Commission of the European Communities v Portuguese Republic (21 January 1999) European Court of Justice C-150/97

This case involves an action brought by the European Commission against Portugal for its failure to fulfil its obligations to fully transpose Directive 85/337/EEC, on the assessment of the effects of certain public and private projects on the environment, into national law. Article 12(1) of the Directive required that the Member States comply with the Directive within three years of its notification. Notification took place on 3 July 1985. The European Commission contended that the provisions of the Directive had to apply from 3 July 1988 to all decisions concerning consent applications but national law transposing this Directive was not implemented until 7 June 1990. The national law and hence the provisions of the Directive, therefore, did not apply to projects in respect of which the approval procedure was already underway on the date on which the national law came into force. The Portuguese Government argued that, in order to observe the principle of legal certainty, national law should not be given retrospective effect and that the projects in respect of which consent applications were received after 3 July 1988 but before the date on which the national law came into force were very few in number and all of them were subject to an environmental impact assessment. In addition the Portuguese Government argued that it was careful to exclude from retrospective effect only those provisions which entail serious infringement of the rights of the individuals subject to the obligations arising from the legislation in question. The European Court of Justice, following the decision in Bund Naturschutz in Bayern and Others v Freirstaat Bayern ([1994] ECR I-3717), rejected these arguments. It stated that Member States should not be permitted to waive the provisions of the Directive and that they could not plead provisions, practices or circumstances existing in internal legal systems in order to justify a failure to comply with obligations and time limits laid down in Directives. In addition, with regard to the argument that the applications for consent submitted after 3 July 1988 but before the date on which the national legislation entered into force were few in number and had all been subject to environmental impact assessment, the court stated that failure by a Member State to fulfil an obligation imposed by a rule of community law is sufficient to constitute a breach of obligations under the Treaty of Rome and the fact that the failure had no averse effects is irrelevant. The European Commission's action was therefore successful and the Government of Portugal was ordered to pay costs. (Transcript of European Court of Justice, 21 January 1999)