Opinion of the Advocate-General
1 By application lodged pursuant to Article 169 of the EC Treaty on 12 May 1997 the Commission has requested the Court to declare that, by failing to adopt the measures necessary provided for in Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances (1) (`the Directive'), the Portuguese Republic has failed to fulfil its obligations under the EC Treaty and the Directive.
2 According to Article 21, the Member States are to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive within two years of its notification and inform the Commission thereof.
3 Articles 392 and 395 of the Treaty concerning the accession of the Portuguese Republic to the European Community (2) place that Member State under an obligation to comply with the Directive.
4 Since the Portuguese Republic did not fulfil that obligation, the Commission initiated against that State the infringement procedure under Article 169 of the Treaty. The Portuguese Republic has not, in substance, denied the complaints made by the applicant but has confined itself to pointing out that a draft decree-law, currently being adopted, would supplement the relevant provisions currently in force and would, therefore, fulfil the obligations under the Directive.
5 However, it is clear that the decree-law in question has not so far been adopted. The Court has consistently held that the existence of a decree-law in the course of adoption does not constitute a ground of justification for a failure to fulfil obligations (3) and, in any event, 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 the obligations laid down in the EC Treaty and Community directives. (4)
Conclusion
6 In the light of the foregoing facts and considerations, I propose that the Court:
- declare that, by failing to adopt, within the prescribed period, all the laws, regulations or administrative provisions necessary to comply with Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances, the Portuguese Republic has failed to fulfil its obligations under that directive;
- order the Portuguese Republic to pay the costs.
(1) - OJ 1980 L 20, p. 43.
(2) - OJ 1985 L 302.
(3) - See, for example, Case C-147/94 Commission v Spain [1995] ECR I-1015.
(4) - See, among others, Case C-303/93 Commission v Italy [1994] ECR I-1901, Case C-135/96 Commission v Belgium [1997] ECR I-1061 and Case C-294/96 Commission v Belgium [1997] ECR I-1781.
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