OPINION OF ADVOCATE GENERAL

ALBER delivered on 6 March 2003 (1)

((Failure of a Member State to fulfil its obligations – Conservation of wild birds – Implementation of the duty to report pursuant to Article 12(1) of Directive 79/409/EEC))

I ─ Introduction

1. In the present action for failure to fulfil obligations, Portugal is accused of having failed to implement or at least of having 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.

II ─ Legislative background

III ─ Pre-litigation procedure

5. The Portuguese Republic replied in a letter of 14 June 2000 that a working party had been set up to investigate the questions raised by the Commission.

8. Having received no information regarding the implementation of the Directives the Commission decided to bring the present action on 4 March 2002.

IV ─ Limitation of the subject-matter of the dispute to be examined

10. In an action for failure to fulfil obligations 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 concerned no longer denies the breach. (4)

11. Doubts subsist regarding the justification for the submissions of the Commission in support of its complaint of failure to implement Article 12(1) of Directive 79/409 into national law. I shall therefore only examine this complaint.

V ─ The complaint of failure to implement Article 12 of Directive 79/409

12. The Commission is of the opinion that the provision should be transposed into national law. The reports enable the Commission to regularly monitor the success achieved through implementation of the national provisions taken under Directive 79/409.

13. Under Article 249(3) EC, directives are binding on Member States as to the result to be achieved, but leave to the national authorities the choice of form and methods. The result to be achieved which is binding under Article 12(1) of Directive 79/409 is the regular production of a report and its submission to the Commission. This provision is therefore substantive, and as such requires implementation in national law.

14. The choice of form and methods by which to achieve the binding result is left to the national authorities. The Commission considers that the arrangements should include the appointment of the competent authorities for preparation of the report and its submission to the Commission.

15. The Commission confirms that it received Portugal's report covering the period 1993/1995 in October 1998, the report for 1996/1998 in November 2000 and that for 1999/2001 in October 2002.

16. The Commission takes the view that the judgment in the Case Commission v Belgium (5) confirms its legal position. In this judgment the Court ruled that in the absence of a provision in national law which lays down adequate detailed rules concerning information on the compensatory measures adopted by the Région de Bruxelles-Capitale, ... it is not possible to ensure that the second sentence of the first subparagraph of Article 6(4) of the Directive has full effect and attains its objective. Uncertainty at the domestic level concerning the procedure to be followed in order to comply with the obligation to inform is likely to hinder compliance with that obligation and, consequently, the attainment of its objective, as recalled in paragraph 20 of the present judgement.

17. The Commission is seeking to apply these arguments in relation to Article 6(4)(1) of Directive 92/43 by analogy to the obligation imposed by Article 12(1) of Directive 79/409.

VI ─ Applications of the parties

18. The Commission claims that the Court should:

(1) declare that

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, Article 8 and Article 12 of Directive 79/409/EEC; and

─

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

─

Article 2, Article 4(1), Article 4(4) and Article 6 of Directive 79/409/EEC,

the Portuguese Republic has failed to fulfil its obligations under Article 23 of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora and Article 18 of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds;

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

19. The Portuguese Republic claims that the Court should:

wait until the revised version of draft bill No 140/99 is published in June 2002 and declare the case settled following notification of the publication in question;

─

order the Commission to pay the costs.

VII ─ Analysis

21. Whilst legislative action on the part of each Member State is not necessarily required in order to achieve this, it is essential for national law to guarantee that 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)

22. The specific requirements for implementation 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 national provisions taken thereunder. The fact that Portugal produced these reports and forwarded them to the Commission is not disputed. The result made binding in the provision has therefore been achieved by this Member State in the past.

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 implementing Article 12(1) of Directive 79/409 to be taken, which appoint the competent authorities for production and forwarding of the report.

24. For the sake of completeness I would mention at this point that in its application the Commission has surprisingly not pleaded that there has been no implementation of the parallel provision under Article 17(1) of Directive 92/43, under which Member States are required to draw up a report every six years on the implementation of the measures taken under the Habitats Directive and to forward the same to the Commission.

25. The adoption of national implementing measures which appoint the competent authorities for production and forwarding of the report is unquestionably capable of leading to the result made binding under Article 12(1). Reservations might, however, arise over the assumption of a legal obligation to adopt such measures in the light of the principle of proportionality. It is questionable whether the adoption of such measures is necessary in the light of the case-law cited (8) above.

26. It would appear that the Court has not yet ruled on the need for the adoption of national implementing measures in relation to reporting obligations such as those contained in Article 12(1) of Directive 79/409. It has however deemed the adoption of such measures necessary in relation to requirements to inform where the information communicated by Member States has formed the basis of monitoring and possible individual intervention by the Commission, that is to say where the Commission has the opportunity of becoming involved.

27. In Commission v Germany, which concerned the obligation under Article 9(1) and Article 10(3) of Council Directive 80/778/EEC of 15 July 1980, to provide information relating to the quality of water 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 Drinking Water Regulation granted individually fulfil the conditions of the Directive. The Court found that the Directive required the adoption of measures enabling the competent national authorities to provide information to the Commission in accordance with the Directive, that is to say, inter alia, within the prescribed time-limits. (10)

which concerned the requirement to inform in relation to compensatory measures under the second sentence of Article 6(4)(1) of Directive 92/43. It considered that this provision was only guaranteed full effect where national implementing measures established the competent department and the procedure to be adhered to. The Court found that uncertainty at national level with respect to the procedure to be adopted in order to fulfil this requirement to inform impairs observance of this requirement and consequently achievement of the result sought by the requirement to inform. This result consists of enabling the Commission to <i>consider</i> whether the compensatory measures adopted are such as to ensure that the overall coherence of Natura 2000 is protected and, depending on the circumstances, to draw the appropriate conclusions. (11)

Both judgments were concerned with communication of failure to achieve the results required by the directive in question in individual cases. In the first case the generally admissible maximum quantities of pollutants in drinking water were exceeded by way of an exception. In the second case projects were undertaken which were fundamentally incompatible with the results to be achieved by Directive 92/43. The information enabled the Commission to consider the individual case and, depending on the circumstances, to intervene.

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 <i>monitoring</i> an exceptional decision and, depending on the circumstances, of individual <i>intervention.</i> It rather involves a regular report summarising developments in a Member State. The legal situation in this case is not therefore comparable with that of the two cases on which the Court has ruled. These two judgments are therefore without prejudice to any interpretation of Article 12(1) of Directive 79/409.

In addition to the duty to report under Article 12(1) of Directive 79/409, Article 18(2) contains a duty to inform, under which Member States are required to communicate to the Commission the texts of the main provisions of national law which they adopt in the field governed by this directive. All directives adopted by the Community contain an equivalent duty to inform, which serves the Commission as a means of <i>monitoring</i> whether the directives have been implemented within the prescribed time-limit. There would not, however, appear to be any case-law, even in 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 authority for communicating this information.

The scope of the obligation to implement under Article 12(1) of Directive 79/409 must therefore be identified through interpretation of the provision in question.

The national reports to be produced on this basis are to be prepared every three years, starting from the date of expiry of the time-limit referred to in Article 18(1), and must contain details of the implementation of national provisions taken thereunder. They are consequently closely associated with the duty to inform under Article 18(2) of the Directive. The reports consequently regularly state the result and effect of the implementation provisions adopted.

The national reports serve as basis for the composite report to be prepared by the Commission every three years under Article 12(2) of the Directive. It would appear that the Commission has to date produced three reports, namely for the period 1981-1991 with a supplement for 1992, (12) for the period 1993-1995 (13) and 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 simply evaluate the way the situation has developed with reference to the Community as a whole or in all Member States taken together, rather than with reference to individual Member States.

These arguments lead me to the finding that, unlike the duties to report which were the subject of the two judgments cited above, the national reports produced in accordance with Article 12(1) of Directive 79/409 do not at least serve to allow individual monitoring by the Commission where there is derogation from the provisions laid down in the Directive.

However this does not mean that the Commission does not also use these reports within the context of the obligation incumbent on it under Article 211 EC, to ensure that the provisions of the Treaty and the measures taken by the institutions pursuant thereto are applied. The Commission should quite specifically use the national reports as a source when preparing its annual reports on monitoring the application of Community law. (15) This is not however the primary purpose for which the national reports based on Article 12 of Directive 79/409 are to be prepared.

On the contrary, the reports to be forwarded under Article 12(1) of Directive 79/409 serve to appraise developments within the Community as a whole as regards the achievement of the result of the protection of birds required by the Directive. To this end the results achieved by the provisions implemented in the individual Member States are collated. The purpose of the duty to report is therefore to enable a political evaluation of the effects of the given Community legislation by the competent authorities, namely by the Member States, the European Parliament and the Council. In the light of its content and purpose the duty has a political function.

In terms of legal order it should meanwhile be noted that, according to settled case-law, the identity of the national authority involved is fundamentally irrelevant. It is incumbent on each individual Member State to fulfil its obligations under Community legislation and it may not plead situations, national provisions, practices or circumstances in order to justify a failure to comply. (16) In essence therefore, Community 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 the point of view of Community legislation is that failure to appoint the competent authority should not make it impossible to fulfil the duties to inform or report under Community legislation, and only in such a case would the full operative effect of Directive provisions no longer be guaranteed.

This legal principle also appears to underlie the two judgments cited above, which concern the Drinking Water Directive 80/778 and the Habitats Directive 92/43. In both cases it was found that failure to appoint the competent authorities rendered it impossible to fulfil the duty to inform laid down in the Directive in question. (17)

In this respect too, the present case differs substantially from these two judgments. The Commission has confirmed that in the past, Portugal has prepared and forwarded the reports, which would at least imply that Portuguese legislation actually makes provision for the implementation in full of Article 12(1) of Directive 79/409 by the national authorities.

In contrast to the two cited judgments, there is no evidence in the present case that the legislative situation pertaining in Portugal is inadequate to achieve the result required by Article 12(1) of Directive 79/409. According to settled case-law, in proceedings for failure to fulfil an obligation, it is incumbent on the Commission to prove that the obligation has not been fulfilled and to place before the Court the evidence necessary to enable it to determine whether that is the case. (18)

The defence that an administrative practice, in this case embodied in the forwarding of the reports, does not, according 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 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 arise out of the need for the beneficiaries of the Directive to enjoy sufficient legal precision and clarity. (21) Article 12(1) of Directive 79/409 only governs relations between Member States and the Commission and does not relate to the rights of third parties.

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 Commission's application must however be upheld.

VIII ─ Costs

Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Portuguese Republic has essentially been unsuccessful in its submissions, it must be ordered to pay the costs as the Commission has applied for costs.

IX ─ Conclusion

In the light of the foregoing, I conclude that there is no obligation to implement Article 12(1) of Directive 79/409/EEC into national legislation. It is sufficient for the reports to be forwarded to the Commission.

I propose that the Court should:

(1) declare that

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

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

Article 2, Article 4(1), Article 4(4) and Article 6 of Directive 79/409/EEC,

the Portuguese Republic failed to fulfil its obligations under Article 23 of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora and Article 18 of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds;

(2) dismiss the remainder of the application;

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

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1 – Original language: German.

2 – OJ 1979 L 103, p. 1.

3 – OJ 1992 L 206, p. 7.

4 – See Case C-243/89 <i>Commission</i> v <i>Denmark</i> [1993] ECR I-3353, paragraph 30, and Case C-439/99 <i>Commission</i> v <i>Italy</i> [2002] ECR I-305, paragraph 20.

5 – See Case C-324/01 <i>Commission</i> v <i>Belgium</i> [2002] ECR I-11197, paragraph 21.

6 – See Case C-336/97 <i>Commission</i> v <i>Italy</i> [1999] ECR I-3371, paragraph 19, Case C-97/00 <i>Commission</i> v <i>France</i> [2001] ECR I-2053, paragraph 9 and Case C-478/99 <i>Commission</i> v <i>Sweden</i> [2002] ECR I-4147, paragraph 15; see also Case C-324/01 (cited in footnote 5), paragraph 18.

7 – See Case C-365/93 <i>Commission</i> v <i>Greece</i> [1995] ECR I-499, paragraph 9 and Case C-144/99 <i>Commission</i> v <i>Netherlands</i> [2001] ECR I-3541, paragraph 17; see also Case C-478/99 (cited in footnote 6), paragraph 18.

8 – See footnote 6.

9 – OJ 1980 L 229, p. 11.

10 –

See Case C-237/90 <i>Commission</i> v <i>Germany</i> [1992] ECR I-5973, paragraph 28 et seq.

11 –

See Case C-324/01 (cited in footnote 5), paragraph 20 et seq.

12 –

COM/1993/572 of 24 November 1993.

13 –

COM(2000)018 final of 29 March 2000.

14 –

COM(2002)146 final of 25 March 2002.

15 –

See for example the Nineteenth annual report on monitoring the application of community law (2001) of 28 June 2002, COM(2002) 324 final, in which point 2.8.6 Nature on pages 56 to 58 deals with the transposition of Directive 79/409 in Member States.

16 –

See for example Case C-423/00 <i>Commission</i> v <i>Belgium</i> [2002] ECR I-593, paragraph 16, and the case-law cited.

17 –

See Case C-237/90 (cited in footnote 10), paragraph 29: ... absence of measures enabling ... to provide information ... to the Commission ...; less forcefully in Case C-324/01 (cited in footnote 5), paragraph 21: ... uncertainty ... concerning the procedure to be followed in order to comply with the obligation to inform ....

18 –

See Case C-159/94 <i>Commission</i> v <i>France</i> [1997] ECR I-5815, paragraph 102, Case C-96/98 <i>Commission</i> v <i>France</i> [1999] ECR I-8531, paragraph 36 and Case C-337/98 <i>Commission</i> v <i>France</i> [2000] ECR I-8377, paragraph 45.

19 –

See Case C-159/99 <i>Commission</i> v <i>Italy</i> [2001] ECR I-4007, paragraph 32 and Case C-254/00 <i>Commission</i> v <i>Netherlands</i> [2001] ECR I-7567, paragraph 7.

20 –

See Case 29/84 <i>Commission</i> v <i>Germany</i> [1985] ECR 1661, paragraph 28 and Case C-315/98 <i>Commission</i> v <i>Italy</i> [1999] ECR I-8001, paragraph 10; Case C-365/93 (cited in footnote 7), paragraph 9; Case C-144/99 (cited in footnote 7), paragraph 17; Case C-478/99 (cited in footnote 6), paragraph 18.

21 –

See Case C-365/93 (cited in footnote 7), paragraph 9, Case C-144/99 (cited in footnote 7), paragraph 17 and Case C-478/99 (cited in footnote 6), paragraph 18.