Case C-248/05

Commission of the European Communities

v

Ireland

(Failure of a Member State to fulfil obligations – Protection of underground water against pollution caused by hazardous substances – Directive 80/68/EEC)

Judgment of the Court (Second Chamber), 25 October 2007

Summary of the Judgment

1. Approximation of laws – Protection of groundwater – Directive 80/68

(Council Directive 80/68, Arts 3, 4 and 5)

2. Approximation of laws – Protection of groundwater – Directive 80/68

(Council Directive 80/68, Arts 4, 5 and 7)

3. Actions for failure to fulfil obligations – Action in respect of an administrative practice contrary to Community law – Admissibility – Conditions

(Arts 10 EC, 211 EC and 226 EC)

4. Approximation of laws – Protection of groundwater – Directive 80/68

(Council Directive 80/68, Arts 2(a), 5(1) and 7)

1. Under Article 3(a) of Directive 80/68 on the protection of groundwater against pollution caused by certain dangerous substances, the Member States are bound to take the steps necessary to prevent the introduction into groundwater of substances in list I.

According to the second subparagraph of Article 4(2) of that directive, authorisation for indirect discharge of those substances may be granted by a Member State only if all technical precautions have been taken to ensure that the substances in question cannot reach other aquatic systems or harm other ecosystems.

That condition is not fulfilled, because the discharges are not confined to groundwater, where an aquatic system including a river that does not have its source in the groundwater under a municipal landfill site is as a matter of fact harmed by the indirect discharge of listed substances and, according to the hydrogeological survey, there was an alternative solution to the one adopted, which would have made it possible not to worsen the degree to which that river was polluted.

(see paras 34-35, 37, 41-42)

2. The environment receiving the discharges forms the subject of the prior investigations referred to in Articles 4 and 5 of Directive 80/68 on the protection of groundwater against pollution caused by certain dangerous substances. With regard to that specific subject-matter, Article 7 of the directive requires those investigations also to have a specific objective, namely examination of the hydrogeological conditions of the area concerned, the possible purifying powers of the soil and subsoil and the risk of pollution and deterioration of the groundwater by the discharges, in order to establish whether discharges into groundwater are a satisfactory solution from the point of view of the environment. Article 7 thus makes the grant of authorisation subject to precise and detailed conditions which must be regarded as mandatory in order to achieve the aim of the directive. If the objective so sought by the Community legislature is to be fully attained, the prior investigation, upon which grant of authorisation is conditional, must enable full and detailed understanding of the state of the environment receiving the discharges, but it is not for all that necessary for any express reference to be made to the directive.

(see paras 53-54)

3. The Commission may seek a finding from the Court that provisions of a directive have not been complied with because a general practice contrary thereto has been adopted by the authorities of a Member State, using particular situations to shed light on that practice. For a State’s action consisting in an administrative practice contrary to the requirements of Community law to amount to a failure to fulfil obligations for the purposes of Article 226 EC, that administrative practice must be, to some degree, of a consistent and general nature.

(see paras 64-65)

4. As is made unequivocally clear by the very words of Article 5(1) of Directive 80/68, the Member States must, as a rule, for all substances in list II, including those from septic tanks, establish prior investigation and authorisation procedures for all disposal or tipping for the purpose of disposal of those substances which might lead to indirect discharge.

Where the competent authorities of a Member State, having regard to the increase in a hotel’s capacity, cease to regard the effluent discharged by that establishment as domestic for the purposes of Article 2(a) of the directive, and impose upon it the duty to obtain a licence for the discharge of effluent, that licence may be issued only under the terms of, and in accordance with the procedures prescribed by, the directive.

Where, having regard to the number of bedrooms it contains and the events held there, a hotel cannot legitimately escape the application of the directive, and it is not disputed that substances in list II are produced by the hotel’s septic tank and discharged into groundwater, it must be subject to the prior investigation and authorisation procedure required by Article 5(1) of the directive. That investigation must meet the conditions laid down in Article 7 of the directive, requiring it to have a specific objective, namely examination of the hydrogeological conditions of the area concerned, the possible purifying powers of the soil and subsoil and the risk of pollution and deterioration of the groundwater by the discharges, in order to establish whether discharges into groundwater are a satisfactory solution from the point of view of the environment.

(see paras 53, 77, 86-87, 91-93)

JUDGMENT OF THE COURT (Second Chamber)

25 October 2007 ( * )

(Failure of a Member State to fulfil its obligations – Protection of underground water against pollution caused by hazardous substances – Directive 80/68/EEC)

In Case C‑248/05,

ACTION under Article 226 EC for failure to fulfil obligations, brought on 14 June 2005,

Commission of the European Communities, represented by S. Pardo Quintillán and D. Recchia, acting as Agents, with an address for service in Luxembourg,

applicant,

v

Ireland , represented by D. O’Hagan, acting as Agent, with an address for service in Luxembourg,

defendant,

THE COURT (Second Chamber),

composed of C.W.A. Timmermans, President of Chamber, L. Bay Larsen, J. Makarczyk (Rapporteur), P. Kūris and J.-C. Bonichot, Judges,

Advocate General: Y. Bot,

Registrar: R. Grass,

having regard to the written procedure,

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

gives the following

Judgment

1 By its application, the Commission of the European Communities requests the Court to declare that:

– by failing to take all the measures necessary to comply with Articles 4, 5, 7, 9 and 10 of Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances (OJ 1980 L 20, p. 43), as amended by Council Directive 91/692/EEC of 23 December 1991 standardising and rationalising reports on the implementation of certain directives relating to the environment (OJ 1991 L 377, p. 48, ‘the Groundwater Directive’ or ‘the Directive’), at Ballymurtagh landfill (County Wicklow), and

– by failing to take all the measures necessary to comply with Articles 5, 7, 8, 10, 12 and 13 of the Groundwater Directive with regard to indirect discharges from septic tanks,

Ireland has failed to fulfil its obligations under those provisions of the Groundwater Directive.

Relevant provisions

2 Article 1(1) of the Groundwater Directive provides that:

‘The purpose of this Directive is to prevent the pollution of groundwater by substances belonging to the families and groups of substances in lists I or II in the Annex, hereinafter referred to as “substances in lists I or II”, and as far as possible to check or eliminate the consequences of pollution which has already occurred.’

3 In the words of Article 1(2) of the Groundwater Directive:

‘For the purposes of this Directive:

(a) “groundwater” means all water which is below the surface of the ground in the saturation zone and in direct contact with the ground or subsoil;

(b) “direct discharge” means the introduction into groundwater of substances in lists I or II without percolation through the ground or subsoil;

(c) “indirect discharge” means the introduction into groundwater of substances in lists I or II after percolation through the ground or subsoil;

(d) “pollution” means the discharge by man, directly or indirectly, of substances or energy into groundwater, the results of which are such as to endanger human health or water supplies, harm living resources and the aquatic ecosystem or interfere with other legitimate uses of water.’

4 Article 2 provides that the Directive is not to apply to:

‘(a) discharges of domestic effluents from isolated dwellings not connected to a sewerage system and situated outside areas protected for the abstraction of water for human consumption;

…’.

5 Article 3 of the Directive provides:

‘Member States shall take the necessary steps to:

(a) prevent the introduction into groundwater of substances in list I; and;

(b) limit the introduction into groundwater of substances in list II so as to avoid pollution of this water by these substances.’

6 Article 4(1) and (2) of the Directive states:

‘1. To comply with the obligation referred to in Article 3(a), Member States:

– shall prohibit all direct discharge of substances in list I,

– shall subject to prior investigation any disposal or tipping for the purpose of disposal of these substances which might lead to indirect discharge. In the light of that investigation, Member States shall prohibit such activity or shall grant authorisation provided that all the technical precautions necessary to prevent such discharge are observed,

– shall take all appropriate measures they deem necessary to prevent any indirect discharge of substances in list I due to activities on or in the ground other than those mentioned in the second indent. They shall notify such measures to the Commission, which, in the light of this information, may submit proposals to the Council for revision of this Directive.

2. However, should prior investigation reveal that the groundwater into which the discharge of substances in list I is envisaged is permanently unsuitable for other uses, especially domestic or agricultural, the Member States may authorise the discharge of these substances provided that their presence does not impede exploitation of ground resources.

These authorisations may be granted only if all technical precautions have been taken to ensure that these substances cannot reach other aquatic systems or harm other ecosystems.’

7 In accordance with Article 5 of the Directive:

‘1. To comply with the obligation referred to in Article 3(b), Member States shall make subject to prior investigation:

– all direct discharge of substances in list II, so as to limit such discharges,

– the disposal or tipping for the purpose of disposal of these substances which might lead to indirect discharge.

In the light of that investigation, Member States may grant an authorisation, provided that all the technical precautions for preventing groundwater pollution by these substances are observed.

2. Furthermore, Member States shall take the appropriate measures they deem necessary to limit all indirect discharge of substances in list II, due to activities on or in the ground other than those mentioned in the first paragraph.’

8 Article 7 of the Directive is worded as follows:

‘The prior investigations referred to in Articles 4 and 5 shall include examination of the hydrogeological conditions of the area concerned, the possible purifying powers of the soil and subsoil and the risk of pollution and alteration of the quality of the groundwater from the discharge and shall establish whether the discharge of substances into groundwater is a satisfactory solution from the point of view of the environment.’

9 Article 8 of the Directive provides:

‘The authorisations referred to in Articles 4, 5 and 6 may not be issued by the competent authorities of the Member States until it has been checked that the groundwater, and in particular its quality, will undergo the requisite surveillance.’

10 In the words of Article 9 of the Directive:

‘When direct discharge is authorised in accordance with Article 4(2) and (3) or Article 5, or when waste water disposal which inevitably causes indirect discharge is authorised in accordance with Article 5, the authorisation shall specify in particular:

– the place of discharge,

– the method of discharge,

– essential precautions, particular attention being paid to the nature and concentration of the substances present in the effluents, the characteristics of the receiving environment and the proximity of water catchment areas, in particular those for drinking, thermal and mineral water,

– the maximum quantity of a substance permissible in an effluent during one or more specified periods of time and the appropriate requirements as to the concentration of these substances,

– the arrangements enabling effluents discharged into groundwater to be monitored,

– if necessary, measures for monitoring groundwater, and in particular its quality.’

11 Article 10 of the Directive is worded as follows:

‘When disposal or tipping for the purpose of disposal which might lead to indirect discharge is authorised in accordance with Articles 4 or 5, authorisation shall specify in particular:

– the place where such disposal or tipping is done,

– the methods of disposal or tipping used,

– essential precautions, particular attention being paid to the nature and concentration of the substances present in the matter to be tipped or disposed of, the characteristics of the receiving environment and the proximity of water catchment areas, in particular those for drinking, thermal and mineral water,

– the maximum quantity permissible, during one or more specified periods of time, of the matter containing substances in lists I or II and, where possible, of those substances themselves, to be tipped or disposed of and the appropriate requirements as to the concentration of those substances,

– in the cases referred to in Article 4(1) and Article 5(1) the technical precautions to be implemented to prevent any discharge into groundwater of substances in list I and any pollution of such water by substances in list II,

– if necessary, the measures for monitoring the groundwater, and in particular its quality.’

12 Article 12 of the Directive provides:

‘1. If the person requesting an authorisation as referred to in Articles 4 or 5 states that he is unable to comply with the conditions laid down, or if this situation is evident to the competent authority in the Member State concerned, authorisation shall be refused.

2. Should the conditions laid down in an authorisation not be complied with, the competent authority in the Member State concerned shall take appropriate steps to ensure that these conditions are fulfilled; if necessary, it shall withdraw the authorisation.’

13 Article 13 of the Directive provides that:

‘The competent authorities of the Member States shall monitor compliance with the conditions laid down in the authorisations and the effects of discharges on groundwater.’

The pre-litigation procedure

14 In 1999 the Commission registered a complaint concerning the municipal landfill established on an old mine at Ballymurtagh by Wicklow County Council.

15 In 2000 the Commission registered another complaint concerning unauthorised discharges to groundwater from hotel premises at Creacon Lodge (New Ross), County Wexford, opened in 1995. When dealing with that complaint, the Commission studied more extensive questions in relation to effluents discharged by septic tanks, concerning the conditions for application of the Directive in the Irish countryside in respect of buildings used for commercial or non-domestic purposes and dwellings which are not isolated but situated in various settlements.

16 Furthermore, the Commission became aware of a report on eutrophication problems in the Lakes of Killarney, County Kerry, which indicated that premises with septic tanks were one of the causes of the serious contamination of those waters and stressed that septic tanks were often unsuitable or not properly maintained.

17 For the purposes of the investigation of the second complaint the Commission addressed a letter to Ireland on 8 May 2001, mentioning the report referred to above.

18 Dissatisfied with the responses given during the investigation of the first complaint and taking account of the lack of any response concerning the second complaint, the Commission addressed a letter of formal notice to Ireland on 23 October 2001, expressing its concerns about the conditions in which that Member State applied several provisions of the Groundwater Directive and inviting it to present its observations on that subject.

19 That letter going unanswered, the Commission sent that Member State a reasoned opinion on 17 December 2002, requesting it to take the measures necessary to comply with that opinion within a period of two months from its receipt.

20 By letter of 9 September 2003, the Irish authorities sent a reply to that opinion, supplying information on the measures taken and claiming to comply with the Directive. Taking the view that the position adopted by Ireland was unsatisfactory, the Commission has brought this action.

The action

21 It should at the outset be emphasised that the Commission has expressly acknowledged in its pleadings that Ireland has adopted the legislation necessary to transpose the Groundwater Directive into its domestic law.

The heads of claim relating to Ballymurtagh municipal landfill

22 In its application the Commission charges Ireland with failing to adopt all the measures necessary to comply with Articles 4, 5, 7, 9 and 10 of the Directive with regard to the Ballymurtagh municipal landfill site.

23 First, the Commission alleges that that Member State issued no formal authorisation before that landfill was brought into operation, when such authorisation ought to have been sought and granted before activity began at the new installation, in order that such activity might be made subject to adequate conditions for the purposes of Article 9 of the Directive. Second, the Commission takes the view that the requisite technical precautions have not been adopted in order to avoid the discharge of substances in lists I and II mentioned in the Annex to the Groundwater Directive (‘substances in lists I and II’, ‘substances in list I’ or ‘substances in list II’, as the case may be). Third, it argues that the waste licence granted by the Environmental Protection Agency (‘the Agency’) on 3 April 2001 for operation of the landfill is not in keeping with the provisions of the Directive on account of the irregularity of both the licence and the prior investigation.

24 It should be noted that the Commission in its reply has abandoned its claims alleging that the Ballymurtagh landfill was not formally authorised before it was brought into operation and alleging failure to comply with Article 9 of the Directive.

Concerning the claim alleging non-compliance with the Directive by reason of the discharge of substances in lists I and II

– Arguments of the parties

25 The Commission argues that Ireland, in allowing the Ballymurtagh municipal landfill to be created and operated when it knew that substances in list I, for example, cadmium, and in list II, such as heavy metals and phosphorus, would inevitably find their way into the Avoca River because of the lack of any protective membrane under the landfill, has not observed its obligation to take all ‘technical precautions’ pursuant to the second subparagraph of Article 4(2) of the Directive.

26 The Commission maintains that discharges of such substances are subject to conditions that were not satisfied so far as the site in question is concerned. Those conditions include the requirements set out in Article 4(2) of the Directive, which make it clear that the discharge may be made only into groundwater and that it must be impossible for substances in list I present in those waters to reach other aquatic systems.

27 However, according to the Commission, the groundwater under the Ballymurtagh site, on the one hand, and the Avoca, on the other, cannot be said to form part of the same aquatic system.

28 In any event, according to the Commission, even if that groundwater issuing into the Avoca were to be regarded as forming part, together with that river, of the same aquatic system, the river cannot be considered permanently unsuitable for other uses. In point of fact, the Environmental Impact Statement on Ballymurtagh Landfill (‘the EIS’), produced pursuant to the domestic legislation on waste management, states that ‘The Avoca River in the vicinity of the mines/landfill is a fast-flowing rocky river and can be classified as a very good salmonid habitat’.

29 The Commission maintains, in addition, that Wicklow County Council could have been in no doubt that, for want of a protective barrier, residual fluid produced by the percolation of water through the waste (‘leachate’) would reach the Avoca, inasmuch as the hydrogeological survey made in 1987 (Cullen K.T., ‘Ballymurtagh Open Pit: Report on the Hydrogeological Survey of a Proposed Waste Disposal Site’, 10 March 1987, ‘the Survey’), presented a choice between, on the one hand, the dilution and dispersion of the leachate and, on the other, the sealing of the base of the pit. The County Council chose the dilute and disperse option which could not but lead to the pollution of another water system.

30 Ireland contends that, in accordance with the actual wording of Article 4(2) of the Groundwater Directive, the discharge of substances in list I may be authorised subject to certain conditions.

31 That Member State argues from the conclusions of the Survey which state that ‘the highly contaminated nature of both the groundwater beneath the mine and of the Avoca River allows this [dilute and disperse] option to be worthy of serious consideration as the principal effect on the quality of either the mine overflow or the Avoca River would be a discoloration dependant on the nature and composition of the leachate’.

32 According to Ireland, the groundwater within and in the lower slopes of the old mineral-bearing areas is highly contaminated as a result of the former mine-working and is unsuitable for domestic or agricultural use. It states that in any event, according to the Agency’s most recent report on water quality, the most serious case of pollution by metals is that of the Avoca, which is seriously contaminated by copper, zinc and, to a lesser extent, lead.

33 Moreover, according to that Member State, the aquatic system is made up of both water from surface run-off and groundwater and in the circumstances it cannot be said that there exist two separate unrelated systems.

– Findings of the Court

34 It is to be borne in mind, first, that under Article 3(a) of the Groundwater Directive the Member States are bound to take the steps necessary to prevent the introduction into groundwater of substances in list I.

35 In order to comply with that obligation, the Member States must, in accordance with Article 4(1) of the Directive, prohibit all direct discharge of those substances and also subject to prior investigation any disposal or tipping for the purpose of disposal of those substances which might lead to indirect discharge, in order either to prohibit such activity or to grant authorisation provided that all the technical precautions necessary to prevent such discharge have been observed.

36 Moreover, the first subparagraph of Article 4(2) of the Directive makes it clear that the Member States may authorise the discharge of substances in list I if a prior investigation should reveal that the groundwater into which it is envisaged the substances would be discharged is permanently unsuitable for other uses, especially domestic or agricultural, and provided that their presence does not impede the exploitation of ground resources.

37 Further, according to the second subparagraph of Article 4(2), such authorisation may be granted only if all technical precautions have been taken to ensure that the substances in question cannot reach other aquatic systems or harm other ecosystems.

38 Second, by virtue of Article 3(b) of the Directive, the Member States are to limit the introduction into groundwater of substances in list II so as to avoid pollution of that water by those substances.

39 In order to comply with that obligation, the Member States must, in accordance with the first subparagraph of Article 5(1) of the Directive, make subject to prior investigation all direct discharge of substances in list II, so as to limit such discharges, and also the disposal or tipping for the purpose of disposal of those substances which might lead to indirect discharge. According to the second subparagraph of Article 5(1), in the light of that investigation Member States may grant an authorisation provided that all the technical precautions for preventing the pollution of groundwater by those substances have been observed.

40 First, it is to be stressed that Ireland recognises that the groundwater into which issue indirect discharges of substances in list I may flow into the Avoca, where the presence of certain of those substances may, moreover, cause discolouration of the water.

41 Given that the Avoca, which it has been established does not have its source in the groundwater under the Ballymurtagh site, belongs to an aquatic system which is as a matter of fact harmed by those discharges, the condition fixed in the second subparagraph of Article 4(2) of the Directive has not been satisfied because the discharges are not confined to groundwater. The conclusions of various studies finding that the pollution of the river is of long standing are irrelevant to assessing whether that condition has been satisfied.

42 Therefore, in choosing for the Ballymurtagh municipal landfill the method of diluting and dispersing the leachate when, according to the Survey, there existed another solution consisting of sealing the base of the pit, which would have made it possible not to worsen the degree to which the Avoca was polluted, which is not denied by Ireland, and in thus making it possible for substances in list I to reach an aquatic system separate from the groundwater under that landfill site, that Member State has not complied with the obligation to take all technical precautions imposed by the second subparagraph of Article 4(2) of the Groundwater Directive.

43 Second, in so far as the introduction into groundwater of substances in list II, especially of heavy metals and phosphorus, is inherent in the technical choice made by Ireland, that choice does not comply with the obligation under Article 3(b) of the Directive to limit the introduction of those substances into the water concerned in order to avoid its pollution, because not all the technical precautions that would enable that objective to be attained have been taken.

44 In consequence, the requirements laid down in Article 5 of the Directive, which, as stated in paragraph 39 above, are designed solely to ensure compliance with the obligation set out in Article 3(b) of the Directive, have not been satisfied either.

45 It follows from the foregoing that, as regards the municipal landfill site at Ballymurtagh, Ireland has not satisfied the requirements of Articles 4 and 5 of the Directive so far as discharges of substances in lists I and II are concerned.

Concerning the claim alleging non-compliance with the Groundwater Directive by reason of the granting of an improper authorisation

– Arguments of the parties

46 The Commission maintains that the waste licence granted by the Agency on 3 April 2001 is incompatible with Articles 4, 5, 7 and 10 of the Directive.

47 According to the Commission, the requirements relating to the investigation before the grant of that authorisation have not been satisfied. On this point, it maintains that it is apparent from the very words of the licence that ‘within six months of the date of grant of this licence, the licensee shall submit a proposal to the Agency to examine the feasibility of controlling groundwater discharges and the impact of same on the Avoca’, that Articles 4 and 5 of the Directive had been infringed inasmuch as the investigation of the impact on groundwater and the possible adoption of technical precautions did not precede the granting of authorisation.

48 The Commission adds that, even if the Survey could have constituted a ‘prior investigation’ for the purposes of Article 4(2) of the Directive, it would still have been inadequate in that it is not apparent that the Survey involved obtaining comprehensive information regarding the substances in lists I and II and in that it contains no express reference to Article 4 of the Directive.

49 What is more, according to the Commission, the deficiencies of the survey are not remedied by the content of the EIS.

50 According to Ireland, the requirements of the Directive relating to prior investigation were observed, in that the hydrogeological survey and the EIS were carried out.

51 It adds that the Agency, before granting the waste licence in 2001, took into consideration the conclusions of several studies of groundwater and hydrogeological surveys, including the ‘Geological and Hydrogeological Study of the Ballymurtagh Landfill near Avoca, 1997’, Co. Wicklow, B.J. Murphy & Associates.

– Findings of the Court

52 As has been held in paragraphs 42 and 43 above, Ireland, in choosing for the Ballymurtagh landfill the method of diluting and dispersing leachate, has failed to take all the technical precautions required, on the one hand, by Article 4 of the Directive with regard to substances in list I and, on the other, by Article 5 with regard to substances in list II. In consequence, that Member State could not properly grant authorisation pursuant to those articles, grant of such authorisation being as a matter of fact conditional upon the technical precautions required by those provisions being adopted, which they were not.

53 What is more, the environment receiving the discharges forms the subject of the prior investigations referred to in Articles 4 and 5 of the Directive. With regard to that specific subject-matter, Article 7 of the Directive requires those investigations to have a specific objective also, that is to say, examination of the hydrogeological conditions of the area concerned, the possible purifying powers of the soil and subsoil and the risk of pollution and deterioration of the groundwater by the discharges, in order to establish whether discharges into groundwater are a satisfactory solution from the point of view of the environment. Article 7 thus makes the grant of authorisation subject to precise and detailed conditions which must be regarded as mandatory in order to achieve the aim of the Directive (see Case C-360/87 Commission v Italy [1991] ECR I‑791, paragraph 23).

54 If the objective so sought by the Community legislature is to be fully attained, the prior investigation, upon which grant of authorisation is conditional, must enable full and detailed understanding of the state of the environment receiving the discharges, but it is not for all that necessary for any express reference to be made to the Directive.

55 In the circumstances of the case, however, it is common ground that the pollutants, which the hydrogeological survey indicated might be found in the leachate from the Ballymurtagh municipal landfill, have not been the subject of any gathering of comprehensive information. The hydrogeological survey does not, therefore, give an exhaustive list of the risks of pollution and degradation of the quality of groundwater entailed by the discharge of substances in lists I and II.

56 In addition, it is made clear by the reference in the waste licence granted by the Agency on 3 April 2001 and referred to in paragraph 47 above that the environmental impact of the discharge on groundwater and surface water was not fully understood before that licence was granted, in contravention of the requirements laid down by Article 7 of the Directive.

57 Nor, finally, does the licence granted by the Agency meet the conditions laid down in Article 10 of the Directive.

58 As a result, the head of claim alleging infringement of Articles 4, 5, 7 and 10 of the Directive, by reason of the granting of an improper authorisation as regards the Ballymurtagh municipal landfill, is well founded.

59 From all the foregoing it follows that, by having failed to take all the measures necessary to comply with Articles 4, 5, 7 and 10 of the Directive with regard to the Ballymurtagh municipal landfill, Ireland has failed to fulfil its obligations under the Directive.

Concerning the head of claim relating to indirect discharges from septic tanks into groundwater of substances in list II

60 According to the Commission, Ireland has not taken the measures necessary to comply with the Groundwater Directive for the purpose of protecting groundwater, in all its countryside, from indirect discharges of substances in list II from septic tanks, that is to say, wastewater treatment systems intended to dispose of domestic wastewater through the ground.

61 Premises relying on septic tanks are not as a matter of course subjected to adequate prior investigation and authorisation procedures, when effluents from septic tanks contain large quantities of phosphorus and ammonia, which amounts to a failure to fulfil the obligations imposed by Article 5 of the Directive and, therefore, to abide by the provisions related thereto, namely, Articles 7, 8, 10 and 13 of the Directive.

62 In support of that head of claim the Commission relies on the following matters:

– Ireland’s restrictive interpretation of Article 5(1) of the Directive and the fact that that Member State has not taken adequate measures to ensure that that provision is correctly interpreted,

– Ireland’s failure for several years to take action with respect to unauthorised discharges from hotel premises in County Wexford;

– Ireland’s failure to abide by the requirements of the Directive concerning septic tanks in the Lakes of Killarney area, and

– official water pollution reports and breaches of Directive 80/778/EEC of 15 July 1980 on the quality of water intended for human consumption (OJ 1980 L 229, p. 11).

63 A preliminary point to note is that the Commission does not seek, in this part of the action, a declaration that Ireland has failed to fulfil its obligations under the Groundwater Directive with respect to particular factual situations but seeks rather to criticise a failure to fulfil obligations constituted by the existence of an administrative practice contrary to Community law, that practice being illustrated by several examples.

65 In particular, the Court has held that, although a State’s action consisting in an administrative practice contrary to the requirements of Community law can amount to a failure to fulfil obligations for the purposes of Article 226 EC, that administrative practice must be, to some degree, of a consistent and general nature (see, inter alia, Case C‑441/02 Commission v Germany [2006] ECR I‑3449, paragraph 50, and Case C‑342/05 Commission v Finland [2007] ECR I‑0000, paragraph 33).

66 Secondly, in proceedings under Article 226 EC for failure to fulfil obligations it is for the Commission to prove the existence of the alleged infringement and to provide the Court with the information necessary for it to determine whether the infringement is made out, and the Commission may not rely on any presumption for that purpose ( Commission v Ireland , paragraph 41 and the case-law there cited, and Commission v Germany , paragraph 48).

70 It is in the light of those principles that this head of claim put forward by the Commission is now to be considered.

71 Lastly, inasmuch as the claims set out here do not relate to the content of provisions of domestic law, the arguments put forward by Ireland concerning the effectiveness of the legislation transposing the Directive into domestic law and the supporting nature, in relation to the Directive, of Irish planning laws, are irrelevant to the consideration of the substance of those claims.

Ireland’s interpretation of Article 5(1) of the Directive

– Arguments of the parties

72 The Commission maintains that Ireland makes a restrictive interpretation of Article 5 of the Directive that is not conducive to implementation of the authorisation system established by that article in respect of indirect discharges from septic tanks of substances in list II throughout Ireland, in contravention of the requirements of the Directive.

73 The Commission adds that that analysis prevailed in County Wexford with particular regard to the hotel premises at Creacon Lodge.

74 It notes, in addition, that in all counties the number of licences for discharge of effluents to groundwater is very low in relation to the circumstances in which the Directive is applicable, which makes clear how the latter is misinterpreted.

75 Ireland counters that, after the period prescribed for replying to the reasoned opinion sent by the Commission had expired, it altered its interpretation of the provision at issue.

76 It adds that, for their part, the local authorities responsible for implementing the legislation transposing the Directive into domestic law have always in practice followed an interpretation in keeping with the purpose of Article 5(1) of the Directive.

– Findings of the Court

77 As indicated in paragraph 39 above, and as is made unequivocally clear by the very words of Article 5(1) of the Directive, the Member States must, as a rule, for all substances in list II, including those from septic tanks, establish prior investigation and authorisation procedures for all disposal or tipping for the purpose of disposal of those substances which might lead to indirect discharge.

78 Ireland now recognises the need to implement the Directive in accordance with that interpretation of Article 5(1), which alone is compatible with Community requirements.

79 It is to be considered whether the unduly restrictive interpretation of that provision originally supported by Ireland was actually given effect in practice, by examining the other evidence adduced by the Commission which tends to elucidate that interpretation and relates to that same administrative practice that has been criticised.

Disposal of wastewater from the hotel premises at Creacon Lodge

– Arguments of the parties

80 According to the Commission, the disposal of wastewater from the hotel at Creacon Lodge, County Wexford, has for some years led to the discharge of substances in list II, so contaminating, by a drain-pipe, some neighbouring areas, including a water course.

81 From 1995 to 2001 that establishment, which can, according to the Commission, cater for up to 200 people, was equipped with a 250 gallon septic tank, in contravention of a clause in the planning permission requiring the installation of an additional septic tank. In January 1999 a new wastewater treatment plant was installed, but no prior investigation had been conducted as required by Article 5(1) of the Directive and no authorisation granted for the discharge of wastewater as required by that provision. It was not until November 2001 that a definitive licence for wastewater discharge was granted.

82 Disputing the reception capacity of the Creacon Lodge hotel premises put forward by the Commission, Ireland states that four planning application processes were dealt with between the years 1994 and 2000 and that significant conditions and control were imposed in respect of the treatment and disposal of effluents from the hotel buildings. It adds that in 1996 a 2000-gallon septic tank was installed.

83 Ireland states that, following the grant of the definitive discharge licence on 30 November 2001 by An Bord Pleanala, the independent authority responsible for examining appeals in respect of planning matters, which called for the installation of effluent treatment equipment, both Wexford County Council and the Agency carried out checks including a study of samples of effluent from the wastewater treatment system of the Creacon Lodge hotel premises, in order to ensure that that system complied with the specific conditions of the discharge licence.

84 Finally, Ireland states that various notices were served on the proprietor of that hotel, specifying the measures with which it had to comply, a body of measures illustrative of the efforts made to ensure that the persons responsible for that establishment complied with the conditions stipulated in that discharge licence.

– Findings of the Court

85 A preliminary point to note is that, regarding the evidence produced here by the Commission, the latter admits that it had been misinformed as to certain specific matters concerning the hotel at Creacon Lodge. That is so in the case of the installation of a septic tank in 1996, which the Commission accepts was suitable for the occupancy of the hotel, whether in connection with classic hotel visits or with unusual events.

86 Furthermore, the several applications for planning permission dealt with by the competent authorities show that, when the establishment in question had a maximum of 11 bedrooms, those authorities believed that the effluent discharged by the establishment could be regarded as domestic for the purposes of Article 2(a) of the Directive.

87 When lodging the applications for planning permission seeking to increase the hotel’s reception capacity, which led to the issue of licences of 12 February 1997 and 14 September 2000, the hotel proprietors were informed of their duty to hold a licence for the discharge of effluent created by their establishment.

88 Finally, it has been established that An Bord Pleanala’s decision of 30 November 2001 is equivalent, in domestic Irish legislation, to the grant of definitive authorisation for the discharge of effluent.

89 It is in the light of those facts that the pertinence of this evidence falls to be examined.

90 First, Article 2(a) of the Directive makes it plain that the latter does not apply to discharges of effluents from isolated dwellings not connected to a sewerage system and situated outside areas protected for the abstraction of water for human consumption.

91 Having regard to the capacity of the hotel premises at Creacon Lodge to accommodate guests, especially to the number of bedrooms it contains and the events held there, that establishment could not legitimately escape the application of the Directive, inasmuch as the effluents it put out could not be classed as ‘domestic effluents’ from isolated dwellings for the purposes of Article 2(a) of the Directive.

92 Second, given that the establishment in question falls within the ambit of the Directive and that it is not disputed that substances in list II are produced by the hotel’s septic tank and discharged into groundwater, it ought, as stated in paragraph 77 above, to have been subject to the prior investigation and authorisation procedure demanded by Article 5(1) of the Directive.

93 On this point, the prior investigation referred to in that provision must meet the conditions laid down in Article 7 of the Directive and recalled in paragraph 53 above.

94 Now, although it is common ground that a definitive discharge licence was given on 30 November 2001 in respect of Creacon Lodge, it does not follow from the line of argument put forward by Ireland that that licence satisfied the conditions laid down in Article 7. The Member State does no more, in fact, than assert that the grant of effluent discharge licences calls for site inspections pursuant to the national legislation implementing the Directive, giving no precise details of the inspection that took place in the case of that establishment.

95 Finally, Ireland cannot base any argument on the proprietor’s unwillingness in order to challenge the evidence furnished by the Commission.

96 In light of the foregoing, it is to be held that it has been established to the requisite legal standard that the hotel premises at Creacon Lodge have produced indirect discharges of substances in list II without satisfying the conditions laid down by Articles 5 and 7 of the Directive and in the related provisions of Articles 8, 10, 12 and 13 thereof.

Septic tanks in the region of the Lakes of Killarney

– Arguments of the parties

97 The Commission makes the preliminary point that for more than a decade the Irish authorities have been seriously worried by eutrophication of fresh water in terms of surface water quality. Those authorities have undertaken several studies of polluting effects in certain catchment areas and proposed management measures in order to remedy the various problems found.

98 Those measures include the monitoring and management system for the Lough Leane catchment, the largest catchment of the Lakes of Killarney, on the initiative of Kerry County Council, which it took three years from July 1998 to July 2001 to prepare. In this connection, several reports have been drawn up (interim reports and a final report concerning ‘A catchment-based approach for reducing nutrient inputs from all sources to the Lakes of Killarney’, December 2000 and November 2003).

99 According to the Commission, those reports are evidence of Ireland’s consistent failure to fulfil its obligations, in so far, in particular, as the way in which that Member State applies the Directive in practice cannot be considered to be compatible with Article 5(1). It adds that those reports make it clear that in the geographical area in question no checks have been made to establish whether septic tanks have been built in accordance with the requirements of the Directive.

100 Ireland argues that the Commission has not established that the level of phosphate detected in Lough Leane can be ascribed principally to discharges of effluent from septic tanks to which the Directive applies. Ireland claims that it is, moreover, established that the majority of septic tanks in the area concerned serve isolated dwellings and are, accordingly, excluded from the ambit of the Directive.

– Findings of the Court

101 It is to be borne in mind, first, that the final report referred to in paragraph 98 above shows that nutrients from septic tank effluent have an effect on the quality of groundwater feeding surface water and flowing directly into Lough Leane. Here, the second interim report referred to in paragraph 98 makes it clear that 12% of total phosphorus input into that lake can be attributed to septic tanks.

102 Second, that final report states that ‘a substantial number of residential dwellings, bed and breakfast accommodation and camping/caravan parks in the Lough Leane catchment area are not … presently serviced by the urban sewerage network and rely on septic tanks’. Particular reference is made to the village of Barraduff, where the dwellings are connected to individual septic tanks.

103 Third, as observed in paragraph 90 above, Article 2(a) of the Directive makes it plain that the latter does not apply to discharges of effluents from isolated dwellings not connected to a sewerage system and situated outside certain areas.

104 In the light of the statements referred to above, appearing in that final report, some of the dwellings in the geographical area concerned, especially residential villages, cannot be considered to be isolated dwellings and do not, therefore, fall within the ambit of the derogation provided by Article 2(a).

105 Effluents discharged by hotel establishments cannot be classed as ‘domestic effluents’ within the meaning of that provision.

106 In consequence, it is possible that substances in list II have been discharged from the septic tanks with which dwellings in the Lough Leane catchment area are fitted and which are not covered by the exception in Article 2(a) of the Directive without observance of the conditions laid down in Article 5(1) thereof.

The official water pollution reports and breaches of Directive 80/778 ascribable to Ireland

– Arguments of the parties

107 According to the Commission, the Agency’s official water-pollution reports supply additional evidence of Ireland’s general failure to ensure that the disposal of wastewater by means of septic tanks in the Irish countryside is subject to adequate prior investigation, authorisation and monitoring.

108 The Commission states that those reports reveal a pattern of widespread and persistent microbiological contamination affecting hundreds of public and private water supplies, many drawing from groundwater sources.

109 On this point, the Commission, recalling that in Case C‑316/00 Commission v Ireland [2002] ECR I‑10527 the Court held that Ireland had failed to comply with the microbiological standards of Directive 80/778, argues that there is a correlation between microbiological contamination and the presence of list II substances, in particular ammonia, phosphorus and chlorides.

110 Ireland denies those assertions made by the Commission, maintaining that they are not supported by any real evidence.

– Findings of the Court

111 While the extracts from the reports quoted by the Commission emphasise the contamination of water supplies, they do not establish to the requisite legal standard a causal link between that contamination and the presence of substances in list II. It may be mentioned here that the Agency’s report for the period 1998-2000 (Water Quality in Ireland, 1998-2000, Environmental Protection Agency, 2002) refers to the existence of multiple causes that might explain the high levels of nitrates found in 20% of sampling stations.

112 Last, no inferences may be drawn from an earlier judgment of the Court, finding that Ireland had failed to fulfil its obligations under Directive 80/778, not germane to this action.

113 The general statements made by the Commission cannot, therefore, be regarded as relevant evidence.

114 In consequence, it appears from the foregoing examination of all the evidence adduced by the Commission, first, that substances in list II have been indirectly discharged by the hotel premises at Creacon Lodge without complying with the conditions laid down in Articles 5, 7, 8, 10, 12 and 13 of the Directive and, second, that it is possible that such substances have been discharged from the septic tanks with which dwellings in the Lough Leane catchment area are fitted in breach of the conditions laid down in Article 5(1) of the Directive.

115 None the less, such defective application, geographically confined as it is, cannot provide grounds for inferring that there exists throughout the Irish countryside an administrative practice relating to indirect discharges into groundwater of effluents from septic tanks that possesses the characteristics required by the Court’s case-law and violates Articles 5, 7, 8, 10, 12 and 13 of the Directive (see, to that effect, Case C‑287/03 Commission v Belgium [2005] ECR I‑3761, paragraph 30).

116 It follows that, the Commission not having furnished proof that Ireland has failed to take all the measures necessary to comply with Articles 5, 7, 8, 10, 12 and 13 of the Directive so far as concerns indirect discharges throughout its countryside into groundwater of substances in list II from septic tanks, the claim relating to those discharges must be rejected.

117 Having regard to all the foregoing considerations, it is to be declared that, by having failed to adopt all the measures necessary to comply with Articles 4, 5, 7 and 10 of the Directive with regard to the Ballymurtagh (County Wicklow) municipal landfill, Ireland has failed to fulfil its obligations under the directive.

Costs

118 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. Under Article 69(3) of those Rules, where each of the parties succeeds on some and fails on other heads, or where the circumstances are exceptional, the Court may order that the costs be shared or that the parties bear their own costs.

119 In this dispute account is to be taken of the fact that the Court has not upheld the whole action for a declaration of failure to fulfil obligations, as defined by the Commission.

120 Ireland must therefore be ordered to pay two thirds of all the costs. The Commission is ordered to pay the other third.

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

1. Declares that, by having failed to adopt all the measures necessary to comply with Articles 4, 5, 7 and 10 of Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances, as amended by Council Directive 91/692/EEC of 23 December 1991 standardising and rationalising reports on the implementation of certain directives relating to the environment, with regard to the municipal landfill at Ballymurtagh (County Wicklow), Ireland has failed to fulfil its obligations under Directive 80/68, as amended by Directive 91/692;

2. Dismisses the remainder of the action;

3. Orders Ireland to pay two thirds of all the costs. The Commission of the European Communities is ordered to pay the other third.

[Signatures]

* Language of the case: English.