Avis juridique important

Judgment of the Court (Sixth Chamber) of 25 November 1998. - Commission of the European Communities v Kingdom of Spain. - Failure to fulfil obligations - Failure to transpose Directive 76/464/EEC. - Case C-214/96. European Court reports 1998 Page I-07661

Summary Parties Grounds Decision on costs Operative part

1 Member States - Obligations - Implementation of directives - Failure to fulfil obligations - Justification - Not permissible

(EC Treaty, Art. 169)

2 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 by the reasoned opinion

(EC Treaty, Art. 169)

3 Environment - Water pollution - Directive 76/464 - Obligation to establish specific programmes with a view to reducing pollution caused by certain dangerous substances - Scope

(Council Directive 76/464, Art. 7)

4 A Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with the obligations and time-limits laid down in a directive.

5 In an action under Article 169 of the Treaty, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion, and subsequent changes cannot be taken into account by the Court.

6 The programmes which the Member States are required to establish, under Article 7 of Directive 76/464, in order to reduce pollution of inland surface water and territorial waters by the substances within List II in the annex to the directive must be specific and include, in accordance with Article 7(3), quality objectives with regard to the waters concerned. Such programmes are an instrument the purpose of which is to define procedures, within a consistent framework, for the protection of waters from pollution by the substances in List II, enabling in particular a comparative assessment to be made of the various schemes in force for the protection of waters in the Member States.

Accordingly, legislation which constitutes only a series of ad hoc legislative measures which cannot amount to an organised and coordinated system of quality objectives relating to specific watercourses or bodies of standing water cannot be considered to be a programme within the meaning of Article 7 of the directive.

In Case C-214/96,

Commission of the European Communities, represented by Richard Wainwright, Principal Legal Adviser, and Fernando Castillo de la Torre, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

applicant,

v

Kingdom of Spain, represented by Paloma Plaza García, Abogado del Estado, acting as Agent, with an address for service in Luxembourg at the Spanish Embassy, 4-6 Boulevard E. Servais,

defendant,

APPLICATION for a declaration that, by failing to adopt and communicate the programmes for reducing pollution of waters by the substances set out in List II, as provided for in Article 7(1) of Council Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community (OJ 1976 L 129, p. 23), the Kingdom of Spain has failed to fulfil its obligations under the EC Treaty and Article 7 of the directive,

THE COURT

(Sixth Chamber),

composed of: P.J.G. Kapteyn, President of the Chamber, G. Hirsch (Rapporteur), J.L. Murray, H. Ragnemalm and K.M. Ioannou, Judges,

Advocate General: A. Saggio,

Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 25 June 1998,

gives the following

Judgment

1 By application lodged at the Court Registry on 25 June 1996, the Commission of the European Communities brought an action under Article 169 of the EC Treaty for a declaration that, by failing to adopt and communicate the programmes for reducing pollution of waters by the substances set out in List II, as provided for in Article 7(1) of Council Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community (OJ 1976 L 129, p. 23, hereinafter `the directive'), the Kingdom of Spain has failed to fulfil its obligations under the EC Treaty and Article 7 of the directive.

The directive

2 According to Article 1, the directive applies to inland surface water, territorial waters, internal coastal waters and ground water.

3 According to the seventh and ninth recitals in the preamble to the directive and Article 2 thereof, its aim is to secure, first, the elimination of pollution of the aquatic environment caused by the discharge of various dangerous substances within an initial list, referred to as `List I', and second, the reduction of pollution of that environment caused by substances within a second list, referred to as `List II'. Those two lists are annexed to the directive.

4 List I contains substances selected mainly on the basis of their toxicity, persistence and bioaccumulation. Under Articles 3 and 6 of the directive, the Member States must make all discharges of such substances into the aquatic environment subject to prior authorisation by the competent authority and lay down emission standards which must not exceed limit values to be laid down by the Council according to the effect of those substances on the aquatic environment.

5 So far as concerns the other substances, the annex to the directive provides, under `List II of families and groups of substances', as follows:

`List II contains:

- substances belonging to the families and groups of substances in List I for which the limit values referred to in Article 6 of the directive have not been determined,

- certain individual substances and categories of substances belonging to the families and groups of substances listed below,

and which have a deleterious effect on the aquatic environment, which can, however, be confined to a given area and which depend[s] on the characteristics and location of the water into which they are discharged.'

6 Thus the first indent of List II contains substances which could fall within List I but for which the Council has not yet fixed the limit values pursuant to Article 6 of the directive. At present 99 substances which fall within List I are comprised in List II.

7 With regard to the substances appearing in List II, Article 7 provides as follows:

`1. In order to reduce pollution of the waters referred to in Article 1 by the substances within List II, Member States shall establish programmes in the implementation of which they shall apply in particular the methods referred to in paragraphs 2 and 3.

2. All discharges into the waters referred to in Article 1 which are liable to contain any of the substances within List II shall require prior authorisation by the competent authority in the Member State concerned, in which emission standards shall be laid down. Such standards shall be based on the quality objectives, which shall be fixed as provided for in paragraph 3.

3. The programmes referred to in paragraph 1 shall include quality objectives for water; these shall be laid down in accordance with Council directives, where they exist.

4. The programmes may also include specific provisions governing the composition and use of substances or groups of substances and products and shall take into account the latest economically feasible technical developments.

5. The programmes shall set deadlines for their implementation.

6. Summaries of the programmes and the results of their implementation shall be communicated to the Commission.

7. The Commission, together with the Member States, shall arrange for regular comparisons of the programmes in order to ensure sufficient coordination in their implementation. If it sees fit, it shall submit relevant proposals to the Council to this end.'

The pre-litigation procedure

8 By two letters addressed to the Kingdom of Spain on 26 September 1989 and 4 April 1990, the Commission requested information on the programmes for the reduction of pollution provided for in Article 7 of the directive in respect of certain substances appearing in List II, which the Commission had, for the sake of clarity, listed in order of priority, although not exhaustively, in an attachment to the first letter. The Commission also asked to be sent the reduction programmes adopted in respect of other substances falling within List II but not enumerated in the attachment.

9 In the second letter, the Commission extended its request for information to cover the 99 substances which were eligible for inclusion in List I but which appear for the time being in List II in the absence of limit values. With regard to those substances, it asked the Spanish authorities in particular for an up-to-date list of discharges into Spanish waters and to state the quality objectives laid down for granting authorisations for the discharge of one or more of those substances or, if no such objectives have been laid down by the Kingdom of Spain, to explain why.

10 According to the Spanish Government's reply, contained in a letter of 26 July 1990, but which reached the Commission under cover of a letter of 29 January 1991, the programmes provided for in Article 7 of the directive regarding surface waters form part of the catchment basin plans which are to be drawn up by the Confederaciones Hidrográficas (water authorities); programmes regarding discharges of dangerous substances into the sea are a matter for the autonomous communities. However, although such programmes are in the course of being drawn up by the water authorities, neither they nor the autonomous communities have as yet established any programmes for reducing discharges of dangerous substances.

11 By letter of 19 December 1990 and by a further letter of 30 November 1993, the Commission put the Spanish Government on notice to submit its observations on the drafting and implementation of the programmes referred to in Article 7 of the directive.

12 In its reply of 3 March 1994, the Spanish Government referred, in particular, to the existence of draft guidelines for the catchment basins of northern Spain and of the Douro, the Tagus, the Guadiana, the Guadalquivir, the Segura, the Júcar and the Ebro. It also mentioned a project for the permanent monitoring of water quality (the SAICA Project).

13 Taking the view that the replies given by the Spanish Government were inadequate, the Commission issued a reasoned opinion on 17 November 1994 imposing on the former a deadline of two months within which to adopt the measures necessary to comply therewith. At the request of the Spanish Government, the period was subsequently extended by two months by a letter from the Commission of 18 January 1995.

14 The Spanish Government eventually replied by letters of 8 September 1995 and 16 October 1995. It referred to an additional report on the reduction programmes envisaged for surface waters and, with regard to discharges into the sea, to reports from the Junta de Andalucía, the Principality of Asturias, the Generalitat of Catalonia and the Murcia Region and forwarded, in its second letter, a copy of the reports drawn up by the Generalitat of Valencia and by the Basque Government.

15 Having received no further communication enabling it to ascertain whether the Kingdom of Spain had fulfilled its obligations under Article 7 of the directive, the Commission brought the present action.

Substance

The plea in law alleging internal difficulties

16 The Spanish Government claims, first of all, that, although the Kingdom of Spain has been bound by the directive since its accession to the Community, in accordance with Article 395 of the Act concerning the Conditions of Accession of the Kingdom of Spain and the Portuguese Republic and the Adjustments to the Treaties, it has had to deal with many far-reaching changes in its administration since the promulgation of the Constitution of 6 December 1978, on the one hand, and as a result of its accession to the Community on 1 January 1986, on the other.

17 The Spanish Government adds that the state of Spanish legislation relating to protection of the environment at the time of accession had not attained European Community levels.

19 Accordingly, the arguments put forward by the Spanish Government cannot be accepted.

`Surface waters'

20 With regard to Spanish legislation on surface waters, the Spanish Government observes, first of all, that Law No 29/85 of 2 August 1985 on the monitoring of waters and the regulation on public water resources ratified and brought into force by Royal Decree No 849/86 of 11 April 1986 establish two lists of polluting substances which coincide with those in Lists I and II of the directive.

21 The Spanish Government acknowledges none the less that the quality objectives must be laid down in connection with each catchment basin plan, pursuant to Royal Decree No 927/88 of 29 July 1988 approving the regulation on the public administration of water and water catchment planning and to Royal Decree No 650/87 of 8 May 1987 defining the territorial jurisdiction of the catchment authorities and the territorial scope of the catchment basin plans, and that not all the catchment basin plans, of which the programmes provided for in Article 7 of the directive constitute only a part, have been definitively approved.

22 Accordingly, it should be observed first of all that the Spanish Government itself acknowledges that the catchment basin plans, which have moreover not yet been approved, do not fulfil the obligation to establish the programmes provided for in Article 7(1) of the directive.

23 Secondly, the Spanish Government considers that Royal Decree No 484/95 of 7 April 1995 laying down additional measures for the regulation and monitoring of discharges has achieved the objectives pursued by the programmes provided for in Article 7 of the directive, even if that act does not contain the words `programme for reducing pollution' in the title.

24 The Spanish Government explains, in that respect, that the preliminary studies needed to implement the regulatory measures have revealed the existence of only 30 of the 99 substances in Spanish surface waters. Those studies have also made it possible to set for each of the substances in List II the quality objectives to be taken into consideration when deciding whether to grant or refuse a discharge authorisation. According to the explanations provided by the Spanish Government, those quality objectives are calibrated at the lowest concentrations and are capable in particular of guaranteeing the maximum limit values authorised by the various directives, for example on drinking water, marine life and bathing waters.

26 However, upon the expiry of the period set by the reasoned opinion, extended by two months by letter of the Commission of 18 January 1995, Decree No 484/95 had still not been brought into force, since it was not approved until 7 April 1995

27 Furthermore, as the Court has consistently held, only specific programmes including, in accordance with Article 7(3), quality objectives with regard to the waters referred to in Article 1 may be considered to be programmes within the meaning of Article 7 of the directive (Joined Cases C-232/95 and C-233/95 Commission v Greece, cited above, paragraph 35).

28 As the Advocate General states at point 20 of his Opinion, such a programme is an instrument the purpose of which is to define procedures, within a consistent framework, for the protection of waters from pollution by the substances in List II, enabling in particular a comparative assessment to be made of the various schemes in force for the protection of waters in the Member States.

29 In the light of the sixth recital in the preamble, a formal framework of that kind appears all the more necessary as the deleterious effects of the substances in List II may be confined to a given area and depend on the characteristics and location of the waters into which they are discharged. The purpose of such a programme is thus the uniform application of the discharge authorisations provided for in Article 7(2), which set emission standards based on the quality objectives laid down in the shape of a programme intended for specific watercourses and bodies of standing water.

31 Accordingly, it must be held that, so far as concerns surface waters, the Kingdom of Spain has not established the programmes required by Article 7 of the directive. The Commission's action must therefore be upheld in that respect.

Discharges into the sea

32 So far as concerns discharges into the sea, it is apparent from the case-file, as the Advocate General has found at point 19 of his Opinion, that the autonomous communities responsible for drawing up the general conditions governing discharges, as well as the attendant system of administrative authorisation, have not established the programmes for the reduction of pollution required by Article 7 of the directive. Nor has the Spanish Government disputed the Commission's complaint to that effect.

33 In view of all the foregoing considerations, it must be held that, by failing to establish programmes for reducing the pollution of surface waters and territorial sea waters by substances falling within List II of the directive, the Kingdom of Spain has failed to fulfil its obligations under Article 7 of that directive.

Costs

34 Under Article 69(2) 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 defendant has been unsuccessful, it must be ordered to pay the costs.

On those grounds,

THE COURT

(Sixth Chamber),

hereby:

1. Declares that, by failing to establish programmes for reducing the pollution of surface waters and territorial sea waters by substances falling within List II of Council Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community, the Kingdom of Spain has failed to fulfil its obligations under Article 7 of that directive.

2. Orders the Kingdom of Spain to pay the costs.