CELEX: 62001CJ0130
Failure of a Member State to fulfil its obligations
Directive 76/464/EEC
Pollution of the aquatic environment
Pollution reduction programmes which include quality objectives for certain dangerous substances

By application lodged at the Court Registry on 21 March 2001, the Commission of the European Communities brought an action
under Article 226 EC for a declaration that, by failing to adopt pollution reduction programmes which include quality objectives
for the 99 dangerous substances listed in the annex to the application (hereinafter
the substances at issue) and failing to communicate a summary of those programmes and the results of their implementation to the Commission, in breach
of Article 7 of 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), the French Republic has failed to fulfil its obligations
under the EC Treaty.
Legal framework
The purpose of Directive 76/464, according to the first recital in its preamble, is to protect the aquatic environment of
the Community from pollution, particularly that caused by certain persistent, toxic and bioaccumulable substances.
To that end, Directive 76/464 draws a distinction between two categories of dangerous substances, which the Annex to the Directive
classifies in a List I and a List II of families and groups of substances.
List I in the Annex to Directive 76/464 covers certain individual substances which are particularly dangerous.
Under Articles 2 and 3 of that directive, the system applying to the substances within List I is intended to eliminate the
pollution of waters by those substances, all discharges of which require prior authorisation, laying down emission standards
if necessary and granted by the competent authority of the Member State concerned.
In regard to those same substances, Article 6(1) and (2) of Directive 76/464 provides that the Council, acting on a proposal
from the Commission, is to determine the limit values which emission standards may not exceed, as well as quality objectives
fixed principally on the basis of the toxicity, persistence and accumulation of the said substances in living organisms and
in sediment.
List II of the Annex to Directive 76/464 refers to substances whose deleterious effect on the aquatic environment can be confined
to a given area and depends on the characteristics and location of the receiving waters.
According to the first indent of its first subparagraph, List II includes substances belonging to the families and groups
of substances in List I for which the limit values referred to in Article 6 of Directive 76/464 have not been determined by
the Council. Currently included in that indent, and therefore covered by the system which applies to List II substances, are
99 substances which make up the substances at issue.
The system which applies to the substances within List II seeks, pursuant to Article 2 of Directive 76/464, to reduce pollution
of waters by those substances by means of appropriate steps to be taken by the Member States.
Those measures are described in Article 7 of Directive 76/464, which provides:
1.
In order to reduce pollution of the waters referred to in Article 1 by the substances within List II, Member States shall
establish programmes in the implementation of which they shall apply in particular the methods referred to in paragraphs 2
and 3.
2.
All discharges into the waters referred to in Article 1 which are liable to contain any of the substances within List II shall
require prior authorisation by the competent authority in the Member State concerned, in which emission standards shall be
laid down. Such standards shall be based on the quality objectives, which shall be fixed as provided for in paragraph 3.
3.
The programmes referred to in paragraph 1 shall include quality objectives for water; these shall be laid down in accordance
with Council directives, where they exist.
4.
The programmes may also include specific provisions governing the composition and use of substances or groups of substances
and products and shall take into account the latest economically feasible technical developments.
5.
The programmes shall set deadlines for their implementation.
6.
Summaries of the programmes and the results of their implementation shall be communicated to the Commission.
7.
The Commission, together with the Member States, shall arrange for regular comparisons of the programmes in order to ensure
sufficient coordination in their implementation. If it sees fit, it shall submit relevant proposals to the Council to this
end.
Directive 76/464 does not set a deadline for implementation. However, Article 12(2) provides that the Commission is to forward
to the Council, where possible within 27 months following notification of the Directive, the first proposals drawn up on the
basis of the comparative study of the programmes established by the Member States. Since it was of the opinion that they would
not be able to provide it with the relevant information within that period, the Commission proposed in a letter of 3 November
1976 to the Member States that it set 15 September 1981 as the date for establishing programmes and 15 September 1986 as the
date for implementing them.
The first and second indents of Article 13(1) of Directive 76/464, 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), provides: At intervals of three years the Member States shall send information to the Commission on the implementation of this Directive,
in the form of a sectoral report which shall also cover other pertinent Community Directives. This report shall be drawn up
on the basis of a questionnaire or outline drafted by the Commission in accordance with the procedure laid down in Article
6 of Directive 91/692/EEC ... . The questionnaire or outline shall be sent to the Member States six months before the start
of the period covered by the report. The report shall be sent to the Commission within nine months of the end of the three-year
period covered by it.The first report shall cover the period from 1993 to 1995 inclusive.
Pre-litigation procedure
By letter of 21 August 1985, the Commission drew the attention of the French Government to the obligations of the French Republic
under Article 7 of Directive 76/464. In reply to that letter, on 31 January 1986 that Government sent the Commission information
relating to measures concerning pollution by lead, copper, zinc and nickel.
Following a meeting of national experts on 31 January and 1 February 1989 where the list of 99 priority substances in List
II was drawn up, the Commission asked the French Government, by letter of 26 September 1989, to communicate the pollution
reduction programmes referred to in Article 7 of Directive 76/464. There was no reply to that letter.
By letter of 4 April 1990, the Commission again asked the French Government to communicate an updated list stating which of
the substances at issue had been discharged into the aquatic environment in France, the quality objectives applying at the
time the discharge authorisations had been granted and, where relevant, the reasons such objectives had not been established
and a schedule showing when the French Republic would establish them.
The French Government did not reply to that letter.
By a letter of formal notice sent on 26 February 1991, the Commission asked the French Government to submit its observations
as regards a complaint alleging infringement of Article 7 of Directive 76/464 stemming from the failure to establish programmes
to reduce pollution caused by the substances at issue.
By letters of 25 October 1991 and 22 April 1993, the French Government described the measures adopted in order to implement
Article 7 of that directive, while disputing the need to establish quantitative quality objectives for each of the the substances
at issue.
Since it considered that Article 7 of Directive 76/464 had not been correctly implemented, the Commission delivered a reasoned
opinion to the French Republic on 18 May 1993.
By letters of 30 July 1993 and 20 June 1996, the French Government replied to that reasoned opinion. On 26 November 1996,
it sent the Commission, in accordance with the provisions of Directive 91/692, several reports on the implementation of water-related
directives, including Directive 76/464.
By letter of 28 November 1998, without prejudice to the infringement proceedings brought against the French Republic, the
Commission asked the French authorities to provide information on the implementation of programmes to reduce pollution by
List II substances, in accordance with Article 7 of Directive 76/464. There was no reply to that letter.
Since the Commission had omitted to take the French Government's letter of 22 April 1993 into account in the reasoned opinion
of 18 May 1993, it specified the scope of the alleged infringement by the French Republic in a supplementary reasoned opinion
dated 24 February 2000 and asked that Member State to comply therewith within two months from the date of its notification.
Since it did not receive a reply and was of the opinion that the French Republic had not adopted within the prescribed period
the measures necessary to comply with the supplementary reasoned opinion which had been sent to it, the Commission brought
the present action.
Substance
Arguments of the parties
The Commission submits that, while it appears that the French Republic has introduced a certain number of measures to prevent
pollution of the aquatic environment by dangerous substances, those instruments do not amount to programmes to reduce pollution
caused by the substances at issue which include quality objectives for receiving waters, in accordance with Article 7 of Directive
76/464.
In support of its action, the Commission claims that the quality objectives established by French legislation for waters into
which the substances at issue are discharged do not correspond to the notion of quality objectives as provided for in Article
7(3).
It also maintains that examination of the body of measures communicated by the French Government as implementing Article 7
of Directive 76/464 does not reveal the existence of a programme which complies with that directive. It submits in essence
that they represent a series of uncoordinated measures which include neither work plans nor timetables, do not introduce concrete
and coherent planning which establishes specific objectives for reducing emissions within a specified period, do not present
a transparent, complete and coherent structure and do not cover all receiving waters within French territory.
In the alternative, the Commission claims that if programmes in accordance with Article 7 of Directive 76/464 have in fact
been put in place, the French authorities have not communicated them or the results of their implementation, in breach of
Article 7(6) of that directive.
The French Government contends that it drew up and introduced a national programme to reduce pollution by List II substances
and that the basic elements of that programme were communicated to the Commission, if only in its reply to the reasoned opinion.
It does not deny, however, that the way in which the documents sent to the Commission during the pre-litigation procedure
were presented could have made it difficult to grasp the reasoning underlying its implementation strategy for Directive 76/464.
The French Government states that the implementation programme essentially requires industrial operators, which are responsible
for most discharges of dangerous substances, to carry out work on highly polluting installations and includes actions to be
carried out by certain industrial sectors in the whole of the territory, in order to take account of pollution whose point
source cannot be determined.
The main tool in that programme is the requirement to carry out pollution abatement in listed industrial installations, with
operators not being granted operating permits when discharges from those installations do not comply with locally defined
water quality objectives. That programme therefore rests largely on Loi n
o
76-663, du 19 juillet 1976, relative aux installations classées pour la protection de l'environnement (Law on installations
listed for the purpose of environmental protection) (JORF of 20 July 1976, p. 4320, hereinafter
Law No 76-663), which governs the adoption of prefectorial orders which authorise the operation of some 65 000 installations. Therefore,
the determination is made at the level of the authorisation order for an individual installation, on the basis of that installation's
characteristics, as to what dangerous substances are likely to be discharged to water, the impact of those discharges, the
need for work to be carried out by the operator where appropriate and the timetable for carrying out that work.
In particular, as regards the complaint concerning the failure to set quality objectives pursuant to the requirements of Article
7 of Directive 76/464, the French Government contends that it has in fact defined quality objectives for each individual watercourse,
one parameter of which is the scale of industrial discharges, and that it sent charts summarising those objectives to the
Commission. In particular, in its reply to the letter of formal notice, it specified that charts listing those objectives
for each
département
had been drawn up and that they mentioned the objectives fixed for each individual watercourse, after an assessment of the
investment needed in various situations and following consultations with various parties. Those charts establish the framework
for general practical action by the services charged with monitoring water quality and therefore constitute an essential tool
in implementing Law No 76-663. That information was mentioned in both the second reply to the letter of formal notice and
the reply to the reasoned opinion of 18 May 1993.
The French Government states that it is Loi n
o
64-1245, du 16 décembre 1964, relative au régime et à la répartition des eaux et à la lutte contre leur pollution (Law concerning
the regulation and distribution of water and water pollution control) (JORF of 18 December 1964, p. 11258) which defines quality
objectives, and that the Circulaire du 17 March 1978 relative à la politique des objectifs de qualité des cours d'eau, sections
de cours d'eau, canaux, lacs ou étangs (Circular on policy for quality objectives for watercourses, sections of watercourses,
canals, lakes or ponds) specifies the two levels relevant to the definition of those objectives.
It also maintains that quality objectives are established in accordance with a scale of criteria for assessing general water
quality, which was communicated to the Commission in an annex to the defence. Those criteria, which were drawn up by the Institut
de recherches hydrologiques (French Hydrological Research Institute) in 1971, make it possible to distinguish five water quality
levels (1A: high, 1B: good, 2: moderate or passable, 3: polluted, and 4C: bad).
The French Government states that each of those levels requires compliance with a large number of parameters and that, while
those parameters are not all intended to help eliminate dangerous substances, one of them specifically concerns the concentration
in water of dangerous substances from industrial discharges. However, there is no requirement to measure the concentration
of each of the substances at issue in all the waters concerned.
By Circulaire n
o
90-55 du 18 mai 1990, relative aux rejets toxiques dans les eaux (Circular No 90-55 of 18 May 1990 concerning toxic discharges
to waters), the Ministry of the Environment introduced at regional level an inventory of industrial discharges, including
among others the substances at issue, compiled from the results of investigations into the industrial processes of installations
and analyses of discharges. The inventory makes it possible to review the orders granting authorisation for listed installations
where that becomes necessary.
The French Government states that, with a view to strengthening the legal basis of the legislation applicable in that field,
it adopted Loi n
o
92-3, du 3 janvier 1992, sur l'eau (JORF of 4 January 1992, p. 2946) (hereinafter
Law No 92-3) and the Arrêté, du 1
er
mars 1993, relative aux prélèvements et à la consommation d'eau ainsi qu'aux rejets de toute nature des installations classées
pour la protection de l'environnement soumises à autorisation (Order of 1 March 1993 concerning water abstraction and use
and discharges of any kind from installations listed with a view to protecting the environment and subject to authorisation)
(JORF of 28 March 1993, p. 5283, hereinafter
the order of 1 March 1993). It points out that that legislation provides for the adoption of limit values for the substances contained in Lists I and
II for which they are required, as well as the establishment of quality objectives for each individual watercourse and consideration
of those objectives in the implementation of legislation concerning listed installations. It also points out that those national
limit values may be rendered more stringent at the prefectorial level if, on the basis of water quality objectives, the Préfet
(prefect of the relevant
département
) considers such a measure to be necessary.
The French Government also refers to the Arrêté, du 2 fevrier 1998, relatif aux prélèvements et à la consommation d'eau ainsi
qu'aux émissions de toute nature des installations classées pour la protection de l'environnement soumises à autorisation
(Order of 2 February 1998 concerning water abstraction and use and emissions of any kind from installations listed with a
view to protecting the environment and subject to authorisation) (JORF of 3 March 1998, p. 3247), Article 22 of which provides,
inter alia
, that
[t]he limit values for water discharges must be compatible with the quality objectives of the receiving environment, the orientation
of the water development and management plan and the suitability of the environment for breeding fish and that,
[t]o that end, the authorisation order determines several levels of limit values according to the flow of a watercourse, the
level of dissolved oxygen or any other important parameter or the time of year when the discharge takes place.
The Commission states, first of all, that it is clear from Article 7(2) and (3) of Directive 76/464 that the quality objectives
are both an integral part of the programmes provided for under that article, without which those programmes would be incomplete,
and indicators of water quality, which form the basis for issuing discharge authorisations. In the absence of programmes and
quality objectives, authorisations cannot be granted in accordance with Article 7(2) of the Directive.
The Commission explains that quality objectives must be defined on the basis of the receiving aquatic environment and by basin,
taking into account all discharges into a certain area of water, whatever their character and origin. It follows that no new
discharge of a given substance can be authorised, whatever the applicable emission standards, if the aquatic environment into
which discharge is planned contains a greater amount of that substance than the amount fixed by relevant quality objectives.
The Commission adds that, similarly, emission standards laid down in authorisations may not be established in general or abstract
terms but must be established on a case-by-case basis with reference to the condition of the aquatic environment concerned,
so as to facilitate compliance with quality objectives.
In addition, the Commission maintains that, in practice, individual consideration of the substances at issue allows Member
States to concentrate their efforts on specifically designated substances and makes it easier to establish quality objectives.
Reviewing the quality objectives which the French authorities maintain they have implemented under Directive 76/464, the Commission
points out that, in contrast to what those authorities stated in their letters of 22 April and 30 July 1993, the entry into
force of Law No 92-3 did not, if the information provided to the Commission is complete, alter in any way the legal and practical
scope or the content of the quality objectives for the watercourses referred to in the earlier correspondance from those authorities.
As regards the order of 1 March 1993, the Commission notes that it was annulled by the Conseil d'État (France) on 21 October
1996, thereby retroactively negating the implementation of Directive 76/464, without that annulment having been officially
notified to the Commission.
The Commission also claims that the French Government has throughout the pre-litigation procedure disputed the need to fix
quality objectives for each of the substances at issue. In its letter of 25 October 1991, the Government pointed out that
specific reference to the substances at issue
would not lead to a significant reduction in the pollution of waters and
constitutes an unsuitable response to the small number of establishments concerned. In its letter of 22 April 1993, it stated as follows:
Since the substances contained in List II are almost unlimited in number, it is not possible to lay down quality objectives
for each substance. That is why quality objectives include comprehensive parameters closely corresponding to natural water
quality. New parameters will be introduced when their relevance has been demonstrated. Moreover, in its letter of 30 July 1993, it stated that such an approach
could not be applied without the assistance of administrative, technical and scientific bodies, to an extent difficult to
imagine.
However, referring to paragraphs 33 to 36 of Case C-184/97
Commission
v
Germany
[1999] ECR I-7837, in which the Court recalled the paramount importance of establishing quality objectives for each watercourse
following an assessment of receiving waters, the Commission claims that the arguments put forward by the French Government
relating to the practical difficulties which would result from its interpretation of the notion of quality objectives must
be rejected as immaterial.
The Commission states that the quality objectives laid down in the prefectoral order by reference to a classification based
on five levels of general quality do not make it possible to provide precise quality criteria for receiving waters as regards
List II substances, and in particular the substances at issue, which are to govern the granting of discharge authorisations.
It points out that the quality objectives mentioned in Directive 76/464 obviously refer to the objective chemical and biological
characteristics of the environment into which dangerous substances are to be discharged. The Commission infers from this that
such quality objectives must be fixed in a precise manner, that is to say, quantified substance by substance, and it claims
that it is not possible to calculate emissions standards without such quantified objectives.
As regards the use of global parameters, the Commission maintains that the French authorities never explained whether and,
where relevant, how they applied those parameters to establish the quality of receiving waters and their pollution by dangerous
substances. However, if the French authorities did in fact apply such global parameters, the Commission emphasises that the
quality objectives which are to be established pursuant to Article 7 of Directive 76/464 must relate specifically to the substances
contained in List II. In other words, general objectives for water, such as good ecological quality, defined without reference
to that directive, are not acceptable.
Lastly, the Commission claims that while quality objectives may be fixed for the sum of individual parameters, experience
has shown that the parameters used do not provide sufficiently stringent values for each individual constituent. For example,
the AOX parameter which refers to the total amount of chlorinated organic compounds cannot, for technical reasons, be established
and monitored at the low concentration levels which are appropriate for some of the compounds belonging to that family of
substances nor, consequently, be accepted as a relevant quality objective under Directive 76/464.
The Commission therefore concludes that the measures relating to quality objectives which were communicated by the French
Government are too imprecise to comply with the requirements of Article 7 of Directive 76/464. As a result, the programmes
referred to in Article 7(1) and (3) inevitably remain incomplete, and discharge authorisations cannot be granted in accordance
with Article 7(2).
The French Government makes clear that it agrees with the Commission in considering that implementation of Article 7 of Directive
76/464 should rest on a link between the quality objectives defined for each body of water and the discharges authorised to
that body. However, the programme which it has introduced and implemented complies with that principle.
That Government considers that Directive 76/464 does not require a quantified reduction objective to be adopted for each individual
substance and each individual body of water, so that the aggregated objectives it uses correctly implement that directive.
In its reply to the reasoned opinion of 18 May 1993, it pointed out the limits of a substance-by-substance approach. Specifically,
that reply noted that:
[E]stablishing quality objectives substance by substance, for at least 99 substances, neglects the combined effects (whether
positive or negative) of pollutants. Moreover, the number of combinations of toxic substances which would have to be studied
is almost infinite. The complexity of the resulting legislation would render it completely unworkable. The French Government also observes that the Commission merely characterised as immaterial its argument that the Commission's
interpretation of the notion of quality objective is impracticable, too complex and entails unreasonable costs.
The French Government also maintains that, contrary to what the Commission claims, the Court has never interpreted Article
7 of Directive 76/464, which is unclear on that point, as requiring quality objectives to be laid down for each substance
and each body of water. While the Court drew attention in its judgment in
Commission
v
Germany
, cited above, to the importance of defining quality objectives as part of an approach based on programmes, it referred, as
can be seen in paragraph 34 of that judgment, only to objectives
for all the substances covered by that directive and never specified that those objectives had to apply to each substance individually.
Nor do the other judgments of the Court concerning implementation of that directive lead to such a conclusion. Referring,
as an example, to Joined Cases C-232/95 and C-233/95
Commission
v
Greece
[1998] ECR I-3343, paragraphs 35 and 36, the French Government maintains that the Court has always made clear that the programmes
established within that framework must be specific, which in no way precludes the use of aggregated objectives.
According to the French Government, several parameters are measured in the process of establishing a comprehensive quality
objective for water. The question is whether each of the substances at issue should constitute a parameter subject to a measure
and a quality objective or whether it is possible to regroup all or part of those substances into a single parameter relating
to
dangerous substances which would be subject to monitoring and one quality objective.
The French Government maintains that the latter method is an application which complies with the letter and spirit of Directive
76/464. Moreover, the Commission, in its consideration of aggregated objectives such as the parameter for AOX, did not appear
to exclude that technique completely, since it was of the opinion that aggregated objectives defined other than by
reference to Directive 76/464 would be inacceptable. Logically, it follows that the Commission would accept the use by Member States of a parameter which
specifically measures several of the substances set out in List II.
As regards the Commission's argument that discharge standards governed by programmes can only be
based on objectives which are quantified for each individual substance, the French Government maintains that the meaning of the phrase
based on used in Article 7 of Directive 76/464 is not necessarily as narrow as that given it by the Commission. An aggregated index
would also represent a precise figure which would serve as a basis for calculating what discharges could be authorised. It
argues that the index changes as a function of a mathematically calculable progression of discharges in water, making it possible
to determine precisely the extent of the authorisations which can be granted, without having to establish discharge objectives
on a substance-by-substance basis.
The French Government submits that the schedule of criteria which forms the basis for the assessment of quality objectives
provides a precise definition of the aggregated quality objectives for waters and clearly shows that one of those criteria,
the biotic index, relates specifically and exclusively to dangerous substances. It maintains that since the system relies
on global objectives specific to dangerous substances, it implements Directive 76/464 in a manner which is legally correct
and effective in practice, inasmuch as it makes it possible to measure discharges of the substances at issue precisely and
to maintain quality objectives for each watercourse, on the basis of several parameters, one of which refers only to those
substances.
Findings of the Court
It is appropriate to recall, as a first point, that the Court has already pointed out that the obligations flowing from Article
7 of Directive 76/464 require the Member States
inter alia
to establish programmes which include quality objectives for waters and which require all discharges of substances within
List II to have prior authorisation, in which emissions standards are laid down on the basis of those quality objectives (
Commission
v
Germany
, cited above, paragraph 28).
The Court has also held that the programmes to be established under Article 7 of Directive 76/464 must be specific and that
a pollution reduction objective set out in general purification programmes does not necessarily correspond to the more specific
objective of the Directive (Case C-207/97
Commission
v
Belgium
[1999] ECR I-275, paragraph 39, and Case C-384/97
Commission
v
Greece
[2000] ECR I-3823, paragraph 39).
It is also settled case-law that the programmes in question must specifically form 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 receiving waters (see,
inter alia
,
Commission
v
Belgium
, paragraph 40, and Case C-384/97
Commission
v
Greece
, paragraph 40, cited above).
Consequently, neither general rules nor
ad hoc
measures adopted by a Member State which, though comprising a wide range of standards aimed at protecting waters, do not
lay down quality objectives relating to a given watercourse or body of water can be deemed to constitute a programme within
the meaning of Article 7 of Directive 76/464 (
Commission
v
Germany
, paragraph 58).
More particularly, as regards the scope of quality objectives, the Court has held that those objectives are intended to reduce
pollution and that, since the quality of the aquatic environment is closely linked to its level of polluting substances, those
objectives must relate to the presence of polluting substances in receiving waters (Case C-152/98
Commission
v
Netherlands
[2001] ECR I-3463, paragraph 43).
In addition, the Court drew attention to the particular importance which the Community legislature attaches to fixing quality
objectives for all the substances referred to in Directive 76/464 (
Commission
v
Germany
, paragraph 34).
The Court therefore held, in paragraphs 42 and 43 of
Commission
v
Belgium
, that national measures which do not cover all the substances referred to in the first indent of the first subparagraph of
List II cannot be considered to satisfy the requirements of Article 7 of Directive 76/464.
Moreover, with a view to ensuring the practical effect of that article, the Court held, first, that under Directive 76/464
the obligation on Member States to establish programmes and quality objectives for List II substances is conditioned not by
a finding of actual water pollution by those substances but by discharges of those substances into the aquatic environment,
and secondly, that the fact that a Member State may attain the result sought by the directive by means of an improvement in
water quality as a result of some other method does not relieve it of its obligation to adopt the measures provided for in
that article (
Commission
v
Germany
, paragraphs 41, 42 and 61).
As regards the requirement that the pollution reduction programmes referred to in Article 7 of Directive 76/464 be specific
and effective, as brought out by the case-law cited in paragraphs 57 to 64 of the present judgment, it appears that the quality
objectives provided for in Article 7(3) are an essential element of those programmes and must therefore be fixed on the basis
of an assessment of receiving waters with reference to every substance in List II which may be present in discharges made
within the territory of the Member State concerned, so as not to compromise the effectiveness of that directive.
Only that interpretation can ensure the effectiveness of the system for laying down quality objectives in order to carry out
the pollution reduction programmes provided for in Article 7 of Directive 76/464, since it is the only interpretation which
can ensure that those objectives provide precise information regarding the quality of receiving waters for the purpose of
laying down the emissions standards provided for in discharge authorisations.
It is in the light of those considerations that it is necessary to consider whether aggregated water quality objectives such
as those laid down by the French legislation, which are fixed with reference to a classification system based on five quality
levels taking into account a large number of global parameters, one of which refers to the concentration in water of dangerous
substances resulting from industrial discharges, ensure the proper implementation of Article 7 of Directive 76/464.
While such measures may contribute in a general manner to protecting the aquatic environment against pollution, they are nevertheless
not likely to ensure the attainment of the more specific objective pursued by Article 7 of Directive 76/464, that is to say,
the reduction of pollution of the aquatic environment caused by the substances in List II.
The parties agree that the schedule of assessment criteria for water quality makes clear that the single parameter provided
for as regards the extent of industrial discharges is taken into account only in the context of that schedule of criteria,
whose adoption is dictated by considerations which have nothing to do with controlling pollution caused by dangerous substances
and which seek to achieve different goals.
Moreover, inasmuch as that parameter refers to a multiplicity of dangerous substances arising from industrial discharges as
a whole, it cannot be considered to comply with the requirements as to precision imposed by Directive 76/464 as regards the
measurement of the presence of polluting substances in receiving waters.
As the Commission has pointed out, without contradiction by the French Government, such a global parameter does not necessarily
enable sufficiently stringent values to be fixed for each individual component. It follows that, since it does not refer specifically
to the concentration of each of the substances at issue in receiving waters, such a global parameter is not likely to provide
a useful basis for defining the emissions standards laid down in discharge authorisations issued in accordance with Article
7(2) of Directive 76/464.
It therefore appears that the measures provided for in the French legislation for the purpose of fixing quality objectives
do not comply with the requirements of specificity and effectiveness imposed by Directive 76/464 as regards the programmes
which are to be established pursuant to Article 7 thereof.
The argument put forward by the French Government concerning the practical difficulties entailed in laying down quality objectives
which refer specifically to each of the substances at issue cannot rebut that conclusion.
It is settled case-law that it is irrelevant that the failure of a Member State to fulfil its obligations is the result of
technical difficulties it encounters (see, in particular, Case C-152/98
Commission
v
Netherlands
, cited above, paragraph 41, and Case C-364/00
Commission
v
Netherlands
[2002] ECR I-4177, paragraph 10).
For that reason, in paragraph 42 of the judgment in Case C-152/98
Commission
v
Netherlands
, cited above, the Court held that the alleged scientific difficulties relating to the identification of certain List II substances
cannot affect the obligation to transpose Directive 76/464. It added that the Member State which encounters those problems
could have contacted the Commission or had scientific studies carried out at the appropriate time.
It follows from all those considerations that the Commission's complaint relating to the failure to lay down quality objectives
in accordance with Article 7 of Directive 76/464 is well founded.
Since fixing such objectives is, as is clear from Article 7(1) and (3) of Directive 76/464, an essential element of the programmes
referred to in that article, it must be held that the French Republic has failed to adopt programmes to reduce pollution caused
by the substances at issue which comply with its obligations under that article.
It is therefore not necessary to consider the Commission's claim that the various measures notified to it as implementing
Article 7 of Directive 76/464 cannot be considered to be programmes within the meaning of that article.
In those circumstances, it must be held that, by failing to adopt pollution reduction programmes which include quality objectives
for the substances at issue which comply with the requirements of Article 7 of Directive 76/464, the French Republic has failed
to fulfil its obligations under that directive.
Costs
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 against the French Republic and
the latter has been unsuccessful, the French 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 which include quality objectives for the 99 dangerous substances
listed in the annex to the application which comply with the requirements of Article 7 of 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
French Republic has failed to fulfil its obligations under that directive;
2.
Orders the French Republic to bear the costs.
Puissochet
Gulmann
Skouris
Macken
Colneric
Delivered in open court in Luxembourg on 12 June 2003.
R. Grass
J.-P. Puissochet
Registrar
President of the Sixth Chamber
–
Language of the case: French.