Judgment — ECLI:EU:C:2007:629
Date: 2007-10-25
Language of the case: English
Court formation: Second Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;Approximation of laws;Pollution
Concepts: General;Environment
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: Ireland

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)