JUDGMENT OF THE COURT (Fifth Chamber)

11 September 2008 ([\*](#Footnote*))

(Failure of a Member State to fulfil obligations – Environment – Directive 91/271/EEC – Pollution and nuisance – Treatment of urban waste water)

In Case C‐316/06,

ACTION under Article 226 EC for failure to fulfil obligations, brought on 20 July 2006,

**Commission of the European Communities,** represented by S. Pardo Quintillán and D. Lawunmi, 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 (Fifth Chamber),

composed of A. Tizzano, President of the Chamber, A. Borg Barthet (Rapporteur) and M. Ilešič, 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 action, the Commission of the European Communities asks the Court to declare that by failing, first, in respect of
discharges from the agglomerations known as IE22, Bray, IE31, Howth, IE34, Letterkenny, IE40, Shanganagh, IE41, Sligo, and
IE45, Tramore, County Waterford, to ensure that, before discharge, waste water entering collecting systems was made subject
to secondary treatment or an equivalent treatment at the latest by 31 December 2000 and by failing, second, to ensure that
the discharge of that waste water satisfied the relevant requirements of Annex I.B to Council Directive 91/271/EEC of 21 May
1991 concerning urban waste water treatment (OJ 1991 L 135, p. 40) (‘the Directive’) by the said deadline, Ireland has failed
to fulfil its obligations under Article 4(1) and (3) of the Directive.

**Legal context**

2        The Directive’s objective is to protect the environment from the adverse effects of discharges of urban waste water and waste
water coming from certain industrial sectors.

3        Article 2 of the Directive contains, inter alia, the following definitions:

‘1.      “urban waste water” means domestic waste water or the mixture of domestic waste water with industrial waste water and/or run-off
rain water;

...

4.      “agglomeration” means an area where the population and/or economic activities are sufficiently concentrated for urban waste
water to be collected and conducted to an urban waste water treatment plant or to a final discharge point;

...

6.      “1 p.e. (population equivalent)” means the organic biodegradable load having a five-day biochemical oxygen demand (BOD5) of
60 g of oxygen per day;

...’

4        Article 3 of the Directive provides:

‘1.      Member States shall ensure that all agglomerations are provided with collecting systems for urban waste water,

–        at the latest by 31 December 2000 for those with a [p.e.] of more than 15 000, and

–        ...

2.      Collecting systems described in paragraph 1 shall satisfy the requirements of Annex I (A). These requirements may be amended
in accordance with the procedure laid down in Article 18.’

5        Article 4 of the Directive states:

‘1.      Member States shall ensure that urban waste water entering collecting systems shall before discharge be subject to secondary
treatment or an equivalent treatment as follows:

–        at the latest by 31 December 2000 for all discharges from agglomerations of more than 15 000 p.e.,

–        ...

3.      Discharges from urban waste water treatment plants described in paragraphs 1 and 2 shall satisfy the relevant requirements
of Annex I.B. These requirements may be amended in accordance with the procedure laid down in Article 18.

4.      The load expressed in p.e. shall be calculated on the basis of the maximum average weekly load entering the treatment plant
during the year, excluding unusual situations such as those due to heavy rain.’

6        Annex I.B to the Directive provides:

‘1.      Waste water treatment plants shall be designed or modified so that representative samples of the incoming waste water and
of treated effluent can be obtained before discharge to receiving waters.

2.      Discharges from urban waste water treatment plants subject to treatment in accordance with Articles 4 and 5 shall meet the
requirements shown in Table 1.

3.      Discharges from urban waste water treatment plants to those sensitive areas which are subject to eutrophication as identified
in Annex II.A(a) shall in addition meet the requirements shown in Table 2 of this Annex.

4.      More stringent requirements than those shown in Table 1 and/or Table 2 shall be applied where required to ensure that the
receiving waters satisfy any other relevant Directives.

5.      The points of discharge of urban waste water shall be chosen, as far as possible, so as to minimise the effects on receiving
waters.’

**The pre-litigation procedure**

7        On 9 July 2004 the Commission sent a letter of formal notice to Ireland requesting it to submit its observations within a
period of two months. Ireland replied by letter of 23 November 2004.

8        Having examined Ireland’s reply, and taking the view that, for six agglomerations, the secondary treatment of urban waste
water was not carried out in accordance with the requirements of the Directive, the Commission issued a reasoned opinion on
22 December 2004 calling on Ireland to take the measures necessary to comply with the reasoned opinion within a period of
two months from receipt of the opinion.

9        As it was not satisfied with the reply given by the Irish authorities, the Commission decided to bring the present action.

**The action**

10      At the outset, it should be noted that, apart from the Howth agglomeration, Ireland does not dispute that the five other agglomerations
at issue in the present case all have a p.e. in excess of 15 000, as determined in accordance with Article 4(4) of the Directive.

11      Therefore, in accordance with the first indent of the first subparagraph of Article 3(1) and the first indent of Article 4(1)
of the Directive, those agglomerations should have been provided with collecting systems for their urban waste water and that
water should have been subject to secondary treatment or an equivalent treatment by 31 December 2000 at the latest.

*The Letterkenny agglomeration*

 Arguments of the parties

12      Ireland contends that the Commission altered the nature of its complaint during the pre-litigation phase of the infringement
procedure. According to Ireland, the Commission concluded, in its letter of formal notice that Ireland had not fulfilled its
obligations under Articles 3 and 4 of the Directive in respect of 11 agglomerations, specifically listed in that letter, including
Letterkenny. By contrast, in its reasoned opinion, the Commission accepted that Ireland had a plant for secondary treatment
of urban waste water for the Letterkenny agglomeration, but claimed, for the first time, that the plant was not capable of
‘covering all of [the] discharges’ of that agglomeration and that that under-capacity therefore breached Article 4(3) of the
Directive.

13      Ireland contends furthermore that the action is clearly misconceived inasmuch as the Commission claims that the Letterkenny
agglomeration did not have a plant for secondary treatment of urban waste water at the end of 2000, although that plant has
been in existence since 1975, albeit seasonally overloaded. Ireland also outlines the reasons for which the works undertaken
to remedy the seasonal overload at the existing plant have been delayed and asserts that the completion of those works is
scheduled for the end of 2009.

14      The Commission asserts that it is very clear from the reasoned opinion that it took account of the existence of that plant
for secondary treatment of urban waste water from Letterkenny.

15      According to the Commission, the problem is that the plant is not capable of systematically treating all the discharges of
the agglomeration in accordance with the definition given for ‘secondary treatment’ in the Directive. The requirement set
down in Article 4(1) of the Directive, that urban waste water entering collecting systems is before discharge to be subject
to secondary treatment or an equivalent treatment, relates to all of an agglomeration’s discharges, not simply to some of
them. Indeed, Ireland has never denied that, on account of the problem of under-capacity at the plant for secondary treatment
of urban waste water from Letterkenny, not all the requirements of the Directive have been complied with.

 Findings of the Court

16      As regards the argument concerning the alteration of the nature of the complaint, it must be borne in mind that, according
to settled case-law, although the subject-matter of an application under Article 226 EC is circumscribed by the pre-litigation
procedure provided for by that article and that, consequently, the letter of formal notice, the reasoned opinion and the application
to the Court must be based on the same objections, that requirement cannot be carried so far as to mean that in every case
exactly the same wording must be used in each, provided that the subject-matter of the proceedings has not been extended or
altered (Case C-490/04 *Commission* v *Germany* [2007] ECR I-6095, paragraphs 36 and 37, and the judgment of 17 January 2008 in Case C-152/05 *Commission* v *Germany*, not yet published in the ECR, paragraph 9).

17      Furthermore, the reasoned opinion must contain a coherent and detailed statement of the reasons which have led the Commission
to conclude that the Member State in question has failed to fulfil one of its obligations under the EC Treaty. By contrast,
the letter of formal notice cannot be subject to such strict requirements of precision, since it cannot, of necessity, contain
anything more than an initial brief summary of the complaints. The Commission can therefore, in the reasoned opinion, set
out in detail the complaints which it has already made more generally in the letter of formal notice (see Case C-365/97 *Commission* v *Italy* [1999] ECR I-7773, paragraph 26, and Case C‐152/05 *Commission* v *Germany*, paragraph 10).

18      It must be held that the letter of formal notice met the degree of precision required by the case-law, since the identification
of the failure to fulfil obligations and its classification as being likely to constitute an infringement of Articles 3 and
4 of the Directive were sufficient to allow Ireland to present its defence, the reasoned opinion subsequently detailing the
complaints which had already been advanced earlier.

19      Consequently, the argument submitted by Ireland in relation to the alteration of the nature of the complaint cannot be upheld.

20      Next, according to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined
by reference to the situation prevailing in that Member State at the end of the period laid down in the reasoned opinion and
the Court cannot take account of any subsequent changes (see, inter alia, Case C-168/03 *Commission* v *Spain* [2004] ECR I-8227, paragraph 24, and Case C-433/03 *Commission* v *Germany* [2005] ECR I-6985, paragraph 32).

21      In the present case, it is common ground that, upon the expiry of the time-limit set in the reasoned opinion, the Letterkenny
agglomeration did not have a system for secondary treatment of collected urban waste water which allowed for complete treatment
at all times of the year of all the discharges of that water.

22      In those circumstances, the Commission’s action must be held to be well founded in relation to the Letterkenny agglomeration.

*The Howth agglomeration*

 Arguments of the parties

23      Ireland submits that, on account of works already carried out, the p.e. has been reduced to a level between 12 000 and 15
000, following the connection of sections of the peninsula to the waste water treatment plant at Ringsend through the Sutton
Pumping Station. In addition, according to Ireland, the works in progress will very shortly reduce the residual p.e. to 9
000, well below the threshold of 15 000 laid down in Article 4(1) of the Directive. Ireland also takes the view that that
part of the Howth catchment area is not an ‘agglomeration’ for the purposes of Article 4(1). Although it agrees with the Commission
that agglomerations cannot be artificially split so as to avoid the requirements of the Directive, Ireland does not consider
that the very specific circumstances which have arisen in the area in question, as a result of the progressive implementation
of the Dublin Bay Project, the objective of which is to treat all collected discharges of urban waste water, constitute ‘agglomeration
splitting’.

24      The Commission argues that the reasoning underpinning Ireland’s proposition with regard to the Howth agglomeration is not
clear. It disputes the argument that the part of the agglomeration from where the untreated discharges of urban waste water
now come should not be considered part of that agglomeration. In that regard, the Commission, first, notes that it is Ireland
itself which identified IE31, Howth, as an agglomeration for the purposes of reports sent to the Commission. It then asserts
that the concept of agglomeration refers to an area sufficiently concentrated for urban waste water to be collected and conducted
to an urban waste water treatment plant. The concept therefore also includes those areas which are sufficiently concentrated
but where a collecting system for urban waste water is not yet in place. The Commission takes the view that the existence
of an agglomeration is independent both of the existence of a collecting system for urban waste water and of the presence
of a treatment plant for that water. Thus, a collecting system cannot be used to define the limits of an agglomeration. According
to the Commission, to proceed in that way would be absurd.

25      In any event, the Commission submits that, even if Ireland’s argument on the issue of splitting the Howth agglomeration were
to be upheld, it is clear that, on expiry of the time-limit prescribed in the reasoned opinion, Ireland had not put in place
the measures necessary for treating all the urban waste water to be conducted from Howth to Ringsend.

 Findings of the Court

26      As regards the need, relied on by Ireland, to redefine the Howth agglomeration, it should be pointed out that Ireland itself,
for the purposes of the application of the Directive, defined the agglomeration of IE31, Howth, as an agglomeration having
a p.e. of 43 584 and, in any event, it has not provided, in the present case, any convincing evidence or argument to justify
a finding that the area from which the as yet untreated urban waste water comes should no longer be considered to form part
of that agglomeration.

27      In those circumstances it must be held that, upon the expiry of the time-limit prescribed in the reasoned opinion, the Howth
agglomeration did not have a system for secondary treatment of collected urban waste water enabling all the discharges of
that water to be treated.

28      Therefore, the Commission’s action must be held to be well founded in so far as it concerns the Howth agglomeration.

*The Bray, Shanganagh, Sligo and Tramore, County Waterford agglomerations*

29      As regards the agglomerations of Bray, Shanganagh, Sligo and Tramore, County Waterford, Ireland admits, in essence, the alleged
failure to fulfil its obligations, while setting out the reasons for the delay in the implementation of various projects and
highlighting the significant works already carried out.

30      In that regard, it is sufficient to point out that, according to settled case-law, a Member State cannot plead provisions,
practices or circumstances prevailing in its domestic legal order to justify failure to observe obligations and time-limits
laid down by a directive (see, inter alia, Case C-235/04 *Commission* v *Spain* [2007] ECR I-5415, paragraph 55).

31      In addition, according to further settled case-law, Member States cannot plead internal circumstances or practical difficulties
to justify non-compliance with obligations arising from rules of Community law (see, inter alia, Case C-89/03 *Commission* v *Luxembourg* [2003] ECR I-11659, paragraph 5).

32      In the present case, the parties agree that the measures necessary to ensure the complete implementation of the Directive
in the context of secondary treatment of urban waste water from the agglomerations of Bray, Shanganagh, Sligo and Tramore,
County Waterford had not been adopted on expiry of the time-limit prescribed in the reasoned opinion.

33      In those circumstances, the Commission’s action must be held to be well founded with regard to those agglomerations.

34      Having regard to all the foregoing considerations, it must be held that, by failing, first, in respect of discharges from
the agglomerations known as IE22, Bray, IE31, Howth, IE34, Letterkenny, IE40, Shanganagh, IE41, Sligo, and IE45, Tramore,
County Waterford, to ensure that, before discharge, waste water entering collecting systems was made subject to secondary
treatment or an equivalent treatment at the latest by 31 December 2000 and by failing, second, to ensure that the discharge
of that waste water satisfied the relevant requirements of Annex I.B to the Directive by the said deadline, Ireland has failed
to fulfil its obligations under Article 4(1) and (3) of the Directive.

**Costs**

35      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. As the Commission applied for costs against Ireland and as Ireland has been
unsuccessful, the latter must be ordered to pay the costs.

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

1.      **Declares that, by failing, first, in respect of discharges from the agglomerations known as IE22, Bray, IE31, Howth, IE34,
Letterkenny, IE40, Shanganagh, IE41, Sligo, and IE45, Tramore, County Waterford, to ensure that, before discharge, waste water
entering collecting systems was made subject to secondary treatment or an equivalent treatment at the latest by 31 December
2000 and by failing, second, to ensure that the discharge of that waste water satisfied the relevant requirements of Annex
I.B to Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment by the said deadline, Ireland has
failed to fulfil its obligations under Article 4(1) and (3) of that directive;**

2.      **Orders Ireland to pay the costs.**

[Signatures]

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[\*](#Footref*) Language of the case: English.