Case C-280/02

Commission of the European Communities

v

French Republic

(Failure of a Member State to fulfil obligations – Directive 91/271/EEC – Urban waste water treatment – Article 5(1) and (2) and Annex II – Failure to identify sensitive areas – Meaning of ‘eutrophication’ – Failure to implement more stringent treatment of discharges into sensitive areas)

Summary of the Judgment

1. Environment – Urban waste water treatment – Directive 91/271 – Identification of areas sensitive to eutrophication – Eutrophication – Definition

(Council Directive 91/271, Arts 2(11) and 5(1))

2. Environment – Urban waster water treatment – Directive 91/271 – More stringent treatment of discharge of the urban waste water from large agglomerations – Implications

(Council Directive 91/271, Art. 5(2) and (3), Annexes I.B(3) and II.A(a), second para.)

1. By virtue of Article 5(1) of Directive 91/271 concerning urban waste water treatment, the Member States are obliged to identify the areas where discharges of urban waste water contribute significantly to eutrophication or the risk of eutrophication.

The definition of eutrophication in Article 2(11) of that directive must be interpreted in the light of its objective, which goes beyond the mere protection of aquatic ecosystems and attempts to conserve man, fauna, flora, soil, water, air and landscapes from any significant harmful effects of the accelerated growth of algae and higher forms of plant life resulting from discharges of urban waste water.

For there to be eutrophication within the meaning of the directive, there must be a cause and effect relationship between enrichment by nutrients and the accelerated growth of algae and higher forms of plant life on the one hand and, on the other hand, between the accelerated growth and an undesirable disturbance of the balance of organisms present in the water and to the quality of the water concerned. Species changes involving loss of ecosystem biodiversity, nuisances due to the proliferation of opportunistic macroalgae and severe outbreaks of toxic or harmful phytoplankton constitute an undesirable disturbance of the balance of organisms present in the water. As regards deterioration of water quality, that criterion refers not only to deterioration of the quality of the water which produces harmful effects for ecosystems but also deterioration of the colour, appearance, taste or odour of the water or any other change which prevents or limits water uses.

(see paras 16, 19, 23-25)

2. Under Article 5(3), in conjunction with Annex I.B(3), of Directive 91/271 concerning urban waste water treatment, the treatment provided for in Article 5(2) of that directive is more stringent than that described in Article 4 of that directive and covers urban waste water entering collecting systems and from agglomerations of more than 10 000 ‘population equivalent’ (p.e.). That treatment means, inter alia, that discharges into areas sensitive to eutrophication must satisfy the requirements shown in Table 2 of that Annex, subject, however, to the provisions of the second paragraph of Annex II.A(a) to that directive, which provide that, as regards large agglomerations, the removal of phosphorus and/or nitrogen should be included unless it can be demonstrated that the removal will have no effect on the level of eutrophication.

(see paras 104-105)

JUDGMENT OF THE COURT (Second Chamber) 23 September 2004 (1)

(Failure of a Member State to fulfil obligations – Directive 91/271/EEC – Urban waste water treatment – Article 5(1) and (2) and Annex II – Failure to identify sensitive areas – Meaning of ‘eutrophication’ – Failure to implement more stringent treatment of discharges into sensitive areas)

In Case C-280/02,ACTION under Article 226 EC for failure to fulfil obligations,brought on 30 July 2002,

applicant,

v

defendant,

THE COURT (Second Chamber),,

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

Advocate General: L.A. Geelhoed,

having regard to the written procedure,after considering the observations submitted by the parties,

after hearing the Opinion of the Advocate General at the sitting on 25 March 2004,

gives the following

the French Republic has failed to fulfil its obligations pursuant to Article 5(1) and (2) of, and Annex II to, Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment (OJ 1991 L 135, p. 40).

‘For the purpose of this Directive:

1.

2.

3.

4.

5.

6.…

8.…

…’

‘1.

2.

3....

5.…’

‘A water body must be identified as a sensitive area if it falls into one of the following groups:

The following elements might be taken into account when considering which nutrient should be reduced by further treatment:

…’

Meaning of eutrophication

Scope of the first complaint

The Seine-Normandy basin

– The Seine bay

– The Seine and its tributaries downstream from its confluence with the Andelle

The Artois-Picardy basin

– The coastal waters of the Artois-Picardy basin

– The continental waters of the Artois-Picardy basin (the hydrographical network between the canalised Aa/Escaut and the Belgian border, the Scarpe downstream from Arras, the Lens canal downstream from Lens and the whole of the Somme)

The Loire-Brittany basin

– Vilaine bay

– The Lorient roadstead

– The Elorn estuary, the Gulf of Morbihan, Douarnenez bay and Concarneau bay

The Rhône-Mediterranean-Corsica basin

the French Republic has failed to fulfil its obligations pursuant to Article 5(1) and (2) of, and Annex II to, Directive 91/271. The remainder of the action is dismissed.

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

Signatures.