CELEX: 62003CJ0213
Convention for the Protection of the Mediterranean Sea against Pollution (Barcelona Convention)
Protocol for the Protection of the Mediterranean Sea against Pollution from Land-based Sources
Article 6(3)
Authorisation to discharge
Direct effect

By order of 6 May 2003, received at the Court on 19 May 2003, the Cour de cassation (Court of Cassation) (France) referred
to the Court for a preliminary ruling under Article 234 EC two questions on the interpretation of Article 6(3) of the Protocol
for the Protection of the Mediterranean Sea against Pollution from Land-based Sources, signed in Athens on 17 May 1980, approved
by Council Decision 83/101/EEC of 28 February 1983 (OJ 1983 L 67, p. 1) (hereinafter ‘the Protocol’), and of Article 6(1)
of the Protocol as amended at the Conference of Plenipotentiaries held in Syracuse on 7 and 8 March 1996, which amendments
were approved by Council Decision 1999/801/EC of 22 October 1999 (OJ 1999 L 322, p. 18) (hereinafter ‘the amended Protocol’).
Those questions were raised in proceedings between the Syndicat professionnel coordination des pêcheurs de l’étang de Berre
et de la région (hereinafter ‘the Syndicat’) and Électricité de France (hereinafter ‘EDF’) as regards the discharges from
the hydroelectric power station at Saint-Chamas (France) into the Étang de Berre.
Legal framework
The Convention for the Protection of the Mediterranean Sea against Pollution, signed in Barcelona on 16 February 1976 (OJ
1977 L 240, p. 3) (hereinafter ‘the Convention’), was entered into by the European Economic Community by  Council Decision
77/585/EEC of 25 July 1977 (OJ 1977 L 240, p. 1).
Article 2(a) of the Convention defines the term ‘pollution’ as follows:
‘… the introduction by man, directly or indirectly, of substances or energy into the marine environment resulting in such
deleterious effects as harm to living resources, hazards to human health, hindrance to marine activities including fishing,
impairment of quality for use of sea water and reduction of amenities.’
Article 4(1) of the Convention states:
‘The Contracting Parties shall individually or jointly take all appropriate measures in accordance with the provisions of
this Convention and those Protocols in force to which they are party to prevent, abate and combat pollution of the Mediterranean
Sea area and to protect and enhance the marine environment in that area.’
Article 8  of the Convention provides:
‘The Contracting Parties shall take all appropriate measures to prevent, abate and combat pollution of the Mediterranean Sea
area caused by discharges from rivers, coastal establishments or outfalls, or emanating from any other land-based sources
within their territories.’
Similarly, Article 1 of the Protocol provides that:
‘The Contracting Parties … shall take all appropriate measures to prevent, abate, combat and control pollution of the Mediterranean
Sea Area caused by discharges from rivers, coastal establishments  or outfalls, or emanating from any other land-based sources
within their territories.’
Article 3 of the Protocol states:
‘The area to which this Protocol applies (hereinafter referred to as the “Protocol Area”) shall be:
...
(c) saltwater marshes communicating with the sea.’
Article 4(1)(a) provides that the Protocol is to apply to ‘polluting discharges reaching the Protocol area from land-based
sources within the territories of the Parties, in particular:
–

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

indirectly, through rivers, canals or other  watercourses, including underground watercourses, or through run-off’.
Under Article 6(1) and (3) of the Protocol:
‘1. The Parties shall strictly limit pollution from land-based sources in the Protocol Area by substances or sources listed
in Annex II to this Protocol.
…
3. Discharges shall be strictly subject to the issue, by the competent national authorities, of an authorisation taking due
account of the provisions of Annex III … ’.
Article 7(1) of the Protocol provides:
‘The Parties shall progressively formulate and adopt, in co-operation with the competent international organisations, common
guidelines and, as appropriate, standards or criteria dealing in particular with:
...
(e) specific requirements concerning the quantities of the substances listed in Annexes I and II discharged, their concentration
in effluents and methods of discharging them.’
It is clear from paragraphs 11 and 13 of Section A of Annex II to the Protocol that the system laid down in Article 6 of the
Protocol covers ‘substances which have, directly or indirectly, an adverse effect on the oxygen content of the marine environment,
especially those which may cause eutrophication’ and ‘substances which, though of a non-toxic nature, may become harmful to
the marine environment or may interfere with any legitimate use of the sea owing to the quantities in which they are discharged’.
Section B of Annex II states:
‘The control and strict limitation of the discharge of substances referred to in section A above must be implemented in accordance
with Annex III.’
Annex III to the Protocol sets out the factors to be taken into account ‘with a view to the issue of an authorisation for
the discharge of wastes containing substances referred to in Annex II … ’. Contracting Party States must therefore take into
account the ‘characteristics and composition of the waste’, the ‘characteristics of waste constituents with respect to their
harmfulness’, the ‘characteristics of discharge site and receiving marine environment’, the ‘availability of waste technologies’
and, finally, the ‘potential impairment of marine ecosystems and sea-water uses’.
Article 3(d) of the amended Protocol, which corresponds to Article 3(c) of the Protocol, provides that the area to which the
Protocol applies includes:
‘...
(d) Brackish waters, coastal salt waters including marshes and coastal lagoons, and ground waters communicating with the Mediterranean
Sea’.
Article 6(1) of the amended Protocol provides:
‘Point source discharges into the Protocol area, and releases into water or air that reach and may affect the Mediterranean
area, as defined in Article 3(a), (c) and (d) of this Protocol, shall be strictly subject to authorisation or regulation by
the competent authorities of the Parties, taking due account of the provisions of this Protocol and Annex II thereto, as well
as the relevant decisions or recommendations of the meetings of the Contracting Parties.’
Annex I C to the amended Protocol sets out ‘categories of substances and sources of pollution’ which ‘will serve as guidance
in the preparation of action plans, programmes and measures’. In particular, paragraph 17 refers to ‘non-toxic substances
that have an adverse effect on the oxygen content of the marine environment’.
The amended Protocol deletes the former Annex II and renumbers, with amendments, the former Annex III as ‘Annex II’.
The dispute in the main proceedings and the questions referred for a preliminary ruling
The Étang de Berre, located in France, is a saltwater marsh of 15 000 hectares which communicates directly with the Mediterranean
Sea.
The Syndicat complained to EDF on several occasions of damage to the aquatic environment of the Étang de Berre, primarily
as the result of fresh water from the Durance which is artificially discharged into the Étang whenever the turbines of the
hydroelectric power station at Saint-Chamas are in operation.
On 1 September 1999, the Syndicat brought interlocutory proceedings against EDF before the Tribunal de grande instance de
Marseille (Marseilles Regional Court) (France) alleging unlawful conduct and seeking an order that the hydroelectric power
station at Saint-Chamas be shut down, subject to a periodic penalty payment for non-compliance. In particular, the Syndicat
claimed that EDF was discharging water from that power station without having obtained the prior authorisation provided for
in Article 6(3) of the Protocol.
The court hearing the application for interim measures at first instance dismissed it by order of 25 October 1999. While it
acknowledged the disturbance caused by the operation of the hydroelectric power station’s turbines, it took the view that:
‘As regards the implementation of Community law, in particular the Barcelona Convention and the Athens Protocol …, the question
of their direct effect on individuals also raises issues which do not fall within the jurisdiction of the court adjudicating
on the substance.
Since the question whether EDF’s operation of the hydroelectric power station at Saint-Chamas constitutes a manifestly unlawful
disturbance, that is to say, unlawful conduct within the meaning generally understood in the case-law, gives rise to issues
which are too serious to allow the court hearing the application for interim measures to intervene and put an end to three
decades of operations, such a decision being of great import in that it would have extremely serious consequences for, inter
alia, production and the security of the region’s electricity system …’
The Syndicat lodged an appeal against that judgment before the Cour d’appel (Court of Appeal) d’Aix-en-Provence (France),
which dismissed the appeal by a judgment of 21 September 2000. The Cour d’appel took the view inter alia that ‘the various
Articles [of the Protocol] are interdependent’ and that Article 6(3) ‘cannot be read in isolation, so that no authorisation
to discharge can legitimately and usefully be applied for by EDF on the basis of the Protocol as long as the French State
has not defined the applicable technical criteria, since no response could be given’.
The Syndicat appealed on a point of law against that judgment, relying in particular on the infringement by EDF of Article
6(3) of the Protocol, application of which was wrongly ruled out by the Cour d’appel.
Under those conditions, the Cour de Cassation decided to stay the proceedings and refer the following two questions to the
Court of Justice for a preliminary ruling:
‘1.
Must Article 6(3) of the Athens Protocol …, which has become Article 6(1) in the revised version, be held to have direct effect,
so that any interested party may rely on it before the national courts in an action to halt discharges of water which are
not authorised in accordance with the procedure and criteria which it prescribes?
2.
Must the same provision be interpreted to mean that it prohibits the discharge into a saltwater marsh communicating with the
Mediterranean Sea of substances which, although not toxic, adversely affect the oxygen content of the marine environment,
without an authorisation issued by the competent authorities of the Member States, taking into account the provisions of the
abovementioned Protocol and of Annex III C thereto (now Annex II)?’
Relevance of the amended Protocol to the main action
EDF and the French Government take the view that it is appropriate to interpret the Protocol alone, since the amended Protocol
has not yet entered into force.
It is settled case-law that the procedure provided for by Article 234 EC is an instrument of cooperation between the Court
of Justice and national courts (see, inter alia, Case C-343/90
Lourenço Dias
[1992] ECR I-4673, paragraph 14, and Case C-314/01
Siemens and ARGE Telekom
[2004] ECR I-0000, paragraph 33, and the case-law cited therein).
In the context of that cooperation, the national court seised of the dispute, which alone has direct knowledge of the facts
of the main action and must assume responsibility for the subsequent judicial decision, is in the best position to assess,
having regard to the particular features of the case, whether a preliminary ruling is necessary to enable it to give judgment
and the relevance of the questions which it refers to the Court (see, inter alia,
Lourenço Dias
, cited above, paragraph 15; Case C-390/99
Canal Satélite Digital
[2002] ECR I-607, paragraph 18; and
Siemens and ARGE Telekom
, cited above, paragraph 34).
In the present case, it is far from clear that the interpretation of Article 6(1) of the amended Protocol would not be relevant
to the outcome of the main proceedings. As the Commission rightly points out, it is possible that if the judgment of the Cour
d’appel of Aix-en-provence is quashed by the Cour de cassation, the amended Protocol will have entered into force when the
national court has to give a further judgment on the substance in the main proceedings.
The amended Protocol should therefore also be taken into account for the purpose of providing answers to the questions referred
for a preliminary ruling.
Direct effect of Articles 6(3) of the Protocol and 6(1) of the amended Protocol
Observations of the parties
EDF maintains that the various provisions of the Protocol are interdependent, making it impossible to recognise Article 6(3)
as having direct effect even if it  does lay down a clear and precise stipulation.
Article 6(1) of the Protocol sets the objective to ‘strictly limit’ pollution by substances or sources listed in Annex II
(including substances which have an adverse effect on oxygen content). To that end, Article 6(2) requires that the parties
implement ‘jointly or individually’, as appropriate, ‘suitable programmes and measures’. Finally, Article 6(3) requires that
discharges be subject to an ‘authorisation taking due account of the provisions of Annex III’. The obligation to ‘take due
account’ is very vague and could, in the absence of details, lead to all discharges being subject to an authorisation merely
because they involve one of the substances listed in Annex II to the Protocol. That requirement, however, would be entirely
disproportionate as regards the objective of the Protocol.
EDF also relies on Article 7(1) of the Protocol, concerning ‘common … standards or criteria’ to be formulated before an authorisation
system is put in place. However, those standards and criteria have not yet been defined for the discharges in question.
In addition, inasmuch as the Community is party to the Convention and to the Protocol, the standards to be laid down for their
implementation may principally be at Community level. However, there is as yet no directive relating to discharges of fresh
water and silt into a saltwater marsh.
The Syndicat, the French Government and the Commission for their part submit that Article 6(3) of the Protocol has direct
effect, relying on the case-law of the Court (see inter alia Case 12/86
Demirel
[1987] ECR 3719, paragraph 14).
Regard being had to its wording and to its purpose and nature, Article 6(3) of the Protocol contains a clear, precise and
unconditional obligation to subject discharges of the substances covered by Annex II to the Protocol to the prior issue of
an authorisation  by the competent national authorities. The strict prohibition on discharges without such an authorisation
is not subject, in its implementation or effects, to any reservation or to the adoption of any subsequent measure. In addition,
Annex III to the Protocol, to which Article 6(3) refers, lists all the factors  of which account must be taken with a view
to the issue of an authorisation.
According to the Commission, the absence of measures, programmes and guidelines adopted jointly does not have the effect of
paralysing implementation  of the Protocol or preventing the issue of discharge authorisations, but increases the discretion
of the Member States in issuing those authorisations, the exercise of which is open to judicial review.
The Syndicat and the Commission add that the version of Article 6 which results from the amended Protocol and the other amendments
to the annexes does not alter the preceding assessment.
Findings of the Court
According to the settled case-law of the Court, a provision in an agreement concluded by the Community with a non-member country
must be regarded as being directly applicable when, regard being had to its wording and to the purpose and nature of the agreement,
the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption
of any subsequent measure (see inter alia
Demirel
, cited above, paragraph 14, and Case C-171/01
Wählergruppe Gemeinsam
[2003] ECR I-4301, paragraph 54).
In order to determine whether Article 6(3) of the Protocol satisfies those criteria, it is first necessary to examine its
wording.
That provision clearly, precisely and unconditionally lays down the obligation for Member States to subject discharges of
the substances listed in Annex II to the Protocol to the issue by the competent national authorities of an authorisation taking
due account of the provisions of Annex III.
As the Commission rightly points out, the fact that the national authorities have discretion in issuing authorisations under
the criteria set out in Annex III in no way diminishes the clear, precise and unconditional nature of the prohibition on discharges
without prior authorisation that results from Article 6(3) of the Protocol.
That finding is supported by the purpose and nature of the Protocol.
It is clear from Articles 1 and 4 of the Protocol that its purpose is to prevent, abate, combat and eliminate pollution of
the Mediterranean Sea area caused by discharges from rivers, coastal establishments or outfalls, or emanating from any other
land-based sources within their territories. To that end, reiterating the undertakings given pursuant to Articles 4 and 8
of the Convention, Article 1 of the Protocol requires the Contracting Parties to take ‘all appropriate measures’.
By establishing a system of prior authorisation by the competent national authorities for the discharge of the substances
listed in Annex II to the Protocol, Article 6(3) contributes to the elimination by Member States of pollution from land-based
sources in the area covered by the Protocol. Recognition of the direct effect of the provision in question can only serve
the purpose of the Protocol, as recalled above, and reflect the nature of the instrument, which is intended, inter alia, to
prevent pollution resulting from the failure of public authorities to act.
The foregoing considerations also apply to the interpretation of Article 6(1) of the amended Protocol. The reference therein
to ‘the relevant decisions or recommendations of the meetings of the Contracting Parties’, which the competent national authorities
must take into account, does not call in question the clear, precise and unconditional nature of the prohibition on discharges
without authorisation. In addition, the amendments approved by Decision 1999/801 in no way alter the purpose or nature of
the Protocol.
In the light of the foregoing, the answer to the first question must be that both Article 6(3) of the Protocol and Article
6(1) of the amended Protocol, following its entry into force, have direct effect, so that any interested party is entitled
to rely on those provisions before the national courts.
Scope of Articles 6(3) of the Protocol and 6(1) of the amended Protocol
As the Syndicat, the French Government and the Commission have rightly observed, Annex III to the Protocol, referred to in
Article 6(3) thereof, which lists the factors to be taken into account with a view to the issue of authorisations for the
discharge of waste, itself refers to Annex II, which sets out the substances contained in the waste in question. These include,
in paragraph 11, ‘substances which have, directly or indirectly an adverse effect on the oxygen content of the marine environment,
especially those which may cause eutrophication’ and, in paragraph 13, ‘substances which, though of a non-toxic nature, may
become harmful to the marine environment or may interfere with any legitimate use of the sea owing to the quantities in which
they are discharged’.
Paragraphs 11 and 13 clearly do not make the requirement of prior authorisation for the discharge of the substances to which
they refer conditional on their toxicity.
The conclusion must be the same as regards the scope of Article 6(1) of the amended Protocol.
Pursuant to that provision, it is all ‘point source discharges into the Protocol Area [which includes, pursuant to Article
3(d) of the amended Protocol, marshes communicating with the Mediterranean Sea] and releases into water or air that reach
and may affect the Mediterranean Area’, and no longer merely discharges of the substances listed in Annex II to the Protocol,
which will henceforth be ‘strictly subject to authorisation or regulation by the competent authorities’, which are to take
account inter alia of the provisions of the amended Protocol and of Annex II thereto.
In the light of the foregoing, the answer to the second question must be that both Article 6(3) of the Protocol and Article
6(1) of the amended Protocol must be interpreted as prohibiting, without an authorisation issued by the national competent
authorities, the discharge into a saltwater marsh communicating with the Mediterranean Sea of substances which, although not
toxic, have an adverse effect on the oxygen content of the marine environment.
Costs
The costs incurred by the French Government and by the Commission, which have submitted observations to the Court, are not
recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the
national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT (Second Chamber),
in answer to the questions referred to it by the Cour de cassation by judgment of 6 May 2003, hereby rules:
1.
Article 6(3) of the Protocol for the Protection of the Mediterranean Sea against Pollution from Land-based Sources, signed
in Athens on 17 May 1980, approved by Council Decision 83/101/EEC of 28 February 1983 and, following its entry into force,
Article 6(1) of the Protocol as amended at the Conference of Plenipotentiaries held in Syracuse on 7 and 8 March 1996, which
amendments were approved by Council Decision 1999/801/EC of 22 October 1999, have direct effect, so that any interested party
is entitled to rely on those provisions before the national courts.
2.
Those same provisions must be interpreted as prohibiting, without an authorisation issued by the national competent authorities,
the discharge into a saltwater marsh communicating with the Mediterranean Sea of substances which, although not toxic, have
an adverse effect on the oxygen content of the marine environment.
Timmermans
Gulmann
Puissochet
Cunha Rodrigues
Schintgen
Delivered in open court in Luxembourg on  15 July 2004.
R. Grass
C.W.A. Timmermans
Registrar
President of the Second Chamber
–
Language of the case: French.