C-150/97

COMMISSION v PORTUGAL

OPINION OF ADVOCATE GENERAL MISCHO delivered on 13 October 1998 *

1. By the present application, the Commis- necessary to implement the Directive by 3 sion asks the Court to declare that, by failing July 1988 at the latest. to adopt the laws, regulations or administra- tive provisions necessary to comply fully and properly with Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment 1 ('the Directive'), the Portuguese Republic has failed to fulfil its obligations under the third paragraph of 4. By various letters, the Portuguese Govern- Article 189 of the E C Treaty and Article 12 ment communicated to the Commission pro- of the Directive. visions intended to transpose the Directive into national law and, in particular, Decree-Law N o 186/90 of 6 June 1990.

2. Article 12 requires the Member States to take the measures necessary to comply with the Directive within three years of its notifi- 5. O n 25 January 1993, taking the view that cation. Notification took place on 3 July 1985. those provisions did not constitute complete transposition of the Directive, the Commis- sion informed the Portuguese Government of the grounds on which it considered that trans- position was incomplete and requested the Portuguese Government to submit its obser- vations within two months, in accordance with Article 169 of the EC Treaty. 3. Although the Portuguese Republic acceded to the European Communities with effect only from 1 January 1986, it was required, by virtue of Articles 392 and 395 of the Act of Accession, 2 to bring into force the measures

7. Considering that the new legislation con- 12. After considering those documents, the stituted a satisfactory response to one of its Commission informed the Court that it was claims, the Commission withdrew that claim withdrawing part of its action, maintaining but, on the other hand, on 6 August 1996 it only one of the heads of claims set out in the sent the Portuguese Republic a reasoned application, namely, the claim in part II, para- opinion concerning the claims which it main- graph 17(i). By that claim, the Commission tained. criticises the Portuguese Republic for the fact that, according to Article 11 (2) of Decree-Law N o 186/90, that Law does not apply to projects in respect of which the approval procedure was already underway on the date on which it came into force, namely 7 June 1990. 8. The Portuguese Republic replied by letter of 17 December 1996 in which it made it known that a working party had been set up for the purpose of drafting the legislative pro- visions necessary in order to resolve the mat- ters raised by the Commission. 13. In its letter of part withdrawal, the Com- mission states 'that that Decree-Law and that Implementing Decree do not put an end to the infringement of Community law, as it is pointed out in paragraph II.17(i) of its appli- cation, since both the amended national leg- islation and the amending national legislation 9. Since it never received the promised legis- expressly exempt, pursuant to Article 11(2) of lative provisions, the Commission brought Decree-Law N o 186/90 and Article 3 of the present action by application of 15 April Decree-Law N o 278/97, from the obligations 1997. imposed by the Directive, projects in respect of which applications for approval had already been submitted before that national legisla- tion came into force but after 3 July 1988 (the date on which the provisions of the Directive became applicable pursuant to Articles 2 and 12 thereof). The Commission therefore main- 10. In its application the Commission set out tains its application for a declaration that the nine challenges to the Portuguese legislation. Portuguese Republic has failed to fulfil its obligations so far as concerns that claim, in the terms in which it presented that daim in its application, and having regard to the case-law of the Court in this area ...'.

19. The Portuguese Republic therefore con- siders that it would be meaningless for the Court to declare that it had failed to fulfil its obligations with regard to that claim since it is the Portuguese legal order itself which pro- 16. The Portuguese Government acknowl- hibits the retrospective application of the law edges that there was 'a clear failure to comply where that would entail infringement of the with the time-limit for transposing' the Direc- right of legitimate expectations of individuals. tive. None the less, in order to challenge the merits of the action, the Portuguese Republic argues that it had to comply with the prin- ciple of legal certainty and the principle that legislative provisions should not have retro- 20. That argument cannot be accepted. It is spective effect. According to the defendant clear from the judgment in Case C-396/92 government, a general principle established Bund Naturschutz in Bayern and Others v by the Portuguese legal order and set forth in Fraystat Bayern 3 that nothing in the Direc- Article 12 of its Civil Code requires laws to take effect for the future only. Any exception to that principle must be carefully examined 3 — Case C-396/92 Bund Naturschutz in Bayern and Others v in the light of those principles and the legally Fraystat Bayern [1994] ECR I-3717, paragraph 18; to the protected interests of individuals or their same effect see Case C-431/92 Commission v Germany [1995] ECR I-2189, paragraph 33, and Case C-81/96 Burgemeester legitimate expectations cannot in any circum- en Wethouders van Haarlemmerliede en Spaamwoude and Others v Gedeputeerde Staten van Noord-Holland [1998] stances be compromised. ECR I-3923, paragraph 22.

22. I will add that, even if the Portuguese Government had intended to rely on the principles of legal certainty and of the protec- tion of legitimate expectations enshrined in Community law itself, its line of argument 24. I therefore consider that the Commis- would still not have been relevant. While it is sion's action is well founded and that it must true that a Member State, in implementing be allowed. provisions of Community law, must act in compliance with the general principles of that law, that requirement is limited by the actual scope of those principles. O n the one hand, those principles have effects in the area of the relations between public authorities and indi- viduals which are no 'way an issue in the 25. Similarly, as the Commission requests, present case where the only question is the Court must order the Portuguese Republic whether or not the Commission is entitled to to pay the costs, in accordance with Article seek a declaration that the Portuguese Republic 69(5) of the Court's Rules of Procedure.

I - 264

COMMISSION v PORTUGAL

Conclusion

26. I therefore propose that the Court:

— declare that, by failing to adopt the laws, regulations or administrative provi- sions necessary to comply fully and correctly with Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, the Portuguese Republic has failed to fulfil its obligations under Article 12(1) of the Directive;