Opinion of the Advocate General — ECLI:EU:C:2000:699
Date: 2000-12-14
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;Approximation of laws;Pollution
Procedure: Action for failure to fulfil obligations - successful
Origin: France

summary report to the Council. In Case C-214/97 Commission v Portugal, (13) the Court emphasised that all documents purporting to be 'plans' must in any case contain measures and a timetable. 33. BEP I focused on the improvement of coastal waters. These are not covered by Directive 75/440/EEC, as Article 1(1) of that directive defines 'surface water' as 'surface fresh water'. The PMPOA, which is in principle countrywide, covers only a relatively small part of Breton agricultural undertakings because it is restricted to undertakings of a certain size. The resorption programmes for the ZES and BEP II apply only to particularly affected areas in Brittany, but not to all surface water with critical nitrate levels. Furthermore, the ZES concept was still at an early stage in Brittany at the relevant point in time, according to the French Republic's testimony. Similarly, under BEP II, only two agreements for Brittany were made which could have provided the basis for measures yet to be determined. Nor were the SAGEs that were to be established for individual catchment areas in Brittany in the framework of the SDAGEs operational at the relevant point in time. 34. So far as can be determined, therefore, the measures presented by the French Republic have, even as far as Brittany is concerned, a limited scope of application in subject or territory, or are only applied to a precise group of addressees for ad hoc actions. In addition, there is no overarching concept. Timetables are as little in evidence as the coherence required by the rulings of the Court. 35. As far as can be seen, it was only by letter of 18 June 1998 that the French Republic first notified a summary, broken down by abstraction point and region, of all surface water in Brittany intended for the abstraction of drinking water, which systematically allocated each problematic geographical area to the abovementioned programmes. But here, too, objectives and schedules are lacking. According to the settled case-law of the Court, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion. (14) This period had expired for the French Republic by the time it sent the abovementioned letter. 36. So, it must therefore be concluded that the French Republic has failed to fulfil its obligation to present a 'systematic plan of action including a timetable' pursuant to Article 4(2) of Directive 75/440/EEC. 37. The Commission argues, second, that the programmes and sets of measures presented by the French Republic not only lack a systematic plan but are clearly ineffective and not appropriate for the situation. 38. It should be noted in this regard that the effectiveness and appropriateness of measures to reduce pollution levels in surface water can only be determined after the fact. The plans required by Article 4(2) of Directive 75/440/EEC were to have been presented within the two-year transposition period for the Directive; ten years were allowed for the achievement of 'improvements' (that is, proof of their effectiveness). It has already been found that the French Republic has failed to achieve any improvements within the meaning of Article 4(2), so that effectiveness can hardly be brought forward again as a test for the existence of a 'systematic plan of action'. (b) Duty of the Commission to carry out a thorough examination 39. The French Republic argues that the Commission failed to discuss the documents notified by it with reference to its compliance with the obligations resulting from Article 4(2) of Directive 75/440/EEC and to notify the French Republic of any deficiencies. It bases its argument on the fifth sentence in Article 4(2) of Directive 75/440/EEC, which states that the Commission 'will carry out a thorough examination of the plans ... , including the timetables, and will, if necessary, submit appropriate proposals to the Council.' 40. This argument cannot be upheld. Directive 75/440/EEC does not impose any general obligation on the Commission, going beyond the Commission's obligations under Article 226 EC to examine Member States' implementation, to engage in discussions with the Member States about the merits of notified documents. Besides, it is not quite clear which legal consequences the Commission's alleged infringement should have for these proceedings. The French Republic itself admitted at the hearing that it could not affect the rights and duties of the Commission pursuant to Article 226 EC. C - Article 4(3) (Abstraction of drinking water, failure to present a management plan) 41. As noted above, the French Republic has not succeeded in ensuring that the maximum allowable level of nitrates (50 mg/l) under Article 4(1) read in connection with Article 3 and Annexe II of Directive 75/440/EEC is not exceeded in all areas of Brittany where surface water intended for drinking water is abstracted. The French Republic also admits that, at least in part, it has used surface water in Brittany not meeting the standards of the Directive for the abstraction of drinking water. 42. The first sentence of Article 4(3) of Directive 75/440/EEC basically forbids this practice, although allowing it if certain conditions are met. The second sentence allows water to be abstracted for drinking water in exceptionalcircumstances 'on the basis of a water resources management plan' within the area concerned, if this management plan is notified to the Commission 'as soon as possible.' The plan must be notified 'in advance' in the case of 'new installations'. Notification of a 'management plan' is therefore one of several conditions imposed on the exceptional use of surface water having pollution levels above the limit values for the abstraction of drinking water. 43. The parties disagree on the issue whether the French Republic has notified one or several 'management plans' within the meaning of the second sentence of Article 4(3) of Directive 75/440/EEC. 44. The Commission considers that the French Republic has failed to fulfil its obligations under Article 4(3) of Directive 75/440/EEC, in particular because none of the documents forwarded by the French Republic contains objectives for the improvement of water quality and because they are obviously ineffective. 45. In order to assess whether the measures presented by the French Republic are 'management plans' pursuant to those provisions, it must first be explained that the 'management plans' referred to in Article 4(3) of Directive 75/440/EEC have, as I see it, a purpose different to that of the 'systematic plans of action' referred to in Article 4(2). In my view, the 'water resources management plans' referred to in Article 4(3) have different health and environmental policy objectives. In contrast to the plans referred to in Article 4(2), they are not intended to cover the monitoring of surface water critical from the point of view of pollution, but to provide an overview of the use of uncritical surface water. Because it is the blending of polluted and safe surface water expressly mentioned in Article 4(3) which is the most common form of processing drinking water, the water resources management plans should allow the Commission to gain an overview of the use of unpolluted water sources and to submit appropriate proposals to the Council. If the objective of the management plans under Article 4(3) is to monitor unpolluted surface waters, then it must be assumed that these plans do not have as their objective the setting of targets for the improvement of the quality of critically polluted surface waters. The Commission's argument cannot be accepted on this point. 46. As regards the question whether the French Republic has drawn up and presented management plans as provided for by the second sentence of Article 4(3), it must therefore be concluded that only the SAGEs would appear to contain the germ of such management plans. But, according to its own admission, the French Republic did not follow up this initiative. As far as can be seen, it was only on 18 June 1998 that the French Republic first submitted a systematic overview of all surface waters containing nitrates in Brittany, with detailed information about their blending with unpolluted surface water. 47. As already stated, those documents were notified only after the expiry of the deadline for reply to the reasoned opinion. 48. France has therefore failed to submit a management plan justifying application of the exception provided for in the first sentence of Article 4(3) and thereby failed to satisfy the conditions for the use of surface water containing inadmissible levels of nitrates for the abstraction of drinking water. VI - Conclusion 49. I conclude that, as far as surface water used for the abstraction of drinking water in Brittany is concerned, the French Republic has: - failed to fulfil its obligations under Article 4(1) of Directive 75/440/EEC by failing to ensure compliance with the mandatory limit values for nitrates; - failed to fulfil its obligations under Article 4(2) of Directive 75/440/EEC by failing to achieve considerable improvements in the environment, and by failing to notify a systematic plan of action including a timetable; - failed to fulfil its obligations under Article 4(3) of Directive 75/440/EEC by failing to observe the ban on the use of surface water containing inadmissible levels of nitrates for the abstraction of drinking water. For the foregoing reasons, I propose that the Court should: (1) declare that the French Republic has failed to fulfil its obligations under Council Directive 75/440/EEC of 16 June 1975 concerning the quality required of surface water intended for the abstraction of drinking water in the Member States by failing to take, or failing to take within the period allowed, the measures required pursuant to Article 4(1), (2) and (3) thereof; (2) order the French Republic to bear the costs of the proceedings. 1: - Original language: German. 2: - OJ 1975 L 194, p. 34. 3: - [1992] ECR I-6103, obviously referring to paragraph 31. 4: - [1999] ECR I-7773. 5: - [2000] ECR I-5047. 6: - [1999] ECR I-7773, paragraphs 67 and 68. 7: - See, in particular, the judgments in Case C-313/96 Commission v Italy [1997] ECR I-7231, paragraph 14, and Case C-261/98 Commission v Portugal [2000] ECR I-5905, paragraph 25. 8: - [1991] ECR I-4983, paragraph 25. 9: - Paragraph 25. 10: - Case C-207/97 Commission v Belgium [1999] ECR I-275, paragraph 40; Joined Cases C-232/95 and C-233/95 Commission v Greece [1998] ECR I-3343, paragraph 35. 11: - [1998] ECR I-3301, paragraph 16. 12: - C-58/89 [1991] ECR I-4983, paragraph 36. 13: - [1998] ECR I-3839, paragraph 11. 14: - See inter alia Case C-384/99 Commission v Belgium [2000] ECR I-10633, paragraph 16.