HAVET & VANHUFFEL – Association d’avocats
In its judgment of 9 July 2026 (Case C-166/25 – European Commission v Portuguese Republic), the Court of Justice of the European Union held that Portugal had failed to fulfil its obligations by only partially and inaccurately transposing the provisions of Directive 2010/75 on industrial emissions. The Court clarified that administrative practices or mere interpretative guidance cannot substitute for a complete and legally binding transposition of a directive.
This judgment of the Court of Justice of the European Union concerns infringement proceedings brought by the European Commission against the Portuguese Republic. The Commission alleged that Portugal had incompletely or incorrectly transposed several provisions of Directive 2010/75 on industrial emissions (integrated pollution prevention and control).
The proceedings followed the Commission’s assessment of the directive’s transposition by the Member States. After sending a letter of formal notice in 2022 and issuing a reasoned opinion in 2023, the Commission brought the matter before the Court in 2025, considering that several provisions of Portuguese law remained incompatible with EU law.
Portugal argued that legislative reforms were underway to remedy the identified shortcomings, particularly in connection with the transposition of a new directive adopted in 2024. It also referred to the political and institutional difficulties encountered at the national level.
The Court nevertheless reiterated that the existence of an infringement must be assessed solely by reference to the situation prevailing at the expiry of the period prescribed in the reasoned opinion. Subsequent legislative amendments or internal difficulties cannot justify a failure to comply with obligations arising under EU law.
The first complaint concerned the definition of « hazardous substances ». Portugal had maintained an incorrect reference to an EU regulation despite a corrigendum to the directive. The Court held that a simple interpretative administrative notice cannot replace a binding legislative transposition.
The second and third complaints related to the obligations applicable in the event of incidents, accidents or non-compliance. The Court found that the obligation to notify the competent authorities within forty-eight hours does not satisfy the directive’s requirement of immediate notification. However, it rejected the Commission’s argument that the national authorities should have been expressly required to adopt the corrective measures themselves.
With regard to the general binding rules applicable to industrial installations, the Court found that Portuguese law does not expressly guarantee an integrated approach and a high level of environmental protection equivalent to that ensured by individual permits, contrary to Article 17 of the directive.
The Court also observed that Portugal had failed to transpose the obligation requiring the competent authorities, when reconsidering permit conditions, to use all information obtained through emissions monitoring and environmental inspections. Once again, administrative practice cannot compensate for the absence of a binding legislative provision.
As regards transboundary effects, the Court held that Portugal does not communicate to other Member States all the information required during authorisation procedures for installations likely to have significant environmental effects beyond national borders.
The following complaints concerned waste incineration and co-incineration plants. The Court found that Portuguese legislation does not require permits to include all the information prescribed by the directive, particularly concerning wastewater discharges and the characteristics of hazardous waste treated.
The Court also identified an incorrect cross-reference in Portuguese legislation concerning the mass balance calculations for wastewater resulting from the cleaning of waste gases. This error prevents account from being taken of all the measures required under the directive.
The national definition of the concept of an « existing plant » was likewise found to be incompatible with EU law, since the reference dates adopted by the Portuguese legislature do not correspond to those laid down by the directive.
Finally, the Court found that Portugal had incompletely transposed the rules governing the assessment of compliance with emission limit values. The references contained in Portuguese legislation do not incorporate all the technical requirements laid down by the directive for certain pollutants.
Overall, the Court upheld ten of the Commission’s eleven complaints. Only the third complaint, relating to the obligation of the competent authorities to adopt additional corrective measures in the event of incidents or non-compliance, was dismissed as unfounded.
In conclusion, the Court held that the Portuguese Republic had failed to fulfil its obligations by incorrectly transposing several essential provisions of Directive 2010/75. It accordingly ordered Portugal to pay the costs and reaffirmed that the transposition of an EU directive must be complete, precise and legally binding by the expiry of the deadline laid down by the Commission.
Accordingly, the Court held that, by failing, upon expiry of the period prescribed by the European Commission in its reasoned opinion of 28 September 2023, correctly or fully to transpose Article 3(18), Article 7(a), Article 8(2)(a), Article 17(1), the second subparagraph of Article 21(2), Article 26(4), Article 45(1)(d) and (2), the second subparagraph of Article 46(4), Article 49, read in conjunction with point 1.3 of Part 8 of Annex VI, and Article 57(1) of Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control), the Portuguese Republic had failed to fulfil its obligations under those provisions.
To consult the judgment, follow this link: https://eur-lex.europa.eu/legal-content/FR/TXT/?uri=CELEX:62025CJ0166.