C-274/98

COMMISSION V SPAIN

OPINION OF ADVOCATE GENERAL COSMAS delivered on 20 January 2000 *

I — Introduction caused or induced by nitrates from agricul- tural sources and to prevent further such pollution.

1. In the present action brought pursuant to Article 169 of the EC Treaty (now Article 226 EC), the Commission requests the Court to declare that, by failing to 3. Article 3 of the directive provides, inter establish, within the period prescribed, alia, that: action programmes pursuant to Article 5 of Council Directive 91/676/EEC of 12 December 1991 concerning the protec- tion of waters against pollution caused by nitrates from agricultural sources 1 (herein- '... after 'the Directive'), the Kingdom of Spain has failed to fulfil its obligations under the Treaty.

2. Member States shall, within a two-year period following the notification of this Directive, designate as vulnerable zones all known areas of land in their territories which drain into the waters identified II — Legal framework according to paragraph I and which con- tribute to pollution. They shall notify the Commission of this initial designation within six months.

A — The Community legal framework

B — The national legal framework 4. It is apparent from a footnote to Arti- cle 12(1) that the Directive was notified to Member States on 19 December 1991. 7. Article 6 of the Real Decreto sobre protección de las aguas contra la contam- inación por los nitratos procedentes de fuentes agrarias (Royal Decree No 261/1996 of 16 February 1996 on the protection of waters against pollution 5. According to Article 5(1) of the Direc- caused by nitrates from agricultural tive, '[w]ithin a two-year period following sources), which transposes the Directive the initial designation referred to in Arti- into Spanish law, provides that, in zones cle 3(2) or within one year of each addi- designated as vulnerable, the competent tional designation referred to in Arti- authorities of the autonomous communities cle 3(4), Member States shall, for the are to establish action programmes to purpose of realising the objectives specified prevent and reduce pollution by nitrates in Article 1, establish action programmes in from agricultural sources. Those action respect of designated vulnerable zones.' programmes are to be drawn up within two years of the initial designation of zones as vulnerable or within one year after each new extension or modification and are to be implemented within four years of being established. 6. Lastly, Article 10 of the Directive pro- vides that:

III— The pre-litigation procedure ' 1 . Member States shall, in respect of the four-year period following the notification of this Directive and in respect of each subsequent four-year period, submit a 8. On 4 April 1997 the Commission sent report to the Commission containing the the Kingdom of Spain a letter of formal information outlined in Annex V. notice (No SG(97) D/2548) inviting it to I - 2826

12. The Kingdom of Spain finally replied to 9. The reply of the Spanish authorities to the reasoned opinion by forwarding to the the letter of formal notice enabled the Commission a document dated 6 March Commission to ascertain that the monitor- 1998, entitled 'Informe Cuatrienal del ing of the concentration of nitrates in fresh Reino de España sobre cumplimiento de water had been carried out. Nevertheless, la Directiva 91/676/EEC relativa a la according to the Commission, that reply protección de las aguas contra la contam- acknowledged that the action programmes inación por nitratos de origen agrícola' provided for in Article 5(1) of the Directive ('Four-Yearly Report on the application of had not been established and that the Directive 91/676/EEC concerning the pro- report provided for in Article 10(1) of the tection of waters against pollution caused Directive had not been submitted. by nitrates from agricultural sources').

IV — Arguments of the parties the above delay, namely that the designa- tion of the vulnerable zones could not be put into effect by the autonomous commu- nities until June 1997 and that the drawing- up of action programmes inevitably 14. The Commission states that the man- requires a certain amount of time, cannot datory nature of the third paragraph of be regarded as justifying the breach com- Article 189 of the EC Treaty (now the third plained of. The Commission is of the paragraph of Article 249 EC) and of the opinion that, in essence, the Spanish autho- first paragraph of Article 5(1) of the EC rities are relying on previous breaches by Treaty (now the first paragraph of Arti- the Kingdom of Spain of other obligations cle 10 EC) is such that Member States to imposed by the Directive — in particular, which a Directive is addressed are required the failure to transpose it within the time- to take the necessary measures to imple- limit laid down by Article 12 of the Direc- ment it within the time-limit. tive — in order to justify the breaches cited in the reasoned opinion issued by the Commission in the present case. However, it is inconceivable that a Member State should be able to pray in aid its culpable delay in transposing a Directive in order to 15. The Commission points out that, in the justify the non-fulfilment or delayed fulfil- present case, since the initial designation of ment of other obligations imposed by that the vulnerable zones should have been Directive. Nemo auditur suam propriani completed within two years of notification turpitudinem allegans. of the Directive (Article 3(2) of the Direc- tive), the deadline for drawing up the action programmes provided for in Arti- cle 5 expired in December 1995.

the time-limits laid down in the Directive or Commission v Spain, 3the Court of Justice the defendant's argument that the failure confirmed that proceedings may be brought complained of is merely 'temporal' and not in respect of each of the specific obligations 'substantive'. According to the Commis- imposed by the Directive, independently of sion, it is hard to see how any distinction any action which may be brought for can be drawn between a 'temporal' and a failure to transpose it or delay in so doing. 'substantive' infringement. What is certain According to the Commission, the failure is that, upon the expiry of the period to respect those obligations threatens the allowed by the Commission for compliance realisation of the aims of the Directive. with the reasoned opinion, there was a That is particularly true, in its opinion, in clear failure to fulfil the obligations laid the case of the approval and implementa- down in the Directive, and nothing has tion of plans and programmes which happened since then to alter the Commis- necessitate continuing efforts and active sion's view that such a failure has occurred surveillance on the part of the national or to suggest that it is merely 'temporal'. In authorities with a view to attaining the addition, the fact that the Spanish autho- objectives of the Directive. rities are undeniably anxious to comply with the Directive does not mean that they should escape a declaration of such failure. Facta potentiora sunt verbis. 22. The Commission states that it is alive to the fact that it is the delay on the part of the Kingdom of Spain in transposing the Directive that has caused the failure to fulfil the other obligations laid down therein. However, neither that fact nor the possibi- lity of formulating the action in a different 20. In its reply, the Commission points out way can justify or legitimise the failure that the Kingdom of Spain acknowledged which is the subject of the present proceed- in its defence that the action programmes ings. referred to in Article 5 of the Directive had still not been established. In addition, the Commission observes that the review of the situations in the various autonomous com- munities shows not only that the action 23. Finally, the Commission, referring to programmes have not been established in the settled case-law of the Court of Justice, many of those communities, but also that, according to which a Member State may in some of them, the vulnerable zones have not plead provisions or practices or circum- not yet even been designated. stances existing in its internal legal system in order to justify a failure to comply with the obligations and time-limits laid down in a directive, rejects the argument of the Spanish authorities that the autonomous communities, which are competent to draw up action programmes, have merely

followed the guidelines set out in Royal sion should have based its action upon the Decree No 261/1996 of 16 February 1996. failure to transpose the directive into the The Commission also infers from this that Spanish legal system in due time. Since that the transposition of the Directive is not was not done, there is no point in bringing adequate. Consequently, the Commission successive actions directed against the fail- considers that, although it has confined the ure to comply with the timetable set by the present action to proceedings for failure to Directive, which was inevitably affected by fulfil the obligation imposed by Article 5 of the initial delay, so that the Kingdom of the Directive, if the Spanish authorities Spain cannot in any way escape a ruling consider that a modification of the Royal against it. Decree transposing the Directive — and, more particularly, of the timetable laid down in the decree — would constitute an acceptable solution for the avoidance of subsequent failures to fulfil the various 26. The Kingdom of Spain states that the obligations imposed by the Directive, then autonomous communities of Andalucía, it is for them to take the appropriate Aragon, the Balearic Islands, the Canaries, measures to modify the above Decree Castille-La Mancha, Castille-León, Catalo- nia, Valencia and the Basque country have designated vulnerable zones pursuant to the obligation imposed upon them by Article 4 of Royal Decree No 261/1996 of 16 Feb- ruary 1996, such designation being a 24. The Kingdom of Spain, whilst accept- matter falling within their competence. ing that it has failed to fulfil the obligation For their part, the autonomous communi- imposed by Article 12 regarding the time- ties of Asturias, Cantabria, Extremadura, limit for the adoption of the laws, regula- Galicia, Rioja, Madrid, Murcia and tions and administrative provisions neces- Navarra have declared that there are no sary in order to comply with the Directive vulnerable zones in their respective terri- within two years of its notification, states tories. that it would have been difficult to draw up the programmes provided for in Article 5 of the Directive by the due date (December 1995), given that the transposition of the Directive in question into Spanish law did 27. Next, the Kingdom of Spain states that, not take place until March 1996, which following the publication of the Royal upset the timetable for fulfilment of the Decree transposing the Directive, an inter- successive obligations imposed by that ministerial working group was set up, Directive. composed of representatives of the compe- tent ministries, namely, the Ministry of the Environment and the Ministry of Agricul- ture, Fisheries and Food. That group laid down uniform criteria and steps to be taken by the autonomous communities as regards 25. According to the Kingdom of Spain, the official designation of their vulnerable which requests the Court of Justice to zones, this being a condition precedent to dismiss the present action and to order the drawing-up of the action programmes the applicant to pay the costs, the Commis- provided for in Article 5 of the Directive. In

29. In its rejoinder, the Kingdom of Spain states that it is unable to accept the Commission's argument that the Spanish authorities could, if need be, modify the timetable provided for in the Royal Decree, 31. It is settled case-law that the question because that Decree recapitulates, as it is whether a Member State has failed to fulfil required to do, the successive stages pre- its obligations must be determined by scribed in the Directive for setting in reference to the situation in the Member motion the various actions to which it refers. In any case, it would not be possible simultaneously to carry out actions which, 4 — See, in particular, Case 10/76 Commission v Italy [1976] ECR 1359.

I - 2831

OPINION OF MR COSMAS — CASE C-274/98

I - 2832

COMMISSION V SPAIN

programmes; as regards the Balearic own delay in transposing a directive as Islands, it is reported that a fresh study is justification for failure to fulfil, or late currently being carried out into the neces- fulfilment of, other obligations imposed by sity or otherwise of designating the area of that directive. As the Court of Justice has Sa Pobla-Muro, which had originally been held, 'a Member State may not... plead the designated as vulnerable; similarly, as fact that it has not taken the necessary regards the autonomous community of measures to implement a directive in order Andalucia, it is stated that the action to prevent the Court from dealing with an programmes are at the stage of being application for a declaration that it has drawn up by the Ministries of Agriculture failed to fulfil a specific obligation flowing and Fisheries; and finally, the rejoinder from that directive'. 6In the present case, it merely states, as regards the autonomous is quite clear from the above-mentioned region of Catalonia, that work on the judgment in Commission v Spain 7that the establishment of the action programmes delayed transposition of the Directive by has begun. Generally, it is apparent from the Kingdom of Spain does not preclude the the survey of the situation in the various bringing of an action or the making of a autonomous communities that the King- declaration that that Member State has dom of Spain, rather than fundamentally failed to fulfil the obligations imposed by denying the failure complained of by the the Directive in question. 8 Commission, is in fact seeking to highlight the various initiatives and efforts which have been made in its territory in order to render practicable the establishment of the action programmes provided for, being fully conscious of the fact that they were not established within the time-limit pre- scribed.

reason put forward by the Spanish autho- case, a distinction cannot be drawn rities. First, that timetable corresponds to between 'temporal' and 'substantive' fail- the requirements of the Directive, and, ures in the establishment of programmes. second, the proper implementation of the Inasmuch as the timetable constitutes an various specific initiatives in any event essential element of the very concept of the requires a certain period of time, which programme, 10 the failure to establish the the Royal Decree extended to February programmes on time, that is to say, the 1999. failure to observe the time-limits and, consequently, to comply with the specific timetable laid down by the directive, con- stitutes in any event a 'substantive' failure to fulfil the obligations imposed on a Member State by that directive.

I - 2834

COMMISSION V SPAIN

the appropriate initiatives within the Com- 42. As regards the fact that, in any event, munity in order to obtain the necessary the Kingdom of Spain had, and still has, the extension of the period by the competent intention of fulfilling its obligations under Community institution'. 11 Article 5 of the Directive, the following should be noted:

I - 2835

OPINION OF MR COSMAS — CASE C-274/98

VI — Conclusion

44. In consequence, I propose that the Court of Justice should:

— declare that, by not establishing within the prescribed time-limit the action programmes referred to in Article 5 of Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources, the Kingdom of Spain has failed to fulfil its obligations under that article of the Directive and under the EC Treaty;

— order the Kingdom of Spain to pay the costs.