C-435/99

COMMISSION V PORTUGAL

OPINION OF ADVOCATE GENERAL DÁMASO RUIZ-JARABO COLOMER delivered on 14 September 2000 *

1. By the action it brought on 12 Novem- Directive 84/156/EEC;9 Article 5(1) and ber 1999, the Commission seeks an order (2) of Directive 84/491/EEC;10) and Art- from the Court of Justice declaring that the icle 6(1) and (2) of Directive 86/280/ Portuguese Republic has failed to fulfil EEC, 11 as amended by Directive 90/415/ certain obligations arising under Commun- EEC. 12 ity law. The obligations in question are found in the following provisions, as worded pursuant to amendment by Arti- cle 2(1) of Directive 91/692/EEC1 (herein- after 'Directive 91/692'): Article 13(1) of Directive 76/464/EEC; 2 Article 14 of Directive 78/176/EEC, 3 as amended by 2. Under the provisions cited above, as Directive 83/29/EEC;4 Article 16 of Direc- worded pursuant to amendment by Art- tive 78/659/EEC;5 Article 16(1) of Direc- icle 2(1) of Directive 91/692: tive 80/68/EEC;6 Article 5(1) and the first subparagraph of Article 5(2) of Directive 82/176/EEC; 7 Article 5(1) and (2) of Directive 83/513/EEC; 8 Article 6(1) of

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OPINION OF MR RUIZ-JARABO — CASE C-43S/99

accordance with the procedure laid down I. The pre-litigation procedure in Article 6 of Directive 91/692/EEC. The questionnaire or outline shall be sent to the Member States six months before the start of the period covered by the report. The 5. The Portuguese Republic should have report shall be sent to the Commission sent its first report to the Commission by within nine months of the end of the three- 30 September 1996. When it failed to do year period covered by it. so, the Commission initiated the procedure laid down in Article 169 of the EC Treaty (now Article 226 EC), sending Portugal a letter of formal notice on 30 June 1998 which invited it to submit its observations The first report shall cover the period from within two months. 1993 to 1995 inclusive.

6. The Portuguese Government sent the The Commission shall publish a Commun- Commission the reports on the implemen- ity report on the implementation of the tation of Directives 75/440, 79/869 15 and Directive within nine months of receiving 79/923. 16 In the letters accompanying the the reports from the Member States.' reports the Government stated that it would send the other reports as soon as they were available. The Commission's application does not cover those directives.

3. In accordance with Article 2(2) of Directive 91/692, the text set out in para- graph 2 above was also inserted in Direc- tive 75/440/EEC 13 ('Directive 75/440') as 7. The Commission subsequently delivered Article 9a and in Directive 80/778/EEC 14 a reasoned opinion in which it highlighted as Article 17a. the fact that the Portuguese Republic had still not supplied the reports required by the remaining directives, namely: Directives 76/464, 78/176, 78/659, 80/68, 82/176, 83/513, 84/156, 84/491, 86/280 and 4. The Commission considers that the Por- 80/778. It allowed Portugal a two-month tuguese Republic has also failed to fulfil its period in which to comply with the obliga- obligations under the first paragraph of tions that the Commission complained it Article 10 EC and the third paragraph of had failed to fulfil. On 26 April 1999, in Article 249 EC. response to that opinion, the Portuguese

The report relating to Directive 80/68 is under way and will be forwarded to the Commission as soon as it is completed. Directive 78/176 on waste from the tita- nium dioxide industry, as amended by II. Examination of the action Directive 83/29, defines pollution as 'the discharge by man, directly or indirectly, of any residue from the titanium dioxide manufacturing process into the environ- 8. The Commission received no further ment, the results of which are such as to reports and claims that when Member cause hazards to human health, harm to States behave in such a way, it is prevented living resources and to ecosystems, damage from c o m p l y i n g with the o b l i g a t i o n to amenities or interference with other imposed on it by the third subparagraph legitimate uses of the environment con- of Article 2(1) of Directive 91/692 to cerned'. Since there are no commercial publish a Community report on the imple- organisations in Portugal which produce mentation of each directive within nine titanium, it is not possible to establish that months of receiving the reports from the that type of waste is discharged or dumped Member States. That is why the Commis- at sea. Nor has it been established that sion has applied for an order declaring that waste of that kind has been discharged into the Portuguese Republic has failed to fulfil surface water, or that it has been stored, its obligations. tipped or injected. For those reasons the Portuguese Government submits that it is not necessary for it to respond to the q u e s t i o n n a i r e dealing with Directive 78/176. However, the reply to that ques- tionnaire was enclosed with its defence. 9. In its defence, the Portuguese Govern- ment cites the efforts which it has made in this field, in that it has already sent the Commission all the available data relating to the substances referred to in Directives 76/464, 82/176, 83/513, 84/156, 84/491 Lastly, as regards Directive 78/659, the and 86/280 and collected for the period Portuguese Government states that data 1993 to 1998 by the authorities responsible has been collected which will be used to for monitoring the aquatic environment. It draw up the report on the implementation adds that a programme has been set in of that directive, and that the Government- motion which will enable Directive 76/464 is waiting for the designation of salmonoid to be fully implemented in Portugal within and cyprinid waters to be approved at a short time. It is confident that the data national level. Approval should be obtained collected, although not exhaustive, will during the first quarter of 2000. It asks the

11. In its rejoinder the Portuguese Republic states that, as a result of its efforts to collect 14. It is also settled case-law that whether a data, Portugal is now able to deliver to the Member State has failed to fulfil its obliga- Commission the reports required by the tions must be determined by reference to provisions of the Directives that it is alleged the situation prevailing at the end of the to have infringed and it encloses the reports period laid down in the reasoned opinion, as Annexes I, II, III and IV. The Portuguese and subsequent changes cannot be taken Republic submits that by doing this it has into account by the Court. 18It has already fully complied with the Directives, the been established that, at the end of the delay being due to differences of opinion period granted by the reasoned opinion, the with the Commission as to the interpreta- Portuguese Republic had not sent the tion of the legislation in one instance and, Commission the information requested. in general, to a lack of human, material and technical resources. For those reasons, it asks the Court to declare that the dispute has become devoid of purpose and to order the Commission pay the costs. 15. As to the difficulties encountered by a Member State in implementing directives,

17 — Case C-268/93 Commission v Spain [1994] ECR I-947, 12. The rejoinder, together with the four paragraph 6; and Case C-137/97 Commission v Italy annexes referred to above, was lodged at [1998] ECR I-605, paragraph 11. 18 — Case C-214/96 Commission v Spain [1998] ECR I-7661, the Registry of the Court of Justice on paragraph 25; Joined Cases C-232/95 and C-233/95 30 March 2000. Taking account of the fact Commission v Greece [1998] ECR I-3343, paragraph 38; and Case C-289/94 Commission v Italy [1996] ECR that the Commission has not withdrawn its I-4405, paragraph 20.

the Court has ruled that practical difficul- State's territory during the period under ties which emerge when it comes to imple- consideration, that fact must be indicated menting a Community measure cannot to the Commission in the State's report, constitute a ground for a Member State which may not be dispensed with under unilaterally to exonerate itself from ful- any circumstances. filling its obligations, 19 and that a Member State may not plead provisions, practices or circumstances 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. 20 17. Consequently, I take the view that the Commission's application is well founded and that it is appropriate to declare that the Portuguese Republic has failed to fulfil its obligations under Community law by fail- ing to provide the Commission, within the period allowed by the reasoned opinion, with the required information regarding the implementation of Directives 76/464/EEC, 78/176/EEC, 78/659/EEC, 80/68/EEC, 82/176/EEC, 83/513/EEC, 84/156/EEC, 16. I disagree with the interpretation that 84/491/EEC and 86/280/EEC. the Portuguese Government gives Arti- cle 13(1) of Directive 78/176, whereby it regards itself as exempt, on the grounds that no waste is produced by the titanium dioxide industry in Portuguese territory, from the requirement of sending the Com- mission any report at all. Article 4 clearly distinguishes between a prior authorisation III. Costs issued by the authorities of the Member State in whose territory the waste has been produced and a prior authorisation issued by the authorities of the Member State in 18. Under Article 69(2) of the Rules of whose territory the waste has been dis- Procedure, the unsuccessful party is to be charged, stored, dumped or injected or ordered to pay the costs if they have been from whose territory it has been discharged applied for in the successful party's plead- or dumped. In my opinion, the disputed ings. Since I propose that the Commission's provision imposes an equal obligation on application should be upheld and since the all Member States and, if no activities of Commission has applied for costs against that kind are carried out in a Member the Portuguese Republic, it is appropriate that the Portuguese Republic should be ordered to pay the costs of the proceedings. 19 — Case C-327/98 Commission v France [2000| ECR I-1851. paragraph 2 1 ; Case C-374/89 Commission v Belgium [1991] ECR I-367, paragraph 10; and Case 128/78 Commission v United Kingdom [1979| ECR 419, para- graph 10. 20 — Case C-166/97 Commission v france [1999] LCR I-1719, paragraph 13; Case C-214/96 Commission v Spam [1998] ECR I-7661, paragraph 18; and Case C-259/94 Commis- sion v Greece [1995] ECR I-1947, paragraph 5.

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

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