Avis juridique important

Judgment of the Court (Sixth Chamber) of 25 May 2000. - Commission of the European Communities v Hellenic Republic. - Failure of a Member State to fulfil its obligations - Water pollution - Obligation to adopt programmes in order to reduce pollution caused by certain dangerous substances - Failure to transpose Directive 76/464/EEC. - Case C-384/97. European Court reports 2000 Page I-03823

Summary Parties Grounds Decision on costs Operative part

1. Actions for failure to fulfil obligations - Examination of merits by the Court - Situation to be taken into consideration - Situation at the end of the period laid down in the reasoned opinion

(EC Treaty, Art. 169 (now Article 226 EC))

2. Environment - Water pollution - Directive 76/464 - Obligation to establish specific programmes in order to reduce pollution caused by certain dangerous substances - Scope

(Council Directive 76/464, Art. 7 and annex, List II)

1. In the context of an action brought under Article 169 of the Treaty (now Article 226 EC), the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing at the end of the period laid down in the reasoned opinion, and subsequent changes cannot be taken into account by the Court.

( see para. 35 )

2. The programmes which the Member States are required to establish, under Article 7 of Directive 76/464, in order to reduce pollution of their waters by the substances within List II in the annex to the directive must be specific, that is to say, they must have a comprehensive and coherent approach, covering the entire national territory and providing practical and coordinated arrangements for the reduction of pollution caused by any of the substances in List II which are relevant in the particular context of each Member State, in accordance with the quality objectives fixed by those programmes for the waters affected.

Accordingly, national measures cannot be regarded as programmes within the meaning of Article 7 of the directive where, even if capable of contributing to a reduction in water pollution, they are merely ad hoc measures and not comprehensive and coherent programmes of that kind, based on studies of the waters affected and setting quality objectives.

( see paras 39-40, 42 )

In Case C-384/97,

Commission of the European Communities, represented by M. Condou-Durande, of its Legal Service, acting as Agent, with an address for service in Luxembourg at the office of C. Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

applicant,

v

Hellenic Republic, represented by A. Samoni-Rantou, Legal Adviser in the Special Department for Community Legal Affairs in the Ministry of Foreign Affairs, and E.-M. Mamouna, Lawyer in the same Department, acting as Agents, with an address for service in Luxembourg at the Greek Embassy, 117 Val Sainte-Croix,

defendant,

APPLICATION for a declaration that, by failing to establish programmes including quality objectives and setting deadlines for their implementation, in order to reduce water pollution caused by the 99 dangerous substances covered by the first indent of List II in the annex to 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), and consequently by failing to require discharges which are made into waters and liable to contain any of the said substances to be subject to a prior authorisation issued by the competent authority in which emission standards are set on the basis of quality objectives laid down in such programmes, the Hellenic Republic has failed to fulfil its obligations under the EC Treaty and Article 7 of Directive 76/464,

THE COURT (Sixth Chamber),

composed of: R. Schintgen, President of the Second Chamber, acting as President of the Sixth Chamber, P.J.G. Kapteyn, G. Hirsch (Rapporteur), H. Ragnemalm and V. Skouris, Judges,

Advocate General: P. Léger,

Registrar: L. Hewlett, Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 29 September 1999, at which the Commission was represented by M. Condou-Durande and the Hellenic Republic by E. Skandalou, Assistant Legal Adviser in the Special Department for Community Legal Affairs in the Ministry of Foreign Affairs, acting as Agent,

after hearing the Opinion of the Advocate General at the sitting on 28 October 1999,

gives the following

Judgment

1 By application lodged at the Court Registry on 10 November 1997, the Commission of the European Communities brought an action under Article 169 of the EC Treaty (now Article 226 EC) for a declaration that, by failing to establish programmes including quality objectives and setting deadlines for their implementation, in order to reduce water pollution caused by the 99 dangerous substances covered by the first indent of List II in the annex to 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), and consequently by failing to require discharges which are made into waters and liable to contain any of the said substances to be subject to a prior authorisation issued by the competent authority in which emission standards are set on the basis of quality objectives laid down in such programmes, the Hellenic Republic has failed to fulfil its obligations under the EC Treaty and Article 7 of the Directive.

Relevant provisions

2 The Directive's aim is the elimination of water pollution caused by certain particularly dangerous substances set out in a list, known as List I, and the reduction of water pollution caused by certain other dangerous substances set out in another list, known as List II, the two lists comprising the annex to the Directive. Article 2 of the Directive provides that the Member States must take the appropriate steps in order to attain that objective.

3 So far as concerns the substances within List I, the Member States must, under Articles 3 and 5 of the Directive, make all discharges into the aquatic environment subject to prior authorisation by the competent authorities and set emission standards which are not to exceed limit values laid down by the Council on the basis of the effects of the substances on the aquatic environment.

4 As regards the substances in List II, Article 7(1) of the Directive requires the Member States, in order to reduce water pollution, to establish water pollution reduction programmes, including quality objectives for water set on the basis of the effects of the substances on organisms living in the water. In accordance with Article 7(2), discharges liable to contain any of the substances in List II are to require prior authorisation from the competent national authority, which sets the emission standards for the discharges. In addition, under Article 7(6) summaries of the programmes and of the results of their implementation are to be communicated to the Commission.

5 It is provided in List II that substances falling in List I for which the Council has not yet set limit values are to be included in List II.

6 Since the majority of the substances in List I are specified by group, it was necessary, before limit values could be established, to define the individual substances belonging to those groups. In order to carry out that task, the Commission in cooperation with the Member States drew up a list, containing 129 individual substances, which the Council in its resolution of 7 February 1983 concerning the combating of water pollution (OJ 1983 C 46, p. 17) referred to as a basis for further work on the implementation of [the] Directive. Three further substances were subsequently added to that list. The Council has set limit values and quality objectives for 18 of those 132 substances in List I, while 15 others are covered by a proposal for a Council directive amending Directive 76/464, submitted by the Commission on 14 February 1990 (OJ 1990 C 55, p. 7). There thus remain 99 substances in List I which, because limit values have not been established, form part of List II and for which the Member States must establish programmes in accordance with Article 7(1) of the Directive.

7 At the meetings of national experts on 31 January and 1 February 1989 a priority list of List II substances was finalised.

8 The Directive does not contain a time-limit for its transposition. However, Article 12(2) provides that the Commission, where possible within 27 months following notification of the Directive, is to forward to the Council the first proposals made on the basis of comparison of the programmes established by the Member States. Since the Commission considered that the Member States were not in a position to provide it with relevant information within that period, it proposed to them, by letter of 3 November 1976, the adoption of 15 September 1981 as the date for establishing the programmes and 15 September 1986 as the date for their implementation.

Facts

9 By letter of 26 April 1989 the Commission requested from the Hellenic Republic information on the application of programmes concerning certain substances in List II in the annex to the Directive. The Greek authorities replied by informing the Commission of the legislative framework in force in Greece with regard to the reduction of List II substances, of the works envisaged to control the discharge of substances with a view to improving the situation in the urban areas of Thessaloniki and Athens, and of the studies in progress for the reduction of pollution. However, their reply did not contain any information as to the deadlines set for implementing specific programmes to reduce water pollution caused by the substances in List II.

10 On 4 April 1990 the Commission sent a further letter to the Hellenic Republic in order to draw its attention to the application of Article 7 of the Directive. That letter pointed out that the Commission had progressively drawn up a priority list of 132 List I substances, 33 of which were already covered by subordinate directives or proposals for directives.

11 In the same letter the Commission stressed that since the 99 remaining substances were not covered by Community legislation they were subject to the obligations laid down in Article 7. The Commission accordingly requested the Hellenic Republic to forward to it:

- an updated list specifying which of the 99 substances were discharged into the Greek aquatic environment;

- the quality objectives applicable when discharge authorisations were granted (for one or more of the abovementioned substances) so far as concerns the various areas affected by those discharges; and

- the reasons why in some circumstances quality objectives had not been set and a timetable indicating when they would be.

12 The Greek authorities did not reply to that letter.

13 It was in those circumstances that the Commission decided to initiate the procedure provided for in Article 169 of the Treaty. By letter of formal notice of 27 December 1990 it informed the Hellenic Republic that it considered that the latter had failed to fulfil its obligations under the Directive, in particular Article 7, and under the Treaty, and accordingly requested it to communicate its observations to the Commission within two months.

14 The Commission annexed to a supplementary letter of 5 October 1993 the complete list of the 99 substances which was missing from the letter of formal notice and repeated its request.

15 The Greek authorities stated in their reply of 12 August 1994 that the only new factor compared with the position in 1990 was that a contract had been signed with the University of the Aegean for a specific study to be carried out. They also provided certain information as to whether substances in List II might be present in the aquatic environment.

16 In particular, they indicated that 32 substances, included in the composition or used in the preparation of pesticides, undergo photochemical or microbial degradation because of their small quantities and are not discharged directly into the aquatic environment, and that nine substances are not marketed in Greece. In addition, the Greek authorities acknowledged the potential presence in waste water of 17 substances, one of which was not discharged into surface water. They stated with regard to 10 other substances and the substances on which they provided no information that a study would be commissioned in order to obtain information as to the concentrations of those substances in waste from production plants and the possible presence of the other substances in List II in the aquatic environment.

17 The Commission concluded that the Greek authorities had not adopted the measures necessary in order to reduce water pollution caused by 72 of the 99 substances in List II. At issue were 59 substances for which no information had been provided, 10 substances whose potential presence in the aquatic environment had been acknowledged and 3 substances in respect of which no precise information had been supplied.

18 On 23 December 1996 the Commission therefore addressed a reasoned opinion to the Hellenic Republic in which it set out its view that, by failing to establish programmes including quality objectives and setting deadlines for their implementation, in order to reduce water pollution caused by dangerous substances in List II, and by failing to require discharges which are made into waters and liable to contain any of those substances to be subject to a prior authorisation issued by the competent authority in which emission standards are set on the basis of quality objectives laid down in such programmes, the Hellenic Republic had failed to fulfil its obligations under Article 7 of the Directive and Article 5 of the EC Treaty (now Article 10 EC).

19 By letter of 20 March 1997 the Hellenic Republic informed the Commission of the action taken by the Ministry of Regional Planning, the Environment and Public Works with regard to substances in List II, in particular that it had commissioned a study from the University of the Aegean on the situation in Greece with regard to those substances.

Substance

20 The Commission contends that, in accordance with Article 7 of the Directive, the Hellenic Republic should have established programmes designed to reduce pollution of its waters caused by the substances in List II, that is to say in respect of the 99 notified substances and of the families and groups of substances specified in the second indent of List II.

21 However, on the date on which the action was brought the Hellenic Republic had failed to communicate to it integrated programmes for reducing existing pollution of inland and coastal waters caused by substances in List II. Consequently, discharges made into the waters and liable to contain any of the substances in List II are not subject to a prior authorisation as required by the Directive, in which new emission standards are set on the basis of quality objectives laid down in pollution reduction programmes.

22 The Commission observes in particular that in so far as, according to the Greek authorities, a specific legislative framework exists for the protection of all waters affected by the discharges and that, for that purpose, quality objectives have been adopted in certain districts and limits for discharges into waters have been adopted in others, the provisions in question are different in content, nature and force, for example:

- joint ministerial decrees concerning the transposition into Greek law of Council Directive 75/439/EEC of 16 June 1975 on the disposal of waste oils (OJ 1975 L 194, p. 23), Council Directive 76/403/EEC of 6 April 1976 on the disposal of polychlorinated biphenyls and polychlorinated terphenyls (OJ 1976 L 108, p. 41) and Council Directive 78/319/EEC of 20 March 1978 on toxic and dangerous waste (OJ 1978 L 84, p. 43);

- a ministerial decree concerning the protection against pollution and contamination of waters used to supply the area of Athens;

- prefectorial or ministerial decrees specifying the waters to be used for the discharge of waste in various areas, such as Komotini, Alexandroupolis, Lake Vistonida, the Saronic Gulf, Florina and Kavala, the majority of which contain emission limits for various substances, including just some of the 99 dangerous substances forming the subject-matter of the present action; and

- other decrees which determine the use of surface waters in various areas (determination of the use of surface and ground waters concerns in particular the area of Florina and the use of the waters of the rivers Aliakmonas and Pinios) and lay down quality objectives in accordance with which those waters may be used.

23 Provisions of that kind cannot be described as programmes within the meaning of Article 7 of the Directive because their subject-matter and purpose are different from those of the Directive and they have been adopted in order to meet other needs.

24 While acknowledging that the measures adopted help to ensure that inland waters are of a certain quality, the Commission considers that they cannot replace the measures laid down by the Directive, that is to say the adoption and communication to the Commission of programmes such as those which will result from the study entrusted to the University of the Aegean with the specific aim of achieving a reduction in existing water pollution caused by the dangerous substances included in the families and groups of substances in List II of the annex to the Directive.

25 In order to achieve that reduction it will nevertheless be necessary first to map the sources of pollution throughout the country, to locate the substances falling within List II and then to determine the measures, including the development of a monitoring network, which are necessary in order to reduce existing pollution. However, programmes of that kind have not yet been communicated to the Commission.

26 The Commission also points out that it is clear that the quality objectives have been set only for a limited number of areas and for certain List II substances. Those quality objectives are not derived from a specific study referring to existing pollution and describing the method to be followed in order to reduce it. It is therefore impossible to assess their significance in relation to the Directive. Furthermore, they are not linked to the reduction of recorded pollution as required by the Directive.

27 Finally, the argument that it is unnecessary to establish programmes laying down quality objectives in districts where there is no industrial activity is without substance. In so far as, according to the Greek authorities, there is not a single industrial plant containing List II substances in 24 of the 52 prefectures and accordingly the waters in those prefectures should be excluded from the obligation to establish a programme in accordance with Article 7 of the Directive, there may very well be other sources of pollution in those areas, from plant protection products, fish farms or the small-scale use of chemical substances by various small commercial establishments. Those waters could also suffer pollution from adjoining areas. Indeed, the Greek authorities themselves established quality parameters for certain substances in List II in areas appearing to be without industrial plants, such as Florina and Kastoria.

28 The Greek Government submits that all the measures necessary in order to comply with the Directive have been adopted.

29 First of all, by decision of 4 June 1997 the University of the Aegean was commissioned to carry out a study examining the situation in Greece with regard to the substances concerned.

30 The first stage of that study was completed in March 1998 (inventory of sources of pollution and of toxic substances in List II, data evaluation, establishment of a list of substances liable to be present in the aquatic environment and development of a network for monitoring surface waters with regard to the substances concerned).

31 At the hearing, the Greek Government stated that 35 substances had been detected in surface waters in Greece, including substances coming from other countries, in particular down cross-border rivers. A draft legislative framework was subsequently drawn up, which lays down quality objectives for surface waters with regard to discharges of substances appearing in the annex to the Directive. The draft will be applied in Greece as regards the limits for those substances in surface waters and the related existing measures will be adapted.

32 The Greek Government states that the second stage of the study was begun in July 1998 and will be completed shortly (sampling and analysis of affected surface waters, interim technical reports including the sample results, and a full report accompanied by proposals for programmes to reduce discharges of the substances covered by the annex to the Directive into the affected waters).

33 Secondly, the Greek Government maintains that quality objectives have already been set for the waters which are particularly affected by discharges of dangerous substances in List II of the annex to the Directive, in order to reduce that pollution.

34 It cites a number of legislative and administrative measures such as joint ministerial decrees and joint interprefectorial and prefectorial decrees, which, in its submission, determine whether the authorisations needed in order to discharge polluting waste are issued.

36 In the present case, the reasoned opinion with which the Hellenic Republic was to comply within two months was sent on 23 December 1996.

37 It was only by decision of 4 June 1997 that the Greek Government commissioned the University of the Aegean to carry out a study examining the situation in Greece with regard to the substances concerned.

38 The Greek Government acknowledges that the first stage of that study, which included making an inventory of sources of pollution and a list of substances liable to be present in the aquatic environment, was not completed until March 1998. On the requisite date the Greek Government was not in a position to provide full information on surface waters so far as concerns their pollution by the substances to which the study relates.

39 It is also to be remembered that the Court has held that the programmes to be established under Article 7 of the Directive must be specific and that the objective of reducing pollution by general purification programmes does not necessarily correspond to the more specific objective of the Directive (Case C-298/95 Commission v Germany [1996] ECR I-6747, paragraphs 22 and 26, Joined Cases C-232/95 and C-233/95 Commission v Greece [1998] ECR I-3343, paragraph 35, and Case C-207/97 Commission v Belgium [1999] ECR I-275, paragraph 39).

40 It is settled case-law that what is specific to the programmes in question is the fact that they must have a comprehensive and coherent approach, covering the entire national territory and providing practical and coordinated arrangements for the reduction of pollution caused by any of the substances in List II which are relevant in the particular context of each Member State, in accordance with the quality objectives fixed by those programmes for the waters affected. They differ, therefore, both from general purification programmes and from bundles of ad hoc measures designed to reduce water pollution (Commission v Belgium, paragraph 40).

42 While some of the measures referred to by the Greek Government may be capable of contributing to a reduction in water pollution, they are merely ad hoc measures and not comprehensive and coherent programmes for reducing pollution, based on studies of the waters affected and setting quality objectives (Commission v Belgium, paragraph 45).

43 It must accordingly be held that, by failing to adopt pollution reduction programmes including quality objectives for the dangerous substances covered by the first indent of List II of the annex to the Directive, the Hellenic Republic has failed to fulfil its obligations under Article 7(1) of the Directive.

44 So far as concerns the further claim that, by failing to require discharges which are made into waters and liable to contain any of those substances to be subject to a prior authorisation issued by the competent authority in which emission standards are set on the basis of quality objectives laid down in such programmes, the Hellenic Republic has also failed to fulfil its obligations under Article 7 of the Directive, it is sufficient to note that since programmes as provided for in Article 7(1) have not been established, authorisations cannot have been issued in accordance with Article 7(2) (see Commission v Greece, cited above, paragraphs 27, 28 and 29). That claim therefore becomes devoid of purpose and need not be considered further.

Costs

45 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 Commission has applied for costs and the Hellenic Republic has been unsuccessful, the Hellenic Republic must be ordered to pay the costs.

On those grounds,

THE COURT (Sixth Chamber)

hereby:

1. Declares that, by failing to adopt pollution reduction programmes including quality objectives for the dangerous substances covered by the first indent of List II of the annex to 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 Hellenic Republic has failed to fulfil its obligations under Article 7(1) of that directive;

2. Orders the Hellenic Republic to pay the costs.