Case C-239/03

Commission of the European Communities

v

French Republic

(Failure of a Member State to fulfil obligations – Convention for the protection of the Mediterranean Sea against pollution – Articles 4(1) and 8 – Protocol for the protection of the Mediterranean Sea against pollution from land-based sources – Article 6(1) and (3) – Failure to adopt appropriate measures to prevent, abate and combat heavy and prolonged pollution of the Étang de Berre – Discharge authorisation)

Summary of the Judgment

1. Actions for failure to fulfil obligations – Action for a declaration that a Member State has failed to comply with a mixed agreement concluded by the Community and the Member States – Protocol for the protection of the Mediterranean Sea against pollution from land-based sources – Jurisdiction of the Court – Admissible

(Art. 226 EC; Barcelona Convention, Arts 4(1) and 8; Protocol for the protection of the Mediterranean Sea against pollution from land-based sources, Art. 6(1) and (3))

2. International agreements – Community agreements – Protocol for the protection of the Mediterranean Sea against pollution from land-based sources – Obligation on the States to limit such pollution – Scope

(Protocol for the protection of the Mediterranean Sea against pollution from land-based sources, Art. 6(1) and (3))

1. The application of Articles 4(1) and 8 of the Barcelona Convention for the protection of the Mediterranean Sea against pollution and Article 6(1) and (3) of the Protocol for the protection of the Mediterranean Sea against pollution from land-based sources to discharges of fresh water and alluvia into a saltwater marsh falls within the Community framework, even though such discharges have not been the subject of specific Community legislation, since those articles are in mixed agreements concluded by the Community and its Member States and concern a field in large measure covered by Community law. The Court therefore has jurisdiction to assess a Member State’s compliance with those articles in proceedings brought before it under Article 226 EC.

Mixed agreements concluded by the Community, its Member States and non-member countries have the same status in the Community legal order as purely Community agreements in so far as the provisions fall within the scope of Community competence. In ensuring compliance with commitments arising from an agreement concluded by the Community institutions, the Member States therefore fulfil, within the Community system, an obligation in relation to the Community, which has assumed responsibility for the due performance of the agreement.

(see paras 25-26, 31)

2. Article 6(1) of the Protocol for the protection of the Mediterranean Sea against pollution from land-based sources, in conjunction with Article 1 thereof, imposes a particularly rigorous obligation on the Contracting Parties, namely an obligation to limit strictly, by appropriate measures, pollution from land-based sources in the area caused by discharges of, inter alia, any substances even of a non-toxic nature which may become harmful to the marine environment. The strictness of this obligation reflects the nature of the instrument, which is designed in particular to avoid pollution caused by the failure of the public authorities to act. The scope of the obligation must be construed in the light of Article 6(3) of the Protocol which, by setting up a regime of prior authorisation by the competent national authorities of the discharge of substances referred to in Annex II to the Protocol, requires the Member States to control pollution from land-based sources in the area to which the Protocol applies.

Accordingly, a Member State which fails to take all appropriate measures to prevent, abate and combat heavy and prolonged pollution of the Mediterranean Sea area, and which fails to take account of the requirements of Annex III to the Protocol concerning the authorisation regime for discharges of those substances by not amending its national arrangements following the conclusion of the Protocol, fails to fulfil its obligations under inter alia Article 6(1) and (3) of the Protocol.

(see paras 50-51, operative part)

JUDGMENT OF THE COURT (Second Chamber) 7 October 2004 (1)

(Failure of a Member State to fulfil obligations – Convention for the protection of the Mediterranean Sea against pollution – Articles 4(1) and 8 – Protocol for the protection of the Mediterranean Sea against pollution from land-based sources – Article 6(1) and (3) – Failure to adopt appropriate measures to prevent, abate and combat heavy and prolonged pollution of the Étang de Berre – Discharge authorisation)

In Case C-239/03,ACTION under Article 226 EC for failure to fulfil obligations, brought on 4 June 2003,

applicant,

v

defendant,

THE COURT (Second Chamber),,

composed of: C.W.A. Timmermans, President of the Chamber, R. Schintgen (Rapporteur), R. Silva de Lapuerta, P. Kūris and G. Arestis, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

having regard to the written procedure,

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

gives the following

the French Republic has failed to fulfil its obligations under Articles 4(1) and 8 of the Convention for the protection of the Mediterranean Sea against pollution, signed at Barcelona on 16 February 1976 and approved on behalf of the European Economic Community by Council Decision 77/585/EEC of 25 July 1977 (OJ 1977 L 240, p. 1; ‘the Convention’), under Article 6(1) and (3) of the Protocol and under Article 300(7) EC.

‘... 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)

‘to polluting discharges reaching the Protocol area from land-based sources within the territories of the Parties, in particular,

directly, from outfalls discharging into the sea or through coastal disposal,

indirectly, through rivers, canals or other watercourses, including underground watercourses, or through run-off’.

‘1.

...

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

‘Water inputs

Alluvium inputs

Compliance with the quotas

In the event of difficulty in complying with these quotas, EDF must inform the Étang de Berre Recovery Taskforce which will decide on the action to be taken.’

Arguments of the parties

Findings of the Court

Arguments of the parties

Findings of the Court

‘Before the barrage of the Mallemort auxiliary inlet enters into operation, operating instructions shall be drawn up by the administrative authorities, after giving the holder of the concession the opportunity to be heard, in order to determine the conditions for opening the floodgates. These operating instructions shall be drawn up in agreement with the chief engineer in the civil engineering department at Avignon who has responsibility for the flood service in the Durance basin.’

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

Signatures.