C-71/97
ECLI:EU:C:1998:142
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- Súdny dvor Európskej únie
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- 61997CC0071
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- eur-lex.europa.eu ↗
COMMISSION v SPAIN
OPINION OF ADVOCATE GENERAL MISCHO delivered on 26 March 1998 *
1. In these proceedings for failure to fulfil 3. Article 3(2) of the Directive provides that, obligations, brought pursuant to Article 169 within a two-year period following the noti- of the EC Treaty, the Commission claims that fication of the Directive, Member States are the Kingdom of Spain has failed to fulfil its to designate as vulnerable zones all known obligations under Council Directive areas of land in their territories which drain 91/676/EEC of 12 December 1991 concerning into the waters identified according to para- the protection of waters against pollution graph 1 and which contribute to pollution. caused by nitrates from agricultural sources 1 Member States are to notify the Commission (hereinafter 'the Directive'). of that initial designation within six months.
2. More specifically, the Commission claims 4. According to Article 4 of the Directive, that the defendant Government: Member States are to establish a code or codes of good agricultural practice within a two- year period following the notification of the Directive and to submit details of those codes to the Commission. — failed to designate the zones considered to be vulnerable and to notify it of those designations as required by Article 3 of the Directive
5. A note under Article 12(1) states that the Directive was notified to the Member States on 19 December 1991. The time-limit for and, second, designating vulnerable zones and establishing codes of good agricultural practice therefore expired on 18 December 1993. The time-limit for notifying vulnerable zones expired on 18 June 1994. — failed to establish the codes of good agri- cultural practice and to notify it thereof, as required by Article 4 of the Directive.
* Original language: French. 6. It is apparent from the application that, on 1 — OJ 1991 L 375, p. 1. 17 February 1997, the Kingdom of Spain had
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still not notified the Commission of the des- the implementation of a directive proves to ignations provided for in Article 3 of the be too short, the only means of action com- Directive or of the codes of good agricultural patible with Community law available to the practice. Member State concerned consists in taking the appropriate initiatives within the Com- munity in order to obtain the necessary exten- sion of the period by the competent Com- munity institution'. 7. The Spanish Government points out that the implementation of the Directive was delayed, first, as a result of technical difficul- ties and, also, the fact that the State and the autonomous communities have concurrent powers in this field. 10. The defendant Government further points out that, in the present case, it is not appro- priate to speak of a failure to fulfil obligations since, in its view, that implies the intention 8. In that respect, it is sufficient to recall that, not to do something which ought to be done. according to settled case-law, on the one hand, 'the mandatory nature of directives entails the obligation for all Member States to comply with the time-limits contained therein in order that the implementation shall be achieved uniformly within the whole Community' 2 11. I cannot accept that argument since, as and, on the other, 'a Member State may not the Court has held, 5 'the admissibility of an plead provisions, practices or circumstances action based on Article 169 of the Treaty existing in its internal legal system in order to depends only on an objective finding of a justify a failure to comply with the obliga- failure to fulfil obligations and not on proof tions and time-limits laid down in a direc- of any inertia or opposition on the part of the tive'. 3 Member State concerned'. The assessment of any element of intention is irrelevant to a finding by the Court of Justice that a Member State has failed to fulfil its obligations.
9. Similarly, the Court has held 4that 'the governments of the Member States participate in the preparatory work for directives and must therefore be in a position to prepare within the period prescribed the legislative 12. As regards the obligation to establish provisions necessary for their implementa- codes of good agricultural practice, the Spanish tion. If, nevertheless, the period allowed for Government states, in its defence, that six of the 17 autonomous communities have estab- lished such codes and that those six codes 2 — Case 10/76 Commission v Italy [1976] ECR 1359, paragraph have been notified to the Commission. [12]. 3 — See, for example, Case C-259/94 Commission v Greece [1995] ECR I-1947, paragraph 5. 4 — See, for example, Case 301/81 Commission v Belgium [1983] ECR 467, paragraph 11. 5 — Ibid., paragraph 8.
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COMMISSION v SPAIN
13. In its reply, the Commission acknowl- nated vulnerable zones but has not yet noti- edges that it has indeed received those six fied that designation to the Commission. codes relating to the autonomous communi- ties of Andalusia, Cantabria, Madrid, Murcia, Navarra and Valencia respectively. It con- siders that it is therefore not necessary for the Court to rule on the compliance by those 15. It is clear, however, from the case-law of autonomous communities with the obligation the Court 6 that the Court cannot take account to establish and notify the Commission of the of measures adopted by a Member State after codes of good agricultural practice. the commencement of an action for failure to fulfil obligations in order to comply with its obligations. Those measures adopted out of time could however lead the Commission to reduce the scope of its allegations or even to withdraw the action. In this instance, that was not the case as regards the measures 14. In its rejoinder, the Spanish Government referred to by the Spanish Government in its again contends that the application should be rejoinder. dismissed, this time on the ground that 14 autonomous communities have, in the mean- time, established and notified codes of good agricultural practice. Similarly, seven autono- mous communities have designated the vul- nerable zones, five others have stated that no 16. I therefore propose that the Court should such zones exist in their respective territories give judgment for the Commission in the and the community of Andalusia has desig- terms sought by it in the reply.
Conclusion
17. I n the light of the foregoing I p r o p o s e that the C o u r t :
— declare that, b y failing t o establish a n d t o c o m m u n i c a t e t o t h e C o m m i s s i o n t h e codes of g o o d agricultural practice r e q u i r e d b y Article 4 of C o u n c i l Directive 9 1 / 6 7 6 / E E C of 12 D e c e m b e r 1991 c o n c e r n i n g t h e p r o t e c t i o n of w a t e r s against
6 — See, for example, Case 291/84 Commission v Netherlands [1987] ECR 3483.
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pollution caused by nitrates from agricultural sources as regards the autono- mous communities other than Andalusia, Cantabria, Madrid, Murcia, Navarra and Valencia, and by failing to designate the zones considered to be vulnerable and to notify those designations to the Commission as required by Article 3 of that directive, the Kingdom of Spain has failed to fulfil its obligations under the said directive;
— order the Kingdom of Spain to pay the costs.
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