C-208/97

OPINION OF MR LÉGER — CASE C-208/97

OPINION OF ADVOCATE GENERAL LÉGER delivered on 2 April 1998 *

1. By application lodged at the Court Regis­ 3. Under Article 7(1) of the directive, Mem­ try on 30 May 1997, the Commission of the ber States are to bring into force the mea­ European Communities brought an action sures necessary to comply with it within two under Article 169 of the EC Treaty seeking a years following its notification. They are declaration that, by failing to adopt within forthwith to inform the Commission thereof. the period prescribed the laws, regulations and administrative provisions needed to comply with Council Directive 84/156/EEC of 8 March 1984 on limit values and quality objectives for mercury discharges by sectors other than the chlor-alkali electrolysis indus­ 1 try (hereinafter 'the directive'), the Portu­ guese Republic has failed to fulfil its obliga­ tions under the third paragraph of Article 189 of the EC Treaty and Article 4 of the 4. On 18 June 1993, in the absence of any directive. response from the Portuguese Government to its request that the programme or pro­ grammes referred to in Article 4 of the direc­ tive be communicated to it, the Commission gave it formal notice that it should submit its observations on its fulfilment of its obliga­ tions under the directive within two months.

2. Under Article 4(1) of the directive, the Member States are to draw up specific pro­ grammes for mercury discharges by multiple sources which are not industrial plants and 5. On 6 January 1994 the Portuguese Gov­ for which the emission standards laid down ernment replied to that formal notice in Article 3 cannot be applied in practice. explaining that no sources discharging mer­ Under Article 4(3) of the directive, the spe­ cury in sectors other than the chlor-alkali cific programmes are to apply as from 1 July electrolysis industry had been found in its 1989 and to be communicated to the Com­ territory. Consequently no discharge of mer­ mission. cury or pollution by mercury could be established. The Portuguese Republic there­ fore argued that the obligation to draw up * Original language: French. programmes under Article 4 of the directive 1 — OJ 1984 L 74, p. 49. could not concern it.

7. On 18 July 1996 the Portuguese Govern­ ment responded, pointing out that, whilst it recognised the necessity and urgency of implementing the programmes in question, it 11. As regards the request to reserve the would encounter many difficulties in bring­ decision, it must be observed that the Portu­ ing them into operation because of problems guese Government only provided details of relating to the identification of the many dif­ the practical difficulties it has encountered in ferent sources. However, it added that it was implementing transposition measures after endeavouring to comply as rapidly as pos­ expiry of the period prescribed for the adop­ sible with the provisions of the directive and tion of measures to transpose the directive, that it would inform the Commission of the that is to say, at a time when it was already in outcome of its work. force. In those circumstances — where a directive has already been adopted and has entered into force —, I take the view that this line of argument cannot be used to sus­ pend proceedings or justify in legal terms the failure to fulfil Treaty obligations which fail­ ure to transpose a directive represents, as 8. Having received no other information otherwise a Member State could easily evade from the Portuguese Government which its obligation to transpose a directive within suggested that it had since fulfilled its obliga­ the prescribed period by citing such alleged 2 tions under the directive, the Commission or real difficulties. decided to bring this action.

12. Moreover it should be noted that the 9. In its defence the Portuguese Government Portuguese Republic does not dispute that does not dispute that it has failed to fulfil its the measures necessary to transpose the obligations, but points out that it is encoun­ tering serious practical difficulties in imple­ menting the specific programmes required 2 — For a parallel argument, see Case C-139/96 Commission v by Article 4 of the directive. For that reason, Germany [1997] ECR I-4845 and paragraph 12 of my Opin­ ion delivered on 16 December 1997 in Case C-344/96 Com- it proposes that the Court reserve its mission v Germany [1998] ECR I-1165.

(2) order the Portuguese Republic to pay the costs.

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