European Commission v Republic of Bulgaria (C-510/20)

Contents

Judgment of the Court (Seventh Chamber)28 April 2022^note(Failure of a Member State to fulfil obligations — Article 258 TFEU — Environment — Directive 2008/56/EC — Marine environmental policy — Article 5 — Marine strategies — Article 17(2) and (3) — Failure to review, within the time limits, the initial assessment, the determination of good environmental status and the environmental targets — Failure to send to the European Commission, within the time limits, details of any updates made following the reviews)In Case C‑510/20,ACTION for failure to fulfil obligations under Article 258 TFEU, brought on 12 October 2020,European Commission, represented by O. Beynet and I. Zaloguin, acting as Agents,vRepublic of Bulgaria, represented by T. Mitova, L. Zaharieva and T. Tsingileva, acting as Agents,THE COURT (Seventh Chamber),composed of I. Ziemele, President of the Sixth Chamber, acting as President of the Seventh Chamber, P.G. Xuereb and A. Kumin (Rapporteur), Judges,Advocate General: M. Bobek,Registrar: A. Calot Escobar,having regard to the written procedure,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following

Judgment

1By its application, the European Commission asks the Court to declare that, because of its failure within the prescribed time limits, first, to review and update (i) the initial assessment of the current environmental status of the waters concerned and the environmental impact of human activities thereon, (ii) the determination of good environmental status and (iii) the environmental targets and associated indicators, and second, to send those updates to that institution, the Republic of Bulgaria has failed to fulfil its obligations under Article 5(2)(a)(i), (ii) and (iii) and Article 17(2) and (3) of Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for Community action in the field of marine environmental policy (Marine Strategy Framework Directive) (OJ 2008 L 164, p. 19).

Legal context

2Recitals 29 and 34 of Directive 2008/56 are worded as follows:(29) Member States should take the necessary measures to achieve or maintain good environmental status in the marine environment. However, it should be recognised that achieving or maintaining such status in every aspect may not be possible in all marine waters by 2020. Therefore, for reasons of fairness and feasibility, it is appropriate to make provision for cases where it would be impossible for a Member State to achieve the level of ambition of the environmental targets set or to achieve or maintain good environmental status.…(34) In view of the dynamic nature of marine ecosystems and their natural variability, and given that the pressures and impacts on them may vary with the evolvement of different patterns of human activity and the impact of climate change, it is essential to recognise that the determination of good environmental status may have to be adapted over time. Accordingly, it is appropriate that programmes of measures for the protection and management of the marine environment be flexible and adaptive and take account of scientific and technological developments. Provision should therefore be made for the updating of marine strategies on a regular basis.’

3Article 5 of that directive, entitled ‘Marine strategies’, provides, in paragraphs 1 and 2 thereof:1. Each Member State shall, in respect of each marine region or subregion concerned, develop a marine strategy for its marine waters in accordance with the plan of action set out in points (a) and (b) of paragraph 2.2.Member States sharing a marine region or subregion shall cooperate to ensure that, within each marine region or subregion, the measures required to achieve the objectives of this Directive, in particular the different elements of the marine strategies referred to in points (a) and (b), are coherent and coordinated across the marine region or subregion concerned, in accordance with the following plan of action for which Member States concerned endeavour to follow a common approach:(a) preparation:(i) an initial assessment, to be completed by 15 July 2012 of the current environmental status of the waters concerned and the environmental impact of human activities thereon, in accordance with Article 8;(ii) a determination, to be established by 15 July 2012 of good environmental status for the waters concerned, in accordance with Article 9(1);(iii) establishment, by 15 July 2012, of a series of environmental targets and associated indicators, in accordance with Article 10(1);…’

4Article 14 of that directive, entitled ‘Exceptions’, provides, in paragraph 1 thereof:‘A Member State may identify instances within its marine waters where, for any of the reasons listed under points (a) to (d), the environmental targets or good environmental status cannot be achieved in every aspect through measures taken by that Member State, or, for reasons referred to under point (e), they cannot be achieved within the time schedule concerned:(a) action or inaction for which the Member State concerned is not responsible;(b) natural causes;(c) force majeure;(d) modifications or alterations to the physical characteristics of marine waters brought about by actions taken for reasons of overriding public interest which outweigh the negative impact on the environment, including any transboundary impact;(e) natural conditions which do not allow timely improvement in the status of the marine waters concerned.…’

5Article 17 of Directive 2008/56, entitled ‘Updating’, states:1. Member States shall ensure that, in respect of each marine region or subregion concerned, marine strategies are kept up to date.2.For the purposes of paragraph 1, Member States shall review, in a coordinated manner as referred to in Article 5, the following elements of their marine strategies every six years after their initial establishment:(a) the initial assessment and the determination of good environmental status, as provided for in Articles 8(1) and 9(1) respectively;(b) the environmental targets established pursuant to Article 10(1);…3. Details of any updates made following the reviews provided for in paragraph 2 shall be sent to the Commission, to the Regional Sea Conventions and to any other Member States concerned within three months of their publication in accordance with Article 19(2).…’

6Article 19 of that directive, entitled ‘Public consultation and information’, provides in paragraph 2 thereof:‘Member States shall publish, and make available to the public for comment, summaries of the following elements of their marine strategies, or the related updates, as follows:(a) the initial assessment and the determination of good environmental status, as provided for in Articles 8(1) and 9(1) respectively;(b) the environmental targets established pursuant to Article 10(1);…’

Pre-litigation procedure

7On 8 March 2019, the Commission sent a letter of formal notice to the Republic of Bulgaria stating that that Member State had failed, in breach of Article 5(2)(a)(i), (ii) and (iii) and Article 17(2) and (3) of Directive 2008/56 first, to review and update the initial assessment of the status of the marine environment, the determination of good environmental status and the environmental targets by 15 July 2018 and, second, to send those updates to the Commission by 15 October 2018.

8In its reply of 7 May 2019, the Republic of Bulgaria indicated that the Baseynova Direktsia ‘Chernomorski rayon’ (‘Black Sea Region’ Basin Directorate, Bulgaria) had announced on 16 July 2018, in its capacity as the competent authority for the application of that directive, a decision to organise a public procurement entitled ‘Updating the initial assessment of the status of the marine environment, determinations of good environmental status and environmental targets and indicators, in accordance with Articles 8, 9 and 10 of Directive [2008/56], for five lots’. The notice for this public procurement was published in the Official Journal of the European Union. However, the relevant procedure was closed on 27 August 2018 because no offers were received.

9In that letter, the Republic of Bulgaria also presented plans to remedy the failure at issue, namely the project ‘Knowledge and Information on regional activities for the Protection of the Black Sea’ (Scirena Black Sea) (‘the Scirena Black Sea project’) under the programme ‘Environmental protection and climate change’, which falls within the scope of the European Economic Area Financial Mechanism for the period 2014-2021 (‘the EEA Financial Mechanism’). It also confirmed its commitment, in accordance with the requirements of Directive 2008/56, to carry out reviews and updates and to send those updates to the Commission by 30 June 2020.

10By letter of 11 October 2019, received by the Republic of Bulgaria on the same day, the Commission issued a reasoned opinion in which it maintained the position it had set out in its letter of formal notice, as the Republic of Bulgaria had not addressed the complaints set out in that letter. The Commission called on that Member State to take the measures necessary to comply with that reasoned opinion within two months of its receipt.

11The Republic of Bulgaria responded to that reasoned opinion by letter of 9 December 2019, in which it acknowledged that it had not provided the required updates on the initial assessment of the marine environment, the determination of good environmental status and the environmental targets, due to problems relating to the award of a public contract to carry out these updates, in particular the lack of tenders received in the relevant procedure. That Member State also reiterated its commitment to comply with Article 17 of Directive 2008/56 by 30 June 2020.

12Not being satisfied with the Republic of Bulgaria’s responses to the reasoned opinion, the Commission brought the present action.

The action

Admissibility of the action

Arguments of the parties

13The Republic of Bulgaria, without expressly requesting that the present action be declared inadmissible, nevertheless puts forward certain arguments contesting its admissibility. It submits that the application for a declaration of failure to fulfil obligations under Article 5(2)(a)(i), (ii) and (iii) and Article 17(2) and (3) of Directive 2008/56, as formulated by the Commission, is a source of legal uncertainty, in so far as, in order to understand the exact scope thereof, an a posteriori interpretation and further clarification is necessary.

14Furthermore, that Member State considers that it is not possible to establish clearly what the purpose of the action is in view of the simultaneous pleading of breaches of obligations laid down by two provisions of that directive.

15The Commission points out that its action does not concern the obligations of that Member State to develop the initial marine strategies and to notify them to it, but only the obligations to update those marine strategies and to report on those updates, as is apparent from both the letter of formal notice and the reasoned opinion.

Findings of the Court

16It is apparent from settled case-law in relation to Article 120(c) of the Rules of Procedure of the Court of Justice that an application initiating proceedings must state clearly and precisely the subject matter of the proceedings and set out a summary of the pleas in law relied on, so as to enable the defendant to prepare its defence and the Court to rule on the application. It follows that the essential points of law and of fact on which such an action is based must be indicated coherently and intelligibly in the application itself and that the forms of order sought must be set out unambiguously so that the Court does not rule ultra petita or indeed fail to rule on one of the heads of claim (judgment of 31 October 2019, Commission v Netherlands, C‑395/17, EU:C:2019:918, paragraph 52 and the case-law cited).

17The Court has also held that, where an action is brought under Article 258 TFEU, the application must set out the complaints coherently and precisely, so that the Member State and the Court can know exactly the scope of the alleged infringement of EU law, a condition that must be satisfied if the Member State is to be able to present an effective defence and the Court to determine whether there has been a breach of obligations, as alleged (judgment of 31 October 2019, Commission v Netherlands, C‑395/17, EU:C:2019:918, paragraph 53 and the case-law cited).

18In particular, the Commission’s action must contain a coherent and detailed statement of the reasons which have led it to conclude that the Member State in question has failed to fulfil one of its obligations under the Treaties (judgment of 31 October 2019, Commission v Netherlands, C‑395/17, EU:C:2019:918, paragraph 54 and the case-law cited).

19In the present case, it should be noted that the Commission has indicated precisely the provisions of EU law allegedly infringed by the Republic of Bulgaria, namely Article 5(2)(a)(i), (ii) and (iii) and Article 17(2) and (3) of Directive 2008/56, as well as the facts alleged against that Member State, namely the failure, first, to review and update (i) the initial assessment of the current environmental status of the waters concerned and the environmental impact of human activities on those waters, (ii) the determination of good environmental status and (iii) the environmental targets and associated indicators and second, to send those updates to the Commission within the time limits prescribed by that directive.

20Moreover, the fact that the Commission has relied both on Article 5(2)(a)(i), (ii) and (iii) and Article 17(2) and (3) of that directive in its action does not give rise to any problems as to its consistency. Indeed, as the Republic of Bulgaria acknowledges, those provisions are logically linked, since Article 17 concerns the review and updating of the marine strategies referred to in Article 5.

21In those circumstances, contrary to the Republic of Bulgaria’s submission, there can be no doubt that the present proceedings do not concern a failure to comply with the obligations to develop initial marine strategies in accordance with Article 5(1) and Article 5(2)(a)(i), (ii) and (iii) of Directive 2008/56, and to notify the elements of those strategies to the Commission, but solely a failure to comply with the obligations to review and update those strategies and to send those updates to that institution, as provided for in Article 17(2)(a) and (b) and Article 17(3) respectively of that directive.

22It is apparent from the foregoing considerations that this action is admissible.

Substance

Arguments of the parties

23The Commission notes, first of all, that, in order to comply with its obligations under Article 5(2)(a)(i), (ii) and (iii) and Article 17(2) of Directive 2008/56, the Republic of Bulgaria should have reviewed and updated by 15 July 2018, the elements of its marine strategies relating to (i) the initial assessment of the current environmental status of the waters concerned and the environmental impact of human activities thereon, in accordance with Article 8 of that directive, (ii) the determination of good environmental status, pursuant to Article 9(1) of that directive, and (iii) the environmental targets and associated indicators, pursuant to Article 10(1) of that directive. Moreover, that Member State was required under Article 17(3) of Directive 2008/56 to send to that institution detailed information on any updates to those elements by 15 October 2018.

24The Commission claims that the Bulgarian authorities have acknowledged the alleged breaches in their reply to the letter of formal notice, in particular with regard to Article 17(2) and (3) of Directive 2008/56. Furthermore, in their reply to the reasoned opinion, those authorities have again acknowledged that they have not provided the Commission with the information required under that directive, a breach which is still continuing.

25The Republic of Bulgaria contends, in the first place, that it has fulfilled its obligations under Article 5(2)(a)(i), (ii) and (iii) of Directive 2008/56. It maintains first, that it carried out the initial assessment of the status of the marine environment, determined good environmental status and set environmental targets and associated indicators during 2012 and, second, that it notified the corresponding reports to that institution. Therefore, as regards the breach of obligations under that provision, it considers that the present action is unfounded.

26In the second place, as regards the review and updating of certain elements of its marine strategies, the Republic of Bulgaria submits that it has the procedures to ensure that the updates required of it under Article 17 of Directive 2008/56 are carried out, but that an attempt to award a public contract for that purpose was unsuccessful due to a lack of offers from potential contractors. It subsequently informed the Commission that the fulfilment of those obligations went hand in hand with the launch and execution of the Scirena Black Sea project.

27In that regard, the Republic of Bulgaria submits that the performance of the contract was to be carried out in accordance with the requirements of Directive 2008/56 and the Bulgarian legislation transposing it, as well as with Bulgarian legislation on public procurement. In addition, that Member State submits that it was obliged to comply with the approval procedure for that project and that it had to meet all the requirements of the EEA Financial Mechanism. In those circumstances, despite the action taken, it was, owing to objective circumstances, completely impossible for it to comply with its commitments under Article 17(2) and (3) of that directive. The present action should therefore also be dismissed as unfounded with regard to the alleged breach of obligations under the latter provision.

28The Republic of Bulgaria requests that the action be dismissed in its entirety as unfounded or that it be upheld only in part, in so far as it relates to the failure to fulfil its obligations under Article 17(2) and (3) of Directive 2008/56, and that the remainder be dismissed.

29The Commission replies, first, that Articles 5 and 17 of Directive 2008/56 are linked, the latter provision referring expressly to the former. The Republic of Bulgaria therefore wrongly considered that these provisions contain separate obligations which it complied with in part. Moreover, that Member State’s organisational efforts were made only after the deadline for updating its marine strategies.

30Next, the Commission argues that the description of the legislation and procedures concerning the procurement of public contracts and the EEA Financial Mechanism is not sufficient to justify the absolute impossibility, relied on by the Republic of Bulgaria, of complying with the obligations to update and to send those updates to the Commission. First, such technical difficulties cannot justify failure to comply with the obligations imposed by EU law within the prescribed time limit and, second, the Bulgarian authorities are well-versed in that legislation and those procedures.

31Finally, the Commission points out that the new project for review and updating of certain elements of the marine strategies of the Republic of Bulgaria was submitted to internal procedures, expected to last three years, at the end of May 2020. It is therefore impossible for that Member State to comply with its commitment to submit a report by 30 June 2020.

32In its rejoinder, the Republic of Bulgaria points out first, that the failure to award the public contract for the updates in question is due to a lack of tenders and not to a lack of effort on its part.

33Next, that Member State argues that it was necessary to redesign the Scirena Black Sea project because of the withdrawal of the main partner.

34Finally, the Republic of Bulgaria states that, by a contract concluded on 16 March 2021 for a period of five months, it has entrusted a third party with the performance of its commitments under Directive 2008/56, in particular the updating of its marine strategies and the drafting of a report for the period 2012-2017.

Findings of the Court

35It should be recalled that Article 5(2) of Directive 2008/56 states that ‘Member States sharing a marine region or subregion shall cooperate to ensure that, within each marine region or subregion, the measures required to achieve the objectives of this Directive, in particular the different elements of the marine strategies referred to in points (a) and (b), are coherent and coordinated across the marine region or subregion concerned’. Furthermore, in accordance with Article 5(2)(a)(i), (ii) and (iii) of that directive, each Member State was required to draw up, by 15 July 2012, (i) an initial assessment of the current environmental status of the waters concerned and the environmental impact of human activities thereon, (ii) a determination of good environmental status for the waters concerned, and (iii) a series of environmental targets and associated indicators.

36Under Article 17(1) of Directive 2008/56, Member States must ensure that, in respect of each marine region or subregion concerned, marine strategies are kept up to date. By virtue of Article 17(2)(a) and (b) and Article 17(3) of that directive, the elements of the marine strategies referred to in paragraph 35 of this judgment must be reviewed in a coordinated manner, as specified in Article 5 of that directive, every six years from the date of their initial establishment and the details of any updates made following those reviews must be sent to the Commission within three months of their publication in accordance with Article 19(2) of that directive.

37In this regard, recital 34 of Directive 2008/56 explains the need to provide for periodic updates of marine strategies by the ‘dynamic nature of marine ecosystems and their natural variability, and given that the pressures and impacts on them may vary with the evolvement of different patterns of human activity and the impact of climate change’. This recital states that ‘it is appropriate that programmes of measures for the protection and management of the marine environment be flexible and adaptive and take account of scientific and technological developments’.

38Since Article 5(2)(a)(i), (ii) and (iii) of Directive 2008/56 provides that the initial assessment and determination of good environmental status and the setting of environmental targets and associated indicators were to be completed by 15 July 2012, it must be considered first, that the review of those elements of the marine strategies should have been carried out by 15 July 2018, in accordance with Article 17(2)(a) and (b) of that directive and, second, that the details of any updates made following those reviews should have been sent to the Commission within three months of their publication, in accordance with Article 17(3) of that directive, that is to say by 15 October 2018.

39It should also be recalled that, according to the settled case-law of the Court, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that Member State at the end of the period laid down by the reasoned opinion and that the Court cannot take account of any subsequent changes (judgment of 4 March 2021, Commission v United Kingdom (Limit values – NO₂), C‑664/18, not published, EU:C:2021:171, paragraph 77 and the case-law cited).

40In the present case, the time limit set in the reasoned opinion issued by the Commission and received on 11 October 2019 by the Republic of Bulgaria expired on 11 December 2019.

41It is common ground that that Member State did not fulfil its obligations under Article 17(2)(a) and (b) and Article 17(3) of Directive 2008/56, referred to in paragraph 38 of this judgment, within the abovementioned time limit, or even by the date by which that Member State undertook, in its replies to the letter of formal notice and the reasoned opinion, to review and update its marine strategies and to send those updates to that institution, namely 30 June 2020.

42That finding is not called into question by the Republic of Bulgaria’s arguments. First, the claims that the Republic of Bulgaria has fulfilled its obligations under Article 5(2)(a)(i), (ii) and (iii) of Directive 2008/56 must be rejected. Those allegations concern only the obligations to develop initial marine strategies during 2012 and to notify the Commission of the corresponding reports. However, those obligations are not the subject of the present action, as is apparent from paragraph 21 of this judgment.

43Secondly, as regards the argument that it was not possible for the Republic of Bulgaria to comply with its obligations under Article 17(2) and (3) of Directive 2008/56 within the period prescribed by that directive, in particular because of the difficulties experienced in attempting to award the public contract in question and the need to comply with the requirements of EU law, the relevant national legislation and the approval procedure for the Scirena Black Sea project, the Republic of Bulgaria has not explained how the need to comply with the requirements of EU law could have prevented it from fulfilling its obligations under the abovementioned provision of Directive 2008/56. As for the rest, it is sufficient to point out that, according to settled case-law, a Member State cannot rely on provisions, practices or circumstances in its domestic legal order to justify a failure to comply with the obligations and time limits laid down by a directive (judgment of 2 April 2020, Commission v Spain (Flood risks – Management plans for the Canary islands), C‑384/19, not published, EU:C:2020/271, paragraph 12 and the case-law cited).

44More specifically, the obligation on a Member State to take all the measures necessary to achieve the result prescribed by a directive is a binding obligation imposed by the third paragraph of Article 288 TFEU and by the directive itself. This obligation to take all general or specific measures is binding on all Member State authorities (judgment of 16 July 2015, Commission v Bulgaria, C‑145/14, not published, EU:C:2015:502, paragraph 58 and the case-law cited).

45Moreover, Directive 2008/56 does not provide for any derogation from Member States’ obligations under Article 17(2) and (3), as Article 14 thereof only provides for derogations where a Member State can identify cases where the environmental targets or good environmental status cannot be fully achieved. Furthermore, while it is true that recital 29 of that directive refers to the impossibility for a Member State to achieve the level of ambition of the environmental targets set, that reference does not, however, concern the obligations arising from Article 17 thereof.

46In any event, it should be pointed out that the first organisational measures to fulfil the obligations imposed under Article 17(2)(a) and (b) and Article 17(3) of Directive 2008/56 were taken by the Republic of Bulgaria on 16 July 2018, as is apparent from its reply to the letter of formal notice, namely, after the expiry of the time limit laid down in Article 17(2) of that directive, namely, 15 July 2018. Therefore, it cannot be considered that that Member State was unable to comply with its commitments within the time limit laid down.

47Thirdly, to the extent that, as is clear from the case-law referred to in paragraph 39 of this judgment, changes occurring after the expiry of the period laid down in the reasoned opinion cannot be taken into account in assessing the existence of the failure to fulfil the obligations at issue, the fact that a contract was concluded on 16 March 2021 to implement the measures necessary for the Republic of Bulgaria to comply with its obligations is irrelevant to the assessment of the merits of the present action for failure to fulfil obligations.

48In those circumstances it must be held that the action brought by the Commission is well founded.

49In the light of all the foregoing considerations, it must be held that, by failing, within the prescribed time limits, first, to review in a coordinated manner, as specified in Article 5 of Directive 2008/56, the initial assessment and determination of good environmental status and the environmental targets and second, to send to the Commission details of the updates made following those reviews, the Republic of Bulgaria has failed to fulfil its obligations under Article 17(2)(a) and (b) and Article 17(3) of that directive.

Costs

50Under Article 138(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission applied for costs, the Republic of Bulgaria, which has been unsuccessful, must be ordered to pay the costs.

Operative part

On those grounds, the Court (Seventh Chamber) hereby:

1.Declares that by failing, within the prescribed time limits, first, to review in a coordinated manner, as specified in Article 5 of Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive), the initial assessment and determination of good environmental status and the environmental targets and second, to send to the European Commission details of the updates made following those reviews, the Republic of Bulgaria has failed to fulfil its obligations under Article 17(2)(a) and (b) and Article 17(3) of that directive;

2.Orders the Republic of Bulgaria to pay the costs.