C-229/97
ECLI:EU:C:1998:381
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OPINION OF MR ALBER — CASE C-229/97
OPINION OF ADVOCATE GENERAL ALBER delivered on 16 July 1998 *
A — Introduction — in the alternative, declare that, by not informing the Commission of those mea- sures forthwith, the Portuguese Republic has failed to fulfil its obligations under those provisions;
1. These proceedings concern an action for failure to fulfil Treaty obligations brought against the Republic of Portugal for its failure to transpose Council Directive 79/869/EEC of 9 October 1979 concerning the methods of — order the Portuguese Republic to pay the measurement and frequencies of sampling and costs. analysis of surface water intended for the abstraction of drinking water in the Member States. 1 The Commission claims that the Court should
2. The Portuguese Republic contends that the — declare that, by failing to adopt within the Court should, prescribed period the laws, regulations and administrative provisions necessary to comply fully and correctly with Council Directive 79/869/EEC of 9 October 1979 concerning the methods of measurement and frequencies of sampling and analysis of surface water intended for the abstrac- — allow until 30 October 1997 for the leg- tion of drinking water in the Member islation improving and completing the States, the Portuguese Republic has failed transposition of Directive 79/869/EEC to to fulfil its obligations under the third be passed, and thereafter declare the case paragraph of Article 189 of the EC Treaty closed; and the combined provisions of Article 13 of that directive, Article 395 of and Annex XXXVI to the Act of Accession, 2
* Original language: German. 1 — OJ 1979 L 271, p. 44. — order the Commission to pay the costs of 2 — OJ 1985 L 302, p. 397. the proceedings.
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COMMISSION v PORTUGAL
B — Analysis await publication of that Decree-Law, which was anticipated on 30 October 1997.
3. Under Article 13 of Directive 79/869 the Member States were to bring into force the 7. The Portuguese Republic has undeniably laws, regulations and administrative provi- failed to fulfil the above obligations within sions necessary to comply with that directive the period of two months prescribed in the within two years of its notification and forth- reasoned opinion of 10 June 1996. The Court with to inform the Commission thereof. Noti- has consistendy held that this is the date to fication took place in October 1979. be taken into account to determine whether a Member State has failed to fulfil its obliga- tions. 3
4. Under the combined provisions of Article 395 of and Annex XXXVI(III)(5) to the Act of Accession, the Portuguese Republic had until 1 January 1989 to transpose the direc- 8. The parties have decided not to hold the tive. oral procedure originally planned.
5. The Portuguese Republic adopted 9. In the light of all the foregoing obserations Decree-Law N o 74/90 of 7 March 1990 to the Commission's application should be transpose the directive. However, the Com- granted. mission takes the view that the directive was not fully and correctly transposed into Por- tuguese law. It considers that the Portuguese Republic did not fulfil its obligations deriving from Article 3(3) of the directive in conjunc- Costs tion with columns C, D and E of Annex I to the directive, Article 4(2) and Article 5 of the directive and footnote N o 10 of Annex I to the directive.
Under Article 69(2) of the Rules of Proce- dure of the Court, the unsuccessful party is to be ordered to pay the costs. 6. The Portuguese Republic does not dispute those allegations. However, it submits that Decree-Law N o 74/90 is under review, that 3 — See Case C-361/95 Commission v Spain [1997] ECR I-7351, review procedure being in its final stage. It paragraphs 13 and 14, Case C-61/94 Commission v Germany [1996] ECR I-3989, paragraph 42, and Case C-123/94 Com- has therefore asked the Court of Justice to mission v Greece [1995] ECR I-1457, paragraph 7.
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OPINION OF MR ALBER — CASE C-229/97
C — Conclusion
10. I therefore propose that the Court should:
(1) declare that by failing to adopt within the prescribed period the laws, regula- tions and administrative provisions necessary to comply fully and correctly with Council Directive 79/869/EEC of 9 October 1979 concerning the methods of measurement and frequencies of sampling and analysis of surface water intended for the abstraction of drinking water in the Member States, the Por- tuguese Republic has failed to fulfil its obligations under the third paragraph of Article 189 of the EC Treaty and the combined provisions of Article 13 of that directive, Article 395 of and Annex XXXVI to the Act of Accession;
(2) order the Portuguese Republic to pay the costs of the proceedings.
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