Judgment — ECLI:EU:C:2009:765
Date: 2009-12-10
Language of the case: English
Court formation: Third Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment
Concepts: General;Environment
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded;Action for failure to fulfil obligations - inadmissible
Origin: United Kingdom

summary form, the legal and factual particulars on which those complaints are based (see, inter alia, Case C-347/88 Commission v Greece [1990] ECR I-4747, paragraph 28, and Case C‑456/03 Commission v Italy [2005] ECR I‑5335, paragraph 23). 340 However, it is clear that, in the case of the alleged infringement of Article 3(1) and (2) of Directive 91/271, the Commission does not put forward any arguments, whether factual or legal, capable of substantiating such an infringement as regards discharges of urban waste water into Lough Neagh and Upper and Lower Lough Erne, as the arguments set out in support of the second complaint in respect of these areas relate only to infringement of Article 5(2), (3) and (5) of the directive. 341 It is irrelevant that the reasoned opinion of 9 July 2004, by contrast, included the complaint that the United Kingdom had not complied with Article 3 of Directive 91/271, since the Commission is free, when it brings its application before the Court, to withdraw certain complaints put forward in the reasoned opinion (see, to this effect, Commission v Ireland, paragraph 36). 342 Consequently, the second complaint must be rejected as inadmissible in so far as it seeks a declaration that Article 3(1) and (2) of Directive 91/271 has been infringed as regards discharges of urban waste water into Lough Neagh and Upper and Lower Lough Erne. 343 With regard to the merits of the second complaint in so far as it relates to infringement of Article 5(2), (3) and (5) of Directive 91/271, the Commission submits that as at 31 December 1998 the United Kingdom did not ensure that the obligations entailing more stringent treatment that are set out in those provisions were being met as regards a number of agglomerations discharging their urban waste water into Lough Neagh and Upper and Lower Lough Erne, which are bodies of water identified as sensitive areas in accordance with Article 5(1) of that directive. The Commission maintains that, in order to check that Article 5(2) of the directive has been complied with, it needs to be in a position to check that the discharges from the treatment plants concerned satisfy the requirements set out in Annex I.B to the directive as referred to in Article 5(3). The Commission states that these details have not been provided to it. 344 Before the hearing, the Commission indicated to the Court that it was withdrawing this complaint in so far as it concerns eight of the agglomerations mentioned in the reasoned opinion of 9 July 2004, that is to say, the agglomerations of Armagh, Ballyclare, Ballymena, Banbridge, Cookstown, Enniskillen, Moygashel and Tandagree, on the ground that the United Kingdom now complies, as regards these agglomerations, with the treatment obligations envisaged by the abovementioned provisions of Article 5 of Directive 91/271. The present complaint is therefore maintained only so far as concerns the four other agglomerations mentioned in that reasoned opinion, that is to say, the agglomerations of Antrim, Craigavon, Magherafelt and Portadown. At the hearing, the Commission explained in this connection that the agglomeration of Craigavon is served by the Ballynacor and Bullay’s Hill treatment plants, which are mentioned in the reasoned opinion of 9 July 2004, while the agglomeration of Portadown is served by the Seagoe treatment plant, which is also referred to there. 345 It is to be recalled that, in accordance with the settled case-law cited in paragraph 50 of the present judgment, 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. 346 Here, the period that the United Kingdom was allowed by the reasoned opinion of 9 July 2004 expired on 9 September 2004, the date upon which the United Kingdom moreover responded to that reasoned opinion. 347 It is apparent from the data provided by the United Kingdom in its defence concerning the treatment plants for Craigavon (Ballynacor and Bullay’s Hill) and Magherafelt that the discharges from those plants in 2004 were not entirely consistent with the standards prescribed in Article 5(3) of Directive 91/271, read in conjunction with Annex I.B thereto, because the number of samples taken was insufficient. The failure to fulfil obligations must therefore be considered proven in so far as it relates to those treatment plants. 348 On the other hand, so far as concerns the treatment plant for Antrim, the United Kingdom has stated without being contradicted in that regard by the Commission that this plant complied with Article 5 of Directive 91/271, read in conjunction with Annex I.B thereto, from 1999 to 2007. 349 It is true that at the hearing the Commission, relying on a document annexed by the United Kingdom to its rejoinder in order to show that the treatment plants concerned complied with Directive 91/271, stated that, since the treatment capacity of the plant for Antrim is less than the treated quantity of waste water, it must be assumed that the excess load is escaping all treatment. 350 However, as has already been recalled in paragraph 43 of the present judgment, the Commission, which has the burden of proving the allegation that an obligation has not been fulfilled, cannot rely on presumptions for that purpose. The Commission has not adduced any evidence capable of supporting its assertion that a proportion of the urban waste water passing through the plant for Antrim is not treated in a manner that complies with the requirements laid down in Article 5 of Directive 91/271. 351 Also, so far as concerns the treatment plant for Portadown (Seagoe), the data provided by the United Kingdom in its defence, which have not been disputed in this regard by the Commission, likewise show that this plant complied with Article 5 of Directive 91/271, read in conjunction with Annex I.B thereto, as at the date upon which the period set in the reasoned opinion of 9 July 2004 expired. 352 Those data admittedly show that in 2001 discharges from that plant did not comply with the standards under Article 5(3) of Directive 91/271 regarding the upper-tier limit for biochemical oxygen demand that is set in Table 1 of Annex I to the directive. 353 However, the Commission does not submit, and therefore does not seek to demonstrate, that this limited instance of failure to comply with the requirements prescribed in Article 5(3) of Directive 91/271 before the date upon which the period set in the reasoned opinion of 9 July 2004 expired is such as to reveal that, as at that date, the national provisions ensuring due implementation of the directive were in practice being applied incorrectly, for example by reason of deficient or inadequate procedures for the purpose of ensuring compliance with the requirements laid down by the directive regarding discharges of urban waste water. 354 Finally, the contention expressed at the hearing as to the inadequate treatment capacity of the plant for Portadown (Seagoe) compared with the quantities treated must be rejected for the same reason as that in paragraph 350 of the present judgment regarding the plant for Antrim. 355 As to the Commission’s objection, set out in its reply, that the United Kingdom did not forward full data regarding compliance, so far as concerns the plants in question, with the standards envisaged in Article 5(3) of Directive 91/271, it is to be remembered that – as has been stated in paragraphs 43 and 44 of the present judgment – even though the Member States are required, under Article 10 EC, to facilitate the achievement of the Commission’s tasks, it is for the Commission to prove the allegation that the obligation has not been fulfilled. Apart from the fact that, by its second complaint as set out in the application initiating the proceedings, the Commission does not complain that the United Kingdom has infringed the obligation to co-operate owed by it under Article 10 EC, the Commission fails to demonstrate that the United Kingdom did not provide it with the information required in this regard. On the contrary, it is apparent from the reasoned opinion of 9 July 2004 that the United Kingdom forwarded that information to the Commission during the pre-litigation procedure, and the information prompted the Commission to raise the present complaint alleging infringement of Article 5 of Directive 91/271. 356 Consequently, the second complaint is to be upheld as well founded only in so far as it concerns the infringement of Article 5(2), (3) and (5) of Directive 91/271 as regards the treatment plants for Craigavon (Ballynacor and Bullay’s Hill) and Magherafelt. As to the remainder, the second complaint must be rejected as partly inadmissible and partly unfounded. C – Conclusion 357 In the light of all the foregoing considerations, it must be found that, by having failed to subject discharges of urban waste water from Craigavon (Ballynacor and Bullay’s Hill treatment plants) and Magherafelt to more stringent treatment, the United Kingdom has failed to fulfil its obligations under Article 5(2), (3) and (5) of Directive 91/271. The action is dismissed as to the remainder. Costs 358 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 United Kingdom has applied for costs and the Commission has been essentially unsuccessful, the Commission must be ordered to pay the costs. Under Article 69(4) of the Rules of Procedure, the Portuguese Republic, which has intervened, is to bear its own costs. On those grounds, the Court (Third Chamber) hereby: 1. Declares that, by having failed to subject discharges of urban waste water from Craigavon (Ballynacor and Bullay’s Hill treatment plants) and Magherafelt to more stringent treatment, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under Article 5(2), (3) and (5) of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment; 2. Dismisses the action as to the remainder; 3. Orders the European Commission to pay the costs of the United Kingdom of Great Britain and Northern Ireland; 4. Orders the Portuguese Republic to bear its own costs. [Signatures] * Language of the case: English.