Commission of the European Communities v Portuguese Republic.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Gulmann
• ECLI: ECLI:EU:C:2003:138
• Date: 06 March 2003
• Docket Number: C-72/02
• Procedure Type: Recours en constatation de manquement - non fondé

OPINION OF ADVOCATE GENERAL
ALBER
delivered on 6 March 2003 (1)


Case C-72/02

Commission of the European Communities
v
Portuguese Republic

((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. 2. The action for failure to fulfil obligations 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 implementation of the national provisions of 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 submission of the reports suffices. That question must therefore be examined separately. II ─ Legislative background 3. The duty to report in question is laid down in Article 12(1) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (hereinafter Directive 79/409), (2) which reads as follows:Member States shall forward to the Commission every three years, starting from the date of expiry of the time limit referred to in Article 18(1), a report on the implementation of national provisions taken thereunder. III ─ Pre-litigation procedure 4. On 4 April 2000, the Commission sent a letter before action to the Portuguese Republic, in which it made observations on Decree-Law No 140/99 of 24 April 1999, which had been submitted to it as a provision implementing Directive 79/409 and Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (hereinafter Directive 92/43). (3) In its letter the Commission complained that Article 3(3), Article 10, Article 11 and Article 12(4) of Directive 92/43 and Article 7, Article 8 and the specifically relevant Article 12 of Directive 79/409 had not been implemented in national law. It further accused Portugal of not implementing correctly Article 1, Article 6(1), Article 6(2), Article 6(3) and Article 6(4) and Article 12(1)(d) of Directive 92/43 and Article 2, Article 4(1), Article 4(4) and Article 6 of Directive 79/409. 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. 6. On 30 January 2001 the Commission sent the Portuguese Republic a reasoned opinion, in which it repeated its accusations and set it a deadline of two months to remedy the breaches to which the complaint related. 7. The Portuguese Government replied in a letter of 31 May 2001 that a new Decree-Law in implementation of the Directives would be ready in the very near future, and that the adoption thereof by the Council of Ministers was scheduled for May. 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 9. Portugal does not deny the breach of obligations of which it is accused. It cites the dissolution of the Government and the national parliamentary elections as excuses for the delayed transposition of the Directives and makes reference to draft bill No 140/99 of 24 April 1999, which is intended to make good its breach of obligations in this respect. 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:

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

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Article 7, Article 8 and Article 12 of Directive 79/409/EEC; and 2. by failing to implement correctly

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

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Article 2, Article...