C-417/99
ECLI:EU:C:2001:244
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COMMISSION v SPAIN
OPINION OF ADVOCATE GENERAL LÉGER delivered on 3 May 2001 1
1. In this action, the Commission of the I — Legal framework European Communities charges the King- dom of Spain for having failed to designate the competent authorities and bodies re- ferred to in the first paragraph of Article 3 4. The objective of the Directive is to define of Council Directive 96/62/EC of 27 Sep- the basic principles of a common strategy tember 1996 on ambient air quality assess- for the management and assessment of ment and management 2within the time- ambient air quality. limit laid down by the Directive.
5. Article 3 of the Directive, entitled 'Implementation and responsibilities' is worded as follows: 2. The Kingdom of Spain denies the infrin- gement with which it is charged and argues that the time-limit for transposition by the Member States, as prescribed in Article 11 of the Directive, has not yet expired. 'For the implementation of this Directive, the Member States shall designate at the appropriate levels the competent authori- ties and bodies responsible for:
3. The outcome of these proceedings turns — implementation of this Directive, on the interpretation of Article 11 of the Directive.
1 — Original language: French. 2 — OJ 1996 I. 296, p. 55, hereinafter 'the Directive'. •— assessment of ambient air quality,
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— approval of the measuring devices cil, on the basis of proposals by the (methods, equipment, networks, Commission, was to adopt, no later than laboratories), 31 December 1996, limit values and alert thresholds for certain atmospheric pollu- tants, such as sulphur dioxide, oxides of nitrogen, fine particulate matter such as soot, suspended particulate matter, and lead. 3 — ensuring accuracy of measurement by measuring devices and checking the maintenance of such accuracy by those devices, in particular by internal qual- ity controls carried out in accordance, inter alia, with the requirements of European quality assurance standards, 7. Pursuant to that article, the Council, on 22 April 1999, adopted Directive 1999/30/ EC relating to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter and lead in ambient air.4 — analysis of assessment methods,
8. Article 11(1) of the Directive states that: — coordination on their territory of Com- '[a]fter adoption by the Council of the first munity-wide quality assurance pro- proposal referred to in the first indent of grammes organised by the Commis- Article 4(1)... Member States shall notify to sion. the Commission the competent authorities, laboratories and bodies referred to in Article 3...'.
When they supply it to the Commission, the Member States shall make the informa- tion referred to in the first subparagraph available to the public.' 9. According to the first indent of Arti- cle 13(1) of the Directive, the Member States were to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive not
6. It follows from the first indent of 3 — These pollutants are listed in Annex I to the Directive. Article 4(1) of the Directive that the Coun- 4 — OJ 1999 L 163, p. 41.
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later than 18 months after it came into observations within a period of two months force with regard to the provisions relating from the date of receipt of that letter. to Articles 1 to 4. That period expired on 21 May 1998.
12. Faced with silence from the Kingdom of Spain, the Commission, on 11 December 10. The second indent of Article 13(1) of 1998, sent a reasoned opinion requesting it the Directive states: '[w]hen Member States to take the measures necessary to comply adopt these measures, they shall contain a with the obligations resulting from the reference to this Directive or shall be Directive within a period of two months accompanied by such a reference at the from the date of notification of that time of their official publication. The opinion. procedures for such a reference shall be adopted by Member States.'
13. By letter of 2 March 1999, the Spanish authorities denied the alleged infringement. They argued that it was impossible for them to transpose the provisions of the II — Procedural framework Directive, in so far as the contents of Articles 1, 2, 4 and 12 and of the annexes were concerned, into their national legal order, so long as the Commission had not set the limit values and alert thresholds under Article 4(1) of that Directive. Fur- thermore, as regards, specifically, the obli- A — Pre-litigation procedure gation to designate competent authorities and bodies under Article 3 of the Directive, they argued that that obligation was de- ferred until the Council had adopted spe- cific legal rules setting limit values and alert 11. Not having received a communication thresholds for atmospheric pollutants. from the Kingdom of Spain regarding the necessary measures which should have been adopted within the framework of the Directive, or any other information from which it might conclude that that Member State had adopted the provisions necessary 14. Finding the reasons for which the in order to comply with its obligations, the Kingdom of Spain considered that it did Commission sent a letter of formal notice not have to transpose the provisions of under Article 169 of the EC Treaty (now Article 3 to be unsatisfactory, the Commis- Article 226 EC) to that Member State on sion decided to bring the present proceed- 25 August 1998, inviting it to submit ings.
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B •—• Forms of order sought by the parties — order the Commission to pay the costs.
15. The Commission's application was lodged at the Court Registry on 29 October 1999. I I I— Pleas in law submitted by the Com- mission and observations of the parties
16. The Commission claims that the Court 18. The Commission states that, in view of should: the observations submitted by the Kingdom of Spain in its reply to the reasoned opinion, it is limiting the subject -matter of its action to the issue of the designation of the competent authorities and the bodies responsible for implementing the Directive, •— declare that, by failing to designate the as required under Article 3 of the Directive. competent authorities and bodies refer- red to in the first paragraph of Article 3 of Directive 96/62, the Kingdom of Spain has failed to fulfil one of its obligations under the provisions of that directive; 19. According to the Commission, the Kingdom of Spain's position is based on a misreading of Articles 3 and 11 of the Directive, which lay down different kinds of obligations. Article 3 of the Directive requires the Member States to designate at — order the Kingdom of Spain to pay the appropriate levels the competent authori- costs. ties and bodies responsible for implement- ing the Directive. Article 11 requires the Member States to communicate the list of designated authorities and bodies to the Commission.
17. The Kingdom of Spain contends that the Court should:
20. The time-limit for transposing the obli- gation in Article 3 is laid down in Arti- cle 13 of the Directive. By virtue of that article, Member States are required to bring •— dismiss the Commission's application; into force the laws, regulations and admin-
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istrative provisions necessary to comply relevant rules adopted in the matter by each with the obligation under Article 3 not of those communities. later than 18 months after it enters into force, that is, by 21 May 1998.
23. The Commission maintains its com- plaints against the Kingdom of Spain. As 21. The Kingdom of Spain maintains its regards the alternative argument put for- position on a point of principle and argues ward by the Kingdom of Spain, it points that the charge of infringement cannot out that the rules adopted by the autono- succeed while the period laid down for mous communities and presented as trans- transposition of the provisions of Article 3 posing provisions do not satisfy the obliga- of the Directive has not yet expired. In the tions laid down by Article 3 of the Direc- alternative, it maintains that it has com- tive. In that regard, it points out that those plied with the obligation under Article 3. In rules are not sufficiently precise to satisfy that regard, it explains that in Spain, from a the requirements of Article 3 of the Direc- constitutional point of view, the state and tive. It mentions further that, contrary to the autonomous communities share com- the wording of Article 13 of the Directive, petence as regards the environment. Under those national rules do not refer expressly existing national law, it falls exclusively to to the Directive. the autonomous communities, which have competence as regards the organisation, regime and functioning of their self-admin- istering institutions, to designate the bodies and authorities mentioned in Article 3 of the Directive. The central administration of the State — that is, the Directorate-Gen- eral for Quality and Assessment of the IV — Assessment Environment in the Ministry of the Envir- onment — is, for its part, responsible for ensuring at national level the coordination of the measures adopted by the autono- mous communities.
The principal arguments submitted by the Kingdom of Spain
22. The Kingdom of Spain contends that it has fulfilled the obligations under Article 3 of the Directive inasmuch as the autono- 24. The Kingdom of Spain rejects the mous communities of the Kingdom have charge of failure to transpose which has made the necessary designations. To that been made against it, maintaining princi- effect it produces a table containing the pally that the period for transposition of
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the provisions of Article 3 has not yet mance of the obligation under Article 11 expired. In so doing it relies on the could not begin to run before that date. provisions of Article 11.
25. That argument is founded on a mis- reading of the provisions of the Directive. 28. In addition, this Court has held in a line of decisions that when a directive contains different obligations which must be imple- mented within different periods, Member States which wait for the expiry of the latest period in order to implement obliga- 26. As the Commission has pointed out, it tions which could be fulfilled immediately follows from the actual wording of Arti- may find themselves charged with having cles 3 and 11 that the Directive imposes failed to fulfil their obligations under different types of obligations on the Mem- Article 169 of the Treaty. 5 ber States. First, under Article 3 of the Directive, the obligation is to designate the bodies and competent authorities for the purposes of implementation of the Direc- tive. Second, in accordance with Article 11 of the Directive, it is a question of inform- ing the Commission of these bodies or competent authorities. 29. A similar outcome is dictated by the need to avoid deferring the transposition of a directive to the adoption of the last measure necessary to complete its imple- mentation. 27. It is clear from the wording of Arti- cles 11 and 13 that those obligations must be transposed within different time-limits. Under Article 13 of the Directive, the obligation to designate the authorities which are empowered for that purpose must be transposed not later than 18 months after the entry into force of the 30. It follows from the foregoing that the Directive. In contrast, the obligation to Kingdom of Spain should have transposed inform the Commission of the execution of the provisions at issue at the latest by the requirements in Article 3 of the Direc- 21 May 1998. Its argument that it cannot tive is, under Article 11, subject to the be charged with failing to fulfil the obliga- adoption by the Council of limit values and tions under Article 3 of the Directive since alert thresholds for certain pollutants listed the Council had not adopted limit values in Annex I. As those measures were adopted on 22 April 1999 in Directive 5 — See Case C-137/96 Commission v Germany [1997] 1999/30, the period prescribed for perfor- ECR 1-6749, paragraph 10.
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and alert thresholds for certain pollutants is requires a positive act of transposition, and therefore unfounded. especially when it expressly requires that the transposition measures adopted by the Member States contain a reference to the directive or that they be accompanied by such a reference at the time of their official publication, the Member State that does not comply with that requirement may be The alternative arguments submitted by the charged with having failed to comply with Kingdom of Spain its obligations under that directive.
31. The existence of an infringement must be assessed in relation to the situation prevailing in the Member State at the end of the period laid down in the reasoned 34. Contrary to the assertions of the King opinion. Changes which have occurred dom of Spain, it is obvious that, on the subsequently cannot be taken into account expiry of the period laid down in the by the Court. 6In the present case, this reasoned opinion, the Spanish authorities period was two month from the date of had not designated the competent autho notification of the reasoned opinion, issued rities under Article 3 of the Directive. The by letter of 11 December 1998. rules presented by the Kingdom of Spain as transposing the obligations under Article 3 of the Directive do not satisfy the require ments of that article.
32. In addition, national transposition measures must be sufficiently clear and precise to enable individuals to ascertain their rights and obligations. 7 Thus, a provision which implicitly lays down an obligation, makes a recommendation or 35. It is clear from the express terms of imposes a penalty does not ensure the full Article 3 of the Directive that the compe implementation of a directive in a suffi tent authorities which must be designated ciently clear and precise manner. by the Member States are assigned specific tasks necessitating different kinds of administrative and technical competence. Thus, it is expressly provided that the authorities to be designated will be respon 33. Similarly, in accordance with settled sible for: 8 case-law of this Court, when a directive
6 — See, for example. Case C-3/96 Commission v Netherlands Į19981 ECR I-3031, paragraph 36. 7 — See, for example. Case C-221/94 Commission v Luxem bourg [1996] LCR I-5669, paragraph 22. S — See, particularly. Case C-361/95 Commission v Sfmin 11997] UCR I-7351, paragraph 15. — implementation of the Directive,
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— assessment of ambient air quality, the provisions of Article 169 of the Treaty. 9
— approval of measuring devices (meth- ods, networks, equipment, labora- 37. In addition, it clearly follows from tories), Article 13(1) of the Directive that the Directive provides that transposition provi- sions relating in particular to Article 3 must contain 'a reference to this Directive or [be] accompanied by such a reference at the time of their official publication.' The rules — internal quality control, relied on by the Kingdom of Spain — that is, those adopted by the autonomous com- munities — do not satisfy that require- ment.
— analysis of assessment methods.
38. It follows from the foregoing consid- erations that, by failing to adopt within the prescribed period the laws, regulations and 36. In the light of the explanations provi- administrative provisions necessary to com- ded and the documents produced by the ply with Article 3 of the Directive, the Kingdom of Spain, the rules adopted by the Kingdom of Spain has failed to comply autonomous communities do not meet with its obligations under the Directive. those requirements, in particular because of their lack of precision in relation to the wording of the Directive. Thus, they make no mention of the specific tasks devolving on the various authorised or approved bodies. Furthermore, whatever may be the rules in the matter of organisation or 39. Under Article 69(2) of the Rules of competence in force on Spanish territory, Procedure, the unsuccessful party is to be the Kingdom of Spain is required, in ordered to pay the costs, if they have been accordance with the provisions of Arti- applied for in the successful party's plead- cle 189 of the EC Treaty (now Article 249 ings. As the Commission has applied for EC), to ensure the exact and complete costs and the Kingdom of Spain has been implementation of the Directive. Therefore, unsuccessful, the latter must be ordered to that State's explanation that the autono- pay the costs. mous communities have exclusive compe- tence to ensure the transposition of Arti- 9 — See, in particular, Case C-423/99 Commission v Italy [2000] cle 3 of the Directive cannot exempt it from ECR I-11167, paragraph 10.
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Conclusion
40. For the reasons set out above, I propose that the Court should:
— declare that, by failing to adopt, within the period prescribed for that purpose, the laws, regulations and administrative provisions necessary to comply with the first paragraph of Article 3 of Council Directive 96/62/EC of 27 September 1996 on ambient air quality assessment and management and, in particular, by not designating the competent authorities and bodies referred to in that article, the Kingdom of Spain has failed to fulfil its obligations under the provisions of that directive;
— order the Kingdom of Spain to pay the costs.
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