C-361/88
ECLI:EU:C:1991:43
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COMMISSION v GERMANY
OPINION OF MR ADVOCATE GENERAL MISCHO delivered o n 6 February 1991 *
Mr President, forward in the course of the pre-litigation Members of the Court, procedure, concerning the installation and operation of the measuring stations which the directives required to be established, as well as the communication of the plan for the improvement of the quality of the air in 1. The two actions for failure to fulfil the Land of Berlin, no longer form part of Treaty obligations to which this Opinion the subject-matter of the actions. relates, although they have not been joined and although they have as their subject- matter the incomplete transposition into national law of two distinct directives, raise problems which are substantially very 3. The subject-matter of the action is similar, so that I shall allow myself to deal therefore confined, in both cases, to the with them together, in this common failure to transpose the limit values fixed by Opinion. Furthermore, the two parties the directives by means of mandatory, themselves refer, in Case C-59/89, to the general and clear legal rules, as well as to arguments which they developed in Case the absence of appropriate measures capable C-361/88. of ensuring that they are actually observed.
2. Case C-361/88 concerns Council Directive 80/779/EECoi 15 July 1980 on air 4. According to the Commission, the two quality limit values and guide values for directives require the adoption of sulphur dioxide and suspended particulates mandatory rules ensuring, throughout the (Official Journal 1980 L 229, p. 30), while national territory, the observance of the Case C-59/89 concerns Council Directive limit values which they fix. In more concrete 82/884/EEC on a limit value for lead in the terms, they require the Member States, on air (Official Journal 1982 L 378, p. 15). the one hand, to prohibit, by means of a The Commission asks the Court to declare mandatory rule of general application, the that the Federal Republic of Germany has exceeding of the said limit values and, on failed to fulfil its obligations by not taking the other hand, to adopt the measures all the necessary measures to transpose them necessary to guarantee that they are actually into national law, even though the time- observed. None of the measures referred to limits prescribed for doing so, namely by the Federal Republic of Germany in that 18 July 1982 for the first and 9 December respect satisfies those requirements. 1984 for the second, had long expired. It may be seen from the Commission's replies to the questions put to it by the Court, which are reproduced at the end of the Report for the Hearing, that other 5. According to the Federal Republic of complaints which the Commission had put Germany, on the other hand, the objective
* Origina) language: French.
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pursued by the directives in question is not for the correct transposition of a directive, the adoption, by each Member State, of a that that directive should be observed in rule expressly prohibiting the exceeding of fact: it is necessary that the full application the limit values, but rather the actual of the directive should be equally ensured in observance of those limit values on the law in all circumstances. ' In its judgment of territory of the Member States. That 15 March 1990 in Case C-339/87 objective is achieved from the time when the Commission v Netherlands [1990] limit values are not exceeded in fact, which ECR 1-851, paragraph 25, the Court also is the case for the Federal Republic of held that Germany, on whose territory the nuisances recorded in recent years are well below the prescribed limit values. That fact already proves in itself that the measures taken by 'the fact that a certain number of activities the German authorities with regard to the incompatible with the prohibitions contained environment ensure the correct transposition in the directive are unknown in a particular of the two directives. The Federal Republic Member State cannot justify the absence of of Germany adds that, in any case, the limit appropriate legal provisions', values in question have been transcribed in provisions of national law having mandatory force and applying throughout the whole national territory. given that
'in order to secure the full implementation 6. In order to take a position on that of directives, in law and not only in fact, the dispute, it is useful to recall, as a Member States must establish a specific preliminary observation, some principles legal framework in the area in question'. concerning the extent, in general, of the obli- gation to transpose directives, as it results from the third paragraph of Article 189 of the Treaty and as it has been clarified, over Paragraph 22 of the same judgment reads as the years, by the case-law of the Court. follows : That case-law has been examined exhaus- tively in the quite recent Opinion of Mr Advocate General Van Gerven, delivered on 25 September 1990 in Case C-131/88 'The fact that a practice incompatible with between the same parties (judgment of the directive is not carried on does not 28 February 1991 [1991] ECR 1-825), on release the Member State in question from which I shall allow myself to draw to the its obligation to adopt laws or adminis- extent necessary for the purposes of the trative provisions in order to ensure that the present case and, otherwise, to disregard provisions of the directive are adequately (see, in particular, paragraphs 7 to 11 of the transposed. In view of the principle of legal Opinion of Mr Van Gerven). certainty the relevant prohibitions must be reproduced in mandatory legal provisions.'
1 — See paragraph 8 of the Opinion of Mr Van Gerven as well as che reference made to the judgment of the Court in Case 363/85 Commission v Italy [1987] ECR 1733, paragraph 12, from which it envisages that 'in the absence 7. In the present context, it should first of of a finding that there have been any practical conse- quences, it must be considered whether any adverse conse- all be pointed out that it is not sufficient, quences are, theoretically at least, possible.'
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8. It should next be pointed out that it 10. It follows from the foregoing that the follows from the third paragraph of Article concrete scope of the obligation to 189 of the Treaty, according to which a transpose a directive depends very widely on directive is binding on each Member State its content and, in particular, on the to which it is addressed as to the result to be question whether it is likely to establish achieved, while leaving to the national auth- rights on which individuals may possibly orities the choice as to form and methods, rely. What is the position regarding the two that directives at issue in the present case?
'the transposition of a directive into internal law does not necessarily require that its 11. By virtue of Article 1, their purpose is provisions be incorporated formally and to fix limit values for the concentrations verbatim in express, specific legislation; a contained in the atmosphere of the harmful general legal context may, depending on the substances to which they refer. It is clearly content of the directive, be adequate for the shown by Article 2 that the fixing of those purpose provided that it does indeed limit values involves prohibitions: the 'limit guarantee the full application of the values' are concentrations, respectively, of directive in a sufficiently clear and precise sulphur dioxide a n d / o r suspended particu- manner so that, where the directive is lates and of lead which must not be intended to create rights for individuals, the exceeded during periods specified, and in persons concerned can ascertain the full the conditions laid down, by the directives. extent of their rights and, where appro- priate, rely on them before the national courts.' 2
12. The prohibitions are admittedly addressed in the first place to the Member 9. Finally, the combined effect of, on the States. Article 3 of the two directives one hand, existing national rules which lack provides that the Member States are to take precision and, on the other hand, an admin- the measures appropriate or necessary in istrative practice, is not generally likely to order that, from the dates laid down, the ensure the full implementation of a directive concentrations of the harmful substances in with the precision and clarity necessary in question are not higher than the limit values order to satisfy the requirement of legal fixed. In order to verify that that is so, they certainty. 3 That is so in particular when a must establish a network of measuring directive contains a prohibitory provision. 4 stations and proceed according to the methods of sampling and analysis indicated. 2 — Sec paragraph 7 of the Opinion of Mr Van Gcrven. The quotation is taken from the judgment of the Court in Case 363/85 Commissioni /Wy[1987] ECR 1733, paragraph 7. 3 — See also paragraph 8 of the Opinion of Mr Van Gerven as well as the reference to the judgment of the Court in Case 29/84 Commission v Gtrmany [1985] ECR 166!, paragraphs 28 and 31. See also the judgment of the Court in Case 118/86 Commission v Italy [1988] ECR 1323, 13. It is also true that the limit values fixed paragraph 21. by the directives are annual or seasonal 4 — See the reference made by Mr Van Gerven to the judgment of the Court in Case 252/85 Commission v averages, and that it would not amount to France [19881 ECR 2243, paragraph 19, as well as to the an infringement of the directive if, during judgment, referred to above, in Case C-131/88 Commission v NttheHanJi, paragraphs 35 and 36. some days, those values were exceeded.
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14. Finally, it should be pointed out that the mandatory national legal rule before the provisions concerning the implementation of expiry of the period allowed to it for the two directives are particularly ensuring that those limit values were not complicated. On the one hand, the exceeded. Moreover, it seems to me to be directives provide in fact that the Member out of the question for the Commission to States must comply with them within a be able to require that such a transcription period of two years, that is to say before should be valid for the whole territory of a 18 July 1982 in the case of Directive Member State which, in respect of certain 80/779/EEC and before 9 December 1984 parts of its territory, had taken advantage in that of Directive 82/884/EEC.
On of the possibility to postpone the time-limit the other hand, Article 3 of Directive in question by several years and, in the case 80/779/EEC only requires the Member of Directive 80/779/EEC, possibly until States to observe the limit values fixed by 1 April 1993. Article 2 as from 1 April 1983 (paragraph 1) and even allows them, subject to certain conditions, to postpone that deadline until 16. The fact remains, none the less, that the
1 April 1993 for those zones of their Commission does not complain that the national territory in respect of which they Federal Republic of Germany did not consider that, in spite of the measures transpose the contested directives within a taken, the limit values are likely to be specified period; it is asking the Court to exceeded beyond 1 April 1983 (paragraph declare that, at least at the time when the 2). The documents before the Court reveal actions were brought, the transposition of that the Federal Republic of Germany those directives was still incomplete and wished to take advantage of that possibility incorrect. Besides, it does not appear from with regard to the Land of Berlin, even the documents before the Court that the though it did not inform the Commission to Federal Republic of Germany made use of that effect until 8 October 1982, that is to the possibility reserved to it by Article 3(2) say one week after the date laid down for and (3) of Directive 82/884/EEC to extend, that purpose, and even though it failed to possibly for up to seven years, the period communicate to the Commission at the within which the effective observance of the same time the plans for the improvement of limit value for lead was to be ensured, and the quality of the air in that Land which it the Commission did not open the was required to draw up and implement. As pre-litigation procedure until 1 April 1988, to Directive 82/884/EEC, the period which in other words after the expiry of the Article 3 fixes for the Member States to five-year period laid down in Article 3(1). guarantee that the limit value for lead is not In addition, even assuming that the Federal exceeded is as much as five years after the Republic of Germany did benefit, in respect notification of the directive (paragraph 1), of the Land of Berlin, from an extension of and it may possibly be extended to seven the period prescribed for ensuring the actual years for certain places in their territory observance of the limit values fixed by
(paragraphs 2 and 3). It is clear, therefore, Directive 80/779/EEC, the question of the that the transposition of those limit values correct method of its transposition into and their actual observance did not neces- national law remains to be resolved for the sarily have to go hand in hand. remainder of the territory of the Federal Republic of Germany.
15. Consequently, it is very doubtful that the Commission could have brought a 17. As I pointed out earlier, it follows from complaint against a Member State for not the case-law of the Court that the absence transcribing the limit values into a of a de facto infringement of the
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requirements laid down in a directive does selves on national legal rules which lay not suffice to absolve a Member State from down with mandatory force limit values to creating a legal framework capable of be observed. Indirectly, in any case, the ensuring that the directive is complied with fixing of limit values by the directives is also in law. The mere fact that the rules laid therefore likely to impose constraints on down by a directive are observed at a given individuals, be they natural or legal persons. time does not constitute sufficient guarantee It goes without saying that, by way of that the same will apply at a different time. compensation for those constraints, indi- viduals would also benefit from being able to rely on mandatory rules in order to oppose any arbitrary decision in this field.
18. Then again, it is not the public auth- orities and bodies that are emanations of those authorities that are the (principal) 19. A perfect illustration of the foregoing is, producers of the harmful substances in moreover, provided by the German Law of question. Even though it is the Member 15 March 1974 on protection against the States that must see to it that the limit harmful effects on the environment of air values, as fixed in the two directives, are not pollution, noise, vibration and other types of exceeded, and it is therefore to them that nuisance, (BGBl., I, p. 721, hereinafter the prohibition on exceeding those values is referred to as the 'Law on protection addressed, they are, however, concerned against pollution'), to which the Federal (principally) only in their capacity as public Republic of Germany refers and to which I authorities responsible for ensuring that shall have to return later. That law 5 distin- pollutions and nuisances as a whole, as guishes between industrial plant subject to generated by activities of any kind, public authorization and plant that is not so but especially private, remain within the subject. For both types of plant, the Law prescribed limits. The directives in question provides that they must be constructed and therefore require the State/public authority operated in such a way that, in particular, responsible for coordinating the various effects which are harmful to the forms of action taken or requiring to be environment are avoided (Paragraph 5(1), undertaken in order to combat air pollution, point 1, or, if they cannot be avoided, that to provide itself with the necessary means of they are reduced to a minimum (Paragraph action to enable it to ensure that the sum 22(1), points 2 and 3). Paragraph 3 of the total of nuisances arising from all the German law defines effects which are sources of pollution over which it can harmful to the environment as being exercise control is not higher than the values prescribed. Those means of action should certainly include the power to prohibit acti- vities which give rise to such nuisances and which are thus likely to contribute to the exceeding of the aforesaid values, as well as, 'nuisances which, by virtue of their nature, normally, that of making the exercise of magnitude or duration, are likely to result those activities subject to obtaining a prior in dangers, substantial disadvantages or authorization prescribing the observance of certain limits. For that purpose, it is 5 — Except where the contrary is indicated, I shall refer to the version of that law which was in force before the important that the administrative authorities amendments made thereto by the third Law amending the which must take such individual decisions of Law on protection against pollution, which was adopted on 11 May 1990 and which entered into force on 1 prohibition or authorization can base them- September 1990 (BGBL, I, p. 870).
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substantial nuisances for the environment or and binding legal provisions. But the fact the neighbourhood.' remains that the German Law on protection against pollution which, according to the German Government itself, constitutes the basic legal instrument enabling it to ensure the effective observance of the limit values However, it does not define the level or the fixed by the two directives, shows that that threshold beyond which those nuisances observance cannot be achieved a priori must be regarded as harmful to the without the possibility of recourse to environment. Under Paragraph 48 the prohibitions, authorizations and the revo- Federal Government is required to adopt, in cation of authorizations granted to indi- accordance with a special procedure, viduals. the general administrative provisions ('allgemeine Werwaltungsvorschriften') necessary, in particular, for that purpose. In addition, Paragraphs 7 and 23 authorize the 21. Directive 80/779/EEC itself, moreover, Federal Government to adopt, in provides an indication that its provisions are accordance with the same special procedure, necessarily of such a nature as to affect the regulatory provisions ('Rechtsverordnung') rights and obligations of individuals. It prescribing, in particular, that the discharges follows from the second recital in its from plant, whether or not it requires a preamble that the approximation of national licence, are not to exceed certain limit laws which it seeks to bring about was values. For plant for which a licence is undertaken because required the latter is granted only if it is guaranteed that, in particular, those values are observed (Paragraph 6). Finally, under Paragraphs 20, 21 and 25, the competent 'any discrepancy between the provisions authorities may either prohibit, wholly or in already applicable or being prepared in the part, temporarily or permanently, the various Member States with regard to operation of the plant, whether or not the sulphur dioxide and suspended particulates latter licence requirement applies, which could give rise to unequal conditions of does not observe, inter alia, the limit values competition and could consequently directly fixed by the application of Paragraphs 7 and affect the functioning of the common 23, or revoke, under certain conditions, the market.' licence granted.
That directive is intended, therefore, to create equal conditions of competition 20. The Law on protection against pollution between the undertakings which, in the does not itself define the thresholds of various Member States, embark on activities nuisance and limit values which must not be which produce the two polluting substances exceeded, and it does not impose on the in question. Federal Government a formal obligation to adopt regulations or general administrative provisions on the matter, or, a fortiori, to adopt the values fixed by the directives. 22. It is true that Directive 82/884/EEC Furthermore, the position of the German does not contain a similar recital. Moreover, Government, which we are in the process of it is not based on Article 100 of the Treaty, examining here, is precisely that it is not but on Article 235 alone. However, that obliged to translate those values into general does not prevent its provisions from also
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affecting undertakings. That is what the fix the limit value for lead) are likely not to German Government implicitly admits when be observed', h states, in the context of the controversy concerning the scope of the first general administrative provision implementing the Law on protection against pollution, of the directive refers not only to places where 27 February 1986 (GMB1., p. 95, here- road traffic is particularly dense and, conse- inafter referred to as the 'technical circular quently, the likelihood of a concentration of "air" '), to which I shall also return later, lead in the air due to the consumption of that petrol is particularly high, but also to the areas surrounding industrial plant which regularly gives out lead emissions of a certain magnitude. Industrial plant from which there are significant lead emissions is generally required to have an authorization' (see the middle of page 25 of the roneotyped version 23. Finally, it is certain that alongside of the Report for the Hearing in Case natural or legal persons who, by virtue of C-59/89). their activities, constitute potential sources of pollution, on whom the two directives above all especially impose constraints, there are the individuals, ordinary citizens, who are thereby given the right that the air Similarly, in its reply to the fourth question which they breathe should comply with the which the Court put to it in that case, the quality standards which have been laid German Government argues that, in order down. It may be seen from the preambles to to combat effectively the exceeding of the the contested directives that, in addition to limit value for lead, protecting the environment, they are intended to protect human health and to improve the quality of life. The obligation of the Member States to ensure that the 'it is necessary to apply the measures concentrations in the air of the substances in relating to plant' question do not exceed the levels deemed permissible has, as its corollary, the right of individuals to rely on those quality standards when they are infringed, either in fact or by the measures adopted by the constituted in particular by Paragraphs 17 public authorities. and 25 of the Law on protection against pollution (see the last paragraph of page 33 of the roneotyped version of the Report for the Hearing). In addition, there is no doubt 24. I conclude from the above consider- that by obliging the Member States, under ations that it is not sufficient that the limit Article 4, to install sampling stations values fixed by Directives 80/779/EEC and 82/884/EEC are not exceeded in fact, but that their correct transposition requires the adoption of a general and binding legal rule 'at places where individuals may be exposed which also prohibits, in law, the exceeding continually for a long period and where of those values and thus serves as a clear they consider that Articles 1 and 2 (which and precise legal basis for, on the one hand,
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the actions of the administrative authorities technical circular 'air'. According to the responsible for applying them and, on the Federal Government it derives its binding other hand, the individuals w h o consider force from the fact that it was adopted on that they are not being observed. the basis of the express enabling power contained in Paragraph 48 of the Law on protection against pollution and, as it were, merely gives concrete form to the provisions 25. It is necessary, therefore, to examine of that law. It was adopted, moreover, only whether the provisions of national law after the sectors concerned had been heard, referred to by the Federal Republic of in accordance with Paragraph 51 of the Germany are capable of ensuring a transpo- Law, and with the approval of the sition of the two directives which complies Bundesrat. In addition, the binding nature with those requirements. of general administrative provisions on technical matters is recognized in the decisions of the courts, so that any citizen may rely on the limit values fixed by the technical circular 'air' before the adminis- 26. In that respect the Federal Republic of trative courts and require that they be Germany submits, in turn, that the limit observed in the place where he resides and values are part of the German legal system, in his working environment. Finally, that they have binding force in German law according to the Federal Republic of and that they have the scope of their Germany, in spite of the fact that the application, in general, covering the whole technical circular 'air' only applies, by virtue of the national territory. What is the true of paragraph 1 thereof, to plant for which a position? licence is required, and in respect of certain administrative measures concerning such plant, the limit values which it fixes are general in scope, since the concept 'effects 27. It should be pointed out first of all, and harmful to the environment' which it seeks this is not disputed by the Commission, that to put into concrete form must necessarily the values fixed in paragraph 2.5.1 of the be given the same interpretation in the technical circular 'air' comply with those whole sphere of application of the Law on prescribed by the two directives. That protection against pollution. Furthermore, circular was adopted on the basis of to the extent to which human health is at Paragraph 48 of the Law on protection risk, Article 2(2) of the Basic Law, which against pollution which, I recall, makes provides that 'everyone has the right to life the Federal Government responsible for and to physical integrity', does not allow the adopting the 'general administrative administration to tolerate the slightest provisions ( . . . ) relating, in particular, to exceeding of the limit values thus fixed, the thresholds of nuisances which must not whether or not there is authorization, or be exceeded in order to achieve the whether other measures are concerned. objective mentioned in Paragraph 1', namely to combat all kinds of 'effects harmful to the environment'.
29. The Commission disputes those various assertions of the Federal Republic of 28. The two parties are, however, diame- Germany. It quotes several judgments of trically opposed in their assessments of the the Bundesverfassungsgericht and of the legal nature, and in particular of the binding Bundesverwaltungsgericht from which it nature, as well as the exact scope, of the emerges that general administrative
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provisions are not in the nature of directives, and of the content of the two mandatory rules in the same way as laws directives at issue, as I have just described and regulations. As to the judgment of the them, it seems to me that, in order to be Bundesverwaltungsgericht of 19 December able to rule on the validity of the 1985, concerning the nuclear power station Commission's first complaint, it is not at Wyhl, 6 in which that court expressly necessary to examine which of those two recognized the existence of administrative assessments is correct. The least that can be provisions 'giving concrete effect to a legal said is that the situation in German law is rule' which are binding on the adminis- far from being clear and precise. trative courts within the limits fixed by the rule to which concrete effect has to be given, it is peculiar to the nuclear field and does not resolve the question of 'the specific extent of the binding nature' of the circular 31. The German Government has not been in question in that case (which, moreover, able to point to any line of authority in the was not adopted on the basis of Paragraph decisions of the Constitutional Court or of 48 of the Law on protection against the administrative courts which is applicable pollution); although the Bundesverfassungs- without distinction to general administrative gericht referred, in an order of 31 May provisions and from which it follows 1988, 7 to that judgment and to the 'special conclusively that the technical circular 'air' case of the authorization prescribed in is binding in nature. The Commission, for nuclear law', it none the less expressly its part, puts forward a series of arguments stated, however, that which give rise to quite serious doubt as to the validity of the legal construction put forward by the German Government regarding the mandatory nature of the limit values and the scope of application of the 'general administrative circulars ( . . . ) are technical circular. not laws within the meaning of Article 20(3) and of Article 97(1) of the Basic Law (in the sense that laws are binding on judges).' 32. In those circumstances, it is not possible to regard the measures adopted as consti- tuting an implementation of the two The Commission states, on the other hand, directives 'with sufficient precision or clarity that the interpretation of the Federal to satisfy fully the demands of legal Republic of Germany, according to which certainty' 8 or as apt to create 'a situation the scope of application of the technical which is sufficiently precise, clear and trans- circular 'air' is not confined solely to plant parent as to enable [individuals] to ascertain subject to authorization, but extends to all their rights and to rely on them.' 9 possible sources of atmospheric pollution, is contrary to the very letter of that circular.
33. Accordingly, it should be declared that the Federal Republic of Germany has not 30. In the light of the Court's case-law on correctly transposed into national law the the scope of the obligation to transpose 8 — Sec judgment in Case 291/85 Commission v Netherlands [1987] ECR 3483, paragraph 15. 6 — BVenvG 72, 300, at pp. 3 1 6 « seq. 9 — See judgment in Case 29/84, reference given in footnote 3, 7 — BVerfG 78, pp. 214,227. paragraph 28.
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limit values fixed by Council Directives 36. With regard to all the other parts of the 80/779/EEC and 82/884/EEC. Federal German Republic, it is necessary to recall to mind the distinction made by the third paragraph of Article 189 of the EEC Treaty between the result to be achieved on the basis of a directive and the discretion left to the national authorities as to the 34. With regard to the obligations arising methods to be adopted. from Article 3 of the two directives, which require the Member States to take the appropriate measures to ensure that the prescribed limit values are actually observed, 37. We have already seen that the result the argument of the two parties has essen- aimed at by both directives can be achieved tially turned on Paragraphs 44 to 47 of the only if the limit values which they fix are Law on protection against pollution, which transposed as such into a provision of require the authorities of the Länder, in national law having binding force and certain circumstances, to define 'exposed applicable, in principle, to the entire zones' (Belastungsgebiete) or, since the national territory. The Member States must, amendment adopted by the Bundestag on furthermore, establish measuring stations, 11 May 1990 (BGBl, of 22.5.1990, I, which was done in the Federal Republic p. 870), 'zones of control' (Untersuchungs- of Germany (Article 6 of Directive gebiete) and to draw up plans for air purity 80/779/EEC and Article 4 of Directive in respect of them. 82/884/EEC).
38. On the other hand, the choice of the methods by which the Member States 35. In that respect, it must be pointed out ensure the observance of the limit values is that Article 3 of the two directives provides left to their discretion. only for the drawing-up of 'plans' or of 'projects' aimed at the progressive improvement of the quality of the air in certain 'zones' (the sulphur dioxide 39. It is for them, in particular, to assess the directive) or certain 'places' (the lead acuteness with which a pollution problem directive) in cases where a Member State arises in the different regions of the considers that in those 'zones' or 'places' the country, and also the question whether or concentrations of the substances concerned not it is necessary to extend certain are likely, notwithstanding the measures measures to the whole of the territory. taken, to exceed the limit values fixed by the directives beyond the date prescribed for the observance of those values, provided that the Member State informs the 40. If they are not to deprive that Commission to that effect before the date in competence of the Member States of its question. In the context of Directive substance, the institutions of the 80/779/EEC the Federal Republic of Community may criticize the way in which Germany gave such notification in respect the Member State proceed only if it appears of the Land of Berlin but the Commission from the facts that the methods employed has not pursued the complaint which it had are not sufficiently effective to achieve the originally formulated with regard to that objective pursued. Here, it is common question. ground that the limit values have not been
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exceeded in the Federal Republic of 41. In those circumstances the complaint Germany since the time when they had to that Article 3 of the two directives has been be observed. infringed cannot be upheld.
42. In conclusion I propose that the Court uphold only the complaint that the limit values were not transposed by a national provision which is binding and applicable, in theory, to the whole of the national territory and declare that, by not adopting all the laws, regulations and administrative provisions necessary in order to ensure the complete transposition into national law of Council Directive 80/779/EEC of 15 July 1980 on air quality limit values and guide values for sulphur dioxide and suspended particulates (Case C-361/88) and of Council Directive 82/884/EEC of 3 December 1982 on a limit value for lead in the air (Case C-59/89), the Federal Republic of Germany has failed to fulfil its obligations under the EEC Treaty.
43. As, in my opinion, only one of the Commission's two complaints can be upheld, I consider that the parties should bear their own costs.
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