Sewage treatment or purification.
Administration responsible for the sanctions of the European Union for lack of execution of the infrastructure necessary to carry out the sewage treatment or purification.
Judgment of the Supreme Court of July 29, 2021 Contentious-Administrative Chamber.
On the occasion of a contentious-administrative appeal filed by an Autonomous Community against the Agreement of the Council of Ministers, which resolves the procedure for determining and impacting responsibilities for breach of European Union Law in case C-205/17, Commission / Kingdom of Spain, regarding the non-execution of the judgment of April 14, 2011, Commission / Kingdom of Spain, in case C-343/10 regarding the collection and treatment of wastewater, and that it is awarded to the Autonomous Community, by not having carried out the necessary infrastructures for local entities to carry out said treatment.
The Autonomous Community supported its appeal on the basis that it considered that it was not responsible for the non-compliance with the Directive on urban wastewater treatment, as treatment measures had not been adopted, noting that, in this case, the title of attribution of responsibility was exclusively competence ; the breach of the European Union law that was affected, corresponded to the treatment and sanitation of wastewater; the competence to fulfil the obligations derived from said Directive, in the case of the Autonomous Community, by the competence distribution system, corresponded to the local entities; the agreements, pacts or agreements between public administrations, as well as the declaration of autonomic interest did not alter the competence title, as they had limited effects (temporary and objective); and that the Autonomous Community had complied with all its commitments, rejecting its responsibility for urban agglomerations. Finally, and in the alternative, it pointed out that, if the CCAA were to assume some type of financial responsibility for having intervened in aid of local entities, it should be taken into account that the declaration of regional interest did not displace or alter local competition and that, in any case, the liability to be derived would always be subject to a series of objective and temporal limitations. Based on these arguments, it requested that the appeal be upheld and the contested Council of Ministers Agreement be annulled and, alternatively, based on the imputation of responsibility for the competence title, the attributable liability be moderated taking into account the objective and temporal limitations that he indicated in his writing.
The Supreme Court dismisses the appeal filed by the CCAA, considering that it would be necessary to differentiate: on the one hand, who is obliged, based on their powers, to comply with the Directives whose non-compliance have given rise to the SSTJUE and the sanctions to the Kingdom of Spain; and, on the other hand, internal relations between Public Administrations for financing purposes, which must be settled at their corresponding headquarters.
Thus, the procedure must be limited to determining, according to the competence title, who would be responsible for the lack of compliance with the Directives for years; This title of imputation is linked to the action or omission of those who are competent, without the provision of any other title other than that on the basis of which responsibility can be imputed. The title of competency imputation is not affected by the relationships that the obligated party maintains with other Public Administrations, through instruments that are used to enable the execution of the works from a technical and economic point of view, whether they are agreements, protocols or, as a declaration of regional interest.
And in no case does the declaration of autonomic interest of the Autonomous Community produce the effect of altering or displacing local competence in the matter, nor would it be a title attributing powers, let alone, of attributing responsibility to the Autonomous Community. This would be contrary to the constitutional system of distribution of competences, in which the statutory legislator clearly attributes the competence to the Local Administration.
In order to pass on the responsibilities derived from executive sanctions for non-compliance with European Union Law, it will be essential to identify those Public Administrations or entities that, in the area of competence assigned by the Spanish legal system, carry out an action or omission that gives rise to a breach of European Union law for which the Kingdom of Spain is sanctioned: in accordance with the constitutional order of distribution of powers, each Administration is responsible for internally complying with European obligations, corresponding to the General State Administration to affect the corresponding Administration the responsibility derived from the breach of the European Union Law.
And thus, it is possible to establish a distinction between the competence over the sanitation or purification of wastewater and the competence over the performance of the hydraulic works necessary for the provision of that service, that is, over the construction or adaptation of the water treatment plants residuals (WWTP).
And it should be noted that the competent Public Administrations to provide the wastewater treatment service will hardly be able to do so if they do not have the appropriate infrastructure.
Therefore, it is reasonable that, to the extent that non-compliance with the European Union regulations on wastewater treatment, for which the sanctions are caused, has its origin in the lack of execution of the infrastructures necessary to carry out the sanitation or purification of wastewater (as the Commission stated in its application), the competences relating to the execution of hydraulic infrastructures are taken into account in order to determine the non-compliant subject and, consequently, attribute the corresponding responsibility.
And, in this sense, from the terms of the lawsuit filed before the CJEU by the European Commission against the Kingdom of Spain in case C-205/17, from which the procedure in question derives, that the sanction imposed on our country has Its origin in the lack of execution of the hydraulic infrastructures necessary to be able to carry out the purification and treatment of wastewater, it is logical that the responsibility derived from the non-compliance is attributed in its entirety to the person holding the competence for the execution of these infrastructures breached their obligation, thus preventing the person in charge of providing the purification and wastewater treatment service from fulfilling his obligation.
It can be affirmed that the competence over the execution of the hydraulic works of interest of the Autonomous Community corresponds to it and that this competence is not altered by the conclusion of agreements between it and the local entities that have the purpose of materially developing and executing the planning of the aforementioned infrastructures.
The Supreme Court concludes that the breach of European Union Law is a direct and exclusive consequence of the breach by the CCAA of a competence attributed by our legal system, which is that relating to the execution of hydraulic infrastructure works -of interest of the Autonomous Community – which were necessary so that the wastewater treatment and purification service could be provided in urban agglomerations; This non-compliance is a direct and exclusive cause of non-compliance with European Union law, because the lack of execution of the aforementioned hydraulic works has prevented local entities from providing the wastewater treatment and purification service within their competence.
For this reason, the Supreme Court considers it contrary to logic that the appellant Administration intends to project on the local entities the consequences derived from its own non-compliance.