C-29/02

OPINION OF MR ALBER — CASE C-29/02

OPINION OF ADVOCATE GENERAL ALBER delivered on 5 November 2002 1

1. The Commission has applied for a 2. The Member States shall communicate declaration that, by failing to adopt or, in to the Commission the texts of the provi- any event, to communicate to the Commis- sions of national law which they adopt in sion the laws, regulations and adminis- the field covered by this directive.' trative provisions necessary to comply with Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human consumption, 2 the Kingdom of Spain has failed to fulfil its obligations under that directive. 3. The directive entered into force on 25 December 1998. It should therefore have been transposed by 25 December 2000.

2. Article 17 of Directive 98/83 provides:

4. Not having received any information regarding transposition of the directive, the Commission initiated the procedure '1. Member States shall bring into force the for failure to fulfil Treaty obligations and, laws, regulations and administrative provi- by letter of 6 April 2001, requested the sions necessary to comply with this direc- Kingdom of Spain to submit its observa- tive within two years of its entry into force. tions within two months. They shall forthwith inform the Commis- sion thereof.

5. By letter of 13 June 2001, the Spanish Government informed the Commission that the provisions of the directive were to be transposed by two royal decrees which were then being prepared. One of the 1 — Original language: German. decrees related to bottled water, the other 2 — OJ 1998 L 330, p. 32; corrigendum OJ 2001 L 111, p. 31. contained the remaining provisions.

10. Although the Spanish Government claims that the action should be dismissed, 7. By letter of 12 October 2001, the it does not dispute that the provisions Spanish Government informed the Com- necessary to transpose Directive 98/83 have mission of the stage reached in the legis- not yet come into force. It has merely lative procedure which was still in progress. explained the procedure for adoption of the two royal decrees. However, the mere initiation of the procedure for adoption of a legal measure designed to transpose a directive into national law does not suffice 8. On 1 February 2002, the Commission to fulfil the obligations under the direc- brought this action, in which it requests the tive. 4 Court to make the declaration set out in point 1 and to order the Kingdom of Spain to pay the costs of the proceedings. The Kingdom of Spain contends that the action 11. Nor are the merits of an action affected should be dismissed and the Commission by the fact that the default concerned may ordered to pay the costs. have been remedied after the expiry of the period prescribed in the reasoned opinion. 5 Therefore, even if the provisions in ques- tion had, in the meantime, come into force, that would not militate against a declar- ation that the Member State in question has failed to fulfil its obligations under the Analysis Treaty.

9. Under the first paragraph of Article 10 EC, the Member States are to take all 12. The decision on costs is to be taken in appropriate measures to ensure fulfilment accordance with Article 69(2) of the Rules of the obligations resulting from action of Procedure. taken by the institutions of the Community. Such action includes directives which, pur- suant to the third paragraph of Article 249 3 — See Case C-119/00 Commission v Luxembourg [2001] ECR I-4795, paragraph 12, and Case C-29/01 Commission v EC, are binding, as to the result to be Spain [20021 ECR I-2503, paragraph 9. achieved, upon each Member State to 4 — See Commission v Spain, cited in footnote 3, paragraph 10. which they are addressed. That obligation 5 — Case C-365/97 Commission v Italy [1999] ECR I-7773, paragraph 45, and Case C-147/00 Commission v France involves, for each Member State to which a [2001] ECR I-2387, paragraph 26.

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