C-72/02

COMMISSION v PORTUGAL

OPINION OF ADVOCATE GENERAL ALBER delivered on 6 March 2003 1

I — Introduction II — Legislative background

3. The duty to report in question is laid down in Article 12(1) of Council Directive 1. In the present action for failure to fulfil 79/409/EEC of 2 April 1979 on the con- obligations, Portugal is accused of having servation of wild birds (hereinafter Direc- failed to implement or at least of having tive 79/409), 2which reads as follows: failed to implement correctly a number of provisions of the Habitats Directive and of the Directive on the conservation of wild birds. Since Portugal has not denied this breach of obligations, these points do not require further consideration. 'Member States shall forward to the Com- mission every three years, starting from the date of expiry of the time limit referred to in Article 18(1), a report on the implemen- tation of national provisions taken there- under.'

2. The action for failure to fulfil obli- gations however raises the question of the extent to which an obligation incumbent on Member States that is laid down in a directive, to forward to the Commission at regular intervals a report on the imple- mentation of the national provisions of III — Pre-litigation procedure Member States taken under the directive in question, necessitates the adoption of national implementation measures, for example in the form of the appointment of the competent authority, or whether 4. On 4 April 2000, the Commission sent a submission of the reports suffices. That letter before action to the Portuguese question must therefore be examined sep- Republic, in which it made observations arately. on Decree-Law No 140/99 of 24 April

5. The Portuguese Republic replied in a 9. Portugal does not deny the breach of letter of 14 June 2000 that a working party obligations of which it is accused. It cites had been set up to investigate the questions the dissolution of the Government and the raised by the Commission. national parliamentary elections as excuses for the delayed transposition of the Direc- tives and makes reference to draft bill No 140/99 of 14 April 1999, which is intended to make good its breach of obligations in this respect. 6. On 30 January 2001 the Commission sent the Portuguese Republic a reasoned opinion, in which it repeated its accu- sations and set it a deadline of two months to remedy the breaches to which the 10. In an action for failure to fulfil obli- complaint related. gations brought by the Commission under Article 226 EC, the expediency of which is a matter for the Commission alone to judge, it is for the Court to determine whether or not the alleged breach of obligations exists, even if the State con- 7. The Portuguese Government replied in a cerned no longer denies the breach. 4 letter of 31 May 2001 that a new Decree- 4 — See Case C-243/89 Commission v Denmark [1993] ECR I-3353, paragraph 30, and Case C-439/99 Commis- 3 —OJ 1992 L 206, p. 7. sion v Italy [2002] ECR I-305, paragraph 20.

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COMMISSION v PORTUGAL

11. Doubts subsist regarding the justifi- the national authorities. The Commission cation for the submissions of the Commis- considers that the arrangements should sion in support of its complaint of failure to include the appointment of the competent implement Article 12(1) of Directive authorities for preparation of the report 79/409 into national law. I shall therefore and its submission to the Commission. only examine this complaint.

17. The Commission is seeking to apply t h e s e a r g u m e n t s in r e l a t i o n t o

14. The choice of form and methods by 5 — See Case C-324/01 Commission v Belgium [2002] ECR which to achieve the binding result is left to I-11197, paragraph 21.

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OPINION OF MR ALBER — CASE C-72/02

Article 6(4)(1) of Directive 92/43 by anal- 2. by failing to implement correctly ogy to the obligation imposed by Article 12(1) of Directive 79/409.

— Article 1, Article 6(3), Article 6(4), Article 12(1)(d), Article 6(1) and A r t i c l e 6(2) of D i r e c t i v e 92/43/EEC,

COMMISSION v PORTUGAL

V I I— Analysis 22. The specific requirements for imple- mentation of the provisions laid down in a directive are not abstract, but may be ascertained through interpretation of the provision in question. Article 12(1) of Directive 79/409 obliges Member States to forward to the Commission every three years a report on the implementation of 20. Under the third paragraph of national provisions taken thereunder. The Article 249 EC a directive is binding, as fact that Portugal produced these reports to the result to be achieved, upon each and forwarded them to the Commission is Member State to which it is addressed, but not disputed. The result made binding in leaves to the national authorities the choice the provision has therefore been achieved of form and methods used to achieve it. by this Member State in the past. Under the Court's case-law, that obligation implies, for each Member State to which a directive is addressed, adopting, within the framework of its national legal system, all the measures necessary to ensure that the directive is fully effective, in accordance with the objective which it pursues. 6

23. The Commission nevertheless takes the view that Portugal has failed to fulfil its obligations arising out of the Treaty and the Directive. In addition to the submission as such of the reports in question, the Directive requires national measures imple- 21. Whilst legislative action on the part of menting Article 12(1) of Directive 79/409 each Member State is not necessarily to be taken, which appoint the competent required in order to achieve this, it is authorities for production and forwarding essential for national law to guarantee that of the report. the national authorities will effectively apply the directive in full, that the legal position under national law should be sufficiently precise and clear and that individuals are made fully aware of their rights and, where appropriate, may rely on them before the national courts. 7

Article 17(1) of Directive 92/43, under 27. In Commission v Germany, which which Member States are required to draw concerned the obligation under Article 9(1) up a report every six years on the imple- and Article 10(3) of Council Directive mentation of the measures taken under the 80/778/EEC of 15 July 1980, to provide Habitats Directive and to forward the same information relating to the quality of water to the Commission. intended for human consumption,9 the Court found that the requirement was intended to afford the Commission the opportunity to monitor the authorised derogation from the maximum values and if applicable to permit these to be exceeded individually and to enable the Commission to assess whether derogations from the 25. The adoption of national implementing Drinking Water Regulation granted indi- measures which appoint the competent vidually fulfil the conditions of the Direc- authorities for production and forwarding tive. The Court found that the Directive of the report is unquestionably capable of required the adoption of measures enabling leading to the result made binding under the competent national authorities to pro- Article 12(1). Reservations might, however, vide information to the Commission in arise over the assumption of a legal obli- accordance with the Directive, that is to gation to adopt such measures in the light say, inter alia, within the prescribed time- of the principle of proportionality. It is limits. 10 questionable whether the adoption of such measures is necessary in the light of the case-law cited 8 above.

31. In addition to the duty to report under 29. Both judgments were concerned with Article 12(1) of Directive 79/409, communication of failure to achieve the Article 18(2) contains a duty to inform, results required by the directive in question under which Member States are required to in individual cases. In the first case the communicate to the Commission the texts generally admissible maximum quantities of the main provisions of national law of pollutants in drinking water were which they adopt in the field governed by exceeded by way of an exception. In the this directive. All directives adopted by the second case projects were undertaken Community contain an equivalent duty to which were fundamentally incompatible inform, which serves the Commission as a with the results to be achieved by Directive means of monitoring whether the directives 92/43. The information enabled the Com- have been implemented within the pre- mission to consider the individual case and, scribed time-limit. There would not, how- depending on the circumstances, to inter- ever, appear to be any case-law, even in vene. relation to this duty to inform which is typical of Community law, on the question of whether such provisions necessitate the adoption of implementing measures such as the appointment of the competent auth- ority for communicating this information. 30. It seems doubtful that this case-law can be applied to the present case. In contrast to the two reported rulings, the Member States' duty to report under Article 12(1) of Directive 79/409 is not intended to give the Commission the opportunity of monitoring an exceptional decision and, depending on the circumstances, of individual interven- 32. The scope of the obligation to imple- tion. It rather involves a regular report ment under Article 12(1) of Directive 79/409 must therefore be identified through interpretation of the provision in 11 — See Case C-324/01 (cited in footnote 5), paragraph 20 et seq. question.

36. However this does not mean that the Commission does not also use these reports within the context of the obligation incum- bent on it under Article 211 EC, to ensure that the provisions of the Treaty and the measures taken by the institutions pursuant 34. The national reports serve as basis for thereto are applied. The Commission the composite report to be prepared by the should quite specifically use the national Commission every three years under reports as a source when preparing its Article 12(2) of the Directive. It would annual reports on monitoring the appli- appear that the Commission has to date cation of Community law. 15 This is not produced three reports, namely for the however the primary purpose for which the period 1981-1991 with a supplement for national reports based on Article 12 of 1992, 12 for the period 1993-1995 13 and Directive 79/409 are to be prepared. for the period 1996-1998. 14 The content of these reports is purely descriptive, detailing the main differences in comparison with the previous report from the Commission, based on the information forwarded by the Member States. The Commission does not individually consider the changes which Member States have communicated to it and which it has summarised. Its reports 37. On the contrary, the reports to be simply evaluate the way the situation has forwarded under Article 12(1) of Directive developed with reference to the Commu- 79/409 serve to appraise developments nity as a whole or in all Member States within the Community as a whole as taken together, rather than with reference regards the achievement of the result of to individual Member States. the protection of birds required by the

40. In this respect too, the present case differs substantially from these two judg- 38. In terms of legal order it should mean- ments. The Commission has confirmed that while be noted that, according to settled in the past, Portugal has prepared and case-law, the identity of the national auth- forwarded the reports, which would at least ority involved is fundamentally irrelevant. imply that Portuguese legislation actually It is incumbent on each individual Member makes provision for the implementation in State to fulfil its obligations under Com- full of Article 12(1) of Directive 79/409 by munity legislation and it may not plead the national authorities. situations, national provisions, practices or circumstances in order to justify a failure to comply. 16 In essence therefore, Commu- nity legislation does not lay down criteria to indicate whether and how competent national authorities are to be appointed by Member States. The decisive criterion from 41. In contrast to the two cited judgments, the point of view of Community legislation there is no evidence in the present case that is that failure to appoint the competent the legislative situation pertaining in Por- authority should not make it impossible to tugal is inadequate to achieve the result fulfil the duties to inform or report under Community legislation, and only in such a V — See Case C-237/90 (cited in footnote 10), paragraph 29: '... absence or measures enabling... to provide information... to the Commission...'; less forcefully in Case C-324/01 (cited in footnote 5), paragraph 21: '... uncertainty... 16 — See for example Case C-423/00 Commission v Belgium concerning the procedure to he followed in order to [20021 ECR I-593, paragraph 16, and the case-law cited. comply with the obligation to inform...'.

43. Hence no failure to fulfil obligations under Article 12(1) of Directive 79/409 can be found in this case, and on this head the case must be dismissed. With respect to the other claims, which are not disputed, the 42. The defence that an administrative Commission's application must however be practice, in this case embodied in the upheld. forwarding of the reports, does not, accord- ing to settled case-law, 19 satisfy the requirements of correct implementation of a directive, is not capable of altering this result. That case-law is based on the principle that the legal situation resulting from national implementing measures must be sufficiently precise and clear and that individuals must be made fully aware of their rights. 20 Article 12(1) of Directive V I I I — Costs 79/409 only however relates to relations between the Commission and Member States. The legal situation as it relates to the Commission, which is the beneficiary of this provision, is, however, sufficiently clear. In the present case, the need for national implementation measures does not 44. Under Article 69(2) of the Rules of arise out of the need for the beneficiaries of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's plead- 18 —See Case C-159/94 Commission v France [1997] ings. Since the Portuguese Republic has ECR I-5815, paragraph 102, Case C-96/98 Commission v France [1999] ECR I-8531, paragraph 36 and Case essentially been unsuccessful in its sub- C-337/98 Commission v France [2000] ECR I-8377, missions, it must be ordered to pay the paragraph 45. 19 — See Case C-159/99 Commission v Italy [2001] ECR I-4007, costs as the Commission has applied for paragraph 32 and Case C-254/00 Commission v Nether- costs. lands [2001] ECR I-7567, paragraph 7. 20 — See Case 29/84 Commission v Germany [1985] ECR 1661, paragraph 28 and Case C-315/98 Commission v Italy [1999] ECR I-8001, paragraph 10; Case C-365/93 (cited in footnote 7), paragraph 9; Case C-144/99 (cited in 21 — See Case C-365/93 (cited in footnote 7), paragraph 9, Case footnote 7), paragraph 17; Case C-478/99 (cited in C-144/99 (cited in footnote 7), paragraph 17 and Case footnote 6), paragraph 18. C-478/99 (cited in footnote 6), paragraph 18.

1. by failing to implement the following provisions in national law:

—Article 3(3), Article 10, Article 11 and Article 12(4) of Directive 92/43/EEC;

—Article 7 and Article 8 of Directive 79/409/EEC; and

2. by failing to implement correctly

—Article 1, Article 6(3), Article 6(4), Article 12(1 )(d), Article 6(1) and Article 6(2) of Directive 92/43/EEC, I - 6609

OPINION OF MR ALBER — CASE C-72/02