In essence, Member States are required to adopt the necessary measures to prevent environmental deterioration of targeted waters and protected areas, and to enhance and restore them to the quality levels defined by the provisions of the directive, in particular Article 2.
8. Article 4(1)(c) of the directive states that ‘Member States shall achieve compliance with any standards and objectives at the latest 15 years after the date of entry into force of this Directive, unless otherwise specified in the Community legislation under which the individual protected areas have been established’.
9. As regards waters used for the abstraction of water for human consumption, Article 7 of the directive states: ‘1. Member States shall identify, within each river basin district: - all bodies of water used for the abstraction of water intended for human consumption providing more than 10 m 3 a day as an average or serving more than 50 persons, and - those bodies of water intended for such future use. Member States shall monitor, in accordance with Annex V, those bodies of water which according to Annex V, provide more than 100 m 3 a day as an average. 2. For each body of water identified under paragraph 1, in addition to meeting the objectives of Article 4 in accordance with the requirements of this Directive, for surface water bodies including the quality standards established at Community level under Article 16, Member States shall ensure that under the water treatment regime applied, and in accordance with Community legislation, the resulting water will meet the requirements of [Council] Directive 80/778/EEC [of 15 July 1980 relating to the quality of water intended for human consumption (OJ 1980 L 229, p. 11)], as amended by [Council] Directive 98/83/EC [of 3 November 1998 (OJ 1998 L 330, p. 32)]. 3. Member States shall ensure the necessary protection for the bodies of water identified with the aim of avoiding deterioration in their quality in order to reduce the level of purification treatment required in the production of drinking water. Member States may establish safeguard zones for those bodies of water.’
10. Article 14 of the directive provides: ‘1. Member States shall encourage the active involvement of all interested parties in the implementation of this Directive, in particular in the production, review and updating of the river basin management plans. Member States shall ensure that, for each river basin district, they publish and make available for comments to the public, including users: (a) a timetable and work programme for the production of the plan, including a statement of the consultation measures to be taken, at least three years before the beginning of the period to which the plan refers; (b) an interim overview of the significant water management issues identified in the river basin, at least two years before the beginning of the period to which the plan refers; (c) draft copies of the river basin management plan, at least one year before the beginning of the period to which the plan refers. On request, access shall be given to background documents and information used for the development of the draft river basin management plan. 2. Member States shall allow at least six months to comment in writing on those documents in order to allow active involvement and consultation. 3. Paragraphs 1 and 2 shall apply equally to updated river basin management plans.’
11. Article 24 of the directive states: ‘1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive at the latest [by] 22 December 2003. They shall forthwith inform the Commission thereof. … 2. Member States shall communicate to the Commission the texts of the main provisions of national law which they adopt in the field governed by this Directive. The Commission shall inform the other Member States thereof.’ National legislation
12. The Law of 29 July 1993 concerning the protection and management of water ( Mém. A 1993, p. 1302) (‘the Law of 1993’) concerns surface water and groundwater, both public and private.
13. Article 2 of the Law of 1993, entitled ‘Governing principles’, states: ‘1. The purpose of this Law is to combat water pollution and to ensure water regeneration, with a view to meeting in particular the requirements arising from: - the protection of the health of humans and animals as well as the ecological balance; - biological life of water receiving aquatic ecosystems and in particular fish life; - the supply of water for human consumption and for industrial use; - the protection of water resources; - bathing, aquatic sports and related leisure activities; - the protection of the landscape; and - agriculture, industry, transport and all other human activity of general interest. 2. Any person using water to which this Law applies shall take all steps possible to prevent or reduce water pollution, and shall take all such care as the circumstances may require.’
14. Article 3 of the Law contains a list of 12 definitions of terms used in the Law.
15. As regards the identification, creation and management of water protection areas, Articles 18 and 19 of the Law of 1993 provide as follows: ‘18. Water protection areas 1. In order to guarantee the quality of water for human consumption, land surrounding abstraction points may be declared a protection area and such areas shall be subdivided into immediate protection areas, proximate protection areas and distant protection areas. Such an implementing measure must comply with the national water management plan provided for under Article 6 of this Law. 2. Land situated in an immediate protection area shall be acquired by way of freehold title. It may be acquired by way of compulsory purchase in accordance with the procedures and formalities laid down by the Law of 15 March 1979 on compulsory purchase for the public benefit. 3. In proximate protection areas, all activities, installations and deposits liable directly or indirectly to affect water quality may be prohibited, regulated or subject to a requirement of special consent. 4. In distant protection areas, each of the activities, installations and deposits referred to in paragraph 3 may be regulated. 19. Procedures for the creation and management of water protection areas 1. Water protection areas shall be created by way of a proposal from the Minister, with the consent of the Government in Council. 2. The Minister shall order that a file be created, which shall comprise: - a note of the purpose of, the grounds for and the scope of the operation; - a geological report to include findings in particular as to the velocity of the hydrogeological relationship between percolation zones and the abstraction points requiring protection; - the list of communes included, in whole or in part, in the protection area, with an indication for each commune of the corresponding cadastral sections; - a topographical map and the cadastral plans indicating the position of the protection areas; - the management plan, specifying (a) the burdens to be imposed on owners and occupiers, (b) the easements, covenants, etc. covering the protected area, (c) if necessary, the improvements and works necessary to reflect the function of the protected area. 3. For public inquiry purposes, the Minister shall send the file to the district commissioner responsible for the locality. The district commissioner shall order that the file be lodged for 30 days at the municipal offices, where members of the public may examine with it. Such lodging will be publicised by way of notices posted in the commune in the normal way and inviting parties to examine the documents. Objections to the proposal shall be submitted within the period specified in the preceding subparagraph to the municipal executive, which shall convey them to the municipal council in order that the latter may give its opinion. The file, together with the objections and the opinion of the municipal council shall be sent within one month of the expiry of the period for publication to the district commissioner, who shall forward those documents to the Minister with his observations. 4. The designation of a water protection area shall be by Grand‑Ducal Order, after hearing the opinion of the Council of State. 5. A Grand-Ducal Order designating land as a water protection area may impose burdens on the owners or occupiers of the land and provide for the land to be subject to easements, covenants, etc. concerning, in particular: - water use; - the regulation of the use of pesticides and polluting fertilisers; - prohibition on changing the use of the land. The effects of designation as a water protection area shall attach to the land in question, notwithstanding any change of ownership or occupation.’ Pre-litigation procedure
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.
18. As it was not satisfied with that reply, the Commission decided to bring the present action. The action The first complaint, based on failure to communicate the implementing measures Arguments of the parties
19. Procedures for the creation and management of water protection areas 1. Water protection areas shall be created by way of a proposal from the Minister, with the consent of the Government in Council. 2. The Minister shall order that a file be created, which shall comprise: - a note of the purpose of, the grounds for and the scope of the operation; - a geological report to include findings in particular as to the velocity of the hydrogeological relationship between percolation zones and the abstraction points requiring protection; - the list of communes included, in whole or in part, in the protection area, with an indication for each commune of the corresponding cadastral sections; - a topographical map and the cadastral plans indicating the position of the protection areas; - the management plan, specifying (a) the burdens to be imposed on owners and occupiers, (b) the easements, covenants, etc. covering the protected area, (c) if necessary, the improvements and works necessary to reflect the function of the protected area. 3. For public inquiry purposes, the Minister shall send the file to the district commissioner responsible for the locality. The district commissioner shall order that the file be lodged for 30 days at the municipal offices, where members of the public may examine with it. Such lodging will be publicised by way of notices posted in the commune in the normal way and inviting parties to examine the documents. Objections to the proposal shall be submitted within the period specified in the preceding subparagraph to the municipal executive, which shall convey them to the municipal council in order that the latter may give its opinion. The file, together with the objections and the opinion of the municipal council shall be sent within one month of the expiry of the period for publication to the district commissioner, who shall forward those documents to the Minister with his observations. 4. The designation of a water protection area shall be by Grand‑Ducal Order, after hearing the opinion of the Council of State. 5. A Grand-Ducal Order designating land as a water protection area may impose burdens on the owners or occupiers of the land and provide for the land to be subject to easements, covenants, etc. concerning, in particular: - water use; - the regulation of the use of pesticides and polluting fertilisers; - prohibition on changing the use of the land. The effects of designation as a water protection area shall attach to the land in question, notwithstanding any change of ownership or occupation.’ Pre-litigation procedure 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. 18. As it was not satisfied with that reply, the Commission decided to bring the present action. The action The first complaint, based on failure to communicate the implementing measures Arguments of the parties 19. The Commission points out that under Article 24 of the directive Member States were to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive at the latest by 22 December 2003 and that they were forthwith to inform the Commission thereof. It argues in its application that the Luxembourg authorities had not informed it of the measures taken.
20. The Commission, taking account of the information provided by the Luxembourg Government in its defence regarding a letter which was sent to the Commission by the Luxembourg Permanent Representative to the European Union on 24 August 2004 (‘the letter of 24 August 2004’) concerning the application of Article 3 of the directive, acknowledges in its reply that, because of a lack of coordination between members of its own staff, it was not aware of that letter. Nevertheless, although the Commission acknowledges that the communication required by Article 3 was accordingly given, it maintains that that communication was given after the expiry of the period laid down by Article 3(8), namely 22 June 2004, and, moreover, after the delivery of the reasoned opinion.
21. As regards the Law of 1993, which, according to the Grand Duchy of Luxembourg, grants sufficient powers to the authorities of that Member State to ensure that the operational objectives of the directive are achieved, and which was communicated to the Commission for the first time in the defence, the Commission states that prior to such communication it had never been aware either of the existence of the Law or of its provisions. It accordingly maintains that the Grand Duchy of Luxembourg did not communicate to it the measures taken to comply with the directive within the prescribed period. Findings of the Court
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).
23. In the present case, it must be held, first of all, that the letter of 24 August 2004 was sent prior to the expiry of the period of two months laid down in the reasoned opinion of 9 July 2004. While it is true, as the Commission has pointed out, that the Luxembourg authorities made no reference to that letter during the pre-litigation procedure, it is none the less the case that communication of the measures adopted in order to implement Article 3 of the directive was made prior to the expiry of the relevant period.
24. In those circumstances, it must therefore be held that the Commission’s first complaint is unfounded as regards communication of the measures taken in order to implement that provision.
25. Otherwise, as regards notification of the remaining provisions adopted by the Grand Duchy of Luxembourg in order to implement the directive, it is clear that that Member State communicated a copy of the Law of 1993 for the first time in its defence, when it argued that the Law implemented the directive adequately. That being so, and without it being necessary to consider whether that Law constituted adequate implementation of the directive, since that question forms the subject‑matter of the Commission’s second complaint, it must be held that, in accordance with the Court’s case-law referred to in paragraph 22 of this judgment, a ground of defence raised at such a late stage has no bearing on the existence of a complaint based on a failure to notify the necessary information within the period laid down in the reasoned opinion.
26. Lastly, as regards the measures adopted in order to implement Article 7(3) of the directive, the Commission has accepted in its reply that Articles 18 and 19 of the Law of 1993 may be regarded as implementing that provision adequately. Nevertheless, since that Law was communicated to the Commission for the first time in an annex to the defence, the Commission’s complaint relating to the failure to communicate the measures adopted in order to implement Article 7(3) of the directive must be held to be well founded, for the reasons mentioned in the preceding paragraph of this judgment.
27. In the light of all the foregoing, it must be held that, by not communicating to the Commission the laws, regulations and administrative provisions implementing Directive 2000/60, except for those relating to Article 3 of the directive, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 24 of the directive. The second complaint, based on failure to adopt the measures necessary to implement the directive Arguments of the parties
28. The Commission argues that the directive requires Member States to adopt both general and specific measures in order to render their national legal system compatible with the objectives laid down under the directive. It obliges Member States to adopt framework legislation for water, to be adopted by 22 December 2003 at the latest, and to adopt detailed measures to be taken either by the same date or over a period of time. According to the Commission, the drawing up of national legislation establishing a general framework is the most important stage of the implementation process, since that legislation will lay down the principal obligations of the Member States and provide the appropriate legal bases for the adoption of more detailed measures.
29. The Commission argues in the alternative that the Law of 1993 does not fully implement the directive.
30. The Luxembourg Government maintains that the directive does not require actual transposition measures to be adopted in order to make the national legal system of Luxembourg compatible with the objectives laid down by the directive. First, the directive places emphasis on specific actions to be taken by the national authorities, as opposed to the formal harmonisation of national law with Community law. The purpose of the directive is not the harmonisation of laws; rather, it requires that a framework be established for a Community policy in relation to water.
31. The Luxembourg Government also points out that the due date for the implementation of each of the operational objectives by the Member States falls over a period between 2006 and 2015 and that it is taking steps to ensure that each of the objectives thus established can be achieved within the periods laid down by the directive. As to the remainder, it takes the view that Luxembourg legislation, in particular the Law of 1993, provides the national authorities with a raft of measures which may be considered sufficient to achieve the operational objectives of the directive. Findings of the Court - The obligation to adopt framework legislation in order to implement the directive
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).
33. It must be pointed out that the first part of the Commission’s second complaint does not concern the question whether the Grand Duchy of Luxembourg is obliged to take all measures necessary in order to ensure that the directive is fully effective, which the latter does not dispute, but whether that Member State is under a duty to adopt a particular measure, namely framework legislation, in order to ensure that the directive is fully effective and to comply with the obligations which the directive imposes on it.
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.
42. Consideration of the directive shows that it contains provisions of differing types which impose obligations on Member States (see, for example, Article 4, which requires Member States to implement the necessary measures to prevent deterioration of the status of all bodies of surface water and groundwater), on Member States as against the Commission and the Community (see, for example, Article 24(2) relating to the obligation to communicate implementing measures) and on the institutions themselves (see, for example, Articles 16 and 17 of the directive, calling on the Community institutions to adopt Community measures on pollution of water and groundwater).
43. Overall consideration of the directive shows that most of its provisions are of the type referred to in paragraph 39 of this judgment, that is to say that they require Member States to take the necessary measures to ensure that certain objectives, sometimes formulated in general terms, are attained, whilst leaving the Member States some discretion as to the nature of the measures to be taken.
44. The directive also contains provisions such as Article 1, which merely specifies the particular objectives the directive seeks to achieve and which, as the Commission itself acknowledged at the hearing, do not require transposition.
45. In reply to questions put at the hearing seeking to establish the particular provisions of the directive which formed the basis of the obligation to adopt framework legislation in order to comply with the requirements of the directive, the Commission referred to Articles 1 and 2 of the directive laying down the objectives which it seeks to achieve and the definitions on which it is based, without specifying in what way those provisions require the adoption of such legislation or why its adoption is necessary in order to permit the Member States to ensure that the objectives laid down by the directive are attained within the prescribed timescales.
46. However, neither those provisions of the directive nor any other part of it show that Member States are under a duty to adopt such framework legislation in order to implement its provisions correctly.
47. It is true, as the Luxembourg Government acknowledged at the hearing, that adopting framework legislation may be an appropriate, or more straightforward, method of implementing the directive, since it may provide the competent authorities with clear legal bases, in a single document, for drawing up the various measures laid down by the directive as regards water and whose implementation is to be spread over a period of time. The adoption of such framework legislation may also facilitate the work of the Commission, which has to ensure that the obligations imposed on Member States by the directive are complied with.
48. Nevertheless, adopting framework legislation is not the only way in which Member States may ensure that the directive is fully applied and provide for an organised and coherent system for complying with the objectives laid down under the directive.
49. Had the Community legislature intended to require Member States to adopt framework legislation in their national legal systems in order to implement the directive, it would have been open to it to insert a provision to that effect in the text of the directive. It did not do so.
50. In any event, the very fact that the Commission acknowledged in the proceedings before the Court that the Grand Duchy of Luxembourg has implemented some of the provisions of the directive, particularly most of Article 3, together with Article 7(1) and (3), and that the Commission has accepted that it is not necessary to transpose Article 1, shows that framework legislation is not essential in order to implement the obligations laid down under the directive.
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
52. In reply to arguments put forward by the Luxembourg Government for the first time in its defence, the Commission has argued in the alternative that the Law of 1993 does not correctly implement the provisions of the directive.
53. It must be observed in that regard that in the reasoned opinion and in the application lodged before the Court, in which the Commission complains that the Grand Duchy of Luxembourg has not adopted any measure necessary to implement the provisions of the directive, the Commission has not attempted to show in what way the existing Luxembourg legislation did not comply with the directive. It was only in its reply that the Commission argued that the Law of 1993 did not implement the directive adequately.
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).
57. In its reply, the Commission argued that the Grand Duchy of Luxembourg has failed to transpose Articles 1, 2, 3(4), 7(1) and (2) and 14 of the directive.
58. At the hearing, it abandoned the complaint relating to Article 7(1). In addition, as is mentioned in paragraph 44 of this judgment, the Commission has acknowledged that it is not necessary to transpose Article 1 of the directive, and that complaint may therefore be treated as having been abandoned.
59. The Commission also argued at the hearing that the Grand Duchy of Luxembourg has not transposed Articles 4, 8 to 11, 13, read in conjunction with Annex VI, and 24 of the directive.
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.
61. As regards, in the first place, Article 2 of the directive, the Commission maintains that the definitions set out in it have not been transposed into national law. The Law of 1993 defines only ‘discharges’, ‘pollution’ and ‘groundwater’. The Commission refers in particular to the terms ‘river basin’, ‘good ecological potential’ and ‘good chemical status’ which, although they feature in Article 2 of the directive, are all absent from the Law of 1993.
62. The Luxembourg Government does not claim that the Law includes all the definitions set out in Article 2, but maintains that the definitions in question are relevant only for the purposes of defining the nature of the operational requirements which the directive imposes on Member States. It takes the view that they do not, in themselves, require to be transposed.
63. Article 2 of the directive, read in conjunction with, for example, Article 4, imposes on Member States precise obligations to be implemented within the prescribed timescales in order to prevent deterioration of the status of all bodies of surface water and groundwater. The same applies to a number of other terms defined in Article 2, read in conjunction with, inter alia, Articles 5, 6 and 8, of the directive.
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.
66. As regards, in the second place, Article 3(4) of the directive, the Commission considers that there is no provision of the Law of 1993 which correctly implements that provision.
67. Under Article 3(4) of the directive, Member States are to ensure that the requirements of the directive for the achievement of the environmental objectives established under Article 4 of the directive, and in particular all programmes of measures, are coordinated for the whole of a river basin district. However, it is clear from the wording of Article 3(4) of the directive that the obligations under it differ according to whether the river basin district in question is national or international within the meaning of the directive. For international river basin districts, the Member States concerned are to ensure such coordination together and may, for that purpose, use existing structures stemming from international agreements.
68. The Luxembourg Government does not deny that Article 3(4) imposes a duty of coordination, but it none the less argues that there are no national river basin districts in its territory. As is stated in the letter of 24 August 2004, the only two river basin districts within the meaning of the directive which are on its territory are international river basin districts, namely the river basin district of the Rhine via the Moselle and that of the Meuse via the Chiers.
69. With respect to the Rhine river basin district, the Luxembourg Government has attached as an annex to its rejoinder the text of the communiqué of the Ministerial Conference on the Rhine by the International Commission for the Protection of the Rhine (‘the ICPR’) of 29 January 2001. That document shows that an ad hoc coordination committee, comprising representatives of all the Member States of the ICPR, has been specially established within it with the task of giving effect to the coordination obligation under the directive.
70. As regards the Meuse river basin district, the fourth and fifth recitals, together with Articles 1, 2, 4 and 5, of the International Agreement concerning the Meuse of 3 December 2003, also annexed to the reply, show that an International Commission for the protection of the Meuse has been specially created in order, inter alia, to ensure the coordination required by the directive. The Grand Duchy of Luxembourg is a contracting party to that International Agreement, which provides that the coordination measures required by the directive for the Meuse river basin district will be adopted within the framework of that international body.
71. The Commission has not contested the arguments of the Luxembourg Government that the only two river basin districts in its territory, within the meaning of the directive, are international river basin districts and not national ones. It has also not challenged the information provided by that Member State that two international bodies have in fact been instructed by all the Member States concerned to ensure the coordination of the measures required to implement the directive as regards those international river basin districts.
72. As the Commission has not shown that the Grand Duchy, a member of those international bodies, has failed to implement the obligations imposed on it under Article 3(4) of the directive as regards the international river basin districts within its territory, that argument in the second part of the second complaint must be rejected as unfounded.
73. As regards, in the third place, Article 7(2) of the directive, the Commission claims that there is no provision in the Law of 1993 which implements, even in part, the obligations under that provision requiring the Member States to achieve specific quality standards for bodies of water intended for human consumption.
74. Article 7(2) of the directive provides that for each body of water identified under paragraph 1 of that provision, in addition to meeting the objectives of Article 4 in accordance with the requirements of the directive for surface water bodies, including the quality standards established at Community level under Article 16 of the directive, Member States are to ensure that under the water treatment regime applied, and in accordance with Community legislation, the resulting water will meet the requirements of Directive 80/778/EEC, as amended by Directive 98/83/EC.
75. That provision imposes obligations on Member States as to the results to be achieved, formulated in a clear and unequivocal manner to ensure, in particular, that their bodies of water meet the specific objectives laid down under Article 4 of the directive.
76. It follows that the Grand Duchy of Luxembourg should, as is clear from the case-law cited in paragraph 64 of this judgment, have transposed that provision by means of measures having binding force in its national legal order at the latest by the date set in Article 24 of the directive.
77. Since the Luxembourg Government has not put forward any ground of defence justifying the absence in the Law of 1993 or in the Luxembourg legal system of a provision corresponding to Article 7(2) of the directive, it must be held that that argument in the second part of the Commission’s second complaint is well founded.
78. As regards, lastly, Article 14 of the directive, the Commission claims that the Law of 1993 does not provide either for public consultation or information concerning the production of draft water management plans, or for public involvement in the implementation of the directive, as required by that provision.
79. The Luxembourg Government does not accept that it follows from Article 14 of the directive, read in conjunction with Article 13, that the period for complying with the obligations as to public information has now expired. It states that the Grand Duchy of Luxembourg will ensure that the provisions of Article 14 are complied with by the dates indicated by the directive.
80. It must be pointed out that Article 14 of the directive is intended to confer on individuals and interested parties a right to be actively involved in the implementation of the directive and, in particular, in the production, review and updating of the river basin management plans.
81. The lack of any measures of transposition in Luxembourg law does not ensure compliance with the obligation that the national measures of transposition should render the deadline laid down in Article 13(6) of the directive legally binding on the competent national authorities and enable individuals to ascertain, well in advance, the full extent of their rights under the procedures provided for in Article 14(1) and (2) of the directive.
82. It must accordingly be held that that argument in the second part of the Commission’s second complaint, based on a failure to transpose Article 14 of the directive, is well founded.
83. In the light of the foregoing, it must be held that, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with Articles 2, 7(2) and 14 of the directive, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 24 of that directive. The remainder of the action is dismissed. Costs
84. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs, if they have been applied for in the successful party’s pleadings.
85. Under the first subparagraph of Article 69(3) of the Rules of Procedure, the Court may order that the costs be shared or that the parties bear their own costs, in particular where each party succeeds on some and fails on other heads.
86. In the present case, the Commission has been partially unsuccessful in its pleas, in that it sought a declaration that the Grand Duchy of Luxembourg had failed to adopt a framework law for the purposes of implementing the directive.
87. For its part, the Grand Duchy of Luxembourg did not provide all the information that was relevant in relation to the provisions of its national law by means of which it considered that it had complied with the various obligations imposed on it by the directive.
88. That being the case, the Commission and the Grand Duchy of Luxembourg should be ordered to bear their own costs.