C-261/98

COMMISSION V PORTUGAL

OPINION OF ADVOCATE GENERAL SAGGIO delivered on 9 March 2000 *

1. By application lodged at the Court cle 1(1) the Directive applies to internal Registry on 17 July 1998, the Commission surface waters (fresh water) and coastal complains that the Portuguese Republic has waters (salt water), to territorial waters and failed to adopt or at least communicate to ground water. The word 'discharge' is summaries of programmes for the reduc- defined in Article 1(2)(d) as 'the introduc- tion of aquatic pollution incorporating tion into the waters referred to in para- appropriate quality objectives in relation graph 1 of any substances in List I or List II to certain polluting substances and to set of the Annex'. 'Pollution' is described in (e) adequate deadlines for their implementa- of the same Article as 'the discharge by tion in accordance with Article 7 of Coun- man, directly or indirectly, of substances or cil Directive 76/464/EEC of 4 May 1976 energy into the aquatic environment, the on pollution caused by certain dangerous results of which are such as to cause substances discharged into the aquatic hazards to human health, harm to living environment of the Community 1 (herein- resources and to aquatic ecosystems, after 'the Directive'). damage to amenities or interference with other legitimate uses of water'.

Relevant Community law

4. Article 7(1) of the Directive provides: 'In order to reduce pollution of the waters referred to in Article 1 by the substances 6. The text of the Directive, which was within List II, Member States shall establish adopted on 4 May 1976 and communi- programmes in the implementation of cated the following day to Member States, which they shall apply in particular the does not indicate any deadline for its methods referred to in paragraphs 2 and 3'. transposition. As regards the programmes Paragraph 2 of the same Article establishes for the reduction of pollution, Article 7(7) a system of prior authorisation for pollut- provides that the Commission is to arrange ing discharges, while paragraph 3 provides for regular comparisons of the programmes that the abovementioned programmes in order to ensure sufficient coordination in 'shall include quality objectives for water; their implementation and, if it sees fit, to these shall be laid down in accordance with submit relevant proposals to the Council to Council Directives, where they exist'. this end. Article 12(2) establishes that the Under paragraphs 4 and 5 of this Article first such proposals should be forwarded to the programmes mentioned may also the Council, where possible, 'within 27 'include specific provisions governing the months following notification of this Direc- composition and use of substances or tive'. Thus, the requirement on Member groups of substances and products', taking States to adopt programmes under Arti- into account the latest economically feasi- cle 7(1) of the Directive and to forward ble technical developments, and must set these proposals in writing to the Commis- 'deadlines for their implementation'. Lastly, sion should, in principle, have been carried paragraph 6 of Article 7 requires summa- out by 5 August 1978 at the latest. The ries of the programmes and the results of Commission, however, on 3 November their implementation to be 'communicated 1976, had proposed that Member States to the Commission'. should adopt the programmes by 15 Sep- tember 1981 and implement them by 15 September 1986. 3

was obliged to establish the relevant pur- 10. The Commission therefore decided to ification programmes. send the Portuguese Government a rea- soned opinion, in a letter dated 25 May 1993, pursuant to the above-mentioned first paragraph of Article 169 of the EEC Treaty, calling on Portugal to take the requisite measures to comply therewith within two months. Portugal replied to the reasoned opinion by letter from its Infringement proceedings and forms of Permanent Representative of 9 June 1993; order sought by the parties that letter contained a new list of pro- grammes for reducing aquatic pollution which were either being carried out or in the planning stage. Further additional replies followed in a series of letters from 8. On 26 September 1989 the Commission the Permanent Representative of 26 August asked the Portuguese Government to com- 1993, 21 June 1994, 12 December 1994, municate by 31 December 1989 a summary 29 May 1995, 30 May 1996 and, finally, of the programmes for the reduction of 5 December 1996. None of those replies pollution adopted under Article 7(1) of the was deemed by the Commission to be Directive. In the absence of a reply from the entirely satisfactory. Portuguese Government, the request was repeated on 4 April 1990, without obtain- ing, however, any response.

— order the Portuguese Republic to pay tive or administrative) cannot be taken into costs. account. Thus, as in this case the period in question expired on 25 July 1993, what must be established is whether or not at that time the Portuguese Government had fulfilled the obligation to adopt pro- grammes to reduce pollution as set out in 12. In its defence, lodged on 14 October Article 7(1) of the Directive. As the Direc- 1998, the Portuguese Government conten- tive became binding on Portugal on 1 Jan- ded that the Court should: uary 1986, the Portuguese Government enjoyed a period of more than seven and a half years in which to adopt such programmes. This period seems reasonable and adequate, given its length and the time presumably needed to set up programmes — 'allow it until 31 December 1998 to of this kind. submit the additional information referred to in Article 7 of Directive 76/464 and, having received them, to find the present action devoid of pur- pose and dismiss it'; 14. It is clear from the case file that, by 25 July 1993, the Portuguese Government had sent to the Commission: (a) a technical study on the polluting substances men- — order the Commission to pay costs. tioned in the Directive; 6(b) a schematic list of 'programmes for the reduction of pollu- tion'; 7 and (c) a document entitled 'Direc- tive 76/464/EEC. Programmes for the reduction of pollution'. 8

Failure to fulfil obligations

general nature, as, moreover, the Portu- listed in the document contain a very guese Government itself specifically recog- general description of the projects to be nises. 9 Moreover, the Court has previously carried out, without any indication of the stressed that the programmes for the reduc- quality objectives to be pursued with refer- tion of pollution set out in the Directive for ence to the substances in List II, nor to the the protection of the environment and deadlines for implementation of the pro- aquatic resources must be of a specific jects in question. As the applicant observes, nature as 'the objective of reducing pollu- programmes of this kind, while demon- tion pursued by general purification pro- strating that the Portuguese Government is grammes does not necessarily correspond devoting attention to the protection of the to the more specific objective of the Direc- aquatic environment, do not comply with tive in issue'. 10 the terms of Article 7 of the Directive as they indicate neither the qualify objectives to be achieved nor the deadlines for their implementation.

I-5911

OPINION OF MR SAGGIO — CASE C-261/98

Conclusions

20. In the light of the foregoing considerations, I propose that the Court should rule as follows:

(1) By failing to adopt, or at least communicate to the Commission summaries of, water pollution reduction programmes laying down appropriate quality objectives in respect of certain polluting substances and a suitable timetable for their implementation in accordance with Article 7(1) of Council Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community, the Portuguese Republic has failed to fulfil its obligations under that Directive.

(2) The Portuguese Republic is ordered to pay costs.