22 June 2016 (*1)

22 June 2016 (*1)

‛Failure of a Member State to fulfil obligations — Directive 91/271/EEC — Urban waste water treatment — Judgment of the Court establishing a failure to fulfil obligations — Non-compliance — Article 260(2) TFEU — Financial penalties — Lump sum payment and penalty payment’

‛Failure of a Member State to fulfil obligations — Directive 91/271/EEC — Urban waste water treatment — Judgment of the Court establishing a failure to fulfil obligations — Non-compliance — Article 260(2) TFEU — Financial penalties — Lump sum payment and penalty payment’

In Case C‑557/14,

In Case C‑557/14,

ACTION for failure to fulfil obligations under Article 260(2) TFEU, brought on 4 December 2014,

ACTION for failure to fulfil obligations under Article 260(2) TFEU, brought on 4 December 2014,

European Commission, represented by G. Braga da Cruz and E. Manhaeve, acting as Agents, with an address for service in Luxembourg,

European Commission, represented by G. Braga da Cruz and E. Manhaeve, acting as Agents, with an address for service in Luxembourg,

applicant,

applicant,

Portuguese Republic, represented by L. Inez Fernandes, J. Reis Silva and J. Brito e Silva, acting as Agents,

defendant,

Portuguese Republic, represented by L. Inez Fernandes, J. Reis Silva and J. Brito e Silva, acting as Agents,

THE COURT (Third Chamber),

defendant,

composed of L. Bay Larsen (Rapporteur), President of the Chamber, A. Tizzano, Vice-President of the Court, acting as a Judge of the Third Chamber, D. Šváby, J. Malenovský, and M. Vilaras, Judges,

THE COURT (Third Chamber),

Advocate General: J. Kokott,

composed of L. Bay Larsen (Rapporteur), President of the Chamber, A. Tizzano, Vice-President of the Court, acting as a Judge of the Third Chamber, D. Šváby, J. Malenovský, and M. Vilaras, Judges,

Registrar: M. Ferreira, Principal Administrator,

Advocate General: J. Kokott,

having regard to the written procedure and further to the hearing on 21 January 2016,

Registrar: M. Ferreira, Principal Administrator,

after hearing the Opinion of the Advocate General at the sitting on 25 February 2016,

gives the following

having regard to the written procedure and further to the hearing on 21 January 2016,

after hearing the Opinion of the Advocate General at the sitting on 25 February 2016,

gives the following

By its application, the European Commission claims that the Court should:

declare that, by failing to take all the measures necessary to comply with the judgment of 7 May 2009 in Commission v Portugal (C‑530/07, EU:C:2009:292), the Portuguese Republic has failed to fulfil its obligations under Article 260(1) TFEU;

By its application, the European Commission claims that the Court should:

—declare that, by failing to take all the measures necessary to comply with the judgment of 7 May 2009 in Commission v Portugal (C‑530/07, EU:C:2009:292), the Portuguese Republic has failed to fulfil its obligations under Article 260(1) TFEU;

order the Portuguese Republic to pay the Commission a penalty payment of EUR 20196 per day of delay in complying with the judgment of 7 May 2009 in Commission v Portugal (C‑530/07, EU:C:2009:292), from the day of delivery of the judgment in the present case until the date on which the judgment of 7 May 2009 in Commission v Portugal (C‑530/07, EU:C:2009:292) is complied with;

—order the Portuguese Republic to pay the Commission a penalty payment of EUR 20196 per day of delay in complying with the judgment of 7 May 2009 in Commission v Portugal (C‑530/07, EU:C:2009:292), from the day of delivery of the judgment in the present case until the date on which the judgment of 7 May 2009 in Commission v Portugal (C‑530/07, EU:C:2009:292) is complied with;

order the Portuguese Republic to pay the Commission a lump sum payment of EUR 2244 per day, from the day of delivery of the judgment of 7 May 2009 in Commission v Portugal (C‑530/07, EU:C:2009:292) until the day of delivery of the judgment in the present case or until the day on which the judgment of 7 May 2009 (C‑530/07, EU:C:2009:292) is complied with in full, whichever is sooner; and

—order the Portuguese Republic to pay the Commission a lump sum payment of EUR 2244 per day, from the day of delivery of the judgment of 7 May 2009 in Commission v Portugal (C‑530/07, EU:C:2009:292) until the day of delivery of the judgment in the present case or until the day on which the judgment of 7 May 2009 (C‑530/07, EU:C:2009:292) is complied with in full, whichever is sooner; and

—order the Portuguese Republic to pay the costs.

order the Portuguese Republic to pay the costs.

Legal context

Legal context

According to Article 1 thereof, Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment (OJ 1991 L 135, p. 40) concerns the collection, treatment and discharge of urban waste water and the treatment and discharge of waste water from certain industrial sectors. It aims to protect the environment from the adverse effects of the discharge of urban waste water.

According to Article 1 thereof, Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment (OJ 1991 L 135, p. 40) concerns the collection, treatment and discharge of urban waste water and the treatment and discharge of waste water from certain industrial sectors. It aims to protect the environment from the adverse effects of the discharge of urban waste water.

3

3

Article 2 of that directive defines ‘urban waste water’ as ‘domestic waste water or the mixture of domestic waste water with industrial waste water and/or run-off rain water’. That article also defines an ‘agglomeration’ as ‘an area where the population and/or economic activities are sufficiently concentrated for urban waste water to be collected and conducted to an urban waste water treatment plant or to a final discharge point’ and ‘1 p.e. (population equivalent)’ as ‘the organic biodegradable load having a five-day biochemical oxygen demand (BOD5) of 60 g of oxygen per day’.

Article 2 of that directive defines ‘urban waste water’ as ‘domestic waste water or the mixture of domestic waste water with industrial waste water and/or run-off rain water’. That article also defines an ‘agglomeration’ as ‘an area where the population and/or economic activities are sufficiently concentrated for urban waste water to be collected and conducted to an urban waste water treatment plant or to a final discharge point’ and ‘1 p.e. (population equivalent)’ as ‘the organic biodegradable load having a five-day biochemical oxygen demand (BOD5) of 60 g of oxygen per day’.

Article 4 of that directive provides:

Article 4 of that directive provides:

‘1. Member States shall ensure that urban waste water entering collecting systems shall before discharge be subject to secondary treatment or an equivalent treatment as follows:

‘1. Member States shall ensure that urban waste water entering collecting systems shall before discharge be subject to secondary treatment or an equivalent treatment as follows:

—at the latest by 31 December 2000 for all discharges from agglomerations of more than 15000 p.e.,

at the latest by 31 December 2000 for all discharges from agglomerations of more than 15000 p.e.,

3. Discharges from urban waste water treatment plants described in paragraphs 1 and 2 shall satisfy the relevant requirements of Annex I.B. ...

3. Discharges from urban waste water treatment plants described in paragraphs 1 and 2 shall satisfy the relevant requirements of Annex I.B. ...

According to Article 6(2) and (4) of the same directive:

According to Article 6(2) and (4) of the same directive:

‘2. Urban waste water discharges from agglomerations of between 10000 and 150000 p.e. to coastal waters and those from agglomerations of between 2000 and 10000 p.e. to estuaries situated in areas described in paragraph 1 may be subjected to treatment less stringent than that prescribed in Article 4 providing that:

‘2. Urban waste water discharges from agglomerations of between 10000 and 150000 p.e. to coastal waters and those from agglomerations of between 2000 and 10000 p.e. to estuaries situated in areas described in paragraph 1 may be subjected to treatment less stringent than that prescribed in Article 4 providing that:

—such discharges receive at least primary treatment as defined in Article 2(7) in conformity with the control procedures laid down in Annex I D,

such discharges receive at least primary treatment as defined in Article 2(7) in conformity with the control procedures laid down in Annex I D,

—comprehensive studies indicate that such discharges will not adversely affect the environment.

Member States shall provide the Commission with all relevant information concerning the abovementioned studies.

comprehensive studies indicate that such discharges will not adversely affect the environment.

Member States shall provide the Commission with all relevant information concerning the abovementioned studies.

Article 8(5) of Directive 91/271 is worded as follows:

Article 8(5) of Directive 91/271 is worded as follows:

‘In exceptional circumstances, when it can be demonstrated that more advanced treatment will not produce any environmental benefits, discharges into less sensitive areas of waste waters from agglomerations of more than 150000 p.e. may be subject to the treatment provided for in Article 6 for waste water from agglomerations of between 10000 and 150000 p.e.

‘In exceptional circumstances, when it can be demonstrated that more advanced treatment will not produce any environmental benefits, discharges into less sensitive areas of waste waters from agglomerations of more than 150000 p.e. may be subject to the treatment provided for in Article 6 for waste water from agglomerations of between 10000 and 150000 p.e.

In such circumstances, Member States shall submit beforehand the relevant documentation to the Commission. The Commission will examine the case and take appropriate measures in accordance with the procedure laid down in Article 18.’

In such circumstances, Member States shall submit beforehand the relevant documentation to the Commission. The Commission will examine the case and take appropriate measures in accordance with the procedure laid down in Article 18.’

Annex I to that directive, entitled ‘Requirements for urban waste water’, is worded as follows:

Annex I to that directive, entitled ‘Requirements for urban waste water’, is worded as follows:

‘...

‘...’

Discharge from urban waste water treatment plants to receiving waters ...

Discharge from urban waste water treatment plants to receiving waters ...

Waste water treatment plants shall be designed or modified so that representative samples of the incoming waste water and of treated effluent can be obtained before discharge to receiving waters.

Waste water treatment plants shall be designed or modified so that representative samples of the incoming waste water and of treated effluent can be obtained before discharge to receiving waters.

Discharges from urban waste water treatment plants subject to treatment in accordance with Articles 4 and 5 shall meet the requirements shown in Table 1.

8

Discharges from urban waste water treatment plants subject to treatment in accordance with Articles 4 and 5 shall meet the requirements shown in Table 1.

Point D of Annex I to Directive 91/271, entitled ‘Reference methods for monitoring and evaluation of results’, states:

8

‘1.

Point D of Annex I to Directive 91/271, entitled ‘Reference methods for monitoring and evaluation of results’, states:

Member States shall ensure that a monitoring method is applied which corresponds at least with the level of requirements described below.

Alternative methods to those mentioned in paragraphs 2, 3 and 4 may be used provided that it can be demonstrated that equivalent results are obtained.

Member States shall ensure that a monitoring method is applied which corresponds at least with the level of requirements described below.

Alternative methods to those mentioned in paragraphs 2, 3 and 4 may be used provided that it can be demonstrated that equivalent results are obtained.

Flow-proportional or time-based 24-hour samples shall be collected at the same well-defined point in the outlet and if necessary in the inlet of the treatment plant in order to monitor compliance with the requirements for discharged waste water laid down in this Directive.

Flow-proportional or time-based 24-hour samples shall be collected at the same well-defined point in the outlet and if necessary in the inlet of the treatment plant in order to monitor compliance with the requirements for discharged waste water laid down in this Directive.

3.

3.

The minimum annual number of samples shall be determined according to the size of the treatment plant and be collected at regular intervals during the year:

The minimum annual number of samples shall be determined according to the size of the treatment plant and be collected at regular intervals during the year:

— 10000 to 49999 p.e.: 12 samples.

10000 to 49999 p.e.: 12 samples.

The treated waste water shall be assumed to conform to the relevant parameters if, for each relevant parameter considered individually, samples of the water show that it complies with the relevant parametric value in the following way:

(a) for the parameters specified in Table 1 and Article 2(7), a maximum number of samples which are allowed to fail the requirements, expressed in concentrations and/or percentage reductions in Table 1 and Article 2(7), is specified in Table 3;

The treated waste water shall be assumed to conform to the relevant parameters if, for each relevant parameter considered individually, samples of the water show that it complies with the relevant parametric value in the following way:

Judgment in

for the parameters specified in Table 1 and Article 2(7), a maximum number of samples which are allowed to fail the requirements, expressed in concentrations and/or percentage reductions in Table 1 and Article 2(7), is specified in Table 3;

Judgment in

Portugal

Portugal

On 9 July 2004, the Commission sent the Portuguese Republic a letter of formal notice in which it stated that several agglomerations of more than 15000 p.e. located in the territory of that Member State were not equipped with urban waste water collecting systems meeting the requirements of Article 3 of Directive 91/271, nor were they equipped with urban waste water treatment systems satisfying the requirements of Article 4 of that directive.

10

On 9 July 2004, the Commission sent the Portuguese Republic a letter of formal notice in which it stated that several agglomerations of more than 15000 p.e. located in the territory of that Member State were not equipped with urban waste water collecting systems meeting the requirements of Article 3 of Directive 91/271, nor were they equipped with urban waste water treatment systems satisfying the requirements of Article 4 of that directive.

Finding that the explanations provided by the Portuguese Republic were not satisfactory for 17 of those agglomerations, on 13 July 2005 the Commission sent that Member State a reasoned opinion, asking it to comply therewith within two months of its receipt.

10

11

Finding that the explanations provided by the Portuguese Republic were not satisfactory for 17 of those agglomerations, on 13 July 2005 the Commission sent that Member State a reasoned opinion, asking it to comply therewith within two months of its receipt.

The Portuguese Republic responded to that reasoned opinion by letter of 14 October 2005.

11

12

The Portuguese Republic responded to that reasoned opinion by letter of 14 October 2005.

12

Finding, following that response, that certain agglomerations had to be excluded from the infringement proceedings, while, regarding certain other agglomerations mentioned in the annex to the letter of formal notice of 9 July 2004 but not in the reasoned opinion of 13 July 2005, infringement of Articles 3 and 4 of Directive 91/271 was still ongoing, on 4 July 2006 the Commission issued an additional reasoned opinion concerning, henceforth, 32 agglomerations. By that opinion, it asked the Portuguese Republic to take the measures necessary to comply with that opinion within two months of receipt thereof.

Finding, following that response, that certain agglomerations had to be excluded from the infringement proceedings, while, regarding certain other agglomerations mentioned in the annex to the letter of formal notice of 9 July 2004 but not in the reasoned opinion of 13 July 2005, infringement of Articles 3 and 4 of Directive 91/271 was still ongoing, on 4 July 2006 the Commission issued an additional reasoned opinion concerning, henceforth, 32 agglomerations. By that opinion, it asked the Portuguese Republic to take the measures necessary to comply with that opinion within two months of receipt thereof.

13

13

Taking the view, in spite of the explanations provided by that Member State in a letter dated 14 September 2006, that the situation of several agglomerations remained unsatisfactory with regard to the provisions of that directive, the Commission decided to bring an action for failure to fulfil obligations before the Court: that action was the subject of Case C‑530/07.

Taking the view, in spite of the explanations provided by that Member State in a letter dated 14 September 2006, that the situation of several agglomerations remained unsatisfactory with regard to the provisions of that directive, the Commission decided to bring an action for failure to fulfil obligations before the Court: that action was the subject of Case C‑530/07.

In the course of the proceedings before the Court, the Commission withdrew its action in so far as it concerned a failure to fulfil obligations under, first, Article 3 of Directive 91/271 regarding five of those agglomerations and, second, Article 4 of that directive regarding 11 of those agglomerations. The subject matter of the action for failure to fulfil obligations was therefore restricted to the remaining agglomerations.

In the course of the proceedings before the Court, the Commission withdrew its action in so far as it concerned a failure to fulfil obligations under, first, Article 3 of Directive 91/271 regarding five of those agglomerations and, second, Article 4 of that directive regarding 11 of those agglomerations. The subject matter of the action for failure to fulfil obligations was therefore restricted to the remaining agglomerations.

15

15

In its judgment of 7 May 2009 in Commission v Portugal (C‑530/07

In its judgment of 7 May 2009 in Commission v Portugal (C‑530/07

, <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2009%3A292&amp;lang=EN&amp;format=pdf&amp;target=CourtTab" target="CourtTab" type="application/pdf" hreflang="en" class="CourtLink">EU:C:2009:292</a>), the Court found that, by failing to provide, in accordance with the provisions of Article 3 of Directive 91/271, the agglomerations of Bacia do Rio Uima (Fiães S. Jorge), Costa de Aveiro, Covilhã, Espinho/Feira, Ponta Delgada, Póvoa de Varzim/Vila do Conde and Santa Cita with collection systems, and by failing to subject to secondary treatment or an equivalent treatment, in accordance with Article 4 of that directive, the urban waste water from the agglomerations of Alverca, Bacio do Rio Uima (Fiães S. Jorge), Carvoeiro, Costa de Aveiro, Costa Oeste, Covilhã, Lisbon, Matosinhos, Milfontes, Nazaré/Famalicão, Ponta Delgada, Póvoa de Varzim/Vila do Conde, Santa Cita, Vila Franca de Xira and Vila Real de Santo António, the Portuguese Republic had failed to fulfil its obligations under Articles 3 and 4 of that directive.

Pre-litigation procedure

In the course of monitoring compliance with the judgment of 7 May 2009 in Commission v Portugal (<a href="./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2009%3A292&amp;locale=en" target="CourtTab" type="application/xml;notice=branch" hreflang="en" class="CourtLink">C‑530/07</a>, <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2009%3A292&amp;lang=EN&amp;format=pdf&amp;target=CourtTab" target="CourtTab" type="application/pdf" hreflang="en" class="CourtLink">EU:C:2009:292</a>), the Commission, by letter of 18 June 2009, asked the Portuguese Republic for information concerning the measures taken in order to comply with that judgment.

17

By letter of 24 July 2009, that Member State informed the Commission of the measures which it had adopted.

18

On 11 December 2009, the Commission asked that Member State to provide clarifications, to which the latter responded, through several letters and additional pieces of information, that, concerning the agglomeration of Vila Real de Santo António, the new treatment plant had been operational since 2009, but that 30% of the pollutant flow collected had not yet actually been connected to the treatment plant, the completion of the necessary works being forecast for the end of 2012. As regards the agglomeration of Matosinhos, completion of construction of the new treatment plant was initially forecast for the end of 2011, but the completion of that work was eventually postponed until April 2013.

19

In several letters and during a meeting with Commission staff, the Portuguese Republic informed that institution of developments in the situation in relation to those two agglomerations.

It is apparent from the letter sent by that Member State on 26 November 2013 concerning the agglomeration of Vila Real de Santo António that the completion of the works necessary to ensure connection of the entirety of that agglomeration’s pollutant flow to the new treatment plant was forecast for the first quarter of 2014. As regards the agglomeration of Matosinhos, it is apparent from that letter that, due to a lack of funding, construction of the new treatment plant had not yet begun, but that a new request for funding was to be submitted in 2014.

21

The Commission, considering that there had been a failure to comply with the judgment of 7 May 2009 in Commission v Portugal (<a href="./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2009%3A292&amp;locale=en" target="CourtTab" type="application/xml;notice=branch" hreflang="en" class="CourtLink">C‑530/07</a>, <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2009%3A292&amp;lang=EN&amp;format=pdf&amp;target=CourtTab" target="CourtTab" type="application/pdf" hreflang="en" class="CourtLink">EU:C:2009:292</a>) for two of the 22 agglomerations concerned by that judgment, namely the agglomerations of Vila Real de Santo António and Matosinhos, brought the present action.

Arguments of the parties

Concerning the agglomeration of Vila Real de Santo António, the Commission submits that, in spite of the efforts expended by the Portuguese Republic since the delivery of the judgment of 7 May 2009 in Commission v Portugal (<a href="./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2009%3A292&amp;locale=en" target="CourtTab" type="application/xml;notice=branch" hreflang="en" class="CourtLink">C‑530/07</a>, <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2009%3A292&amp;lang=EN&amp;format=pdf&amp;target=CourtTab" target="CourtTab" type="application/pdf" hreflang="en" class="CourtLink">EU:C:2009:292</a>), on the reference date for assessing whether there had been a failure to fulfil obligations in the present case, namely 21 April 2014, the date of expiry of the period prescribed in the letter of formal notice sent to the Portuguese Republic by the Commission, that Member State had failed to subject the urban waste water from that agglomeration to secondary treatment or an equivalent treatment in accordance with Article 4 of Directive 91/271. Indeed, it is apparent from the Portuguese Republic’s letter of 23 April 2014 that the works necessary to connect the entirety of that agglomeration to the treatment plant were still ongoing at that later date.

23

Regarding the agglomeration of Matosinhos, the Commission submits that the current treatment plant only allows for primary treatment of its waste water, which is then discharged into the sea via an underwater outfall. It notes, in that regard, that, as is apparent from the Portuguese Republic’s letter of 23 April 2014, construction of a secondary treatment plant has not yet begun owing to alleged funding problems: completion of that work has been postponed until 2017.

24

Furthermore, the Commission submits that the arguments put forward by the Portuguese Republic in its statement of defence concerning the lack of effect of a primary treatment of urban waste water on the quality of the receiving waters and its assertion that such a treatment is sufficient to guarantee the quality of those waters and to avoid risks to the environment and human health, are unfounded, in so far as those arguments are in fact intended to call into question the Court’s findings in the judgment of 7 May 2009 in Commission v Portugal (<a href="./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2009%3A292&amp;locale=en" target="CourtTab" type="application/xml;notice=branch" hreflang="en" class="CourtLink">C‑530/07</a>, <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2009%3A292&amp;lang=EN&amp;format=pdf&amp;target=CourtTab" target="CourtTab" type="application/pdf" hreflang="en" class="CourtLink">EU:C:2009:292</a>).

25

The Portuguese Republic contends, generally, that it has complied with that judgment to a very large extent.

Regarding the agglomeration of Vila Real de Santo António, the Portuguese Republic states that three drainage network connection projects are involved. The first concerns the drainage network situated to the west of the municipality of Vila Nova de Cacela and the network for the transportation of waste water to the treatment plant: connection of those two networks was completed in November 2014. The second project relates to the connection of the drainage networks on the shores of that agglomeration to the capture system and the transportation of effluent to the waste water treatment plant, which was completed in February 2015. The third project concerns the connection of the drainage networks of the central area of the town in that agglomeration to the capture system and the transportation of effluent to the waste water treatment plant.

In its statement of defence, the Portuguese Republic had argued that that third project was at a highly advanced stage of fulfilment. That Member State indicated, in its rejoinder, that connection of effluent to the waste water treatment plant, in operation since 2009, was completed on 11 April 2015, a fact of which the Commission’s staff were duly informed.

28

Regarding the agglomeration of Matosinhos, first, the Portuguese Republic contends that the existing primary treatment is sufficient to guarantee the quality of the water and avoid risks to the environment and to human health, as the fact that there is no secondary treatment has no effect on the quality of the receiving waters. The waste water effluent treated in that agglomeration is discharged, not into lake or river water, but into sea water, which has high salinity and is stirred and crossed by strong sea currents.

29

That Member State maintains, in that regard, that the situation in the agglomeration of Matosinhos falls under Article 8(5) of Directive 91/271. According to that provision, in exceptional circumstances and in coastal agglomerations which are regarded as being less sensitive, discharges of urban waste water could be subject to less stringent treatment.

30

The Portuguese Republic argues that, through the existing primary treatment, the chemical oxygen demand and biochemical oxygen demand of the waste water has been reduced by, on average, 42% and 43% respectively, that is, by over twice the average rate of 20% laid down by that directive.

31

To that end, the Member State contends that the waste water treatment plant currently in operation is connected to an underwater outfall which conducts the water exiting primary treatment into the Atlantic Ocean around two kilometres from the coastline, with the result that the quality of the bathing water is not affected. There are only a few adjustments still to be made (adjustments which merely concern the installation of infrastructures) in order to guarantee that the quality of such water remains consistent.

32

The Portuguese Republic also makes reference to the analyses of bathing water regularly carried out on the territory of that agglomeration which confirm the ‘excellent’ quality of that water. In those circumstances, it argues that there is no reason to consider that there is any danger to residents’ health or to the tourism sector.

33

Second, that Member State contends that, although measures have been taken in order to comply with Article 4 of Directive 91/271, funding difficulties have hindered construction of the treatment plant. Furthermore, calls for tenders were made in 2008 and 2011 but circumstances constituting a situation of <span class="italic">force majeure</span> prevented continuation of the project for the construction of that plant.

34

The Portuguese Republic adds that, in any event, the conditions relating to the construction of a waste water treatment plant permitting secondary treatment of that water have now been met and that the funding required for that purpose has been made available, facts of which the Commission has been informed. In that regard, the Portuguese Republic submitted to that institution a timetable for the construction work which was due to begin in the first half of 2016: it is envisaged that the plant will become fully operational in the second half of 2019.

Findings of the Court

35

In order to ascertain whether the Portuguese Republic has adopted all the measures necessary to comply with the judgment of 7 May 2009 in Commission v Portugal (<a href="./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2009%3A292&amp;locale=en" target="CourtTab" type="application/xml;notice=branch" hreflang="en" class="CourtLink">C‑530/07</a>, <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2009%3A292&amp;lang=EN&amp;format=pdf&amp;target=CourtTab" target="CourtTab" type="application/pdf" hreflang="en" class="CourtLink">EU:C:2009:292</a>), it is necessary to ascertain whether that Member State has fully complied with Article 4 of Directive 91/271, more specifically by equipping the agglomerations concerned with urban waste water treatment systems satisfying the requirements of that article.

36

Concerning infringement proceedings under Article 260(2) TFEU, the reference date which must be used for assessing whether there has been a failure to fulfil obligations is that of the expiry of the period prescribed in the letter of formal notice issued under that provision (judgment of 15 October 2015 in Commission v Greece, <a href="./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2015%3A684&amp;locale=en" target="CourtTab" type="application/xml;notice=branch" hreflang="en" class="CourtLink">C‑167/14</a>, <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2015%3A684&amp;lang=EN&amp;format=pdf&amp;target=CourtTab" target="CourtTab" type="application/pdf" hreflang="en" class="CourtLink">EU:C:2015:684</a>, paragraph <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2015%3A684&amp;lang=EN&amp;format=html&amp;target=CourtTab&amp;anchor=#point29" target="CourtTab" type="application/xhtml+xml" hreflang="en" class="CourtLink">29</a> and the case-law cited).

37

In the present case, as noted in paragraph 22 above, since the Commission sent the Portuguese Republic a letter of formal notice in accordance with the procedure laid down in Article 260(2) TFEU, the reference date mentioned in paragraph 36 above is the date of expiry of the period prescribed in that letter, namely 21 April 2014.

38

It is common ground that, on that date, the agglomerations of Vila Real de Santo António and Matosinhos were not yet equipped with urban waste water treatment systems in accordance with Article 4 of Directive 91/271.

39

Indeed, regarding the agglomeration of Vila Real de Santo António, it can be seen from the statements made by the Portuguese Republic that, on 21 April 2014, the urban waste water treatment system was not yet in place. As regards the agglomeration of Matosinhos, by letter of 23 April 2014 the Portuguese Republic informed the Commission that work on constructing a waste water treatment plant permitting secondary treatment of that water had not yet begun.

40

The Portuguese Republic’s arguments concerning that second agglomeration, regarding the lack of effect of a purely primary treatment of urban waste water on the quality of the receiving waters and its assertion that such a treatment is sufficient to guarantee the quality of those waters and to avoid risks to the environment and human health are in fact intended to call into question the decision made by the Court at the end of the judgment of 7 May 2009 in Commission v Portugal (<a href="./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2009%3A292&amp;locale=en" target="CourtTab" type="application/xml;notice=branch" hreflang="en" class="CourtLink">C‑530/07</a>, <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2009%3A292&amp;lang=EN&amp;format=pdf&amp;target=CourtTab" target="CourtTab" type="application/pdf" hreflang="en" class="CourtLink">EU:C:2009:292</a>) and, accordingly, cannot be accepted.

41

Regarding the Portuguese Republic’s argument based on the difficulties which that Member State has had in complying with the judgment of 7 May 2009 in Commission v Portugal (<a href="./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2009%3A292&amp;locale=en" target="CourtTab" type="application/xml;notice=branch" hreflang="en" class="CourtLink">C‑530/07</a>, <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2009%3A292&amp;lang=EN&amp;format=pdf&amp;target=CourtTab" target="CourtTab" type="application/pdf" hreflang="en" class="CourtLink">EU:C:2009:292</a>), it should be borne in mind 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 obligations resulting from EU law, with the result that such an argument cannot succeed (see, to that effect, judgment of 15 October 2015 in Commission v Greece, <a href="./../../../../legal-content/EN/AUTO/?uri=ecli:ECLI%3AEU%3AC%3A2015%3A684&amp;locale=en" target="CourtTab" type="application/xml;notice=branch" hreflang="en" class="CourtLink">C‑167/14</a>, <a href="./../../../../legal-content/redirect/?urn=ecli:ECLI%3AEU%3AC%3A2015%3A684&amp;lang=EN&amp;format=pdf&amp;target=CourtTab" target="CourtTab" type="application/pdf" hreflang="en" class="CourtLink">EU:C:2015:684</a>).