Judgment — ECLI:EU:C:2007:339
Date: 2007-06-14
Language of the case: English
Court formation: Fourth 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
Origin: Ireland

summary of the complaints (see, in particular, Case 274/83 Commission v Italy [1985] ECR 1077, paragraph 21; Case C-279/94 Commission v Italy [1997] ECR I-4743, paragraph 15; and Case C-221/04 Commission v Spain [2006] ECR I-4515, paragraph 36). 33 It is clear from the file submitted to the Court that the Commission sufficiently identified the infringement alleged against Ireland in the letter of formal notice by stating that the provisions of Articles 3 to 5 and 8 of Directive 79/923 had been infringed. That letter thus enabled Ireland to be informed as to the nature of the complaints made against it, giving it the opportunity to present its defence. Accordingly the letter of formal notice sufficiently identified the subject of the infringement and specified the complaints in relation to it. 34 As regards the supposed amendment in the reasoned opinion of the scope and nature of the complaints set out in the letter of formal notice, it must be recalled that the letter of formal notice from the Commission to the Member State and then the reasoned opinion issued by the Commission delimit the subject-matter of the dispute, so that it cannot thereafter be extended. Consequently, the reasoned opinion and the application must be based on the same complaints (see, in particular, Case C-191/95 Commission v Germany [1998] ECR I-5449, paragraph 55, Case C-139/00 Commission v Spain [2002] ECR I-6407, paragraph 18, and Commission v Finland, paragraph 80). 35 However, that requirement cannot be stretched so far as to mean that in every case the statement of complaints in the letter of formal notice, the operative part of the reasoned opinion and the form of order sought in the application must be exactly the same where the subject-matter of the proceedings has not been extended or altered but simply limited (see, in particular, Case C-191/95 Commission v Germany, paragraph 56, and Case C-433/03 Commission v Germany [2005] ECR I-6985, paragraph 28). 36 In this case, the Commission mentions for the first time in the reasoned opinion that the second complaint alleging an infringement of Article 3 of Directive 79/923 concerned not only Parameters 8 and 9 of the Annex to that directive but also Parameter 10 thereof. 37 In that connection, it is sufficient to hold that in its application the Commission does not make any reference to Parameter 10 and limits the second complaint of its action to Parameters 8 and 9 alone. The same is true for the extension of the complaint concerning infringement of Article 5 of Directive 79/923 as it is claimed to have appeared in the reasoned opinion after delivery of the judgment in Case C-67/02 Commission v Ireland, which is not reproduced in the application before the Court. 38 Therefore, those amendments constitute restrictions to the subject-matter of the application, which are permitted by the case-law cited above and which, in any event, did not prevent Ireland from defending itself in the pre-litigation proceedings. 39 As regards the assertion that by concluding that Ireland had admitted its failure to comply with its obligations under the directive the Commission incorrectly analysed Ireland’s replies to the letter of formal notice and the reasoned opinion, it must be recalled that, even if that assertion were well founded, it does not constitute a ground of inadmissibility but a factor which the Court must, where appropriate, take into account in the assessment of the substance of the case. 40 In any event, even assuming that the contentious procedure was opened by a Commission application which took no account of any new matters of fact or law put forward by the Member State concerned in its reply to the reasoned opinion, that State’s right to a fair hearing has not been infringed. It is fully open to the State to raise those matters in the contentious procedure, to begin with in its first pleading in defence. It will be for the Court to examine their relevance for the outcome of the action for failure to fulfil obligations (Case C-3/96 Commission v Netherlands [1998] ECR I-3031, paragraph 20, and Case C-519/03 Commission v Luxembourg [2005] ECR I-3067, paragraph 21). 41 It appears from the foregoing that the action must be declared admissible. The action 42 In support of its action, the Commission puts forward three complaints alleging infringement of Articles 3 to 5 of Directive 79/923. The first complaint: infringement of Article 4 of Directive 79/923 43 By its first complaint, the Commission submits that Ireland has failed to fulfil its obligation to designate shellfish waters requiring designation in accordance with Article 4 of Directive 79/923. 44 Only 14 sites have been formally designated as shellfish waters although shellfish have been found at other sites. The Commission also recalls that, in its reply to the letter of formal notice, Ireland admitted that shellfish farming was carried on at other non-designated sites. In that connection, the Commission, relying on the judgment in Case C-225/96 Commission v Italy [1997] ECR I-6887, acknowledges that the Member States have a certain discretion in ascertaining whether the conditions for designation of the shellfish waters are satisfied, but takes the view that that discretion is subject to the parameters set in the Annex to the directive. The Member States are therefore obliged to designate all waters which satisfy the criteria for designation. 45 By contrast, Ireland considers that the Commission’s complaint alleging failure to comply with its obligations under Article 4 of Directive 79/923 must be rejected as unfounded. It contends that it does not follow from the judgment in Case C‑225/96 Commission v Italy that the Member States must designate all shellfish waters. Ireland states that in that case the Court recognised that the Member States have a certain discretion as to the designation of those waters. While acknowledging that it is probably necessary to designate other areas as shellfish waters in addition to the 14 areas originally designated, Ireland maintains that it retains a certain discretion in the determination of those areas. 46 It must be observed in that connection that Article 4 of Directive 79/923 provides that Member States are to designate shellfish waters, that is to say, the coastal and brackish waters they consider to need protection or improvement in order to support shellfish (bivalve and gasteropod molluscs) life and growth and thus to contribute to the high quality of shellfish products directly edible by man (see Case C‑225/96 Commission v Italy, paragraph 24). 47 Member States do have a certain discretion in ascertaining that those conditions (the need for protection or improvement) obtain, within the parameters set in the Annex to Directive 79/923 (see Case C-225/96 Commission v Italy, paragraph 25). 48 However, waters must be designated if those conditions obtain. There is nothing in the wording of the directive to support an interpretation which would allow Member States not to designate all shellfish waters; that would, moreover, be contrary to its purpose, which is the protection of the environment and the abolition of unequal conditions of competition (see Case C-225/96 Commission v Italy, paragraph 26). 49 In its defence, Ireland admits that given the number of shellfish areas authorised in that State there is probably a need to designate further areas beyond the original 14 designated areas. In fact Ireland states in its defence that the competent department is cooperating with the Sea Fisheries Board and the Marine Institute and pleads the difficulty of collecting large quantities of data and information from a number of relevant sources in order to determine the waters requiring designation. 50 In that connection, it must be recalled that, according to the case-law of the Court, a Member State may not plead domestic circumstances or practical difficulties in order to justify non-compliance with the obligations and time-limits laid down in Community directives (see, in particular, Case C-42/89 Commission v Belgium [1990] ECR I-2821, paragraph 24, and Case C-89/03 Commission v Luxembourg [2003] ECR I-11659, paragraph 5). 51 Furthermore, 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 the 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, in particular, Case C-177/01 Commission v France [2002] ECR I-5137, paragraph 13; Case C-67/02 Commission v Ireland, paragraph 10; and Case C-514/03 Commission v Spain [2006] ECR I-963, paragraph 44). 52 At the end of the period laid down in the reasoned opinion, Ireland had not designated all the shellfish waters which were to be designated in accordance with Article 4 of Directive 79/923. 53 In those circumstances, it must be held that Ireland has failed to fulfil its obligation to designate the shellfish waters requiring designation in accordance with Article 4 of Directive 79/923. It follows that the first complaint put forward by the Commission must be upheld. The second complaint: infringement of Article 3 of Directive 79/923 54 By its second complaint, the Commission submits that, by failing to set all the required values in respect of shellfish waters designated or requiring designation pursuant to Article 4 of Directive 79/923, Ireland has infringed Article 3 of that Directive. 55 As regards the waters not designated but requiring designation, the Commission points out that Ireland has not set any values for the parameters listed in the Annex to the directive. As regards designated waters, Ireland has not set numerical values for Parameters 8 (organohalogenated substances) and 9 (metals) provided for in the Annex. The Commission states in that connection that in its response to the letter of formal notice Ireland undertook to set the values for those parameters for designated waters and to incorporate them into national legislation. 56 In the Commission’s opinion, the only way for Member States to lay down binding rules is to set compulsory numerical values in their legislation and to establish legally binding thresholds which may be relied on before the national courts. The Irish legislation does not state the values in milligrams per litre of metals that shellfish water may contain, in what quantity organohalogenated substances may be present in those waters, or even the unit to measure their concentration. 57 Ireland replies, first of all, that in the absence of any obligation to designate all the waters where molluscs may be present, there can be no obligation to set values for such waters. The parameters laid down in the Annex to Directive 79/923 have a meaning only in relation to designated waters, as is clear from Article 1 of the directive. 58 Second, as regards the obligation with respect to designated waters to set numerical values for Parameters 8 and 9 of the Annex to Directive 79/923, Ireland submits that it has faithfully transposed those parameters into its legislation. It adds that the parameters do not set any precise numerical value, which shows that the Community legislature expressly refused to set such values when that directive was adopted. Finally, Ireland maintains that there is nothing to prevent national implementing legislation from being relied on to establish a possible failure to comply with the qualitative standard. 59 It must be held, first of all, that, as regards the waters which have not been designated but which require designation, Ireland has not set any values for the parameters listed in the Annex to Directive 79/923, pursuant to Article 3 thereof. 60 Ireland contends that the obligation to set values exists only with respect to waters which have already been designated. Therefore, the parameters and the sampling and monitoring programme concern only those waters. 61 Such a line of reasoning cannot be accepted. It must be stated that the objective of protection of shellfish waters set out in Directive 79/923, in particular in Article 1, could not be achieved if Member States had to comply with the obligations arising under Article 3 only in cases where a protection area had previously been established (see, to that effect, Case C-355/90 Commission v Spain [1993] ECR I‑4221, paragraph 22). 62 It follows that the obligation to set values for the parameters listed in the Annex to Directive 79/923 cannot depend on the prior designation of waters requiring designation as shellfish waters. Accordingly, Ireland has failed to fulfil its obligation to set the values necessary for shellfish waters requiring designation pursuant to Article 4 of the directive, in accordance with Article 3 thereof. 63 As regards the designated waters, the Commission criticises Ireland for failing to set numerical values for Parameters 8 (organohalogenated substances) and 9 (metals) provided for in the Annex to Directive 79/923, in accordance with Article 3 thereof. 64 It must be observed, in that regard, that the 1994 Regulations reproduce Parameters 8 and 9 laid down in the Annex to Directive 79/923 as they appear therein. The Irish legislation establishes the values of those parameters in qualitative terms by reproducing the wording of Columns G and I of the Annex. 65 As set out in the sixth recital in the preamble to Directive 79/923, in order to attain the objectives of the directive, the Member States will have to designate the waters to which it will apply and will have to set limit values corresponding to certain parameters. Pursuant to Article 3(1) of the directive ‘Member States shall, for the designated waters, set values for the parameters listed in the Annex, in so far as values are given in Column G or in Column I. They shall comply with the comments contained in both columns’. 66 Thus, it is clear both from the wording of Article 3(1) and the sixth recital in the preamble to Directive 79/923 that the Member States must, for the designated waters, set limit values for each parameter provided for in the annex to that directive in order to protect those waters. 67 Furthermore, it must be recalled that one of the objectives of the directive in question is to protect human health through the monitoring of the quality of waters which support, or could support, shellfish ‘directly edible by man’, according to the wording of Article 1 of Directive 79/923 (see, to that effect, Case C-298/95 Commission v Germany [1996] ECR I-6747, paragraph 15). 68 In those circumstances, it is particularly important that directives are transposed by measures whose mandatory nature is undeniable. In every case in which the failure to comply with the measures imposed by a directive could endanger human health the persons concerned must be in a position to rely on mandatory rules in order to be able to assert their rights (see, to that effect, Case C-361/88 Commission v Germany [1991] ECR I-2567, paragraph 16; Case C-59/89 Commission v Germany [1991] ECR I-2607, paragraph 19; Case C-58/89 Commission v Germany [1991] ECR I-4983, paragraph 14; and Case C-298/95 Commission v Germany, paragraph 16). 69 It is common ground that the Irish legislation which transposes Directive 79/923 fails to set compulsory limit values for Parameters 8 and 9 of the Annex to the directive in order to enable the persons concerned to assert their rights. By simply repeating qualitative values which correspond to the comments in Columns G and I of the Annex, that legislation does not appear to be sufficient to attain the objective of protecting shellfish waters imposed by the directive. 70 Accordingly, it must be held that, as regards designated waters, Ireland has failed to fulfil its obligation to set values for Parameters 8 (organohalogenated substances) and 9 (metals) provided for in the Annex to Directive 79/923, pursuant to Article 3 thereof. 71 It follows from the foregoing that, by failing to set all the values necessary for shellfish waters which are designated or require designation, Ireland has infringed Article 3 of Directive 79/923. Therefore, the Commission’s second complaint must also be upheld. The third complaint: infringement of Article 5 of Directive 79/923 72 By its third complaint, the Commission claims that, by failing to take all the measures necessary to establish pollution reduction programmes for waters requiring designation under Article 4 of Directive 79/923, Ireland has infringed Article 5 thereof. 73 Ireland contends that the obligations arising from Article 4 of Directive 79/923 are applicable only to waters previously designated. Therefore, it maintains that, by not establishing pollution reduction programmes for those waters it has not failed to fulfil its obligations under Article 5 of Directive 79/923. 74 That argument cannot be accepted. It must be observed, as stated in paragraph 52 of this judgment, that since Ireland has not designated all the waters requiring designation, pursuant to Article 4 of Directive 79/923, it has failed to fulfil its obligations under that article. It follows that, since it has not established pollution reduction programmes for shellfish waters which satisfy the criteria for designation pursuant to Article 4, that Member State has also failed to fulfil its obligations under Article 5. 75 In its defence, Ireland merely states that preparatory work is under way in order to establish a template for those programmes and that the preparation of the description of the areas and the collection of the monitoring data in respect of prospective designated areas are very advanced. 76 In that connection, it is clear from the case-law referred to in paragraph 51 of this judgment that 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 and that the Court cannot take account of any subsequent changes. 77 It is clear from the foregoing that as regards the waters requiring designation pursuant to Article 4 of Directive 79/923 no pollution reduction programme for the purposes of Article 5 of that directive had been established by Ireland by the end of the period laid down in the reasoned opinion. Therefore, the Commission’s third complaint must be accepted. 78 In those circumstances it must be held that the action brought by the Commission is well founded. 79 Accordingly, it must be stated that, by failing: – in accordance with Article 4 of Directive 79/923 to designate all shellfish waters requiring designation; – in accordance with Article 3 of Directive 79/923, to set all the required values in respect of shellfish waters designated or requiring designation pursuant to Article 4; and – in accordance with Article 5 of Directive 79/923, to take all necessary measures to establish pollution reduction programmes for waters requiring designation pursuant to Article 4, Ireland has failed to fulfil its obligations under that directive. Costs 80 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 Commission applied for costs and Ireland has been unsuccessful, the latter must be ordered to pay the costs. On those grounds, the Court (Fourth Chamber) hereby: 1. Declares that, by failing: – in accordance with Article 4 of Council Directive 79/923/EEC of 30 October 1979 on the quality required of shellfish waters, to designate all shellfish waters requiring designation; – in accordance with Article 3 of Directive 79/923, to set all the required values in respect of shellfish waters designated or requiring designation pursuant to Article 4; and – in accordance with Article 5 of Directive 79/923, to take all necessary measures to establish pollution reduction programmes for waters requiring designation pursuant to Article 4, Ireland has failed to fulfil its obligations under that directive. 2. Orders Ireland to pay the costs. [Signatures] * Language of the case: English.