Case C-213/03

Syndicat professionnel coordination des pêcheurs de l’étang de Berre and de la région

v

Électricité de France (EDF)

(Reference for a preliminary ruling from the Cour de cassation (France))

(Convention for the Protection of the Mediterranean Sea against Pollution (Barcelona Convention) – Protocol for the Protection of the Mediterranean Sea against Pollution from Land-based Sources – Article 6(3) – Authorisation to discharge – Direct effect)

Summary of the Judgment

1. International agreements – Community Agreements – Direct effect – Conditions – Article 6(3) of the Protocol for the Protection of the Mediterranean Sea against Pollution from Land-based Sources and Article 6(1) of the amended Protocol – Obligation on Member States to subject the discharge of certain substances to a system of authorisation

(Art. 6(3) of the Protocol for the Protection of the Mediterranean Sea against Pollution from Land-based Sources, and Art. 6(1) of the amended Protocol)

2. International agreements – Community Agreements – Article 6(3) of the Protocol for the Protection of the Mediterranean Sea against Pollution from Land-based Sources and Article 6(1) of the amended Protocol – Discharge of non-toxic substances – Prohibition without prior authorisation

(Art. 6(3) of the Protocol for the Protection of the Mediterranean Sea against Pollution from Land-based Sources, and Art. 6(1) of the amended Protocol)

1. A provision in an agreement concluded by the Community with a non‑member country must be regarded as being directly applicable when, regard being had to its wording and to the purpose and nature of the agreement, the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure.

Such is the case with Article 6(3) of the Protocol for the Protection of the Mediterranean Sea against Pollution from Land-based Sources and Article 6(1) of the amended Protocol which clearly, precisely and unconditionally lay down the obligation for Member States to subject discharges of the substances listed in Annex II to the Protocol to the issue by the competent national authorities of an authorisation taking due account of the provisions of Annex III. As a result, since those provisions have direct effect, any interested party is entitled to rely on them before the national courts.

(see paras 39, 41, 47, operative part 1)

2. Article 6(3) of the Protocol for the Protection of the Mediterranean Sea against Pollution from Land-based Sources and Article 6(1) of the amended Protocol must be interpreted as prohibiting, without an authorisation issued by the competent national authorities, the discharge of substances which, although not toxic, have an adverse effect on the oxygen content of the marine environment, since those provisions do not expressly make the requirement of prior authorisation conditional on their toxicity.

(see paras 49, 52, operative part 2)

JUDGMENT OF THE COURT (Second Chamber) 15 July 2004 (1)

(Convention for the Protection of the Mediterranean Sea against Pollution (Barcelona Convention) – Protocol for the Protection of the Mediterranean Sea against Pollution from Land-based Sources – Article 6(3) – Authorisation to discharge – Direct effect)

In Case C-213/03,

REFERENCE to the Court under Article 234 EC by the Cour de cassation (France) for a preliminary ruling in the proceedings pending before that court between

and

on the interpretation of Article 6(3) of the Protocol for the Protection of the Mediterranean Sea against Pollution from Land-based Sources, signed in Athens on 17 May 1980, approved by Council Decision 83/101/EEC of 28 February 1983 (OJ 1983 L 67, p. 1), and of Article 6(1) of the Protocol as amended at the Conference of Plenipotentiaries held in Syracuse on 7 and 8 March 1996, which amendments were approved by Council Decision 1999/801/EC of 22 October 1999 (OJ 1999 L 322, p. 18),

THE COURT (Second Chamber),,

composed of: C.W.A. Timmermans, President of the Chamber, C. Gulmann, J.-P. Puissochet, J.N. Cunha Rodrigues and R. Schintgen (Rapporteur), Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

after considering the written observations submitted on behalf of:

after hearing the oral observations of the Syndicat professionnel coordination des pêcheurs de l'étang de Berre et de la région, Électricité de France, the French Government and the Commission at the hearing on 10 March 2004,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

‘… the introduction by man, directly or indirectly, of substances or energy into the marine environment resulting in such deleterious effects as harm to living resources, hazards to human health, hindrance to marine activities including fishing, impairment of quality for use of sea water and reduction of amenities.’

‘The Contracting Parties shall individually or jointly take all appropriate measures in accordance with the provisions of this Convention and those Protocols in force to which they are party to prevent, abate and combat pollution of the Mediterranean Sea area and to protect and enhance the marine environment in that area.’

‘The Contracting Parties shall take all appropriate measures to prevent, abate and combat pollution of the Mediterranean Sea area caused by discharges from rivers, coastal establishments or outfalls, or emanating from any other land-based sources within their territories.’

‘The Contracting Parties … shall take all appropriate measures to prevent, abate, combat and control pollution of the Mediterranean Sea Area caused by discharges from rivers, coastal establishments or outfalls, or emanating from any other land-based sources within their territories.’

‘The area to which this Protocol applies (hereinafter referred to as the “Protocol Area”) shall be:

...

(c) saltwater marshes communicating with the sea.’

–

–

‘1. The Parties shall strictly limit pollution from land-based sources in the Protocol Area by substances or sources listed in Annex II to this Protocol.

…

3. Discharges shall be strictly subject to the issue, by the competent national authorities, of an authorisation taking due account of the provisions of Annex III … ’.

‘The Parties shall progressively formulate and adopt, in co-operation with the competent international organisations, common guidelines and, as appropriate, standards or criteria dealing in particular with:

...

(e) specific requirements concerning the quantities of the substances listed in Annexes I and II discharged, their concentration in effluents and methods of discharging them.’

‘The control and strict limitation of the discharge of substances referred to in section A above must be implemented in accordance with Annex III.’

‘...

(d) Brackish waters, coastal salt waters including marshes and coastal lagoons, and ground waters communicating with the Mediterranean Sea’.

‘Point source discharges into the Protocol area, and releases into water or air that reach and may affect the Mediterranean area, as defined in Article 3(a), (c) and (d) of this Protocol, shall be strictly subject to authorisation or regulation by the competent authorities of the Parties, taking due account of the provisions of this Protocol and Annex II thereto, as well as the relevant decisions or recommendations of the meetings of the Contracting Parties.’

‘As regards the implementation of Community law, in particular the Barcelona Convention and the Athens Protocol …, the question of their direct effect on individuals also raises issues which do not fall within the jurisdiction of the court adjudicating on the substance.

Since the question whether EDF’s operation of the hydroelectric power station at Saint-Chamas constitutes a manifestly unlawful disturbance, that is to say, unlawful conduct within the meaning generally understood in the case-law, gives rise to issues which are too serious to allow the court hearing the application for interim measures to intervene and put an end to three decades of operations, such a decision being of great import in that it would have extremely serious consequences for, inter alia, production and the security of the region’s electricity system …’

On those grounds,

THE COURT (Second Chamber),

in answer to the questions referred to it by the Cour de cassation by judgment of 6 May 2003, hereby rules:

Timmermans

Gulmann

Puissochet

Cunha Rodrigues

Schintgen

Delivered in open court in Luxembourg on 15 July 2004.

R. Grass

C.W.A. Timmermans

Registrar

President of the Second Chamber