C-195/97
ECLI:EU:C:1998:537
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OPINION OF MR LÉGER — CASE C-195/97
OPINION OF ADVOCATE GENERAL LÉGER delivered on 12 November 1998 *
1. In the present proceedings, the Commis able zones all known areas of land in their sion of the European Communities seeks a territories which drain into waters affected by declaration that, 'by failing to adopt and com pollution and waters which could be affected municate within the prescribed period the by pollution, in accordance with the criteria provisions necessary to transpose into set out in the Directive. They were required domestic law Council Directive furthermore to have notified the Commission 91/676/EEC of 12 December 1991 concerning of that initial designation within six months. the protection of waters against pollution caused by nitrates from agricultural sources 1 (hereinafter 'the Directive'), and in particular by failing to comply with the obligation laid down in Article 3(2) of the Directive, the Under Article 3(5), however, Member States Italian Republic has failed to fulfil its obliga are to be exempt from that obligation to tions under Community law'. The Commis identify specific vulnerable zones if they con sion also requests that the Italian Republic be sider the whole of their national territory to ordered to pay the costs of the proceedings. be vulnerable and consequently establish and apply action programmes with the objective of reducing and preventing water pollution caused by nitrates from agricultural sources throughout that territory.
2. Article 12(1) of the Directive provides that the Member States are to bring into force the laws, regulations and administrative provi sions necessary to comply with it within two years of its notification and are forthwith to 4. Finally, under Article 4 of the Directive, inform the Commission thereof. Since the the Member States were, still within the same Directive was notified to the Member States period, to establish a code or codes of good on 19 December 1991, that time-limit for agricultural practice, to be implemented by implementation expired on 19 December 1993. farmers on a voluntary basis, with the aim of providing for all waters a general level of pro tection against pollution.
3. By the same date, the Member States were required, under Article 3(2) of the Directive, 5. On the expiry of that time-limit the Com to have designated for the first time as vulner mission had not received any communication relating either to the transposition of the Directive into Italian law or to the designa * Original language: French. tion of specific vulnerable zones, or exemp 1 — OJ 1991 L 375, p. 1 tion from that specific obligation pursuant to
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Article 3(5), and had no other information Republic had failed to fulfil the obligations in enabling it to conclude that the Italian question. Republic had complied with its obligations. By letter of 10 July 1995, therefore, and in accordance with the procedure laid down in Article 169 of the EC Treaty, it gave the Italian 9. The Commission's application was lodged Government formal notice to submit its obser at thé Registry of the Court of Justice on 20 vations on the matter within two months. It May 1997. The Italian Government contends also called upon it to submit its observations that it should be dismissed. on the fact that the competent authorities had not established a code or codes of good agri cultural practice, as Article 4 of the Directive 10. In the defence, the Italian Government obliged them to do. points out that it communicated to the Com mission, once it had received the reasoned opinion, a series of measures in force in Italy, which were not legislative in nature, 'by virtue of which it can be considered that Directive 6. Since it received no reply to that letter, the 91/676/EEC has, in certain respects, been Commission sent a reasoned opinion to the 2 implemented'. It also states that it intends to Italian Government on 26 July 1996 calling adopt, under powers delegated by Parliament, upon it to adopt the measures necessary to a legislative decree containing 'complete rules comply with it within two months of its noti on the subject covered by the said directive'. fication.
11. The Commission repeats its complaints 7. By letter of 20 January 1997 the Perma in the reply. nent Representation of Italy to the European Union replied to the Commission. While admitting that its government had not yet 12. It maintains, first, that it never implied adopted a specific measure to transpose Direc that implementation must necessarily take the tive 91/676 into Italian law, it argued that the form of a measure which is legislative in government had, in all essentials, fulfilled the nature. It points out that its criticism of the obligations laid down in it, and referred in Italian Government is not for having adopted particular to the obligations arising under measures which are not legislative, but for Articles 3(2) and 4 of the Directive. having failed in any event to comply with its obligations under the Directive, by adopting measures of whatever nature.
8. In the light of that information, the Com mission did not pursue its complaints in respect of failure to comply with Article 4 of 13. It then observes that the correct transpo the Directive. However, it was not satisfied sition of a directive requires the adoption of with the argument put forward concerning the obligation imposed by Article 3(2), and consequently decided to apply to the Court of Justice for a declaration that the Italian 2 — First paragraph of point 1 of the defence.
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measures, if necessary in a particular order, specifically for the adoption of action pro which ensure its effectiveness and lead to the grammes to reduce and prevent water pollu intended results. However, in this case, by tion caused or induced by nitrates from agri adopting measures designed, first, to establish cultural sources. However, apart from the fact a code of good agricultural practice in accor that those action programmes must satisfy a dance with Article 4 and, secondly, to appear number of mandatory requirements, compli in the action programmes to reduce and pre ance with which it is impossible in this case vent water pollution, prescribed in Article to evaluate, it is clear that that is not the only 5(4) of the Directive, before first identifying aspect of the Directive with which the Member the waters and zones at risk, as required by States are required to comply. Article 3(2), the Italian Government has pro ceeded in an illogical manner. The measures so far adopted will remain a dead letter, according to the Commission, since they are intended to protect zones which have still not 16. In particular it is not disputed that no been identified. national measure has yet been adopted or communicated to the Commission for the purposes of complying with the obligation to designate vulnerable zones pursuant to Article 3(2) of the Directive.
14. In its rejoinder, the Italian Republic dis putes that reasoning. It argues that it would not be practical to proceed in the order sug 17. On the contrary, by referring, in the gested by the Commission. It adds that 'the defence, to the imminent adoption of a legis documentation relating to the measures lative text effecting complete transposition of adopted to implement the provisions of Article the Directive, and by insisting, in the rejoinder, 5 of the Directive is currently on its way to that documentation relating to complemen 3 the Commission'. tary national measures is currently on its way to the Commission, the Italian Republic rec ognises in any event that all the relevant mea sures have not been adopted, or communi cated to the Commission, in due time.
15. It therefore appears that the Italian Gov ernment did not deny, either during the pre- litigation stage or in its defence or rejoinder, 18. Without going further into the detail of the failure to transpose the Directive into the arguments presented, it is therefore suf national law within the prescribed period, and ficient to state that, since the Directive was the resulting failure to communicate measures not transposed and the transposition commu to the Commission. It merely referred to a nicated within the time-limit prescribed by certain number of measures which might, if the Directive, the action brought by the Com necessary, comply with the requirements of 4 mission is well founded. Article 5 of the Directive, which provides
4 — Sec, for example, Case C-79/98 Commission v Belgium [1998] 3 — First paragraph of point 5 of the rejoinder. ECR I-6039, paragraph 8.
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19. It must consequently be held that, by not 20. Under Article 69(2) of the Rules of Pro adopting and not communicating to the Com cedure, the unsuccessful party is to be ordered mission within the prescribed time-limit the to pay the costs. Since the Italian Republic laws, regulations and administrative provi has been unsuccessful, it should be ordered to sions necessary to comply with the Directive, pay the costs. the Italian Republic has failed to fulfil its obligations under Article 12(1) thereof.
Conclusion
21. For those reasons, I propose that the Court:
(1) declare that, by not adopting and not communicating to the Commission within the prescribed time-limit the laws, regulations and administrative provi sions necessary to comply with Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources, the Italian Republic has failed to fulfil its obligations under Article 12(1) thereof;
(2) order the Italian Republic to pay the costs.
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