Opinion of the Advocate General — ECLI:EU:C:2012:36
Date: 2012-01-26
Language of the case: English
Subject matter: Environment;Pollution
Procedure: Action for failure to fulfil obligations - successful
Origin: United Kingdom

Summary 66. To summarise the considerations set out so far as regards the general scope of the obligations laid down in Directive 91/271, it must be pointed out, therefore, that the Directive requires the Member States, in general, to provide urban agglomerations with collecting systems and treatment plants which are capable, save in exceptional circumstances, of ensuring the collection and treatment of all the waste water generated. The obligation to collect and treat all waste water does not extend to cases in which this is technically impossible or which involve costs which are wholly disproportionate, also in the light of the limited nature of any adverse effects on the environment. 67. Accordingly, what I propose is a two-stage verification process, in relation both to collecting systems and to treatment plants. During the first stage, it must be established whether the discharges can be regarded as an exceptional event, or, more accurately, as an element in the operation of the collecting system or treatment plant which is not ‘normal’. During the second stage, if the first stage has revealed that the events resulting in the discharge of untreated water into the environment were not exceptional, it must be established whether the BTKNEEC clause applies. During this stage, the burden of proof — which, during the first stage, is shared in the usual way between the Commission and the Member State — falls entirely upon the latter. It is for the Member State to prove that securing an improved level of collection or treatment of the water would be technologically impossible, or would involve costs that are wholly disproportionate as compared with the resultant benefits for the environment. 68. Having clarified, by way of a preliminary matter, the obligations incumbent on the Member States, we can now move on to consider the individual complaints made by the Commission against the United Kingdom. C – The situation at Whitburn 1. The facts and the positions of the parties 69. The failure to fulfil obligations alleged by the Commission in relation to Whitburn concerns, as we have seen, only Article 3 of Directive 91/271, concerning collection systems. There are no allegations concerning the lack or inadequacy of treatment plants. 70. Whitburn is part of the agglomeration of Sunderland, which is served by a single primary collecting system of the combined type, into which both urban waste water and rainfall flows. In normal circumstances, the water from Whitburn’s collecting systems is transferred, via a number of pumping stations (Seaburn, Roker and, subsequently, St Peters) to the Hendon treatment plant which treats the waste water from the whole of the agglomeration. 71. When the amount of water collected in the Whitburn collecting system exceeds 4.5 times the dry weather flow, (15) the excess waste water is diverted into a storm sewage interceptor tunnel which has an operational capacity of 7 000 m3. When the amount of water present in the collecting systems subsides, the water stored in the tunnel is returned to the collecting system and pumped to the Hendon plant for final treatment. If, however, the tunnel’s operational capacity is exceeded, the excess water is discharged directly into the sea, undergoing only mechanical filtering through a 6 mm mesh screen. That discharge takes place through a sea outfall that is 1.2 km in length. 72. During the years prior to the date set in the reasoned opinion (1 February 2009), the discharges of untreated water at Whitburn were as set out in the table below. The figures were provided by the Commission but are not disputed by the United Kingdom. Year Number of discharges Volume discharged (m3) 2005 27 (16) 542 070 2006 25 248 130 2007 28 478 620 2008 47 732 150 73. According to the Commission, those figures are indicative of an excessive number of discharges of untreated water into the environment, incompatible with the obligations incumbent on the Member States under the Directive. 74. In order to substantiate its position, the Commission relies extensively on a report submitted on 25 February 2002 by an independent inspector appointed by the UK Secretary of State for the Environment (‘the Inspector’), in response to an application, from the company which manages the Whitburn system, for a number of variations to the existing consent. The report contains a number of highly critical comments on the Whitburn collecting system, which it finds to be inadequate sufficiently to limit the discharges of untreated water into the environment. (17) According to the Inspector, the inadequacy of the Whitburn collecting system resulted in frequent discharges of untreated water, including during periods of moderate rainfall and during periods of dry weather. In the years following the Inspector’s report, there had been no physical alteration to the Whitburn collecting system. The only change concerned the methods of managing the water interceptor tunnel in the event of overload: as a result of the new procedures, discharge events had become less frequent, but the amount of untreated water discharged into the environment remained essentially the same between 2001 and 2008, varying between a maximum of 732 150 m3 (in 2008) and a minimum of 248 130 m3 (in 2006). 75. The Commission points out that such quantities of untreated waste water correspond to the quantities produced by an agglomeration with a population varying in size between in excess of 3 700 (by reference to the quantities for 2006) and in excess of 11 000 (by reference to the quantities for 2008), and in any case above the 2 000 inhabitants equivalent in excess of which Directive 91/271 requires an agglomeration to be equipped with collecting systems and treatment plants. In other words, it is as if there existed a whole agglomeration of such a size which lacked any waste-water collection or treatment system. 76. According to the Commission, the infringement of the Directive is all the more serious because of the proximity to the long sea outfall of a number of beaches on which debris originating, in all probability, from the Whitburn collecting system, has frequently been reported. 77. The United Kingdom does not dispute most of the facts set out by the Commission, save as regards the debris washed up on the beaches. According to the United Kingdom, that debris could not in fact have originated from the Whitburn system, since the long sea outfall used for the discharge is fitted with filter screens; the debris — the presence of which has decreased, moreover, in recent years — must therefore have come from a different source. For the rest, however, the facts concerning Whitburn are common ground, and the defence of the United Kingdom relies, in essence, on the interpretation of the Directive. 78. More specifically, the United Kingdom stresses the fact that the quality of the waters into which the discharges are made has not suffered any adverse effect as a result of the discharges themselves, a fact attested to also by the fact that the waters along the local beaches have always complied with the standards laid down by EU law for bathing waters. (18) 79. The United Kingdom then refers to a study, carried out in 2010 to review the situation at Whitburn in the light of the Commission’s reasoned opinion and additional reasoned opinion. In particular, the study assessed the possible consequences of reducing the number of discharges to below the 20 per annum threshold, as the Commission appeared to require, especially in the additional reasoned opinion. The study found that, in order to maintain the number of discharges at below 20 per annum, the only possible solution would be to upgrade the interceptor tunnel whose capacity would have to be increased to 10 800 m3. A change of that nature would result, however, in a minimum improvement — equivalent to approximately 0.31% — in the quality of the receiving waters, calculated on the basis of the parameters normally employed to assess bathing waters. For those reasons, the study did not recommend any change to the Whitburn collecting system. 2. Assessment 80. In order to determine whether the United Kingdom has failed to fulfil an obligation in relation to the situation at Whitburn, I shall base my analysis on the two-stage test which I proposed above. 81. As regards, to begin with, the non-exceptional nature of the discharges of untreated water, the Commission has, in my view, provided sufficient evidence of this. As described above and as, moreover, remains undisputed by the United Kingdom, despite an improvement in the situation in recent years, the Whitburn collecting system continues regularly to discharge untreated water into the environment. As I have already pointed out, it is not possible to specify the number of discharges which marks the absolute boundary between exceptional and recurring events: the Commission, as we have seen, frequently refers to the figure of 20 discharges; furthermore, a report commissioned by the UK Government on the situation in London (19) concluded that the reasonable figure was an even lower limit, equivalent to 12 discharges over the course of a year. In any event, regardless of the model adopted, on expiry of the time-limit laid down in the reasoned opinion, the situation at Whitburn was without doubt characterised by discharges the number and intensity of which are indicative of an event which is recurring and certainly not occasional. As shown in the table reproduced in point 72, between 2006 and 2008, there were between 25 and 27 discharges every year. A figure of that nature certainly does not suggest an exceptional event and not even the United Kingdom has argued that the discharges at Whitburn are of an exceptional nature. 82. However, it remains to be seen whether, in the face of this evidence provided by the Commission, the United Kingdom has succeeded in proving that the BTKNEEC clause applies in this case: whether, in other words, reducing the number of discharges requires technologically impossible solutions or involves costs that are wholly disproportionate as compared with the benefits. 83. In my view, the key document here is the study carried out in 2010, which I mentioned in point 79 above. In the light of that study, it is above all clear that substantially reducing the discharges of untreated water at Whitburn does not present particular problems in terms of the technology; it would fundamentally require enlargement of the existing interceptor tunnel, and at no point has the United Kingdom indicated that a solution of that nature would be impracticable. 84. At the same time, however, the study calculated the extent to which the quality of the receiving waters might be improved as a result of enlarging the tunnel and, in consequence, reducing the discharges. The point of reference used was the ceiling of 20 discharges, thus adopting the guidance provided by the Commission during the pre-litigation procedure. In that context, the study posited an improvement of only 0.3% in water quality and accordingly concluded that the cost/benefit ratio did not justify taking any further measures at Whitburn. 85. In that connection, it should also be recalled that, according to the United Kingdom, which was not challenged on this point by the Commission, the quality of the sea waters off Whitburn is quite high and always meets the criteria laid down by EU law for bathing waters. Although the bathing water quality of the receiving waters is not directly relevant for the purposes of assessing compliance with Directive 91/271, it may — as I mentioned above — be taken into consideration, in the context of a comprehensive assessment, with a view to the possible application of the BTKNEEC clause. It therefore seems reasonable that, in a situation of that nature, the national authorities should have decided to refrain from requiring costly alteration work which would only have resulted in improvements to the environmental situation which were entirely marginal. 86. In the light of those observations, I find the arguments of the United Kingdom to be sound and it is my view that, in the present case, the Commission has failed to establish the existence of a failure to fulfil an obligation in relation to the Whitburn collecting system. Although the discharges of untreated water in that area have occurred on a regular basis, the United Kingdom has demonstrated that any work to upgrade the collecting system, carried out to comply with the guidelines set out by the Commission during the pre-litigation procedure, would have resulted in minimum benefits, insufficient to justify carrying out the work. The first part of the Commission’s action cannot therefore succeed. D – The situation at Beckton, Crossness and Mogden 1. The facts and the positions of the parties 87. As far as London is concerned, the Commission’s action relates to the three areas of Beckton, Crossness and Mogden. More specifically, it concerns the treatment plants of all three localities, which are considered to be inadequate to ensure compliance with Directive 91/271 and, accordingly, to infringe Articles 4 and 10 of that directive. In relation to Beckton and Crossness, moreover, the Commission also alleges an infringement of Article 3 of the Directive, thus considering the collecting systems to be inadequate also. 88. All three of the above localities form part of the system of collecting and treating London’s waste waters, a system which serves a total population equivalent in excess of 9 million. It is largely a combined-type system, designed during the 19th century and gradually extended and modified as the urban agglomeration expanded. 89. Two kinds of problem are encountered in London. First, when the capacity of the collecting systems is exceeded, the combined sewer overflows intervene, as at Whitburn. The London system includes 57 combined sewer overflows, almost all of which discharge into the Thames and, it would appear, still lack even rudimentary waste water filtration systems. Secondly, there are certain occasions when some of the treatment plants to which the water collected from the collecting systems is conducted are not capable of treating all of the quantities of waste water received: in such cases, some of the water is discharged after undergoing only minimal treatment. 90. The main evidence on which the Commission bases its own arguments in relation to London is a report prepared in February 2005 by a working group within the Thames Tideway Strategic Study (‘TTSS’). The TTSS was set up in 2000 by the UK Government and tasked with evaluating the ecological status of the River Thames. 91. The TTSS report notes in particular that, of the 57 combined sewer overflows in the London system, 36 produce adverse effects on the environment. On average, approximately 60 spills of untreated water occur in the system annually, including during periods of limited rainfall. Every year, many millions of tonnes of untreated water are discharged into the environment, corresponding to the waste water production of an agglomeration with hundreds of thousands of inhabitants. The problem is aggravated by the fact that the waters of the Thames flow very slowly to the sea, with the result that the discharged polluted waters take quite a long time to become diluted. 92. According to the TTSS report, the situation of the treatment plants is no better than that of the collecting systems. Their capacity is sufficient during dry weather but, during rainfall, they discharge into the environment water which has been only partially treated, adding to the already substantial pollution load caused by the combined sewer overflows from the collecting systems. 93. In November 2005, the TTSS prepared an additional report for the UK Government, in which it set out the possible solutions to the problem of the pollution of the River Thames. More specifically, the solution considered to be the best involves constructing an underground tunnel, approximately 30 km long and with a capacity of 1.5 million m3, capable of storing excess water during rainfall events and subsequently reintroducing it into the system so that it can be treated. 94. In April 2007, the UK Government announced its decision to carry out the TTSS proposal and more specifically, therefore, to construct the new tunnel. According to the letter sent by the Minister of State for the Environment on 17 April 2007 to the company which manages the system for collecting and treating London’s water — a letter which the United Kingdom produced before the Court — the decision to proceed with construction of the tunnel is intended ‘to provide London with a river fit for the 21st century and for the UK to comply with the requirements of the … Directive (...)’ (20) As we learned at the hearing, the current UK Government, too, has recently confirmed its support for construction of the underground tunnel, completion of which is now scheduled for some time between 2021 and 2023. According to the written ministerial statement to Parliament of 3 November 2011, (21) in particular, ‘[t]he need to upgrade the sewerage system which in places is running out of capacity even in dry weather, and for a solution to the resulting environmental challenges ... remains persuasive’. Construction work is scheduled to begin in 2016. 95. The United Kingdom does not dispute the facts as set out by the Commission. It emphasises that, in addition to the project for the construction of the new large underground tunnel, other works are under way to increase the capacity of the Beckton, Crossness and Mogden treatment plants. That work is scheduled for completion between 2012 and 2014. In addition, a second, smaller tunnel is to be constructed and is scheduled for completion as early as 2014, and should substantially reduce the discharges of untreated water in the Beckton and Crossness areas. 96. The United Kingdom’s defence relies, in particular, on the wholly unique scale of the London system and the inevitable complexity of any measure taken in relation to a series of collecting systems that were designed during the 19th century. Seen in that light, the United Kingdom cannot be considered to have failed to fulfil an obligation, given that, as soon as Directive 91/271 entered into force, it launched all the studies and planning activities needed in order to comply fully with EU law. Under the BTKNEEC clause, a directive must not be regarded as having been infringed if a Member State has undertaken all the necessary measures to implement it within as short a period as is actually practicable. 2. Assessment 97. In its first reasoned opinion, the Commission criticised, in general, the operation of the entire London system. In its additional reasoned opinion, however, after considering the arguments of the United Kingdom in response to the first reasoned opinion, it decided to reduce the scope of the complaint, confining it to the issues currently set out in the application. 98. In particular, as noted above, the Commission criticises the inadequacy, in terms of complying with the Directive, of the Beckton, Crossness and Mogden treatment plants, as well as of the collecting systems which enter the first two of those three plants. 99. As a preliminary step, it is necessary to establish what kind of evidence the Commission must provide regarding failure to fulfil obligations. I am referring here not to the burden of proof because, on that point, the case-law is clear and settled: it is for the Commission to prove the alleged failure, and it cannot for those purposes rely on any presumption. (22) What I am actually referring to is the subject-matter of the Commission’s evidence. 100. A reading of the application actually reveals that, although the Commission decided to confine its objections to a number of specific parts of the London waste water collection and treatment system, it failed to indicate clearly the particular features of the sectors covered by the application. Instead, it based its entire argument on evidence — in particular, the TTSS report — which relates to the problems of the system in general and not to those specific to the parts of the system (the Beckton, Crossness and Mogden areas) covered by the application. 101. It is necessary, therefore, to establish whether the evidential framework provided by the Commission — which attests to a problematical environmental situation in London generally — has demonstrated the specific role played by each of the above localities in bringing that problematical environmental situation about. (23) 102. In that connection, the documentation which the Commission appended to the application and, in particular, the United Kingdom’s reply of 15 June 2006 to the Commission’s reasoned opinion, appears crucial. In that document, responding to an allegation relating to the entire London system, the United Kingdom basically traced the problem back to the specific parts of the system to which the Commission subsequently decided to confine its application. Specifically, while not formally acknowledging failure to fulfil obligations, the document states in conclusion that the UK Government ‘accept[s] that more capacity is needed at Beckton, Crossness and Mogden treatment works’ and that it ‘accept[s] that more measures are needed to limit pollution from some of the storm water overflows that are part of the Beckton and Crossness collecting systems’. 103. In the light of that document, I consider that, although the evidence provided by the Commission refers to the London system as a whole, it can be treated as useable with specific reference to the Beckton, Crossness and Mogden treatment plants, and to the Beckton and Crossness collecting systems. Moreover, the United Kingdom has raised no objection in that regard. 104. It now remains to be established whether the evidence provided by the Commission is sufficient to demonstrate the alleged failure to fulfil obligations. Here, too, I shall adopt the two-stage approach which I employed with regard to Whitburn. 105. To my mind, so far as the existence of the problem is concerned and the fact that it does not occur only on an occasional basis, the TTSS report, on which the Commission has based the fundamental part of its application, constitutes not only sufficient evidence but also evidence which can hardly be disputed, especially in view of the fact that the report was commissioned by the UK Government itself. In particular, as we have seen, the report confirms that the discharges both of untreated water from the collecting systems and of water which has undergone only minimal treatment from the treatment plants occur with considerable frequency. Not only that: far from being confined to extraordinary atmospheric changes, the discharges occur regularly, including during moderate rainfall. 106. It can accordingly be found that the Commission has succeeded in demonstrating that the discharges, on grounds of which it has taken issue with the United Kingdom, are neither exceptional nor occasional; what is more, the United Kingdom does not dispute the accuracy of the data provided by the Commission. 107. Lastly, it remains to be verified whether the UK Government has demonstrated that it is technically impossible to comply with the Directive, or that the costs are wholly disproportionate to the benefits — circumstances which, on the basis of the BTKNEEC clause, could justify the failure to collect and/or to treat all the waste water. 108. In my view, the answer here must be in the negative. 109. On the one hand, the United Kingdom has stated that it has now decided to embark on a major new project (the construction of a water storage tunnel) which will be capable — as the Commission itself stated during the pre-litigation procedure — of bringing about full compliance with the Directive. The technical solutions for improving the situation therefore exist, and their cost cannot be regarded as disproportionate, since the decision to put them into effect has already been taken. 110. Nor is it possible to accept the United Kingdom’s arguments as to the complexity and lengthy nature of the work to be carried out. It is in fact settled law that the alleged failure must be assessed at the date set in the reasoned opinion (in the present case, 1 February 2009) and that a Member State may not succeed in its endeavour to have an action dismissed simply because work and measures which will, in future, cure the failure to fulfil obligations are under way. (24) It should also not be forgotten that the Directive dates back more than 20 years: accordingly, it cannot be regarded as a text with which the Member States have not had time to familiarise themselves. With specific reference to Directive 91/271/EEC — albeit concerning a provision other than those at issue in the present case — the Court found to be more than sufficient the deadline of 9 September 2004 laid down in the reasoned opinion. (25) 111. The United Kingdom appeared to suggest, at the hearing in particular, that the inevitably lengthy duration of the work should be regarded as justification for applying the BTKNEEC clause: according to the United Kingdom, where a Member State has to carry out large-scale works in order to comply with EU law, it cannot be alleged to be in breach of an obligation, if the work is under way and is progressing at a normal and reasonable rate. 112. That reasoning cannot succeed. The BTKNEEC clause must, as we have seen, be interpreted with reference to the technical solutions which may, in general, be implemented, and not the time at which they can be implemented. The time which must serve as the point of reference for assessing compliance with Community legislation is the time specified in the Commission’s reasoned opinion. The position would be different if the United Kingdom had demonstrated that the chosen solution for resolving the problem — and in particular, therefore, the water storage tunnel — had not been technically feasible in the past. In such circumstances, the BTKNEEC clause could validly be relied upon. However, that is not the situation here: at no time has the United Kingdom suggested that it has only recently become technically feasible to construct the tunnel or to upgrade the treatment plants. 113. In conclusion, I therefore consider that, in so far as the action relates to London, it should be upheld. E – Costs 114. Both the Commission and the United Kingdom have applied, as I mentioned above, for the other party to be ordered to pay the costs. Since I propose that the Court should uphold one of the two parts of the Commission’s action and reject the other, I consider that the Court should apply Article 69(3) of the Rules of Procedure and, accordingly, order each party to bear its own costs. V – Conclusion 115. In the light of the foregoing considerations, I therefore propose that the Court should: – declare that, by failing to ensure that, at Beckton and Crossness, appropriate collecting systems are in place, pursuant to Article 3 of Council Directive 91/271/EEC concerning urban waste water treatment, and Section A of Annex I thereto, and by failing to ensure the appropriate treatment of waste water in the Beckton, Crossness and Mogden treatment plants, pursuant to Articles 4 and 10 of that directive, and Section B of Annex I thereto, the United Kingdom has failed to comply with its obligations under those provisions; – dismiss the action as to the remainder; – order each party to bear its own costs. 1 – Original language: Italian. 2 – Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment (OJ 1991 L 135, p. 40). 3 – Set at the figure of 2 000 population equivalent. The concept of ‘population equivalent’ is contained in Article 2(6) but is without relevance here: it is common ground that the obligations under Articles 3 and 4 of the directive exist in relation to all of the localities cited by the Commission in its application. 4 – Case C‑280/02 Commission v France [2004] ECR I‑8573, paragraphs 16-17. 5 – COM(89) 518 fin., in OJ C 300, p. 8 of 29.11.1989 (Article 9). 6 – Case C‑530/07 Commission v Portugal [2009] ECR I‑78, paragraphs 28 and 53, and judgment of 14 April 2011 in Case C‑343/10 Commission v Spain, paragraphs 56 and 62. 7 – See the German version (‘Regenüberläufen) and the Dutch version (‘hemelwater’). 8 – See, in addition to English version, the Italian version (‘piogge violente’), the French (‘pluies d’orage’) and the Spanish (‘aguas de tormenta’). It is well known that, in cases in which a single language version differs from the others, it may not, according to the Court’s settled case-law, be used to establish an interpretation of the provision which is incompatible with the majority of the other language versions. See, for example, Case C‑372/88 Cricket St Thomas [1990] ECR I‑1345, paragraph 18; Case C‑455/05 Velvet & Steel Immobilien [2007] ECR I‑3225, paragraph 19; and Case C‑451/08 Helmut Müller [2010] ECR I‑2673, paragraph 38. 9 – This is not, of course, decisive. As I have just pointed out, the text of a single language version cannot, of itself, justify an interpretation that is inconsistent with the other language versions. 10 – ‘Extremsituationen, wie z.B. bei ungewöhnlichen Niederschlägen’. 11 – That clause, incidentally, was not contained in the Commission’s original proposal, and was included only in the final text of the directive approved by the Council. 12 – Case C‑293/05 Commission v Italy [2006] ECR I‑122, paragraph 35. 13 – In footnote 6. 14 – See, for example, recently, Case C‑390/07 Commission v United Kingdom [2009] ECR I‑214, paragraphs 43-45. For a general account of the burden of proof in proceedings for failure to fulfil an obligation, see also points 42-46 of the Opinion of Advocate General Kokott of 26 March 2009 in Cases C‑335/07 Commission v Finland and C‑438/07 Commission v Sweden, on which judgment was handed down on 6 October 2009 ([2009] ECR I‑9459 and I‑9517 respectively). 15 – The dry weather flow of a collecting system is the quantity of water collected in it in the absence of rainfall. 16 – In the letter of 15 June 2006 sent to the Commission by the United Kingdom in response to the reasoned opinion, the number of discharges for 2005 was given as 85. The total volume of spill is, however, still given as equivalent to 542 070 m3. 17 – See, in particular, paragraphs 16.5.1.4, 16.5.1.5, 16.5.1.7 to 16.5.1.9, 16.5.5.1, 16.5.11.2 and 16.5.11.3. The report, however, was in favour of varying the existing consent to permit the management company to discharge untreated waste water, using the Whitburn sea outfall, in emergencies. The Inspector’s criticism focused instead, as I mentioned, on the management of the discharges in normal circumstances. 18 – See, in that connection, Council Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing water (OJ 1976 L 31, p. 1). 19 – The TTSS report, discussed at points 90 et seq below. 20 – My emphasis. 21 – The document, submitted by the United Kingdom near to the hearing, was admitted by the Court and placed in the case-file. 22 – See, for example, Case C‑438/07 Commission v Sweden [2009] ECR I‑9517, paragraph 49 and the case-law cited therein. 23 – See, by analogy, Case C‑335/07 Commission v Finland [2009] ECR I‑9459, paragraph 88. 24 – See, for example, judgment of 24 June 2004 in Case C‑119/02 Commission v Greece, paragraphs 52 to 54, and judgment of 8 July 2004 in Case C‑27/03 Commission v Belgium, paragraphs 39 and 40. 25 – Case C‑293/05, cited in footnote 12, paragraphs 25 to 28.