Judgment of the Court (Fifth Chamber) of 7 May 2009 – Commission v Portugal

(Case C‑530/07)

Failure of a Member State to fulfil obligations – Directive 91/271/EEC – Pollution and nuisance – Urban waste water treatment – Articles 3 and 4

1. Actions for failure to fulfil obligations – Examination of the merits by the Court – Situation to be taken into consideration – Situation on expiry of the period laid down in the reasoned opinion (Art. 226 EC) (see paras 25, 54)

2. Actions for failure to fulfil obligations – Right of the Commission to bring judicial proceedings – To be exercised at its discretion (Art. 226 EC) (see para. 29)

3. Actions for failure to fulfil obligations – Proof of failure – Burden of proof on Commission – Production of evidence showing failure (Art. 226 EC) (see para. 32)

4. Environment – Urban waste-water treatment – Directive 91/271 – Implementation by Member States – Obligation to achieve a result – Failure to satisfy that obligation – Failure to fulfil obligations – National system pleaded as justification – Not permissible (Art. 226 EC; Council Directive 91/271, Arts 3 and 4) (see para. 55)

Re:

Operative part

The Court:

1.Declares that, by failing to provide, in accordance with the provisions of Article 3 of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment, 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 has failed to fulfil its obligations under Articles 3 and 4 of that directive;

2.Dismisses the action as to the remainder;

3.Orders the Portuguese Republic to pay the costs.