62007CJ0390_EN
Parties
Grounds
Operative part
Parties
In Case C‑390/07,
ACTION under Article 226 EC for failure to fulfil obligations, brought on 17 August 2007,
European Commission,
represented by S. Pardo Quintillán, X. Lewis and H. van Vliet, acting as Agents, with an address for service in Luxembourg,
applicant,
v
United Kingdom of Great Britain and Northern Ireland,
represented by C. Gibbs and V. Jackson, acting as Agents, D. Anderson QC and S. Ford, barrister,
defendant,
supported by:
Portuguese Republic, represented by L. Inez Fernandes and M.J. Lois, acting as Agents,
intervener,
THE COURT (Third Chamber),
composed of A. Rosas, acting for the President of the Third Chamber, U. Lõhmus and A. Ó Caoimh (Rapporteur), Judges,
Advocate General: P. Mengozzi,
Registrar: C. Strömholm, Administrator,
having regard to the written procedure and further to the hearing on 5 March 2009,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
Grounds
1. By its application, the Commission of the European Communities asks the Court to declare that:
– by having failed to identify the Humber Estuary, the Wash, the Deben and Colne Estuaries, the Outer Thames Estuary, Southampton Water and the North East Irish Sea – with the exception of the Solway Firth – as sensitive areas with respect to eutrophication and
– by having failed to subject to more stringent treatment discharges of urban waste water from agglomerations with a population equivalent (p.e.) of more than 10 000 into the Humber Estuary, the Wash, the Deben and Colne Estuaries, the Outer Thames Estuary, Southampton Water and the North East Irish Sea – with the exception of the Solway Firth – and into Lough Neagh and Upper and Lower Lough Erne,
the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations pursuant to Articles 3(1) and (2) and 5(1) to (3) and (5) of, and Annex II to, Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment (OJ 1991 L 135, p. 40).
I – Legal context
2. Article 1 of Directive 91/271 states that the directive concerns the collection, treatment and discharge of urban waste water and the treatment and discharge of waste water from certain industrial sectors, and that the objective of the directive is to protect the environment from the adverse effects of such waste water discharges.
3. Article 2 of Directive 91/271 states:
‘For the purpose of this Directive:
1. “urban waste water” means domestic waste water or the mixture of domestic waste water with industrial waste water and/or run-off rain water;
2. “domestic waste water” means waste water from residential settlements and services which originates predominantly from the human metabolism and from household activities;
3. “industrial waste water” means any waste water which is discharged from premises used for carrying on any trade or industry, other than domestic waste water and run-off rain water;
4. “agglomeration” means an area where the population and/or economic activities are sufficiently concentrated for urban waste water to be collected and conducted to an urban waste water treatment plant or to a final discharge point;
5. “collecting system” means a system of conduits which collects and conducts urban waste water;
6. “1 p.e. (population equivalent)” means the organic biodegradable load having a five-day biochemical oxygen demand (BOD5) of 60 g of oxygen per day;
…
8. “secondary treatment” means treatment of urban waste water by a process generally involving biological treatment with a secondary settlement or other process in which the requirements established in Table 1 of Annex I are respected;
…
11. “eutrophication” means the enrichment of water by nutrients, especially compounds of nitrogen and/or phosphorus, causing an accelerated growth of algae and higher forms of plant life to produce an undesirable disturbance to the balance of organisms present in the water and to the quality of the water concerned;
12. “estuary” means the transitional area at the mouth of a river between fresh-water and coastal waters. Member States shall establish the outer (seaward) limits of estuaries for the purposes of this Directive …;
13. “coastal waters” means the waters outside the low-water line or the outer limit of an estuary.’
4. Article 3 of Directive 91/271 provides:
‘1. Member States shall ensure that all agglomerations are provided with collecting systems for urban waste water,
– at the latest by 31 December 2000 for those with a [p.e.] of more than 15 000, and
– at the latest by 31 December 2005 for those with a p.e. of between 2 000 and 15 000.
For urban waste water discharging into receiving waters which are considered “sensitive areas” as defined under Article 5, Member States shall ensure that collection systems are provided at the latest by 31 December 1998 for agglomerations of more than 10 000 p.e.
…
2. Collecting systems described in paragraph 1 shall satisfy the requirements of Annex I.A. …’
5. Article 4 of Directive 91/271 provides that Member States are to ensure that urban waste water entering collecting systems shall before discharge be subject to secondary treatment or an equivalent treatment in accordance with the detailed rules set out in that provision.
6. Article 5 of Directive 91/271 states:
‘1. For the purposes of paragraph 2, Member States shall by 31 December 1993 identify sensitive areas according to the criteria laid down in Annex II.
2. Member States shall ensure that urban waste water entering collecting systems shall before discharge into sensitive areas be subject to more stringent treatment than that described in Article 4, by 31 December 1998 at the latest for all discharges from agglomerations of more than 10 000 p.e.
3. Discharges from urban waste water treatment plants described in paragraph 2 shall satisfy the relevant requirements of Annex I.B. …
…
5. Discharges from urban waste water treatment plants which are situated in the relevant catchment areas of sensitive areas and which contribute to the pollution of these areas shall be subject to paragraphs 2, 3 and 4.
…
6. Member States shall ensure that the identification of sensitive areas is reviewed at intervals of no more than four years.
7. Member States shall ensure that areas identified as sensitive following review under paragraph 6 shall within seven years meet the above requirements.
…’
7. Annex I to Directive 91/271, headed ‘Requirements for urban waste water’, provides in point A, headed ‘Collecting systems’, that collecting systems are to take into account waste water treatment requirements and that their design, construction and maintenance are to be undertaken in accordance with the best technical knowledge not entailing excessive costs.
8. Annex I.B, headed ‘Discharge from urban waste water treatment plants to receiving waters’, provides in paragraphs 2 and 3 respectively that ‘discharges from urban waste water treatment plants subject to treatment in accordance with Articles 4 and 5 shall meet the requirements shown in Table 1’ and that ‘discharges from urban waste water treatment plants to those sensitive areas which are subject to eutrophication as identified in Annex II.A(a) shall in addition meet the requirements shown in Table 2 of [Annex I]’.
9. Table 1 of Annex I to Directive 91/271 sets, in particular, maximum concentration rates and minimum percentages of reduction for biochemical and chemical oxygen demand and total suspended solids in discharges from urban waste water treatment plants. Table 2 of Annex I, relating to such discharges to areas that are sensitive with respect to eutrophication, sets, in particular, maximum concentration rates and minimum percentages of reduction for total phosphorus and total nitrogen.
10. Annex II to Directive 91/271, headed ‘Criteria for identification of sensitive and less sensitive areas’, provides in point A, which relates to sensitive areas:
‘A water body must be identified as a sensitive area if it falls into one of the following groups:
(a) natural freshwater lakes, other freshwater bodies, estuaries and coastal waters which are found to be eutrophic or which in the near future may become eutrophic if protective action is not taken.
The following elements might be taken into account when considering which nutrient should be reduced by further treatment:
…
(ii) estuaries, bays and other coastal waters which are found to have a poor water exchange, or which receive large quantities of nutrients. Discharges from small agglomerations are usually of minor importance in those areas, but for large agglomerations, the removal of phosphorus and/or nitrogen should be included unless it can be demonstrated that the removal will have no effect on the level of eutrophication.
…’
11. Annex II.B, headed ‘Less sensitive areas’, provides inter alia that, when identifying such areas, the following elements are to be taken into consideration: ‘open bays, estuaries and other coastal waters with a good water exchange and not subject to eutrophication or oxygen depletion or which are considered unlikely to become eutrophic or to develop oxygen depletion due to the discharge of urban waste water’.
II – Background and pre-litigation procedure
A – Case 1998/2265 (England, Wales and Scotland)
12. The United Kingdom published various documents with a view to the identification of sensitive areas for the purposes of Directive 91/271:
– first, in March 1992, a consultation paper entitled Criteria and Procedures for identifying Sensitive Areas and Less Sensitive Areas (Urban Waste Water Treatment Directive) and Polluted Waters (Nitrates Directive) in England and Wales, which indicated the criteria on the basis of which the United Kingdom proposed to identify sensitive areas with respect to eutrophication;
– second, in March 1993, a further consultation paper, entitled Methodology for identifying Sensitive Areas (Urban Waste Water Treatment Directive) and Methodology for designating Vulnerable Zones (Nitrates Directive) in England and Wales, Annex B to which lists the criteria for assessing eutrophication in estuarial and coastal waters;
– third, in January 1997, a report produced by the Comprehensive Studies Task Team, entitled Comprehensive Studies for the purposes of Articles 6 & 8.5 of Directive 91/271 EEC, the Urban Waste Water Treatment Directive
(‘the 1997 CSTT report’).
13. In order to check the Member States’ identification of sensitive areas within the meaning of Directive 91/271, the Commission instructed Environmental Resources Management to draw up a set of reports. As regards bodies of water in the United Kingdom, a report entitled Verification of Vulnerable Zones Identified Under the Nitrate Directive and Sensitive Areas Identified Under the Urban Waste Water Treatment Directive, United Kingdom
(‘the ERM report’) was published in March 1999.
14. On 4 November 1999 the Commission sent the United Kingdom a letter of formal notice identifying, on the basis of the ERM report, certain areas which, in its view, the United Kingdom should have designated as sensitive areas for the purposes of Directive 91/271, namely the Humber Estuary, the Wash, the Deben and Colne Estuaries, the Outer Thames Estuary, Southampton Water and the North East Irish Sea.
15. The United Kingdom replied by letter of 9 March 2000, drawing attention to the deficiencies that it claimed existed in the ERM report. Additionally, by letters of 6 December 2000 and 7 February 2001, it provided the Commission with peer reviews of the ERM report by Professor D. Nedwell of the University of Essex ( Peer Review of ERM Reports for the DETR [Department of the Environment, Transport and the Regions]) and Professor S. Nixon of Rhode Island University, United States ( A Review of the Final Report from Environmental Resources Management Ltd to the European Commission ).
16. On 19 April 2001 the Commission sent the United Kingdom a reasoned opinion maintaining its complaints concerning the areas identified in the abovementioned letter of formal notice (‘the reasoned opinion of 19 April 2001’), to which the United Kingdom responded on 30 August 2001.
17. The United Kingdom subsequently provided the Commission with further reports assessing the eutrophic status of each of the areas at issue, enclosed, as regards the Humber Estuary, Southampton Water and the Wash, in a letter dated 15 October 2001 and, as regards the Deben and Colne Estuaries, the Outer Thames Estuary and certain areas of the North East Irish Sea (Liverpool Bay and the Solway Firth), in a letter dated 26 November 2001.
18. Finally, by letter of 28 May 2002 the United Kingdom sent the Commission a supplement to the 1993 consultation paper mentioned in the second indent of paragraph 12 of the present judgment, in order to clarify the methodology and approach applied to identify sensitive areas within the meaning of Directive 91/271.
B – Case 2003/2008 (Northern Ireland)
19. In 1994 and 1995 the United Kingdom identified sensitive areas in Northern Ireland for the purposes of Directive 91/271, including Lough Neagh and Upper and Lower Lough Erne.
20. On 11 July 2003 the Commission sent the United Kingdom a letter of formal notice in which it alleged in particular that the United Kingdom had not subjected discharges into those areas from certain agglomerations with a p.e. of more than 10 000 to the more stringent treatment required by Directive 91/271. The United Kingdom responded by letter of 10 September 2003.
21. On 9 July 2004 the Commission sent the United Kingdom a reasoned opinion maintaining its complaints in respect of Lough Neagh and Upper and Lower Lough Erne (‘the reasoned opinion of 9 July 2004’), to which the United Kingdom responded on 9 September 2004.
22. Since the Commission took the view that the situation covered both in that reasoned opinion and in the reasoned opinion of 19 April 2001 remained unsatisfactory, it decided to bring the present action.
23. By order of the President of the Court of 6 February 2008, the Portuguese Republic was granted leave to intervene in the present case in support of the form of order sought by the United Kingdom.
III – The action
A – The first complaint: failure to identify all sensitive areas
24. By its first complaint, the Commission alleges that the United Kingdom has infringed Article 5(1) and Annex II.A(a) of Directive 91/271 by failing to identify the Humber Estuary, the Wash, the Deben and Colne Estuaries, the Outer Thames Estuary, Southampton Water and the North East Irish Sea with the exception of the Solway Firth (‘the areas at issue’) as sensitive areas with respect to eutrophication for the purposes of those provisions.
1. Preliminary observations
a) The concept of eutrophication
25. Since the Commission and the United Kingdom are not in full agreement on the meaning of the term ‘eutrophication’ defined in Article 2(11) of Directive 91/271, it is appropriate, before examining the complaints set out by the Commission in its action, to note the meaning of that term, as explained by the Court in paragraphs 12 to 25 of the judgment in Case C-280/02 Commission
v France
[2004] ECR I‑8573.
26. As is apparent from paragraphs 13 to 17 of that judgment, the term ‘eutrophication’ defined in Article 2(11) of Directive 91/271 must be interpreted in the light of the directive’s objective, which goes beyond the mere protection of aquatic ecosystems and seeks to conserve man, fauna, flora, soil, water, air and landscapes from any significant adverse effects of the accelerated growth of algae and higher forms of plant life resulting from discharges of urban waste water.
27. As the Court pointed out in paragraph 18 of that judgment, eutrophication is characterised, under Article 2(11) of Directive 91/271, by the fulfilment of four criteria (‘the eutrophication criteria’):
– the enrichment of water by nutrients, especially compounds of nitrogen and phosphorus;
– the accelerated growth of algae and higher forms of plant life;
– an undesirable disturbance to the balance of organisms present in the water;
– an undesirable disturbance to the quality of the water concerned.
28. In addition, for there to be eutrophication within the meaning of Directive 91/271, there must be a relationship of cause and effect between enrichment by nutrients and the accelerated growth of algae and of higher forms of plant life on the one hand and, on the other hand, between that accelerated growth and undesirable disturbance to the balance of organisms present in the water and to the quality of the water ( Commission
v France, paragraph 19).
29. Finally, it is also to be recalled that, having regard to the aim pursued by the Community legislature, which is to protect the environment from deterioration due to the discharge of urban waste water, the obligation on the Member States under Article 5(1) of Directive 91/271 requires only that they identify the areas where such discharges contribute significantly to eutrophication or the risk of eutrophication (see Commission
v France, paragraph 25, and, by analogy, Case C‑293/97 Standley and Others
[1999] ECR I‑2603, paragraph 35).
30. In the present case, it must be stated at the outset that, although the ERM report, which predates the judgment in Commission
v France
by more than five years and upon which the Commission has largely founded the contentions supporting its action, refers to the definition of ‘eutrophication’ in Article 2(11) of Directive 91/271, it does not seek to demonstrate in accordance with a systematic plan that each of the four eutrophication criteria and the causal links between them as set out by the Court in that judgment are established as regards the areas at issue.
31. As the United Kingdom rightly pointed out at the hearing, and as the Commission itself indicated in its application, that report seeks rather to demonstrate that eutrophication of the areas in question can be proved by recourse to a set of environmental factors relating, in particular, to nutrient enrichment, hydrodynamic conditions and the direct and indirect effects of that enrichment. Thus, the authors of the report, referring to the scientific literature, define eutrophication as consisting, essentially, in the increased supply of organic matter in an ecosystem, that is to say, a definition which does not correspond to the eutrophication criteria and the relation between them as set out by the Court in Commission
v France .
32. It cannot, however, be inferred from this alone that the ERM report is not capable of demonstrating that the eutrophication criteria under Directive 91/271 are fulfilled with regard to the areas at issue, since the evidential value of the data in that report with regard to those criteria must be specifically assessed at the stage when each of the areas is examined in the light of the content of the report concerning them.
33. As regards more specifically the third eutrophication criterion, the Commission maintains, however, that the proliferation of a single species in itself represents a sufficient disturbance of the ecological balance, since this will often, if not always, entail the reduction of other species. In its submission, so long as the other preconditions are fulfilled, an overall, broadly accepted, measure of accelerated growth of algae and higher forms of plant life, such as that relating to the colouration of water by phytoplankton chlorophyll, can therefore be taken as a demonstration of undesirable disturbance to the balance of organisms present in the water, provided that there is also an undesirable increase in growth, in other words proliferation, compared to background fluctuations.
34. Such a line of argument, which tends to confuse the second eutrophication criterion with the third and fourth criteria, cannot be upheld.
35. Admittedly, the Court held in Commission
v France, at paragraph 21, that any proliferation of a particular species of algae or other plant constitutes, as such, a disturbance to the balance of the aquatic ecosystem and, accordingly, to the balance of the organisms present in the water, even when other species remain stable. The Court observed in this connection that, given the competition between plant species for nutrient salts and luminous energy, the proliferation of one or several species, by monopolising the resources necessary for the growth of other algae and aquatic plants, very often if not always entails reductions in other species.
36. However, contrary to what the Commission suggests, the Court also stated, in paragraphs 22 and 23 of that judgment, that the third eutrophication criterion requires that such a disturbance to the balance of organisms present in the water be ‘undesirable’. That undesirability must be considered to be established where there are significant adverse effects on flora or fauna or, given the objective pursued by Directive 91/271, on man, the soil, water, air or landscape. Species change involving loss of ecosystem biodiversity, nuisances due to the proliferation of opportunistic macroalgae and severe outbreaks of toxic or harmful phytoplankton therefore constitute an undesirable disturbance to the balance of organisms present in the water.
37. Similarly, the Court held in paragraph 24 of Commission
v France
that the fourth eutrophication criterion refers to deterioration of the quality of the water which produces harmful effects for ecosystems and to deterioration of the colour, appearance, taste or odour of the water or any other change which prevents or limits water uses such as tourism, fishing, fish farming, gathering shellfish and shellfish farming, abstraction of drinking water or cooling of industrial installations.
38. It follows that proof of an accelerated growth of algae and higher forms of plant life cannot be considered, as such, to demonstrate undesirable disturbance to the balance of organisms present in the water and to the quality of the water within the meaning of Article 2(11) of Directive 91/271, the undesirability or harmfulness of a proliferation having to be examined not in the context of the second eutrophication criterion, as the Commission suggests, but in that of the third and fourth criteria (see, by analogy, Commission
v France, paragraphs 48, 61 and 97).
39. This means, in particular, for the purposes of examining the present action, that, while the chlorophyll concentration level in the water, which enables phytoplankton biomass to be gauged, is capable of demonstrating accelerated growth of algae and higher forms of plant life – a point which the parties accept – it does not, on the other hand, provide any proof of undesirable disturbance to the balance of organisms present in the water or to the quality of the water. As the United Kingdom has argued without contradiction on the Commission’s part, the chlorophyll concentration level in the water provides no information on the number or type of species present or on whether or not they are toxin-producing or harmful. The measurement of that level can therefore be used to detect accelerated growth of algae and higher forms of plant life, but does not enable it to be determined whether that growth is ecologically harmful or results in an undesirable loss of ecosystem biodiversity.
b) The burden of proof
40. The Commission contends that, should the evidence adduced in support of the first complaint not show that the areas at issue were already eutrophic, account needs to be taken of the fact that, under Annex II.A(a) of Directive 91/271, the Member States must also identify areas which ‘in the near future may become eutrophic’ as sensitive areas. The Member States cannot therefore wait until each and every symptom and effect of eutrophication is present before taking action. It follows, for example, that if, in the case of a given body of water, some hydrochemical parameters which may cause eutrophication are present and only one, such as low turbidity, is missing, it may be necessary to classify this body of water as being at risk of becoming eutrophic if protective actions are not taken. The Commission further submits that the United Kingdom authorities have a tendency to recognise the initial warning sign of eutrophication, namely hypernutrification, but do not collect sufficient data – such as data obtained by studying, in particular, the presence of nuisance species, shifts in species, oxygen deficiency or the presence of algal toxins – to disprove the occurrence of eutrophication.
41. The United Kingdom maintains that the Commission places excessive reliance upon presumptions and upon the precautionary principle, in an attempt to make up for its inability to show that certain eutrophication criteria are met or that a causal link between them is present. In particular, the Commission is stated to posit an excessively low threshold of proof as regards waters ‘which in the near future may become eutrophic’ within the meaning of Annex II.A(a) of Directive 91/271. In order for the existence of such a situation to be found, proof is required that the bodies of water concerned are likely to meet the four eutrophication criteria and to display the requisite relationships of cause and effect between those criteria. In the present case, however, the Commission relies on a presumption that, if some symptoms are present, then there is already a likelihood that an area will become eutrophic. The United Kingdom adds that the Commission seeks in a number of respects to shift the burden of proof onto the United Kingdom by alleging a failure on its part to assess the areas at issue, without providing any evidence at all of an undesirable disturbance to the balance of organisms present in the water.
42. It is to be noted that, under Article 5(1) of Directive 91/271, the Member States were to identify by 31 December 1993 areas sensitive with respect to eutrophication in accordance with the criteria laid down in Annex II to that directive, in order to ensure by 31 December 1998 in respect of all discharges from agglomerations of more than 10 000 p.e., in accordance with Article 5(2), that, before discharge into sensitive areas, urban waste water entering collecting systems was subject to more stringent treatment. That obligation to identify sensitive areas entailed collection by the Member States of the data needed for those purposes (see, by analogy, Case C‑221/03 Commission
v Belgium
[2005] ECR I‑8307, paragraph 79).
43. However, in proceedings under Article 226 EC for failure to fulfil obligations it is for the Commission to prove the allegation that the obligation has not been fulfilled. It is therefore the Commission’s responsibility to place before the Court the information needed to enable the Court to establish that the obligation has not been fulfilled, and in so doing the Commission may not rely on any presumptions (see, inter alia, Case C-494/01 Commission
v Ireland
[2005] ECR I-3331, paragraph 41 and the case-law cited; the judgment of 7 May 2009 in Case C‑530/07 Commission
v Portugal, paragraph 32; and the judgment of 6 October 2009 in Case C-335/07 Commission
v Finland, not yet published in the ECR, paragraph 46).
44. The Member States are nevertheless required, under Article 10 EC, to facilitate the achievement of the Commission’s tasks, which consist inter alia, pursuant to Article 211 EC, in ensuring that the provisions of the EC Treaty and the measures taken by the institutions pursuant thereto are applied. In particular, account should be taken of the fact that, where it is a question of checking that the national provisions intended to ensure effective implementation of a directive are applied correctly in practice, the Commission, which does not have investigative powers of its own in the matter, is largely reliant on the information provided by any complainants and by the Member State concerned (see, inter alia, Commission
v Ireland, paragraphs 42 and 43 and the case-law cited).
45. It follows in particular that, where the Commission has adduced sufficient evidence of certain matters in the territory of the defendant Member State, it is incumbent on the latter to challenge in substance and in detail the information produced and the consequences flowing therefrom (see Commission
v Ireland, paragraph 44 and the case-law cited).
46. Consequently, in the present case, even though the Member States were required to gather the data needed in order to determine the bodies of water that had to be identified as sensitive to eutrophication under Article 5(1) of Directive 91/271, read in conjunction with Annex II thereto, the Commission has the task of adducing in support of the present action for failure to fulfil obligations at least a certain amount of evidence, in respect of each of the areas at issue, first, of fulfilment of the four eutrophication criteria set out in paragraph 27 of the present judgment, in particular as regards the significant adverse environmental effects covered by the last two criteria, and second, of the existence of the relationships of cause and effect referred to in paragraph 28 of the present judgment (see, to this effect, Case C-508/03 Commission
v United Kingdom
[2006] ECR I‑3969, paragraph 78).
47. The same obligation also applies with regard to bodies of water which ‘in the near future may become eutrophic’ within the meaning of Annex II.A(a) of Directive 91/271, the Commission being able at most, in such a case, to demonstrate that, given the available scientific and technical knowledge, the degree of probability of fulfilment of the four eutrophication criteria and of the existence of those relationships of cause and effect is sufficient to require the adoption of the environmental protection measures provided for by that directive (see, by analogy, Commission
v France, paragraph 34). Such a requirement of probability falls fully within the scheme and system of the directive since Annex II.B suggests identification of an area as ‘less sensitive’ to eutrophication where the area is ‘unlikely’ to become eutrophic.
48. Therefore, the Commission is certainly right in contending that, in order for a body of water to be identified as a sensitive area with respect to eutrophication for the purposes of Directive 91/271, it is not required to produce evidence showing that all the hydrochemical parameters which may cause such eutrophication, for example regarding temperature or turbidity, are present or to provide irrefutable evidence that each of the eutrophication criteria is fulfilled, and especially that all the adverse effects of an accelerated growth of algae and higher forms of plant life have actually occurred, in particular those which are perceptible at the very end of the eutrophication process, such as shifts in species composition and mortality of benthos and fish. However, the Commission cannot avoid proving, on the basis of specific and coherent evidence, that it is probable that, in the body of water, such accelerated growth caused by nutrient enrichment will, in the near future, produce undesirable disturbance to the balance of organisms present in the water and to the quality of the water. Proof of such probable adverse effects on the environment is therefore in any event required.
49. The question whether, in the case of the water bodies of each of the areas at issue, the Commission does demonstrate to the requisite legal standard, having regard to those criteria, that they were eutrophic or could in the near future become so must, however, be examined in the context of analysis of the arguments it puts forward concerning each of those areas, in the light of the specific evidence and the matters adduced by each party.
c) The relevant date to be taken into account when considering the evidence
50. 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 that 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, inter alia, Case C‑23/05 Commission
v Luxembourg
[2005] ECR I-9535, paragraph 9; Case C‑32/05 Commission
v Luxembourg
[2006] ECR I-11323, paragraph 22; and the judgment of 11 September 2008 in Case C-316/06 Commission
v Ireland, paragraph 20).
51. In the present case, it is common ground that, on the date when the period within which the United Kingdom had to act upon the reasoned opinion of 19 April 2001 expired, none of the areas at issue had been identified by it as an area sensitive to eutrophication.
52. Also, under Article 5(1) of Directive 91/271, read in conjunction with Annex II.A(a), the Member States were obliged to identify sensitive areas with respect to eutrophication by 31 December 1993 at the latest.
53. It is accordingly necessary to determine the relevant date to be taken into account for the purposes of examining, in the present action, the evidence adduced by the Commission to show that the eutrophication criteria are established as regards the areas at issue.
54. The United Kingdom observes in this regard that in its application initiating the proceedings the Commission does not allege a breach of Article 5(6) of Directive 91/271, which requires Member States to review the identification of sensitive areas at intervals of no more than four years. In its submission, it follows that the application concerns the alleged failure to identify the areas at issue as sensitive areas as at 31 December 1993, and not at some other time after that date.
55. The Commission states that the starting point of the present case is the absence of such identification of the areas at issue as at 31 December 1993, although there was at that time sufficient evidence to warrant their identification and it was not necessary to await a review under Article 5(6) of Directive 91/271 in order to identify them, but the Commission none the less submits that, should it show that their identification should have occurred at a later stage, the Court should so declare.
56. It is to be observed that it is clear from the wording of the application initiating the proceedings that, as the Commission expressly confirmed in its reply, the present action concerns only an initial failure to identify the areas at issue as sensitive areas with respect to eutrophication as at 31 December 1993, in accordance with Article 5(1) of Directive 91/271, to the exclusion, in contrast to the reasoned opinion of 19 April 2001, of a failure to review the identification of such sensitive areas at intervals of no more than four years as required under Article 5(6), a provision which is indeed not mentioned in the application.
57. When asked about this issue at the hearing, the Commission confirmed that the action was intended to obtain a declaration that the areas at issue should have been identified by the United Kingdom as sensitive areas back in 1993.
58. It follows that the material submitted by way of evidence by the Commission, which has the burden of proving the alleged failure to fulfil obligations, and that adduced by the United Kingdom in rebuttal can have probative value in the context of examination of the present action only if it concerns the state of the areas at issue in light of the eutrophication criteria as at 31 December 1993, which is in principle true of the scientific studies produced by the parties that were drawn up during a period close to that date, whether shortly before or shortly after it.
59. On the other hand, the other scientific studies produced by the parties, the publication date of which shows that they were drawn up at a time far from the period around 31 December 1993, in particular after expiry of the period within which the reasoned opinion of 19 April 2001 had to be acted upon, or even after 17 August 2007, the date upon which the present action was brought, are not in principle capable of having such probative value, save where the evidence which they contain relates to that period and the results which they provide could have been reached from the scientific and technical knowledge of that period.
60. In this connection, account should also be taken of the fact that, in accordance with Annex II.A(a) of Directive 91/271, sensitive areas had to be identified as such by the Member States as at 31 December 1993 if the areas were found to be eutrophic as at that date or they could ‘in the near future’ become eutrophic if protective action was not taken.
61. As the United Kingdom has rightly submitted, and as the Commission indeed accepted at the hearing, since the Member States are obliged, under Article 5(6) of Directive 91/271, to review the identification of sensitive areas at intervals of no more than four years, the words ‘in the near future’ within the meaning of Annex II.A(a) must be understood as referring to a period of roughly four years.
62. First, such a period falls fully within the scheme and logic of the review at regular intervals that is provided for by that directive, enabling account to be taken, including at the time of the initial identification of areas as sensitive with respect to eutrophication as at 31 December 1993, of subsequent changes that may precede the carrying out of a fresh appraisal under Article 5(6) of the directive. Second, that period is sufficiently short to permit, in accordance with what has been held in paragraph 47 of the present judgment, determination with a sufficient degree of probability in particular as to whether, on the basis of the scientific and technical knowledge available as at 31 December 1993, the adoption of the environmental protection measures provided for by the directive was required as regards areas which on that date did not fulfil all the eutrophication criteria.
63. Consequently, in so far as the evidence adduced by the parties concerns a period subsequent to the period around 31 December 1993, it can prove relevant in the context of the present action only if it concerns the situation in the areas at issue during a period up until the end of 1997 (‘the relevant period’). It follows, in particular, that when such evidence is produced by the Commission, it can be sufficient to demonstrate a posteriori, in light of the date on which the present action was brought, that, as at 31 December 1993, those areas were liable to become eutrophic in the near future, so that, if that evidence proves to be sufficient, it is then for the United Kingdom, in accordance with the case-law recalled in paragraph 45 of the present judgment, to rebut its relevance in that regard by challenging it in substance and in detail.
64. It is by reference to these preliminary considerations that the merits of the present action as regards each of the areas at issue falls to be examined.
2. The areas at issue
65. A preliminary point to note is that the Commission and the United Kingdom rely upon certain reports relating to the procedures under the Convention for the Protection of the Marine Environment of the North-East Atlantic of 22 September 1992 (‘the OSPAR Convention’), which has been signed and ratified by, amongst others, the United Kingdom and which entered into force on 25 March 1999. Those reports refer to the identification, between 2000 and 2007, of a series of English coastal waters as ‘Problem Areas’ in respect of eutrophication and to their subsequent declassification. However, without its being necessary to determine whether those areas cover the areas at issue, the parties cannot, in accordance with what has been stated in paragraph 63 of the present judgment, infer from those circumstances any evidence to support their arguments in the context of the first complaint.
66. It should therefore be examined whether the other evidence submitted by the Commission is capable of proving this complaint as regards each of the areas at issue.
a) The Humber Estuary
i) The first eutrophication criterion: enrichment by nutrients
67. While the United Kingdom submits that enrichment of the Humber Estuary by nutrients has decreased significantly in recent years, it does not dispute that during the relevant period there was such enrichment, as indicated by the data in the ERM report adduced by the Commission.
68. The first eutrophication criterion is therefore proven as regards the Humber Estuary.
69. Accordingly, it remains to be examined whether the Commission has proved to the requisite legal standard that the three other eutrophication criteria are fulfilled as regards the Humber Estuary.
ii) The second eutrophication criterion: an accelerated growth of algae and higher forms of plant life
70. The Commission contends that the enrichment of the Humber Estuary by nutrients has resulted in accelerated growth of algae and higher forms of plant life in that estuary. It submits that the Humber Estuary gives rise in this regard to two distinct issues, namely, first, an abundance of phytoplankton in the water and, second, strong intertidal plant growth due to green macroalgae and benthic diatoms on the substrate.
71. First, as regards phytoplankton, the Commission submits that, according to satellite imagery carried out in 1996, the existence of accelerated growth of algae and higher forms of plant life is revealed by phytoplankton chlorophyll present in the sea itself. Indeed, exceptionally high chlorophyll concentration levels have been recorded in the Humber coastal water area. The Commission adds that the United Kingdom did not carry out any systematic monitoring before 2000. It cannot therefore be assumed that all the phytoplankton present were freshwater species. Nor is it correct that phytoplankton growth in the Humber is necessarily low because of high turbidity of the water. The report drawn up by Professor Nedwell at the United Kingdom’s request, referred to in paragraph 15 of the present judgment, mentions moreover that phytoplankton production is considerable in the Humber plume.
72. As to those submissions, it is to be noted that the only concrete evidence adduced by the Commission in support of its contentions concerning the presence of phytoplankton in the Humber Estuary consists in measurement of the chlorophyll concentration level in the water, either by analysing water samples or by assessing remotely the green hue of the water due to the presence of chlorophyll.
73. However, the data supplied by the Commission concerning chlorophyll concentration levels essentially relate to the years 1998 to 2000. Such data, which do not concern the relevant period, cannot therefore demonstrate that the Humber Estuary w as eutrophic, or in the near future could become so, as at 31 December 1993.
74. Relying on data provided by the United Kingdom within the framework of OSPAR (Malcolm, S., et al., First Application of the OSPAR Comprehensive Procedure to waters around England and Wales, 2002), the Commission adds, however, that chlorophyll concentrations above 10 µg/l were recorded every year from 1991 to 2000, a period which includes the relevant period. It states that this chlorophyll level is the threshold to be taken into account for the purpose of examining the second eutrophication criterion, relating to proof of accelerated growth of algae and higher forms of plant life.
75. It is therefore appropriate, at the outset, to consider the relevance, which the United Kingdom contests, of that 10 µg/l threshold for demonstrating the existence of such accelerated growth.
76. According to the United Kingdom, the threshold in question, which appears both in the March 1993 consultation paper concerning estuaries and coastal waters and in the 1997 CSTT report concerning coastal waters with a view to defining ‘less sensitive areas’, must be used with some flexibility. Since estuaries are areas of gradation and transition between freshwaters and more saline coastal waters, a graduated threshold according to the salinity of the relevant measuring point should be adopted. Thus, an upper threshold of 100 µg/l is stated to be appropriate for running freshwaters, while an average value, of 25 µg/l, is relevant to the freshwater limit of estuaries, with the limit values then decreasing as the salinity of the water increases, reaching the threshold of 10 µg/l in coastal waters.
77. It must be noted that the Commission does not genuinely contest this methodology. It expressly concedes that, the more saline the water is, the less phytoplankton is acceptable. Moreover, the Commission acknowledged in its application that the taking into account of an absolute threshold of 10 µg/l cannot be a stand-alone method of assessing whether there is accelerated growth of algae and higher forms of plant life, so that that threshold is purely indicative. Furthermore, it is apparent from the Commission’s reply that it shares the view expressed in the 1997 CSTT report, adduced by the United Kingdom in support of its line of argument, that in the case of coastal waters a problem of eutrophication can be revealed only if that threshold is regularly exceeded during the summer. When questioned in this regard at the hearing, the Commission accepted that some flexibility may be adopted regarding use of the 10 µg/l threshold.
78. In those circumstances, it must be held that, as regards the chlorophyll concentration level, only the fact that the 10 µg/l threshold is regularly exceeded, in particular during the summer and in the coastal waters of the estuary, is capable of demonstrating the existence of accelerated growth of algae and higher forms of plant life, and it must be corroborated by other evidence. By contrast, the fact that that threshold is exceeded sporadically, especially if that occurs in the non-coastal waters of the estuary, cannot, as such, be indicative of such accelerated growth.
79. In the present case, the concentration levels relied upon by the Commission all concern the maximum levels achieved in spring during the relevant period, while, according to the same data, the average chlorophyll concentration rate never exceeded the 10 µg/l threshold.
80. The United Kingdom has stated, first of all, that those instances of the threshold being exceeded have been small in number. While acknowledging that it did not systematically record chlorophyll concentration levels before 2000, it relies in this regard on the results of the analysis of 250 samples taken by the Environment Agency between 1992 and 2000, mentioned in its report on the Humber Estuary in response to the reasoned opinion of 19 April 2001 ( Urban Waste Water Treatment Directive: Assessment of the Eutrophic Status of the Humber Estuary ; ‘the United Kingdom report on the Humber Estuary’).
81. The United Kingdom has secondly explained, on the basis of a study which is more recent ( Humber Habitats Directive Review of Consents Report: Nutrient Enrichment, Environment Agency, 2007), but which relates inter alia to the years 1995 to 1997, that the average chlorophyll concentration levels in the Humber Estuary exceeded 10 µg/l during that period only at the single monitoring point at the saline limit, indicating that the chlorophyll observed in that estuary may have been imported from freshwaters.
82. While the Commission has sought to call into question, at least in part, the methodology applied within the framework of the latter study, it has not, on the other hand, contested the sporadic nature of instances where the 10 µg/l threshold is exceeded, an infrequency which is, moreover, borne out by the Modus Vivendi report ( Review of UK Implementation of UWWTD [the Urban Waste Water Treatment Directive] for Six Estuarine or Coastal Sites, Final Report, undated; ‘the MV report’), which has been adduced by the Commission and which contains inter alia an examination of the data submitted by the United Kingdom in response to the reasoned opinion of 19 April 2001. It is indicated in that report that the level of chlorophyll in the Humber Estuary ‘is generally low’.
83. Nor has the Commission adduced any evidence capable of rebutting the contention that the high chlorophyll concentration levels observed in the Humber Estuary may result from phytoplankton imported from freshwaters, so that the 10 µg/l threshold would not be exceeded in the coastal waters of that estuary.
84. The data relating to the chlorophyll concentration levels recorded in the Humber plume cannot be used by the Commission in support of the present complaint, since it is not in dispute that this region is located outside the estuary itself and therefore outside the area at issue defined by the Commission in its application.
85. It follows that the Commission has not demonstrated to the requisite legal standard that the concentration of phytoplankton chlorophyll revealed during the relevant period that there was accelerated growth of algae and higher forms of plant life in the Humber Estuary.
86. Second, as regards intertidal plant growth, the Commission states that remote sensing in the form of CASI (Compact Aerial Spectrographic Image) imaging, as carried out in the intertidal areas of the Humber Estuary on 19 August 1996 by the Environment Agency, is intended to indicate nuisance macroalgae growth, by species such as Ulva
and Enteromorpha . According to the Commission, the images recorded on that occasion reveal extensive coverage by dense algae in the Humber Estuary, which is indicative of extensive algal growth.
87. As to those submissions, contrary to what the United Kingdom asserts, that capture of images by remote sensing cannot, as such, be regarded as unreliable, the United Kingdom itself indeed having recourse to such images to support certain of its arguments concerning other areas at issue, and it therefore constitutes a means capable of revealing the existence of accelerated growth of algae and higher forms of plant life.
88. However, the Commission relies, here, on a single capture of images carried out nearly three years after the date on which the United Kingdom was to identify sensitive areas with respect to eutrophication as referred to in Directive 91/271, namely 31 December 1993.
89. An isolated capture of images of that kind cannot alone reveal the existence of accelerated growth of algae and higher forms of plant life in the Humber Estuary such as to demonstrate, even a posteriori, that that estuary could have become eutrophic in the near future after that date.
90. That is all the more the case because the MV report, adduced by the Commission in support of its action, itself draws the conclusion that ‘the UK authorities are probably correct to consider that green algae do not occur extensively throughout the Humber Estuary’.
91. It should, moreover, be noted that the Commission did not contest, either in its reply or at the hearing, the explanations provided in the United Kingdom report on the Humber Estuary, which is mentioned in paragraph 80 of the present judgment, to the effect that it follows from a survey carried out in 1996, confirmed by subsequent surveys, that the algae allegedly identified by the images recorded during the remote sensing carried out on 19 August 1996 by the Environment Agency in the form of CASI imaging are, in actual fact, benthic diatoms whose presence on the surface of the mudflats constitutes a natural element of the estuarine ecosystem, which feeds its large bird population.
92. Accordingly, it must be held that those images, in themselves, cannot demonstrate the existence of accelerated growth of algae and higher forms of plant life in the Humber Estuary during the relevant period.
93. The Commission nevertheless maintains that those images are confirmed by the data relating to chlorophyll concentration levels that were provided in the United Kingdom report on the Humber Estuary and following a meeting with the United Kingdom which took place in October 2005. In its submission, those data do reveal chlorophyll concentration levels above the 10 µg/l threshold.
94. It must, however, be stated at the outset that the data provided at the time of that meeting relate to 2002 to 2004, that is to say a period that is not relevant in the present action.
95. As to the data provided in the United Kingdom report on the Humber Estuary, the Commission relies on only two measurements of the chlorophyll concentration level exceeding the alleged 10 µg/l threshold, recorded in mid-1996. As is apparent from paragraph 77 of the present judgment, the Commission has itself acknowledged that that chlorophyll concentration level of 10 µg/l cannot be prescribed as an absolute threshold the exceeding of which is in itself sufficient to establish accelerated growth of algae and higher forms of plant life in a body of water and that a problem of eutrophication can be revealed only if that level is regularly exceeded during the summer.
96. It follows that the Commission has likewise not demonstrated to the requisite legal standard that there was strong intertidal plant growth in the Humber Estuary during the relevant period.
97. Accordingly, without there being any need to adopt a position on whether, as the United Kingdom submits, the turbidity of the Humber Estuary lies behind the absence of accelerated growth of algae and higher forms of plant life in that estuary, it need only be stated that the Commission has not adduced at least a certain amount of evidence capable of proving that the enrichment of that estuary by nutrients led or could in the near future have led to such accelerated growth and that, therefore, it has not established that the second eutrophication criterion is fulfilled.
iii) The third and fourth eutrophication criteria: undesirable disturbance to the balance of organisms present in the water and to the quality of the water
98. The Commission contends that the Humber Estuary shows important indicators of eutrophication, such as high nutrient inputs from the catchments and elevated chlorophyll concentrations.
99. However, while such factors are capable of demonstrating, respectively, the existence of enrichment by nutrients and the existence of accelerated growth of algae and higher forms of plant life in the Humber Estuary, they are irrelevant on the other hand, as is already essentially clear from paragraph 39 of the present judgment, for the purpose of demonstrating the existence of undesirable disturbance to the balance of organisms present in the water or to the quality of the water.
100. In this connection, the Commission simply complains that the United Kingdom did not carry out the slightest quantitative evaluation of the occurrence of species indicative of eutrophication.
101. However, as has already been stated in paragraphs 42 to 48 of the present judgment, while the United Kingdom was obliged, under Directive 91/271, to identify the bodies of water that were eutrophic or liable to become so in the near future, the Commission has the task of proving the allegation that an obligation has not been fulfilled and, to that end, of adducing at least a certain amount of evidence of the – at least probable – adverse environmental effects caused by nutrient enrichment and accelerated growth of algae and higher forms of plant life.
102. With regard to such adverse effects, the Commission invokes, at most, first, the disappearance of Zostera
in the Humber Estuary and, second, oxygen depletion and the development of algal toxins there.
103. So far as concerns, first, the effect on Zostera, while it is common ground that Zostera
disappeared almost entirely from the Humber Estuary in the 1970s, the Commission adduces no specific and coherent evidence that its disappearance resulted, even probably, from the alleged accelerated growth of algae and higher forms of plant life caused by the enrichment of that estuary by nutrients, whereas the United Kingdom sets out, without moreover being contradicted in this regard, many alternative factors capable of being behind its disappearance.
104. The Commission in fact does no more than assert, in a general and abstract manner, that Zostera
may be affected by nutrient enrichment and that, in the Humber Estuary, ‘it cannot be excluded’ that such enrichment is ‘at least partly’ to blame for its disappearance. However, the Commission adduces no specific evidence to this effect.
105. Thus, while the scientific contributions relied upon by the Commission in this connection in its reply (Davidson, D.M., and Hughes, D.J., Zostera Biotopes. An overview of dynamics and sensitivity characteristics for conservation management of marine SACs [Special Areas of Conservation], 1998, and Burkholder, J.M., et al., Seagrasses and eutrophication, 2007) reveal, respectively, that nutrient enrichment is ‘likely to’ cause eutrophication or that it constitutes ‘a major cause of seagrass disappearance worldwide’, they are general studies on the subject which do not in any way relate to the specific causes of the alleged decline of Zostera
in the Humber Estuary in the relevant period and which, moreover, set out, by way of explanation of the decline of this type of bed, possible causes other than nutrient enrichment that has led to accelerated growth of algae and higher forms of plant life.
106. As has been noted in paragraph 46 of the present judgment, it is for the Commission to prove the causal link between the second and the third and fourth eutrophication criteria in each of the areas at issue.
107. In actual fact, the MV report, adduced by the Commission, states quite to the contrary, in the section concerning the Humber Estuary, that ‘it cannot be said that eutrophication is the positive cause of the decline of Zostera, or that the reduction in nutrient inputs would of itself result in a recovery’.
108. It is, admittedly, clear from the New Atlas of the British and Irish Flora, edited by C.D. Preston et al., 2002 (‘the new Preston atlas’), upon which the Commission relies in its reply, and from a scientific contribution adduced by it for the purpose of the hearing (Butcher, R.W., Zostera. Report on the Present Condition of Eel Grass on the Coasts of England, based on a Survey during August to October, 1933, 1941; ‘the 1933 Butcher study’) that Zostera
was present in the Humber Estuary at certain times in the past.
109. However, such a past presence, which is moreover not disputed by the United Kingdom, is entirely irrelevant when examining the present complaint. Such a circumstance does not in any way demonstrate that the alleged disappearance of Zostera
resulted from accelerated growth of algae and higher forms of plant life in the Humber Estuary that was caused by its enrichment by nutrients.
110. In particular, it follows from paragraphs 58 to 63 of the present judgment that a scientific study concerning the situation in the Humber Estuary in 1933, which was published in 1941, cannot possess decisive evidential value when determining whether that estuary had to be identified by the United Kingdom as an area sensitive to eutrophication as at 31 December 1993. Moreover, it is apparent from that study itself that multiple factors may be the cause of the disappearance of Zostera, as is contended by the United Kingdom in the present proceedings.
111. Furthermore, while the new Preston atlas, to which the Commission refers, shows that Zostera
could have been present in the Humber Estuary until the 1970s, the atlas does not provide any indication as to its extent. The United Kingdom states without being contradicted in this regard by the Commission that it is apparent from the data provided by the study of M. Best ( The occurrence (or presence) versus the prevalence of seagrasses (Zostera and Spartina spp) – an examination of evidence presented by the Atlas of British Flora, vascular plants database, Preston et al. 2002, Environment Agency, 2008; ‘the 2008 Best study’), which relates to the period from 1800 to 2007, that the presence of Zostera
in that estuary has always been relatively sporadic.
112. In those circumstances, it appears all the less probable – and the Commission does not in any event adduce any evidence to the contrary – that the rareness of Zostera
in the Humber Estuary during the relevant period resulted from an alleged accelerated growth of algae and higher forms of plant life caused by nutrient enrichment.
113. So far as concerns, second, oxygen depletion and the development of algal toxins, it is appropriate at the outset to reject the United Kingdom’s contention, expressed at the hearing, that it is apparent from recent data approved within the framework of OSPAR ( Second OSPAR Integrated Report on the Eutrophication Status of the OSPAR Maritime Area, 2008; ‘the 2008 OSPAR report’) that there is an emerging consensus that the link between nutrient enrichment and the abundance of toxin-producing algae forming low-biomass blooms is not a parameter which is sufficiently indicative of the existence of a risk of eutrophication. In so far as that consensus reflects scientific and technical knowledge as it stood not on 31 December 1993 but at a much later time, it cannot be relevant in the present action, as follows from paragraphs 58 to 63 above.
114. That said, it must be found that the MV report, adduced by the Commission in support of its complaint, contradicts the Commission’s contentions since, according to that report, first, ‘it is unlikely that the depletion of oxygen, where it occurs, is a result of eutrophication within the estuary’ and, second, ‘algal toxins are not considered to be an issue on the English coast other than parts of the north-east coast’.
115. Nor does the Commission dispute the data supplied by the United Kingdom according to which continued monitoring of the Humber Estuary has shown no algal scums, no significant change in the overall composition and distribution of seabed invertebrate communities in the estuary and no increase or reduction in species variety.
116. Accordingly, it must be found that, even supposing that the existence of accelerated growth of algae and higher forms of plant life in the Humber Estuary may be considered proven, the Commission has not adduced at least a certain amount of evidence capable of proving that that accelerated growth produced as at 31 December 1993 or could in the near future have produced undesirable disturbance to the balance of organisms present in the water and to the quality of the water of that estuary.
117. Consequently, as the second, third and fourth eutrophication criteria have not been proved to the requisite legal standard, the first complaint must be rejected in so far as it relates to the Humber Estuary.
b) The Wash
118. A preliminary point to be made is that the United Kingdom is not correct in asserting that the Commission must demonstrate that the eutrophication criteria are met in relation to not only the Wash itself, but also to each of the four estuaries of the rivers, the Witham, the Welland, the Nene and the Great Ouse, which flow into it.
119. The United Kingdom itself explains in its report concerning the Wash supplied in response to the reasoned opinion of 19 April 2001 ( Urban Waste Water Treatment Directive: Assessment of the Eutrophic Status of the Wash Embayment ; ‘the United Kingdom report on the Wash’) that those four estuaries are part of the complex system formed by the Wash, a fact which is, moreover, confirmed by the various maps annexed to that report. On that basis, the Wash and those estuaries (collectively ‘the Wash’) must be considered to form a single body of water for the purposes of Directive 91/271.
i) The first eutrophication criterion: enrichment by nutrients
120. While the United Kingdom asserts that enrichment of the Wash by nutrients has decreased significantly in recent years, it does not dispute that during the relevant period there was such enrichment, as indicated by the data in the ERM report adduced by the Commission.
121. In any event, the United Kingdom cannot legitimately submit in this regard that, since sewage treatment works contribute less than 5% of nitrogen inputs to the Wash, the identification of that body of water as a sensitive area would entail disproportionate expenditure in that it necessitates more stringent treatment of urban waste water. It is settled case-law that a Member State cannot plead practical or administrative difficulties to justify failure to comply with obligations and time-limits laid down by a directive. The same holds true of financial difficulties, which it is for the Member States to overcome by adopting appropriate measures (see, inter alia, Case C-433/02 Commission
v Belgium
[2003] ECR I‑12191, paragraph 22, and the judgment of 30 November 2006 in Case C-293/05 Commission
v Italy, paragraph 35).
122. It is likewise necessary to reject the United Kingdom’s contention that enrichment by nitrogen is more effectively addressed through measures taken pursuant to Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources (OJ 1991 L 375, p. 1). A Member State cannot avoid complying with Directive 91/271 on the ground that it observes Directive 91/676, since the latter, being intended to reduce and prevent water pollution caused or induced by nitrogen from agricultural sources ( Standley and Others, paragraph 35), does not affect, inter alia, the enrichment of water by phosphorus, which Directive 91/271 seeks to remedy amongst other matters. The United Kingdom does not contest the findings of the ERM report that phosphorus inputs also lie behind the enrichment of the Wash by nutrients.
123. The first eutrophication criterion is therefore proven as regards the Wash.
124. Accordingly, it remains to be examined whether the Commission has proved to the requisite legal standard that the three other eutrophication criteria are also fulfilled as regards that area at issue.
ii) The second eutrophication criterion: an accelerated growth of algae and higher forms of plant life
125. According to the Commission, the scientific data contained in the ERM report show that the enrichment of the Wash by nutrients has led to accelerated growth of algae and higher forms of plant life in the Wash. It states that such growth is attested by the exceeding of the chlorophyll concentration threshold of 10 μg/l and by the existence of substantial beds of macroalgae in that area.
126. So far as concerns, first, the chlorophyll concentration level, it is necessary at the outset to dismiss as irrelevant to examination of the present action, in accordance with what has been stated in paragraphs 58 to 63 above, the data in Eastern English Coast, 2007 – a report which the Commission relies upon in its reply – inasmuch as in that report the United Kingdom gave the Wash a ‘+’ rating for chlorophyll. Since this report concerns the period from 1999 to 2006, it has no probative value in the present action.
127. The United Kingdom is also justified in asserting that the threshold of 15 μg/l for the 90th percentile (under which the existence of accelerated growth of algae and higher forms of plant life is demonstrated where the threshold is exceeded by the ninth sample out of ten ranked in increasing order), a threshold accepted by the United Kingdom in 2007 within the framework of OSPAR and relied upon by the Commission in its reply, cannot be adopted when assessing the merits of the present action. Since the United Kingdom has stated, without being contradicted in this regard, that that method of assessment was not applied as at 31 December 1993, it being designed to identify eutrophic waters within the framework of OSPAR from 2007, it cannot possess any relevance in this action.
128. It must, however, be stated with regard to the chlorophyll concentration level measured in the Wash that, according to the ERM report adduced by the Commission, the Great Ouse Estuary had, between 1987 and 1992, ‘levels … above 10 [μg/l] throughout this period with peaks ranging between 100-200 [μg/l]’. Furthermore, it is apparent from a study adduced by the Commission with its reply (Rendell, A.R., et al., Nutrient Cycling in the Great Ouse Estuary and its Impact on Nutrient Fluxes to the Wash, England, 1997; ‘the 1997 Rendell study’) that very high chlorophyll concentrations, ranging from 40 μg/l to 190 μg/l, were recorded in that estuary throughout the growing season between March and September 1993.
129. Moreover, while the data mentioned in this regard by the ERM report in respect of the Wash disclose a chlorophyll concentration level that is in general not so high, the fact remains that, according to that report, the level exceeded the 10 μg/l threshold in that area, in particular in its southern section, in 1993, in both June (11 μg/l) and September (23 and 33 μg/l), and in June 1994 (between 10 and 15.1 μg/l).
130. It follows that, as the ERM report notes, during the relevant period the chlorophyll concentration levels recorded in the Wash regularly exceeded in the summer, sometimes substantially, the 10 μg/l threshold, a threshold which, as is apparent from paragraphs 75 to 78 of the present judgment, is liable to indicate accelerated growth of algae and higher forms of plant life. In any event, contrary to what is asserted by the United Kingdom, the chlorophyll concentration levels above that threshold that have been recorded cannot, given their repeated occurrence, be considered to be ‘exceptional peaks’.
131. The arguments and evidence put forward by the United Kingdom are not such as to affect these findings.
132. As regards, first, the contention that the data provided in the United Kingdom report on the Wash show that the mean chlorophyll concentration level there did not exceed the 10 μg/l threshold between 1992 and 2000, it must be stated that those data do not call into question the chlorophyll concentration levels indicated in the ERM report for the Great Ouse Estuary and that the United Kingdom report on the Wash acknowledges itself that, between 1995 and 1997, a not insignificant portion of the samples taken, that is to say, in essence, between 20% and 35% of them, revealed that the 10 μg/l threshold was exceeded, including in summer.
133. Moreover, it is noted in this regard in the MV report that, according to the data provided in the United Kingdom report on the Wash, the mean chlorophyll concentration levels recorded in the summers of 1995 and 1996 were, in the case of the Nene Estuary, of the order of 40 μg/l mid-estuary, with peaks above 100 μg/l, and, in the case of the Welland Estuary, at least 30 μg/l mid-estuary, with peaks close to 100 μg/l.
134. As regards, second, the contention that the high chlorophyll levels referred to in the ERM report concern the less saline freshwater sections of the Wash, in which a chlorophyll concentration level of 100 μg/l may be regarded as normal, it is to be observed that, even if such a level can be accepted as a maximum concentration in the freshwater sections of the estuaries, the ERM report, citing the 1997 Rendell study, refers to levels substantially higher than that level of 100 μg/l, since it states that levels of up to 189 μg/l were recorded in the less saline areas of the Great Ouse Estuary. The United Kingdom cannot therefore contend that the data in the 1997 Rendell study accord with its proposition.
135. Nor, third, is it possible to uphold the contention that the hydrodynamic conditions of the Wash are not conducive to accelerated growth of algae and higher forms of plant life, in particular because of the natural turbidity of both the embayment and the estuaries.
136. The ERM report and the MV report, taking up the results of the 1997 Rendell study, expressly state in this regard that high chlorophyll concentration levels, reaching, as the case may be, 36 μg/l, 55 μg/l and even 114 μg/l, were observed in March and June 1992 in the most turbid parts of the Great Ouse Estuary, thus testifying to significant phytoplankton growth in those areas at a time close to the relevant period, notwithstanding the turbid conditions. According to the 1997 Rendell study, maximum chlorophyll concentration levels regularly observed in the spring and summer months that are so high can be explained ‘in terms of the rapid movement of phytoplankton throughout the water column … and their adaptation to the low light regime … which permit net primary production, despite the turbid conditions’.
137. Besides, the regularly high chlorophyll concentration levels in the Wash which are noted in the ERM report tend to indicate that any turbidity of that body of water is not actually such as to prevent accelerated phytoplankton growth. The United Kingdom indeed does not appear truly to deny this fact, since in this regard it does no more than prudently maintain that ‘the extent of algal growth is constrained and there are unlikely to be large scale and widespread algal blooms causing an undesirable disturbance’, thereby contesting fulfilment of the third and fourth eutrophication criteria more than the second criterion.
138. Accordingly, the data provided by the Commission concerning the chlorophyll concentration level in the Wash can be considered to be indicative of a certain accelerated growth of algae and higher forms of plant life in that area at issue.
139. So far as concerns, second, the presence of macroalgae, it is apparent from the ERM report that no systematic study has been carried out on this subject. However, the Commission relies upon the passage in that report indicating that the presence of macroalgae beds covering an extensive area was noted in the region of the Welland Estuary in 1997. The Commission also refers to the fact that the OSPAR Commission had already found in 1993 that there were changes in macrophyte growth, notably in the form of mass occurrence of Ulva, in the Wash, due to long-term increasing anthropogenic eutrophication in these coastal waters.
140. While the United Kingdom, referring to the United Kingdom report on the Wash, disputes the presence of macroalgae in that area, it restricts itself in this regard to assertions that are not backed up by documented scientific sources, except so far as concerns the years 2000 to 2002, for which it refers to a survey carried out by the Environment Agency. However, that period is not relevant in the present action. For the same reason, the United Kingdom cannot challenge the data in the ERM report by relying on the report Eastern English Coast
referred to in paragraph 126 of the present judgment, as this report concerns the period between 1999 and 2006.
141. It is nevertheless to be noted that the evidence adduced by the Commission concerning the presence of macroalgae in the Wash does not include any figures that can provide support for the extent of coverage that is alleged. First, the statement in the ERM report that is referred to in paragraph 139 of the present judgment not only is not based on direct observation but also is fragmentary. That statement, which results merely from a telephone conversation with an officer of English Nature, the public body which was responsible for nature protection in England, concerns a single year in the relevant period and just one of the Wash estuaries. Second, the findings attributed to the OSPAR Commission in 1993 do not appear in the monitoring report of the Centre for Environment, Fisheries and Aquaculture Science (‘CEFAS’) that is contained in the May 2003 edition of Shellfish News
to which the Commission refers in its application.
142. However, for the purposes of the examination relating to the second eutrophication criterion, it is to be accepted that these few isolated pieces of evidence adduced by the Commission, testifying to the presence of macroalgae in the Wash during the relevant period, taken together with the greater body of specific and coherent evidence concerning the regular recording of high chlorophyll concentration levels in that area at issue during the relevant period, including in summer, demonstrate to the requisite legal standard that there was accelerated growth of algae and higher forms of plant life in that area during that period, accelerated growth which indeed was not contested by the United Kingdom in its response to the reasoned opinion of 19 April 2001.
143. Therefore, as the United Kingdom has adduced nothing capable of calling into question the conclusions of the ERM report that that growth was caused by the enrichment of the Wash by nutrients, the Commission has proved to the requisite legal standard that the second eutrophication criterion is fulfilled so far as concerns this area at issue.
iii) The third and fourth eutrophication criteria: undesirable disturbance to the balance of organisms present in the water and to the quality of the water
144. The Commission submits, first, that it is apparent from the data provided by the United Kingdom itself that the relevant English coastal waters, that is to say the Humber to Norfolk subdivision, which includes the Wash, are extremely enriched by nutrients. Furthermore, chlorophyll concentration levels in the Wash have frequently and considerably exceeded the 10 µg/l threshold. According to the Commission, the MV report showed in this connection unexpectedly high levels of phytoplankton growth despite the high turbidity. This results in oxygen super-saturation in all the Wash estuaries. Nor have the United Kingdom authorities adduced any evidence that the low level of dissolved oxygen recorded in the Wash has no environmental impact.
145. It is clear, however, that, while those circumstances may demonstrate that the first and second eutrophication criteria are fulfilled in the area at issue, they do not, on the other hand, enable it to be ascertained whether the third and fourth criteria are too.
146. It is true that oxygen super-saturation or deoxygenation, which, according to the ERM report, constitute contradictory tendencies liable to appear in parallel in eutrophic waters, might produce an undesirable disturbance to the balance of organisms present in the water (see, by analogy, Commission
v France, paragraphs 44 and 54). However, the Commission has adduced no specific evidence capable of demonstrating the existence of such disturbance in the present case.
147. In this regard, the Commission cannot profitably complain that the United Kingdom authorities have not proved that the low level of dissolved oxygen recorded in the Wash has no environmental impact. As has been stated in paragraphs 42 to 48 of the present judgment, it is incumbent upon the Commission, which has the burden of proving the allegation that an obligation has not been fulfilled, to adduce at least a certain amount of evidence that the eutrophication criteria were fulfilled so far as concerns the area at issue as at 31 December 1993 or that it was probable that they would be in the near future. It is only if such evidence has been furnished by the Commission that the Member State concerned must, in turn, rebut the Commission’s case by adducing any evidence relevant for that purpose.
148. Second, the Commission states that an atypical form of diarrhetic shellfish poisoning (‘DSP’) has been identified in Wash cockles, which has resulted in Wash shellfishery closures.
149. However, the cases of DSP relied upon by the Commission, which were revealed by the study results mentioned in the MV report and by the CEFAS monitoring reports contained in the May 2003 and May 2005 editions of Shellfish News, concern the years 2002 to 2005, that is to say a period considerably after the relevant period. Therefore, in accordance with paragraphs 58 to 63 of the present judgment, any harmful environmental effects thus recorded in those reports cannot have probative value in the present action.
150. Third, the Commission states that the Wash has known extensive blooms of Phaeocystis . It maintains that in certain circumstances the demonstration of accelerated growth of a species of phytoplankton such as Phaeocystis
is in itself direct evidence of undesirable change, because different ambient nutrient concentrations result in different species assemblages. Thus, Phaeocystis
is known for producing, in high concentrations, the appearance of a mass of viscous foam which covers the surface of the water and washes up on the coast or clogs fishing nets. The Commission adds that this species is recognised by OSPAR as harmful since it is distasteful to the zooplankton which the fish feed on and its blooms can cause foam on beaches. According to the Commission, the United Kingdom, however, appears relatively unconcerned about the presence of those blooms.
151. It is to be noted with regard to those submissions that, as has already been stated in paragraph 38 of the present judgment, proof of an accelerated growth of algae and higher forms of plant life, which constitutes the second eutrophication criterion, cannot, as such, be considered to demonstrate an undesirable disturbance to the balance of organisms present in the water, or indeed to the quality of the water, which correspond to the third and fourth eutrophication criteria.
152. It is true that the Court has already held, first, that modification of the structure of the phytoplankton community so as to reinforce the presence of a species such as Phaeocystis, which, while not toxic, is none the less harmful, constitutes an undesirable disturbance to the balance of organisms present in the water and, second, that changes to the colour, odour and texture of the water, whose adverse effects on tourist activities are obvious, and which in addition are very likely to have harmful effects on fishing activities, represent an undesirable disturbance to the quality of the water (see, to this effect, Commission
v France, paragraphs 23, 38, 55 and 56).
153. In the present case, however, although the 1997 Rendell study, which relates to surveys carried out between 1992 and 1994, indicates that enrichment of the Wash by nutrients ‘may affect primary production in coastal waters by contributing to the shift in species dominance from diatoms to flagellates and affecting the likelihood of bloom conditions occurring during the summer months’, the Commission has not adduced any specific evidence attesting that there were Phaeocystis
blooms in the Wash during the relevant period.
154. While the ERM report, upon which the Commission essentially relies, mentions that in 1989 very high chlorophyll concentration levels were associated with extensive blooms of Phaeocystis, this statement concerns the southern North Sea and not the Wash. That report itself observes with regard to the Wash that instances of foam on beaches are rare.
155. Similarly, the Commission cannot deduce any reliable evidence from the study, relied upon in its reply, by P. Shaw and D. Purdie ( Phytoplankton photosynthesis-irradiance parameters in the near-shore UK coastal waters of the North Sea: temporal variation and environmental control, 2001), since that study, though relating to surveys carried out between 1993 and 1995, concerns the presence of Phaeocystis
in the coastal waters of the North Sea.
156. As to the remainder, the Commission merely states that the chlorophyll concentration peaks observed in the Wash are consistent with Phaeocystis
blooms. However, a general and abstract contention of that kind concerning the possible link between the chlorophyll level and the presence of that species of phytoplankton does not demonstrate in the slightest that there were in fact such blooms in the Wash during the relevant period.
157. With regard to the Commission’s contention that the United Kingdom has not studied the composition of the phytoplankton sufficiently, for example by failing to analyse sediment cores, it need only be reiterated that, as stated in paragraphs 42 to 48 of the present judgment, it is for the Commission to prove the allegation that an obligation has not been fulfilled, by adducing at least a certain amount of evidence that the eutrophication criteria were fulfilled in the area at issue as at 31 December 1993 or that it was probable that they would be in the near future; it is only if such evidence has been furnished that the Member State concerned must, in turn, rebut the Commission’s case by adducing any evidence relevant for that purpose. In the present case, as has already been pointed out, the Commission has not adduced any evidence that Phaeocystis blooms were present in the Wash during the relevant period.
158. In any event, even if such evidence had been adduced, inasmuch as the United Kingdom submitted, without being contradicted in that regard, that limited incidence of foam on United Kingdom beaches is longstanding and has been recorded for over a century, it was for the Commission, which bears the burden of proof so far as concerns the causal link between the second eutrophication criterion and the third and fourth criteria, to demonstrate that the alleged instances of the presence of foam result, even probably, from accelerated growth of algae and higher forms of plant life caused by nutrient enrichment.
159. In this connection, the Commission cannot profitably rely on the fact that there is increased recognition in the scientific community of the link between the frequency of occurrence of blooms of algae, including those forming scum, such as Phaeocystis, and increased nutrient inputs, a link which it states to be confirmed by the 2008 OSPAR report which it produced at the hearing. Such a conclusion does not amount to specific evidence of the existence of such a link as regards the Wash. Furthermore, in so far as that conclusion does not seem to reflect scientific and technical knowledge as it stood on 31 December 1993, it cannot, as is apparent from paragraphs 58 to 63 above, be relevant in the present action.
160. Fourth, the Commission relies on the presence in the Wash of substantial beds of macroalgae such as Ulva
(‘green tides’). It states that the United Kingdom did not carry out any study to measure the density of those algae and to demonstrate that a healthy benthos existed in and on the sediment.
161. It is necessary first of all to reiterate that it is true that, as the United Kingdom submits, and as has already been stated in paragraph 38 of the present judgment, proof of an accelerated growth of algae and higher forms of plant life, which constitutes the second eutrophication criterion, cannot, as such, be considered to demonstrate undesirable disturbance to the balance of organisms present in the water or to the quality of the water, which correspond to the third and fourth eutrophication criteria.
162. However, as the Court has already held, the proliferation of macroalgae such as Ulva, which are opportunistic algae, constitutes an undesirable disturbance to the balance of organisms present in the water and, because of their adverse effects inter alia on tourist activities, green tides also constitute an undesirable disturbance to the quality of the water. Those algae, which are easily torn from their substrate and ultimately wash up on beaches, often covering them to some depth, strongly disturb or even render impossible tourist activities such as bathing, fishing or hiking along the coast (see, to this effect, Commission
v France, paragraphs 23, 73 and 74).
163. In the present case, it must nevertheless be stated, first, that while, as is apparent from paragraph 142 above, the Commission has admittedly adduced certain isolated pieces of evidence capable of suggesting that macroalgae were present in the Wash or, at least, in a part of it, evidence which, taken together with the high chlorophyll concentration levels, can demonstrate that the second eutrophication criterion is established so far as concerns that area at issue, it has not adduced evidence showing that their presence was significant and, therefore, corresponded to a genuine proliferation.
164. In this regard, the MV report, adduced by the Commission in support of its argument, indeed does no more than state that green macroalgae were abundant in the Wash at the beginning of the 20th century, that is to say, well before the relevant period. Furthermore, while that report indicates that it cannot be asserted that green algae will not proliferate to dangerous levels given the current enrichment of that body of water by nutrients, the hypothesis of a proliferation is not, however, backed up by any scientific data that are specific and quantified.
165. It must be stated, secondly, that the Commission has not adduced any evidence that the alleged presence of Ulva
in the Wash, even though it was limited, resulted in significant adverse environmental effects. The Commission, which has the burden of proving the allegation that an obligation has not been fulfilled, cannot merely complain that the United Kingdom did not carry out the necessary studies in order to demonstrate the absence of such adverse effects, as otherwise the burden of proof would effectively be reversed. In any event, the Commission has not contested the United Kingdom’s assertion, derived from the United Kingdom report on the Wash, that the benthic invertebrates associated with the sediment are healthy, a 15-year data set indicating a normal community which changes according to salinity regime and sediment characteristics.
166. Fifth and finally, the Commission mentions the disappearance of Zostera
in the Wash as a possible result of eutrophication. It submits that the effect of eutrophication on Zostera
is a well-established phenomenon. Historical publications from the beginning of the 20th century and later prove the abundance of macroalgae and also a certain occurrence of Zostera
species. The wasting disease referred to by the United Kingdom to explain their disappearance did not affect Zostera noltii
and the susceptibility of Zostera marina
to that disease is increased by elevated nitrogen concentrations. The Commission adds that, although the United Kingdom specifies many factors as possible causes of the disappearance of Zostera, it appears not to be concerned that one of the main causes is the exposure of Zostera
to excess nutrient enrichment and high ammonia levels.
167. Those contentions must, however, be rejected for the same reasons as those in paragraphs 103 to 112 of the present judgment concerning the Humber Estuary.
168. The Commission does not adduce any specific evidence that the slight presence of Zostera
in this area at issue results, at least probably, from the accelerated growth of algae and higher forms of plant life caused by nutrient enrichment. It does no more than assert in a general and abstract manner that Zostera
may be affected by such circumstances and that its disappearance is ‘a possible result of eutrophication’.
169. It is true that the Commission maintains that it is apparent from the new Preston atlas and from other information, in particular an address cited in the MV report which was given in 1966 by Mr R. Pilcher to the Lincolnshire Naturalists Society, that Zostera
may have been present in greater quantity in the Wash during the first part of the 20th century.
170. However, that earlier presence, which is moreover not disputed by the United Kingdom, is irrelevant since it does not in any way demonstrate that the alleged disappearance of Zostera
resulted, at least probably, from accelerated growth of algae and higher forms of plant life in the Wash that was caused by its enrichment by nutrients.
171. Furthermore, it is apparent from the MV report, adduced by the Commission itself, that Zostera
was never present in the Wash in abundance. While the new Preston atlas, also adduced by the Commission, shows that Zostera
could in fact have been present in the Wash until the 1970s, or even until 1986, the atlas does not provide any indication as to its extent. The United Kingdom states, without being contradicted in this regard by the Commission, that it is apparent from the data provided by the 2008 Best study concerning the period from 1800 to 2007 that the presence of Zostera
in the Wash has always been relatively sporadic.
172. In the light of the foregoing, it must be found that the Commission has not adduced at least a certain amount of evidence capable of proving that the accelerated growth of algae and higher forms of plant life in the Wash produced or might in the near future have produced in that area at issue undesirable disturbance to the balance of organisms present in the water and to the quality of the water.
173. Consequently, as the third and fourth eutrophication criteria have not been proved to the requisite legal standard so far as concerns the Wash, the first complaint must be rejected in so far as it relates to that area at issue.
c) The Deben and Colne Estuaries
i) The first eutrophication criterion: enrichment by nutrients
174. While the United Kingdom submits that enrichment of the Deben and Colne Estuaries by nutrients has decreased significantly in recent years, it does not dispute that during the relevant period there was such enrichment, as indicated by the data in the ERM report adduced by the Commission.
175. The United Kingdom’s argument that enrichment by nitrogen is more effectively addressed through measures taken pursuant to Directive 91/676 must be rejected for the same reasons as those stated in paragraph 122 of the present judgment in respect of the Wash.
176. The first eutrophication criterion is therefore proven for the Deben and Colne Estuaries.
177. Accordingly, it must be examined whether the Commission has proved to the requisite legal standard that the three other eutrophication criteria are fulfilled as regards these areas at issue.
ii) The second eutrophication criterion: an accelerated growth of algae and higher forms of plant life
178. Since it is common ground that the Deben and Colne Estuaries form separate bodies of water, the situation of each of these estuaries with regard to the second eutrophication criterion should be examined separately.
– The Deben Estuary
179. According to the Commission, it is apparent from the ERM report that nutrient inputs, essentially from sewage treatment works, have resulted in accelerated growth of algae and higher forms of plant life in the Deben Estuary. It relies in this regard on the growth of phytoplankton and on macroalgal coverage.
180. So far as concerns, first, phytoplankton growth, it must be stated that although, as already indicated in paragraph 127 of the present judgment, the Commission cannot validly rely on exceeding of the chlorophyll concentration threshold of 15 μg/l for the 90th percentile, a threshold accepted by the United Kingdom within the framework of OSPAR, it is apparent from the ERM report, which is based in this regard on the ‘1994 Elliott report’, that this estuary experienced very high chlorophyll concentration peaks, reaching 86.6 µg/l in 1992 and, in particular, 339 µg/l in 1993. The United Kingdom is wrong in its assertion that the Commission did not take into consideration the duration and extent of phytoplankton growth and what takes place throughout the year. The ERM report expressly states that those peaks occurred from spring until autumn.
181. While the United Kingdom seeks to contest the data in the ERM report, the material which it puts forward in this regard, namely the results of a study carried out by the Environment Agency which are set out in the report relating to the Deben and Colne Estuaries provided in response to the reasoned opinion of 19 April 2001 ( Urban Waste Water Treatment Directive: Assessment of the Eutrophic Status of the Deben and the Colne Estuaries ; ‘the United Kingdom report on the Deben and Colne Estuaries’), confirms the conclusions of the ERM report, since it attests to the presence between 1992 and 1997 of algal blooms involving chlorophyll concentration levels exceeding 10 µg/l and to values in excess of that threshold also in the summer months at the most upstream sites of the two estuaries concerned. The United Kingdom report on the Deben and Colne Estuaries states in addition that those estuaries have saline waters in their middle and outer sections, a fact which justifies the threshold of 10 µg/l being regarded as a relevant criterion. According to the report, this threshold was also exceeded in those sections in summer.
182. Nor can the United Kingdom, in order to contest the data in the ERM report, profitably rely upon Deben Habitats Directive Review of Consents Report: Water Quality Assessment, a study published by the Environment Agency in 2007. In accordance with what has been stated in paragraphs 58 to 63 above, since this study relates to chlorophyll concentration levels in the Deben Estuary between 2002 and 2005, it has no evidential value in the present action. The same is true of the data provided by the United Kingdom in the presentation sent to the Commission following a meeting with Commission staff in October 2005, since they concern 2002 and 2003.
183. The fact, asserted by the United Kingdom, that the Deben Estuary is turbid is not capable of calling these findings into question. First, that turbidity does not prevent the presence of high chlorophyll levels which reveal abundant phytoplankton production and, second, the light average mentioned by the United Kingdom of 28 and 29 days per year does not rule out phytoplankton growth during that period of about one month. The ERM report, which cites in this regard the ‘1997 Sage study’, indeed states that incident light levels recorded in the Deben Estuary were sufficient to maximise phytoplankton growth throughout the period from April to October, that the phytoplankton were able to compensate for lower light levels and that there was some evidence that the turbidity was partially due to the phytoplankton itself.
184. It follows that the data provided by the Commission concerning the chlorophyll concentration level and phytoplankton growth in the Deben Estuary can be considered to be indicative of accelerated growth of algae and higher forms of plant life in that area at issue during the relevant period.
185. So far as concerns, second, macroalgal coverage, it is apparent from the ERM report, which cites the results recorded on the basis of aerial images in the course of the ‘1997 Sage study’, that significant masses of algae were observed in the Deben Estuary between June and December 1996. Furthermore, according to another study also relating to that period (Nedwell, D., et al., Rapid assessment of macroalgal cover on intertidal sediments in a nutrified estuary, 2002; ‘the 2002 Nedwell study’), the results of which are set out in the MV report, the average macroalgal cover in the whole estuary was close to 42% when analysis began in June and then increased to 47% in July, subsequently falling to 30% in September and to roughly 10% in December.
186. While this evidence is such as to indicate that macroalgae were present in the Deben Estuary during a year in the relevant period, it should, however, be noted that, as is acknowledged in the ERM report, the biomass of those algae was not measured. Furthermore, the 2002 Nedwell study, upon which the Commission essentially relies, expressly concludes that this estuary is not subject to large macroalgal blooms despite its enrichment by nutrients, although this study does state that the absence of proliferation of macroalgae in the estuary may result from a lack of suitable attachment points, so that its absence does not constitute proof of the absence of eutrophication.
187. It is, however, to be accepted that the evidence adduced by the Commission concerning the presence – even if it was limited – of macroalgae in the Deben Estuary during the relevant period, taken together with the various data establishing that high chlorophyll concentration levels were recorded in that area at issue, demonstrates to the requisite legal standard that there was accelerated growth of algae and higher forms of plant life in that area.
188. Therefore, as the United Kingdom has adduced nothing capable of calling into question the conclusions of the ERM report that that growth was caused by the enrichment of the Deben Estuary by nutrients, the Commission has proved to the requisite legal standard that the second eutrophication criterion is fulfilled so far as concerns this estuary.
– The Colne Estuary
189. In the same way as in the case of the Deben Estuary, the Commission submits that it is apparent from the ERM report that nutrient inputs, essentially from sewage treatment works, have resulted in accelerated growth of algae and higher forms of plant life in the Colne Estuary. It relies in this regard on the growth of phytoplankton and on macroalgal coverage.
190. So far as concerns, first, phytoplankton growth, it must be stated that although, as already indicated in paragraph 127 of the present judgment, the Commission cannot rely on exceeding of the chlorophyll concentration threshold of 15 μg/l for the 90th percentile, a threshold accepted by the United Kingdom within the framework of OSPAR, it is apparent from the ERM report, which, in this regard, is again based on the ‘1994 Elliott report’ referred to above, that high chlorophyll concentration peaks, of 30 to 40 µg/l in 1992 and 20 to 30 µg/l in 1993, were observed in this estuary. The United Kingdom is again incorrect in its assertion that the Commission did not take into consideration the duration and extent of phytoplankton growth and what takes place throughout the year. The ERM report expressly states that those chlorophyll peaks were observed from spring until autumn.
191. For the same reasons as those set out in paragraph 181 of the present judgment, the data in the United Kingdom report on the Deben and Colne Estuaries, which do not distinguish in this regard between the estuaries, by no means call the conclusions of the ERM report into question but, on the contrary, are such as to confirm them.
192. Furthermore, the data in Colne Habitats Directive Review of Consents Report: Water Quality Assessment, a report published by the Environment Agency in 2007, and the data provided by the United Kingdom in the presentation which it sent to the Commission in 2005 must be disregarded for the same reasons as those set out in paragraph 182 of the present judgment.
193. Finally, the fact, asserted by the United Kingdom, that the Colne Estuary is turbid is not capable of calling these findings into question since, first, that turbidity does not prevent there being high chlorophyll concentration levels which reveal abundant phytoplankton production and, second, the light average pleaded by the United Kingdom of 28 and 29 days per year does not rule out phytoplankton growth during that period of about one month.
194. It follows that the data provided by the Commission concerning the chlorophyll concentration level and phytoplankton growth in the Colne Estuary can be considered to be indicative of accelerated growth of algae and higher forms of plant life in that area at issue during the relevant period.
195. So far as concerns, second, macroalgal coverage, it is apparent from the ERM report, which cites the results of analyses carried out on the basis of aerial images in the course of the ‘1997 Sage study’ referred to above, that significant masses of algae were observed between June and December 1996.
196. The data in the United Kingdom report on the Deben and Colne Estuaries do not enable the United Kingdom to contest those findings effectively. As it acknowledges, that report contains no data, even in the form of photographic images, concerning the presence of macroalgae in the Colne Estuary. At most, the report confines itself in this regard to noting that in 1995 the Joint Nature Conservation Council highlighted the predominance of stretches of mud in that estuary. A statement of that kind not supported by other evidence cannot, however, call into question the findings contained in the ERM report concerning the presence of macroalgae.
197. Accordingly, the evidence adduced by the Commission concerning the presence of macroalgae in the Colne Estuary also serves to prove that there was accelerated growth of algae and higher forms of plant life in that area.
198. As the United Kingdom has adduced nothing capable of calling into question the findings in the ERM report that that growth was caused by the enrichment of the Colne Estuary by nutrients, it must therefore be concluded that the Commission has likewise proved to the requisite legal standard that the second eutrophication criterion is fulfilled so far as concerns this estuary.
iii) The third and fourth eutrophication criteria: undesirable disturbance to the balance of organisms present in the water and to the quality of the water
199. In support of its contentions as to an undesirable disturbance to the balance of organisms present in the Deben and Colne Estuaries, the Commission states first of all that the positive correlation between nutrient inputs from United Kingdom mainland estuaries and the concentration of chlorophyll means that the substantial changes in those inputs between 1930 and 1990 would be predicted to have resulted in substantial changes in phytoplankton growth. A high chlorophyll concentration level is stated to be in fact an indicator of undesirable disturbance, given the reasonably foreseeable impact on phytoplankton community structure. According to the Commission, the information gathered in this regard by the United Kingdom is ad hoc, limited and contrary to the criteria established within the framework of OSPAR. Furthermore, sampling would have had to be conducted in respect of a period when nutrient levels were not elevated and the analysis of the samples would have had to show that no change had occurred. The Commission observes that the only feasible way of doing this would be through sediment core analysis of nutrient profiles and past phytoplankton community structure as revealed in the sediment cores.
200. However, as has already been stated in paragraph 39 of the present judgment, while the high chlorophyll concentration levels recorded in the estuaries concerned and the fact that those levels could result from nutrient inputs are particulars capable of demonstrating the existence of accelerated growth of algae and higher forms of plant life caused by nutrient enrichment, those matters are, on the other hand, irrelevant for the purpose of demonstrating the existence of undesirable disturbance to the balance of organisms present in the water or to the quality of the water.
201. In this connection, while the United Kingdom puts forward a number of matters concerning the years 1992 and 1997 in order to establish, inter alia, that there was no adverse effect on phytoplankton community structure in the Deben and Colne Estuaries, the Commission merely denies the evidential value of the matters put forward, without adducing the slightest evidence in support of that denial. The Commission however has the task, as has already been stated in paragraphs 42 to 48 of the present judgment, of proving the allegation that an obligation has not been fulfilled and, to that end, of adducing at least a certain amount of evidence of the – at least probable – adverse environmental effects caused by nutrient enrichment and accelerated growth of algae and higher forms of plant life.
202. It must therefore be examined whether the other matters put forward by the Commission are sufficient to demonstrate such adverse effects as regards each of the estuaries at issue, which constitute separate bodies of water.
– The Deben Estuary
203. The Commission relies, first, on substantial macroalgal coverage in this estuary. It states that the similarities with areas already identified as sensitive, such as the Ythan Estuary and Langstone Harbour, are in this regard so close that it is not readily understandable why the United Kingdom refuses to identify the Deben Estuary as a sensitive area. Macroalgae do lie behind damage to the salt-marsh and the disappearance of Zostera . With regard to salt-marsh, the Commission submits that occasional aerial monitoring is not sufficient. Also, Enteromorpha
and Ulva
are reported as proliferating in the salt-marsh. According to the Commission, if it were true, as the United Kingdom asserts, that green macroalgae are scarce, it would be all the more vital to safeguard the salt-marsh for birds such as the avocet and the brent goose, which need a habitat. As to the effect on Zostera, the Commission states that Zostera
was once prolific along the United Kingdom coastline but has not recently been reported in the Deben Estuary. Macroalgae, which use Zostera
as an attachment point, have a negative effect on Zostera .
204. It should be stated that, as is apparent from paragraphs 185 to 187 of the present judgment, the data adduced by the Commission concerning the presence of macroalgae in the Deben Estuary do not demonstrate to the requisite legal standard that that presence was significant during the relevant period. The Commission cannot, in this respect, simply criticise the relevance of the data obtained from the aerial observations conducted by the United Kingdom since, as has been pointed out in paragraphs 42 to 48 of the present judgment, it is for the Commission to prove that the eutrophication criteria were fulfilled as at 31 December 1993 or that it had to be considered that they would be in the near future. Nor can the Commission avoid meeting that obligation on the ground that the Ythan Estuary – which is a body of water separate from the body of water at issue – even supposing that it displays the same characteristics as the latter, a matter which is not however in any way proven, has been identified by the United Kingdom as a sensitive area within the meaning of Directive 91/271. Proof of the presence of macroalgae in that estuary does not in any way demonstrate such a presence in the Deben Estuary.
205. The Commission has not adduced the slightest evidence that the, albeit limited, presence of macroalgae in the Deben Estuary is the probable cause of the damage to the salt-marsh and the disappearance of Zostera .
206. As regards, first of all, the alleged effect on the salt-marsh, while the Commission relies on the loss of salt-marsh, a fact which is not contested by the United Kingdom, it merely refers to the ‘potential’ relationship between salt-marsh loss and eutrophication, but does not furnish any evidence capable of supporting the proposition that there is, at least probably, such a link so far as specifically concerns the Deben Estuary.
207. On the contrary, the 2002 Nedwell study adduced by the Commission states that Enteromorpha
and Ulva, far from proliferating in salt-marsh, were only found at its edges. The scientific study adduced by the Commission with its reply in support of its arguments on this point (Deegan, L., Lessons learned: The Effects of Nutrient Enrichment on the Support of Nekton by Seagrass and Salt Marsh Ecosystems, 2002) does not in any way call these findings into question, since it merely states generally that nutrient enrichment may affect coastal ecosystems such as salt-marsh, without analysing the specific situation of the Deben Estuary. Nor does the Commission adduce any evidence of a specific adverse effect on the bird populations present in that estuary. In any event, in the absence of evidence showing that the diminution in the extent of the salt-marsh results from algal growth due to the enrichment of that estuary by nutrients, any adverse effects for birds resulting from that diminution do not fall within the scope of Directive 91/271.
208. As regards the alleged effect on Zostera, the Commission’s contentions must be rejected for the same reasons as those in paragraphs 103 to 112 of the present judgment concerning the Humber Estuary.
209. The Commission does not adduce any specific and coherent evidence that the alleged disappearance of Zostera
in the Deben Estuary results, even probably, from the accelerated growth of algae and higher forms of plant life caused by nutrient enrichment, since it does no more than assert in a general manner that ‘ Zostera
was once prolific along the UK coastline but has not recently been reported for the Deben’ and that ‘macroalgae … have a negative effect on Zostera ’.
210. It is true that the Commission adduced, for the purposes of the hearing, the 1993 Butcher study, which indicates that Zostera
was present in abundance in the Deben Estuary in 1917. However, such a past presence does not in any way demonstrate that the alleged disappearance of Zostera
resulted from accelerated growth of algae and higher forms of plant life in that estuary that was caused by its enrichment by nutrients. That is all the more so since (i) that scientific study, while published in 1941, concerns the situation in the Deben Estuary in 1917, (ii) the study itself states that multiple factors might be the cause of the disappearance of Zostera
and (iii) one of the species of Zostera
had already disappeared in 1920. This last finding is consistent, moreover, with the conclusions set out in the 2008 Best study adduced by the United Kingdom which relates to the period from 1800 to 2007, according to which Zostera
has been present in that estuary only sporadically.
211. The Commission submits, second, that the ERM report refers to evidence of rafts of benthic diatoms breaking away from the sediments such that their presence becomes an aesthetic nuisance. The Commission states that the United Kingdom presents no evaluation of any environmental impact of the proliferation of benthic diatom mats.
212. It must, however, be stated that the ERM report contains no specific evidence of a significant presence of benthic diatoms in the Deben Estuary but states solely that, according to the scientific study which it cites, benthic diatom colonies could sometimes break away from the sediments in late summer, thus indicating a sporadic nuisance. Furthermore, since the Commission has the burden of proving the failure to fulfil obligations, it cannot, in accordance with what has been stated in paragraphs 42 to 48 of the present judgment, profitably complain of a lack of evaluation on the part of the United Kingdom in this regard, since it still has not proved the existence of a significant adverse environmental effect corresponding to the third and fourth eutrophication criteria.
213. The Commission relies, third and last, on the presence of DSP in the Deben Estuary.
214. However, it need merely be stated that the United Kingdom report on the Deben and Colne Estuaries, which the Commission seeks to invoke, refers solely to a case of DSP in the Colne Estuary, no testing having been carried out in the Deben Estuary in the absence of shellfisheries there. Thus, the Commission has again adduced no evidence showing an adverse effect in this regard.
215. In light of the foregoing, it must be found that the Commission has not adduced at least a certain amount of evidence capable of proving that the accelerated growth of algae and higher forms of plant life in the Deben Estuary produced or could in the near future have produced in that area at issue undesirable disturbance to the balance of organisms present in the water and to the quality of the water.
– The Colne Estuary
216. The Commission relies, first, on substantial macroalgal coverage in this estuary.
217. As has been found in paragraphs 195 to 197 of the present judgment, the Commission has demonstrated a significant presence of macroalgae in the Colne Estuary. Nevertheless, in so far as the arguments which it advances to demonstrate the adverse effects in this area at issue of the macroalgae on salt-marsh are identic al to those which it has put forward concerning the Deben Estuary, they must be rejected for the same reasons as those in paragraphs 206 and 207 of the present judgment.
218. As to the remainder, the Commission complains that the United Kingdom did not provide documents which, according to the Colne Habitats Directive Review of Consents Report: Water Quality Assessment
adduced by the United Kingdom that is referred to in paragraph 192 of the present judgment, identify certain adverse environmental effects, in particular on bird populations, of the enrichment of the Colne Estuary by nutrients. It is, however, for the Commission to prove such effects, in accordance with what has been stated in paragraphs 42 to 48 of the present judgment. In any event, with regard to the alleged effect on bird populations, while it is true that the abovementioned report indicates that 9 species out of 20 are threatened, it merely states in a very general manner that discharges into the water could have the ‘potential’ to contribute to the threat to those species.
219. Furthermore, the Commission’s contentions as regards the alleged effect on Zostera
must be rejected, for the same reasons as those in paragraphs 103 to 112 of the present judgment.
220. The Commission submits, in reliance in particular on the MV report, whose source in this regard consists of a mere telephone conversation, and on a more recent scientific study (Chesman, B., et al., Essex Estuaries European Marine Site, 2006; ‘the 2006 Chesman study’), that, while Zostera
was formerly present in the Colne Estuary, it had disappeared when searched for in 2002. However, such a fact does not in any way demonstrate that the presence of macroalgae is, at least probably, the cause of that alleged disappearance. In any event, the Commission has adduced no evidence to this effect.
221. Nor has the Commission produced any specific information concerning the extent of the Zostera
presence recorded in the past in the Colne Estuary. It is irrelevant in this regard that it may have had a significant presence in the Blackwater Estuary, as the Commission contends. Even if that contention is proven, which the United Kingdom disputes, the Blackwater Estuary constitutes a body of water distinct from the Colne Estuary. That contention therefore does not show in the slightest that the Colne Estuary has been affected in the same way by a phenomenon of Zostera
disappearance. The United Kingdom contends without being contradicted in this regard by the Commission that, according to the 2008 Best study, which relates to the period between 1800 and 2007, Zostera
was present only sporadically in the Colne Estuary.
222. The fact, pleaded by the Commission for the first time in its reply, that Zostera
is highly sensitive to nitrates and ammonium and that nitrate and ammonium levels in the Colne Estuary during 1992, 1993 and 1995 were well above levels at which toxic effects have been demonstrated cannot, in itself, establish, in accordance with paragraphs 27 and 28 of the present judgment, that the eutrophication criteria are fulfilled so far as concerns the Colne Estuary. Such a fact is capable at most of proving that the alleged disappearance of Zostera, on the assumption that it is established, results from enrichment of the water by nutrients but not, as Directive 91/271 requires, that it results from accelerated growth of algae and higher forms of plant life which is due to such enrichment in that estuary.
223. Second, the Commission relies on the presence of benthic diatoms in the Colne Estuary. However, as its arguments in this respect merge with those relating to the Deben Estuary, they must be rejected for the reasons mentioned in paragraphs 211 and 212 of the present judgment.
224. Finally, the Commission refers, third, to a case of DSP in the Colne Estuary. It need merely be stated, however, that an isolated case of this kind cannot by itself demonstrate that there are significant adverse environmental effects corresponding to the third and fourth eutrophication criteria.
225. In light of the foregoing, it must be found that the Commission has not adduced at least a certain amount of evidence capable of proving that the accelerated growth of algae and higher forms of plant life in the Colne Estuary produced or could in the near future have produced in that area at issue undesirable disturbance to the balance of organisms present in the water and to the quality of the water.
226. Consequently, as the third and fourth eutrophication criteria have not been proved to the requisite legal standard, the first complaint must be rejected in so far as it relates to the Deben and Colne Estuaries.
d) The Outer Thames Estuary
227. As a preliminary point, the United Kingdom contends that the subject-matter of the action is imprecise so far as concerns the Outer Thames Estuary. While the letter of formal notice of 4 November 1999 indicated that this estuary includes, in addition to the coastal waters of the Outer Thames Estuary, its subsidiary estuaries, including the Blackwater Estuary, according to the United Kingdom the application relates only to the areas indicated on one of the maps which is annexed to the application, and which notably excludes the Blackwater Estuary. In the United Kingdom’s submission, if the action is confined to the area indicated on that map, the evidence concerning, for example, the Blackwater Estuary is irrelevant. If, conversely, the action is intended to cover a broader area, the Commission must adduce evidence in relation to each of the four eutrophication criteria in respect of each of the estuaries concerned, which constitute separate bodies of water.
228. This line of argument cannot be upheld.
229. Even if the relevant map annexed to the application does not include certain subsidiary estuaries such as the Blackwater Estuary, a point which the United Kingdom asserts but does not demonstrate precisely, the Commission, contrary to what the United Kingdom submits, did not indicate in the slightest in the application that it was seeking to limit the scope of its action solely to the areas expressly referred to on that map.
230. In order to determine the subject-matter of the present action, regard is to be had to the terms in which the application is couched. It is clear from its terms that the complaint put forward by the Commission concerning the Outer Thames Estuary includes, like the letter of formal notice of 4 November 1999 and the reasoned opinion of 19 April 2001, all its subsidiary estuaries, including the Blackwater Estuary.
231. The United Kingdom is also incorrect in its submission that, in that case, the Commission has the task of proving that the four eutrophication criteria are fulfilled with regard to each of those subsidiary estuaries. It is clear from the ERM report that the Outer Thames Estuary includes the secondary estuaries on its north and south banks. While the United Kingdom asserts that each estuary in question forms a separate body of water, it adduces no specific evidence in support of this assertion. In those circumstances, it must be held that the Commission has proved to the requisite legal standard that the Outer Thames Estuary, together with all its subsidiary estuaries, constitutes a separate body of water for the purposes of Directive 91/271.
i) The first and second eutrophication criteria: enrichment by nutrients and an accelerated growth of algae and higher forms of plant life
232. It is common ground that, during the relevant period, there was enrichment of the Outer Thames Estuary by nutrients that led to accelerated growth of algae and higher forms of plant life.
233. While the United Kingdom considers that the enrichment of this estuary by phosphorus and nitrates has been reduced in recent years, and while it submits that accelerated growth of algae and higher forms of plant life is limited there, it does not contest, on the other hand, that the data in the ERM report, which was adduced by the Commission, demonstrate the existence during the relevant period of such enrichment that at least gave rise to ‘some’ accelerated growth of algae and higher forms of plant life. The United Kingdom has indeed reiterated that it acknowledges that the first two eutrophication criteria are met in this area at issue.
234. It should be pointed out that, as the United Kingdom implicitly acknowledges, the second eutrophication criterion does not demand accelerated growth of algae and higher forms of plant life that is widespread and general throughout the body of water in question. It is possible that such growth in only certain parts of the body of water may produce significant adverse environmental effects corresponding to the third and fourth eutrophication criteria.
235. Fulfilment of the first and second eutrophication criteria is therefore proven so far as concerns the Outer Thames Estuary.
236. Accordingly, it remains to be examined whether the Commission has proved to the requisite legal standard that the third and fourth eutrophication criteria are fulfilled so far as concerns that area at issue.
ii) The third and fourth eutrophication criteria: undesirable disturbance to the balance of organisms present in the water and to the quality of the water
237. In the first place, the Commission observes that the ERM report shows that in 1995 major blooms of phytoplankton occurred in the Blackwater Estuary in the summer months, resulting in the depletion of nutrients to concentrations near to or below detection levels and in significant oxygen super-saturation. According to the Commission, it is also clear from the analysis of photographs taken by satellite that chlorophyll concentration levels during 1998 to 2000 were generally 300% to 500%, or even more, above levels observed in the reference area.
238. However, aside from the fact that some of this evidence adduced by the Commission does not relate to the relevant period, it is to be noted that, as follows from paragraph 39 of the present judgment, while the proliferation of phytoplankton and the high chlorophyll concentration levels recorded in the Outer Thames Estuary during the relevant period are capable of demonstrating the existence of accelerated growth of algae and higher forms of plant life in that estuary – growth which the United Kingdom indeed does not dispute – they are, on the other hand, irrelevant for the purpose of demonstrating the existence of undesirable disturbance to the balance of organisms present in the water or to the quality of the water.
239. In the second place, the Commission relies on the development of toxins in shellfish, which it states is apparent from data submitted by the United Kingdom itself. It adds that the CEFAS monitoring reports contained in the May 2003 and May 2005 editions of Shellfish News
refer to the outbreak of an atypical form of DSP which had significant consequences, affecting shellfisheries in the Thames.
240. However, according to the report supplied by the United Kingdom in response to the reasoned opinion of 19 April 2001 so far as concerns the Outer Thames Estuary ( Urban Waste Water Treatment Directive: Assessment of the Trophic Status of the Outer Thames Estuary ), upon which the Commission seeks to rely and the data of which concern 1996 in particular, the Outer Thames Estuary does not generally have a problem with the development of toxins.
241. As for the cases of DSP relied upon by the Commission, revealed by scientific contributions published in 2003 and 2005, those cases concern analyses carried out in the period from 2002 to 2005. In accordance with what has been stated in paragraphs 58 to 63 above, such analyses cannot be of any relevance when examining the present action.
242. In the third place, the Commission observes that the United Kingdom report on the Wash refers to the appearance of algal scum on the beaches of the Outer Thames Estuary. It states that investigations carried out by the United Kingdom in this regard have been limited.
243. As to those submissions, it is true that that report recounts the presence of algal scum along the Kent coast. However, the report states that the phenomenon is limited and that a development in accordance with historic events is involved. The Commission has not adduced any evidence capable of calling these statements into question. Nor can the Commission complain that the United Kingdom has not studied the phenomenon in question more, since the Commission has the burden of proving the allegation that an obligation has not been fulfilled.
244. In the fourth place, the Commission mentions the presence of macroalgal mats, particularly of Enteromorpha .
245. It is admittedly correct that, as the United Kingdom submits, and as has already been stated inter alia in paragraph 38 of the present judgment, proof of an accelerated growth of algae and higher forms of plant life, which constitutes the second eutrophication criterion, cannot, as such, be considered to demonstrate undesirable disturbance to the balance of organisms present in the water or to the quality of the water, phenomena which correspond to the third and fourth eutrophication criteria.
246. However, as the Court has recalled in paragraph 162 of the present judgment, the proliferation of opportunistic macroalgae constitutes an undesirable disturbance to the balance of organisms present in the water and, because of their adverse effects, inter alia on tourist activities, green tides also constitute an undesirable disturbance to the quality of the water.
247. In the present case, nevertheless, it is evident, first, that the Commission has not adduced any evidence showing that there was a proliferation of macroalgae in the Outer Thames Estuary.
248. According to the ERM report, which constitutes the starting point for the Commission’s contentions in this regard, the issue of the presence of macroalgae in the Outer Thames Estuary is ‘largely uninvestigated’. According to that report, this is ‘surprising given the high nutrient levels and the references to extensive growth of Enteromorpha . For example it is reported in the literature that “English Nature consider Enteromorpha
to be a problem in the Blackwater”’.
249. General assertions of that kind, otherwise unsupported by scientific data and lacking the slightest indication of the period to which they relate, cannot however, as such, have sufficient probative value to prove the Commission’s contentions. In its reply, the Commission itself moreover complains that the United Kingdom furnished a 2007 report concerning inter alia the Medway ( East Anglian Coast ) which does not set out data, this being, according to the Commission, ‘neither good practice nor convincing’.
250. It is true that the Commission submits that, according to a number of scientific studies, algal mats account for 50% coverage in the Blackwater Estuary and that the studies provided by the United Kingdom concerning the Medway show considerable macroalgal coverage in the Medway Estuary. The Commission also stresses that no comparison was made with the Ythan Estuary, which was identified as a sensitive area on the basis that important areas, but of an extent far short of the estuary’s total area, were affected by weed mats which could interfere with the ability of birds to feed on benthic fauna.
251. However, while the studies concerning the Blackwater and Medway Estuaries do seem to indicate a presence of macroalgae in those areas that is not negligible, the fact remains that they cannot have evidential value in the present action inasmuch as they do not concern the state of those estuaries during the relevant period.
252. Thus, the Commission refers to the 2006 Chesman study, which indicates extensive mats in the Blackwater. However, this finding relates to an aerial photograph taken in July 2005. Likewise, a report relating to inter alia the Medway ( Thames Estuary and Medway Estuary Habitats Directive Review of Consents Report, Environment Agency, 2007), upon which the Commission relies in order to assert in particular that 21% of the estuary of that river has macroalgal coverage averaging at least 25%, concerns analyses carried out in the month of August in 2001, 2002 and 2004. Another 2007 report adduced by the United Kingdom (cited in paragraph 249 of the present judgment), which also notes the presence of macroalgae in the Medway, concerns only 2001 to 2003. The document prepared by the Nature Conservation Council headed ‘Information Sheet on Ramsar Wetlands’, while initially drawn up on 31 December 1993, constitutes, according to what is stated in it, an update of 5 May 2006 and it is not possible on reading it to determine whether the information supplied concerning the presence of Enteromorpha
in the Medway is also valid for the relevant period. In the absence of such clarification, this document cannot be sufficient to prove the Commission’s contentions in this regard.
253. Nor, as follows from paragraph 204 of the present judgment, can the Commission avoid proving by means of specific evidence that Enteromorpha
was present in the Outer Thames Estuary by drawing an analogy with the situation found in the Ythan Estuary since the latter body of water is separate from the body of water constituted by the Outer Thames Estuary and the presence of Enteromorpha
in one does not in any way prove such a presence in the other.
254. Second, even if the limited presence of macroalgae can produce significant adverse environmental effects, the Commission, which refers to their effects on Zostera
and salt-marsh, has not proved those effects either.
255. So far as concerns the effects on Zostera, the Commission observes that the United Kingdom has not carried out any evaluation of the interaction between intertidal Enteromorpha
and intertidal Zostera
o r of the effects on Zostera
of the high levels of nutrients. The Commission states that scientists agree that nutrient enrichment is at least a major cause of the decline of Zostera . It adds that Zostera noltii and Zostera angustifolium
are less susceptible to wasting disease than Zostera marina .
256. As stated in paragraphs 42 to 48 of the present judgment, the Commission has the task of proving the allegation that an obligation has not been fulfilled. If the burden of proof is not effectively to be reversed, the Commission cannot merely complain that the United Kingdom has failed to carry out an evaluation regarding the alleged disappearance of Zostera
in the Outer Thames Estuary, without adducing relevant evidence itself in support of the present contention.
257. The present contention must be rejected for the same reasons as those in paragraphs 103 to 112 above concerning the Humber Estuary. The Commission has not adduced any specific evidence that the alleged disappearance of Zostera
in the Outer Thames Estuary results, even probably, from the accelerated growth of algae and higher forms of plant life caused by enrichment of the water by nutrients.
258. The 2006 Chesman study, to which the Commission refers, merely states that nutrient enrichment ‘can cause damage’ to Zostera
beds by a variety of mechanisms, the most important of which are metabolic imbalance, proliferation of phytoplankton, epiphytic or blanketing algae and increased susceptibility to wasting disease. While a general and theoretical assertion of that kind admittedly reveals that the scientific community seems to agree that enrichment by nutrients constitutes one of the possible causes of the disappearance of Zostera, it cannot, however, be sufficient to demonstrate that, in the Outer Thames Estuary, the accelerated growth of algae and higher forms of plant life resulting from enrichment by nutrients was, at least probably, a cause of the alleged disappearance of Zostera .
259. Furthermore, the fact that the new Preston atlas may show that Zostera
was observed in that estuary at certain times in the past is entirely irrelevant when examining the present complaint, since it in no way demonstrates that the alleged disappearance of Zostera
probably results from accelerated growth of algae and higher forms of plant life in that estuary that was caused by its enrichment by nutrients.
260. Nor does the new Preston atlas provide any specific data concerning the extent of the presence of Zostera
that was observed in the Outer Thames Estuary. The 2006 Chesman study merely indicates that ‘all three species of [ Zostera ] once formed large beds in the Blackwater Estuary but are now relatively scarce’. A general assertion of that kind, which specifies neither the period during which the presence of Zostera
was observed in that estuary nor the extent of that presence, cannot be sufficient to establish that the presence of Zostera
there before the relevant period was significant. The United Kingdom states without being contradicted in this regard by the Commission that, according to the 2008 Best study, adduced by the United Kingdom, the occurrences of Zostera
recorded during the period studied, which extends from 1800 to 2007, were sporadic until the mid-1970s in the Blackwater Estuary and the early 1990s in the Thames Estuary.
261. These findings are not called into question by the 1993 Butcher study, adduced by the Commission for the purposes of the hearing, which describes the situation in the Blackwater Estuary. This study, which was published in 1941 and concerns the situation in that estuary in 1932 and 1933, states that multiple factors may be the cause of the disappearance of Zostera
and indicates that a significant part of it had already disappeared in 1932 and that, even though all the varieties were again present when it reappeared the following year, at least one of them was scarce.
262. Finally, the contention, expressed by the Commission for the first time in its reply, that Zostera
is highly sensitive to nitrates and ammonium and that nitrate and ammonium levels in the Outer Thames Estuary during July 1995 were well above levels at which toxic effects have been demonstrated must be rejected for the same reason as that in paragraph 222 of the present judgment concerning the Colne Estuary.
263. So far as concerns the effect on salt-marsh, the Commission contends that, given the presence of macroalgae, species composition changes in the salt-marsh may give rise to concerns. Furthermore, the decline of Zostera
is an important factor in the loss of salt-marsh in the south-east of England.
264. However, the Commission has not adduced any specific evidence such as to support the validity of the concerns to which it refers.
265. Furthermore, since it is apparent from the foregoing that the Commission has not in any demonstrated that Zostera
suffered a decline in the Outer Thames Estuary, the contention that their decline had adverse effects on salt-marsh cannot be upheld.
266. In any event, the Commission merely states in this regard, relying upon a study published in 2004 (Hughes, R., and Paramor, O., On the loss of saltmarshes in south-east England and methods for their restoration ), that a link exists between the loss of salt-marsh and the disappearance of Zostera . However, a general assertion of that kind which is not otherwise supported by specific evidence cannot demonstrate that the alleged disappearance of Zostera, even if it is established, constitutes, even probably, a cause of the loss of salt-marsh in the Outer Thames Estuary.
267. In light of the foregoing, it must be found that the Commission has not adduced at least a certain amount of evidence capable of proving that the accelerated growth of algae and higher forms of plant life in the Outer Thames Estuary produced or could in the near future have produced in that area undesirable disturbance to the balance of organisms present in the water and to the quality of the water.
268. Consequently, as fulfilment of the third and fourth eutrophication criteria has not been proved to the requisite legal standard, the first complaint must be rejected so far as concerns the Outer Thames Estuary.
e) Southampton Water
i) The first eutrophication criterion: enrichment by nutrients
269. While the United Kingdom submits that enrichment of Southampton Water by nutrients has decreased significantly in recent years, in particular since 2000, it does not dispute that during the relevant period there was such enrichment, as indicated by the data in the ERM report adduced by the Commission.
270. The first eutrophication criterion is therefore proven as regards Southampton Water.
271. Accordingly, it remains to be examined whether the Commission has established to the requisite legal standard that the three other eutrophication criteria are fulfilled as regards this area.
ii) The second eutrophication criterion: an accelerated growth of algae and higher forms of plant life
272. The Commission draws attention to the existence, in Southampton Water, of phenomena called ‘red tides’, caused by Mesodinium
blooms, which, it states, implies accelerated growth of algae. According to the Commission, Mesodinium
blooms, reported in this area for the first time in 1980, recurred in 1998 and 2000. Phaeocystis
blooms and Enteromorpha
algal weed mats are also mentioned as existing there. Finally, so far as concerns the general level of phytoplankton growth, the Commission states that there is an annual spring bloom in the estuary, characterised by a succession of transient bloom events of varying magnitudes. Usually at least one of these blooms attains the intensity of a major bloom event, defined as a chlorophyll concentration level exceeding 10 µg/l.
273. So far as concerns, first, the existence of ‘red tides’, it is apparent that, while it is common ground that Mesodinium
blooms occurred in the 1980s and from 1998, no evidence is adduced by the Commission showing that this was also the case during the relevant period. On the contrary, the ERM report, which constitutes the basis of the Commission’s contentions in this regard, states that these blooms reappeared in 1998 ‘after an absence for a number of years’, thereby confirming the data provided by the United Kingdom in its report in this regard which it submitted in response to the reasoned opinion of 19 April 2001 ( Urban Waste Water Treatment Directive: Assessment of the Eutrophic Status of Southampton Water ; ‘the United Kingdom report on Southampton Water’) and which states that Mesodinium
blooms ‘were almost entirely absent from Southampton Water throughout the 1990s’.
274. The possibility admittedly remains that the reappearance of ‘red tides’ from 1998 is capable of demonstrating that Southampton Water constitutes, as the MV report suggests, an area susceptible to such blooms. The data provided by the United Kingdom concerning the years from 2000 thus appear to indicate that instances of ‘red tides’ may have occurred on more than one occasion during this more recent period; the United Kingdom merely denies that those phenomena had harmful environmental effects, a consideration which is, however, irrelevant at the stage of examining the second eutrophication criterion.
275. However, in the absence of specific evidence that such blooms actually occurred during the years from 1993 to 1997, and even if the fact that this phenomenon did not occur during that period were a matter of pure chance in the light of a long-term examination of the situation in Southampton Water, the Commission’s contention that the existence of ‘red tides’ demonstrates an accelerated growth of algae and higher forms of plant life in this body of water cannot be upheld in the context of the present complaint since, by this complaint, the United Kingdom is alleged not to have effected the initial identification of certain areas that were sensitive as at 31 December 1993.
276. So far as concerns, second, Phaeocystis
blooms, the ERM report merely states that, ‘while information was not provided on algal scums, [the authors] Crawford et al. [ Recurrent Red-tides in the Southampton Water Estuary Caused by the Phototrophic Ciliate Mesodinium rubrum, 1997; ‘the 1997 Crawford study’] stated that Phaeocystis
blooms occurred’. However, no data are furnished as to the intensity of those blooms or as to the period during which they occurred. As for the Phaeocystis
blooms mentioned by the Commission in its reply on the basis of a study by A. Iriarte and D. Purdie ( Factors controlling the timing of major spring bloom events in an UK south coast estuary, 2004), they concern a region other than Southampton Water.
277. According to the United Kingdom report on Southampton Water, instances of Phaeocystis
concentrations constitute a natural phenomenon along the south coast of England that rarely extends to Southampton Water. In the United Kingdom’s submission, the fact that the blooms are rare and irregular shows that they are in reality a natural algal phenomenon. It must be stated that the Commission has not rebutted these contentions, merely complaining that the United Kingdom has not specified cell concentrations or the duration of blooms. Such a complaint cannot, however, be upheld, since the Commission has the task of proving the allegation that an obligation has not been fulfilled.
278. Also, the United Kingdom has observed, again without being contradicted by the Commission, that although the 1997 Crawford study, which is mentioned in the passage from the ERM report that is set out in paragraph 276 of the present judgment, was published in 1997, it concerns the years 1985 to 1987, that is to say, a period of several years which precedes the period relevant in the present action.
279. So far as concerns, third, the presence of Enteromorpha, it is sufficient to note that this is merely touched upon in the ERM report, which states that ‘ Enteromorpha
occurs extensively on the mudflats fringing Southampton Water’, but does not provide any specific data at all in this regard. According to the United Kingdom report on Southampton Water, such algal mats are sparse in that area. The Commission, which does not expand upon this issue in its pleadings, but merely refers to the ERM report, has not contested this assertion by the United Kingdom, so that its own contentions in this regard cannot be upheld.
280. Fourth and finally, so far as concerns the chlorophyll concentration level, the study by Iriarte and Purdie mentioned in paragraph 276 of the present judgment, upon which the Commission bases its contentions in its application when asserting that usually at least one of the annual spring blooms in Southampton Water attains the intensity of a major bloom, did not relate to any of the years included in the relevant period. The study in fact concerns readings taken in 1988, 1992, 2001, 2002 and 2003.
281. In so far as the data relating to 1992 in that study can be of indicative value for the relevant period, it must be stated that, as the United Kingdom submits, the 10 µg/l threshold applicable to coastal waters was exceeded only slightly and briefly during the spring alone of that year. The Commission indeed expressly concedes that the peak recorded then may be regarded as short-lived. Even if, as the ERM report indicates, Southampton Water might be regarded in its entirety as constituting coastal waters given its width and its low salinity level, a problem of eutrophication can be revealed only if the 10 µg/l threshold is regularly exceeded during the summer, in accordance with what has been held in paragraph 78 of the present judgment.
282. It is admittedly apparent from the United Kingdom report on Southampton Water that chlorophyll concentration levels of 38 µg/l and 19 µg/l were recorded in July 1993 and July 1994 respectively. However, such isolated instances of the threshold being exceeded cannot in themselves be indicative of accelerated growth of algae and higher forms of plant life. Furthermore, for the reasons stated in paragraph 127 of the present judgment, the Commission is not justified in this connection in complaining that the United Kingdom did not apply the threshold of 15 μg/l for the 90th percentile accepted by the United Kingdom in 2007 within the framework of OSPAR. Nor can the Commission legitimately hold against the United Kingdom that it did not supply long-term data, for example by having recourse to sediment core analyses, since, as stated in paragraphs 42 to 48 of the present judgment, the Commission has the burden of proving the allegation that an obligation has not been fulfilled.
283. As for the study by S. Torres-Valdès and D. Purdie ( Nitrogen removal by phytoplankton uptake through a temperate non-turbid estuary, 2006) to which the Commission refers in its reply, since the study covers the period between April and October 2001 it does not relate to the relevant period. It is true that that study cites briefly three scientific contributions published in 1992, 1993 and 1994 respectively in order to state that ‘between the months of March-May and June-September … [chlorophyll] concentrations > 15 [µg/l] and up to 70 [µg/l] are common in the coastal waters of the system and the mid estuary respectively’. However, neither the study nor the Commission specifies the years to which those findings relate, so that the findings cannot be regarded as having sufficient evidential value to demonstrate that the chlorophyll concentration rates recorded in Southampton Water during the relevant period regularly exceeded the threshold of 10 µg/l.
284. That said, even if one of those studies published during the relevant period were to have related to that period, it is to be remembered that the 10 µg/l threshold cannot constitute by itself a criterion justifying a determination that there is accelerated growth of algae and higher forms of plant life. It is clear from paragraphs 273 to 279 of the present judgment that the other indicia of such growth advanced by the Commission cannot be upheld.
285. Accordingly, it is apparent that the Commission has not adduced at least a certain amount of evidence capable of proving that the enrichment of Southampton Water by nutrients led or could in the near future have led to an accelerated growth of algae and higher forms of plant life in that area at issue and that, therefore, it has not established that the second eutrophication criterion is fulfilled so far as concerns that area.
iii) The third and fourth eutrophication criteria: undesirable disturbance to the balance of organisms present in the water and to the quality of the water
286. The Commission submits that the proliferation of algae in Southampton Water has resulted in oxygen deficiency which has caused displacement of zooplankton. Also, there is a strong negative correlation between the depth of Zostera
and Mesodinium
biomass. The nitrate and phosphorus levels recorded thus suggest that Zostera, which has historically been recorded in this body of water, could now grow there although there would be a significant reduction in the maximum depth. The Commission further submits that toxins responsible for DSP were detected, resulting in a prohibition on shellfish harvesting in the body of water. Finally, high chlorophyll levels have been recorded in Southampton Water.
287. So far as concerns, first, the oxygen deficiency and the displacement of zooplankton, it should be noted (i) that it is apparent from paragraphs 272 to 285 of the present judgment that the Commission has not proved that there was a proliferation of algae, in particular of Mesodinium, in Southampton Water during the relevant period, a proliferation which is said to lie behind the adverse environmental effects alleged, and (ii) that the contention as to the existence of such effects is derived from the ERM report, which is founded in this regard on the 1997 Crawford study, a study which, as is clear from paragraph 278 of the present judgment, does not relate to the relevant period.
288. In any event, even if it is assumed that that study can have some evidential value here, it should be noted that the study itself states that the d isplacement of zooplankton could be caused by factors other than the presence of Mesodinium
and that further data are required before conclusions can be drawn regarding the impact of blooms of Mesodinium
on zooplankton populations in Southampton Water. The study also notes that, despite an oxygen deficit, no adverse effect on macro-organisms has been demonstrated.
289. So far as concerns, second, the alleged disappearance of Zostera, it should be stated once again that the Commission has not proved that there was a proliferation of algae, in particular of Mesodinium, during the relevant period, a proliferation which is said to lie behind the adverse effect alleged.
290. In any event, the Commission’s contentions in this regard must be rejected for the same reasons as those in paragraphs 103 to 112 of the present judgment concerning the Humber Estuary.
291. The Commission adduces no evidence that the alleged disappearance of Zostera
in Southampton Water results, even probably, from the alleged accelerated growth of algae and higher forms of plant life caused by nutrient enrichment, merely pleading in this regard, in its application, that Zostera
‘is vulnerable to eutrophication’. Moreover, the fact that the new Preston atlas may show that Zostera
was observed in Southampton Water at certain times in the past is irrelevant in this connection. Furthermore, the new Preston Atlas does not provide any specific data concerning the extent of the Zostera
observed. According to the 2008 Best study, adduced by the United Kingdom, between 1837 and 2007 the presence of Zostera
was recorded in that estuary in eight years only, three of which were before 1900.
292. In its reply, the Commission nevertheless submits that there has been an important development, so far as concerns the effect of Mesodinium
on Zostera, compared with the situation as recorded in the ERM report and MV report, since a study published in 2005 (Sagert, S., et al., Integrated ecological assessment of Danish Baltic Sea coastal areas by means of phytoplankton and macrophytobenthos ) has found a strong negative correlation between maximum depth of Zostera
and Mesodinium
biomass.
293. However, this study, which moreover has not been adduced, concerns not Southampton Water but a coastal area of the Baltic, which constitutes a body of water distinct from Southampton Water. Furthermore, in so far as the view may be taken, as the Commission suggests, that this study reveals a development in scientific research concerning the link between Mesodinium
and Zostera, since that development occurred after the relevant period it cannot, in accordance with what has been stated in paragraphs 58 to 63 above, have evidential value in the present action, since neither the Commission nor the United Kingdom could be aware of it during that period.
294. It is true that, for the purposes of the hearing, the Commission adduced the 1933 Butcher study to support its contentions. However, for the reasons already set out, in particular in paragraph 109 of the present judgment, this study, which was published in 1941 and concerns the situation in Southampton Water in 1933, likewise cannot possess decisive evidential value when determining whether Southampton Water had to be identified by the United Kingdom as a sensitive area with respect to eutrophication as at 31 December 1993. Furthermore, that study in any event, far from contradicting the United Kingdom’s contentions, confirms them since it states (i) that multiple factors may be the cause of the disappearance of Zostera
and (ii) that, while Zostera
was abundant in Southampton Water formerly – that is to say, given the date of the observations recounted in that study, before 1933 – at the time of those observations it was no longer present there except in isolated patches, having totally disappeared in certain places more than seven years previously.
295. So far as concerns, third, the presence in shellfish of toxins responsible for DSP, suffice it to state that the only case identified by the Commission, which is covered in the CEFAS monitoring report contained in the May 2000 edition of Shellfish News, concerns the year 2000, that is to say a year after the relevant period.
296. Fourth and finally, so far as concerns the chlorophyll concentration rate, as is clear from paragraph 39 of the present judgment, while that factor is capable of demonstrating the existence of accelerated growth of algae and higher forms of plant life in Southampton Water, it is, on the other hand, irrelevant for the purpose of proving the existence of undesirable disturbance to the balance of organisms present in the water or to the quality of the water.
297. Accordingly, it must be found that, even supposing that the existence of accelerated growth of algae and higher forms of plant life may be considered proven so far as concerns Southampton Water, the Commission has not adduced at least a certain amount of evidence capable of proving that that accelerated growth produced or could have produced in that area at issue undesirable disturbance to the balance of organisms present in the water and to the quality of the water of that estuary.
298. Consequently, as the second, third and fourth eutrophication criteria have not been proved to the requisite legal standard, the first complaint must be rejected in so far as it relates to Southampton Water.
f) North East Irish Sea
299. A preliminary point to be made is that the north-eastern part of the Irish Sea which is the subject of the present complaint extends from the Llyn Peninsula in Wales to the Mull of Galloway in Scotland, with the exception of the Solway Firth in the north of this area since the Commission abandoned any complaint regarding the Solway Firth after examining the evidence provided by the United Kingdom in this regard in response to the reasoned opinion of 19 April 2001.
300. It must therefore be examined whether, in the case of the North East Irish Sea as so defined, the Commission has proved that the eutrophication criteria are fulfilled.
i) The first eutrophication criterion: enrichment by nutrients
301. While the United Kingdom maintains, so far as concerns the coastal regions of the North East Irish Sea, that is to say, essentially, Liverpool Bay and the coastal waters of North Wales and Cumbria, that enrichment by nutrients has not increased since the 1950s, or even that it is declining, or that it is lower than that of the Marsdiep (Netherlands), it does not dispute that – as it states itself from the outset – in these various areas of the Irish Sea there was such enrichment during the relevant period, as indicated by the data in the ERM report adduced by the Commission.
302. In this connection, the contention that further reductions in nitrate concentration levels are envisaged in the context of implementation of Directive 91/676 must be rejected for the same reason as that stated in paragraph 122 of the present judgment in respect of the Wash. In any event, since the diminution pleaded by the United Kingdom is stated by it to concern 2002 at the earliest, it cannot have any relevance to the present action.
303. On the other hand, the United Kingdom disputes that the offshore areas of the North East Irish Sea are enriched by nutrients.
304. However, the ERM report, in the section concerning north-west England, expressly states, on the basis of data relating to 1993, that ‘every indication is that the eastern Irish Sea is indeed hypernutrific, a situation confirmed by offshore data’. It is clear from the ERM report that the offshore areas in question include, in particular, the area of sea to the east of the Isle of Man, which is in the middle of the Irish Sea. Furthermore, in a section specifically concerning offshore areas (‘other offshore areas’), the ERM report finds, with regard to the part of the Irish Sea between the Llyn Peninsula and the Mull of Galloway, that there was enrichment by nutrients at the end of 1992.
305. Furthermore, it follows from another scientific contribution adduced by the Commission (Gowen, R.J., and Stewart, B.M., The Irish Sea: Nutrient status and phytoplankton, 2005; ‘the 2005 Gowen and Stewart study’), which was published after the relevant period but contains certain historical data relating to that period, that the eastern Irish Sea has been enriched by nutrients for 35 years, and no distinction is drawn in respect of offshore areas.
306. While the United Kingdom contests that the offshore areas of the North East Irish Sea are enriched by nutrients, it does not adduce any data in support of that denial that would be capable of calling into question the data adduced by the Commission. The United Kingdom in fact merely contends in this regard that in offshore areas the level of nutrients has not increased since the 1970s and 1980s. Such a fact does not however, as such, demonstrate in the slightest that those areas are not enriched by nutrients. That is all the more the case as the scientific contribution adduced by the United Kingdom in this regard (Gowen, R.J., et al., The Irish Sea: Is it eutrophic?, 2007; ‘the 2007 Gowen study’) was drawn up by one of the two authors of the scientific contribution adduced by the Commission, which states that the eastern Irish Sea has been enriched by nutrients for many years.
307. Consequently, it must be accepted that the Commission has proved to the requisite legal standard that the offshore region of the North East Irish Sea is enriched by nutrients.
308. The first eutrophication criterion is therefore proven in respect of the North East Irish Sea as covered by the present complaint.
309. Accordingly, it remains to be examined whether the Commission proves to the requisite legal standard that the three other eutrophication criteria are fulfilled as regards that area at issue.
ii) The second eutrophication criterion: an accelerated growth of algae and higher forms of plant life
310. In the Commission’s submission, the scientific data supplied in the ERM report show that the enrichment of the area at issue by nutrients led to an accelerated growth of algae and higher forms of plant life in that area.
311. It is to be noted at the outset that the United Kingdom does not dispute the existence in Liverpool Bay of such accelerated growth, as indicated in the ERM report adduced by the Commission. It denies, on the other hand, that such growth occurred in the remaining part of the Irish Sea covered by the present complaint, that is to say, the coastal waters of Cumbria and of North Wales and the offshore areas.
312. However, the United Kingdom relies in support of that denial, first, on a report containing data supplied within the framework of OSPAR ( Northeast Irish Sea, 2007) which (i) applies a chlorophyll concentration threshold of 15 μg/l for the 90th percentile whose relevance in the present case the United Kingdom has rightly contested, as is clear from paragraph 127 of the present judgment, and (ii) relates to 1999 to 2006, that is to say, a period after the relevant period.
313. Second, the United Kingdom refers to data set out in the report that it drew up in this regard in response to the reasoned opinion of 19 April 2001 ( Urban Waste Water Treatment Directive: Assessment of the Trophic Status of the North East Irish Sea – Liverpool Bay ). That report, however, concerns Liverpool Bay, in relation to which the United Kingdom does not dispute that the second eutrophication criterion is fulfilled.
314. It is apparent from the ERM report that between 1993 and 1996 the chlorophyll concentration level along the north coast of Wales and up to the Scottish border regularly exceeded 10 µg/l, a threshold which the United Kingdom acknowledges to be relevant in the case of coastal waters.
315. Since, as follows from paragraph 78 of the present judgment, the fact that that threshold is exceeded can be considered to be indicative of accelerated growth of algae and higher forms of plant life in the coastal waters of the North East Irish Sea, it should be accepted, in the absence of any evidence at all adduced by the United Kingdom capable of calling this conclusion into question, that the Commission has proved the existence of such growth to the requisite legal standard so far as concerns that area.
316. Admittedly, it appears more doubtful that the Commission has adduced enough evidence to such effect in the case of the offshore region. It is apparent from the ERM report that the chlorophyll concentration level in the Irish Sea did not exceed 5 µg/l. As for the Phaeocystis
blooms mentioned in that report, they concern not the relevant period but 1978 to 1988. Moreover, it is stated in the report that the data in question concern too short a period for trends to be determined. In this regard, the Commission cannot make up for the absence of data concerning the area in question during the relevant period by drawing an analogy with the Marsdiep, since that is a separate body of water. The fact that Phaeocystis
proliferated in the Marsdiep between 1960 and 2000 does not demonstrate in the slightest – even assuming that enrichment by nutrients was at an even higher level in the North East Irish Sea – that that was also the case in the latter. As has been stated in paragraph 43 of the present judgment, the Commission, which has the burden of proving that an obligation has not been fulfilled, cannot rely on presumptions to establish this.
317. However, since in the present action the North East Irish Sea – excluding Liverpool Bay at least – is envisaged as one and the same body of water, the fact that the Commission has not adduced sufficient evidence that one of the eutrophication criteria is fulfilled as regards a part of that area – here as regards the offshore region – is irrelevant in the absence of the slightest evidence or argument adduced by the United Kingdom capable of establishing that the offshore region of the North East Irish Sea can be regarded as a separate body of water.
318. Accordingly, as the United Kingdom has adduced nothing capable of calling into question the conclusions of the ERM report that the accelerated growth of algae and higher forms of plant life in the North East Irish Sea was caused by the enrichment of that area at issue by nutrients, the Commission has proved to the requisite legal standard that the second eutrophication criterion is fulfilled so far as concerns that area.
iii) The third and fourth eutrophication criteria: undesirable disturbance to the balance of organisms present in the water and to the quality of the water
319. The Commission submits that undesirable disturbance to the balance of organisms present in the North East Irish Sea and to the quality of the water of that area is demonstrated by the regular Phaeocystis
blooms and by the presence of several toxic algae species in parts of the North Irish Sea, a situation which may require action with respect to shellfisheries in that area. Also, low dissolved oxygen levels are stated to have been recorded in the Mersey and Ribble Estuaries.
320. So far as concerns, first, the Phaeocystis
blooms, it should be stated that, although the data provided in this regard by the ERM report, which refers to significant blooms for as many as 49 days each year, concern only the years 1978 to 1988, it is not disputed that such blooms also existed during the relevant period.
321. At the stage of the pre-litigation procedure, the United Kingdom acknowledged that it was unusual to have a year without Phaeocystis
blooms in the North East Irish Sea. Also, in the present action, the United Kingdom has adduced the 2007 Gowen study, according to which Phaeocystis
blooms were recorded at four relevant locations in the North East Irish Sea every year between 1991 and 1999, on average about four times a year. Nor did the United Kingdom dispute the contentions expressed by the Commission at the hearing on the basis of an extract from the scientific contribution, produced at hearing, of R.J. Gowen et al., Production and its fate in two coastal regions of the Irish Sea: the influence of anthropogenic nutrients, 2000, which recounts a significant Phaeocystis
bloom in 1997.
322. The United Kingdom does not dispute either that the Phaeocystis
blooms in Liverpool Bay are harmful since they result in foam on beaches and discolouration of the water.
323. According to the United Kingdom, however, those blooms constitute a natural phenomenon in that region, since they have been seen there for over 150 years. In its submission, they therefore cannot be regarded as a sign of eutrophication.
324. It should be recalled that the Court has already held, first, that modification of the structure of the phytoplankton community so as to reinforce the presence of a species such as Phaeocystis, which, while not toxic, is none the less harmful, constitutes an undesirable disturbance to the balance of organisms present in the water and, second, that changes to the colour, odour and texture of the water, whose adverse effects on tourist activities are obvious, and which in addition are very likely to have harmful effects on fishing activities, represent an undesirable disturbance to the quality of the water (see, to this effect, Commission
v France, paragraphs 23, 38, 55 and 56).
325. This means that the mere fact that Phaeocystis
is present in the waters in question cannot, in itself, establish that there is undesirable disturbance to the balance of organisms present in the water and to the quality of the water. As the Commission has itself acknowledged in its pleadings, reflecting in this regard the United Kingdom’s arguments, it must in addition be shown, in accordance with what many Member States have agreed within the framework of OSPAR, that the intensity and duration of the blooms have increased due to an increase in the level of nutrients and to the resulting accelerated growth of algae and higher forms of plant life, thereby giving rise to a change reinforcing the presence of Phaeocystis, within the meaning of the case-law cited in the preceding paragraph of the present judgment, capable of establishing a causal link between the second and the third and fourth eutrophication criteria.
326. However, the Commission, upon which the burden of proof rests in this regard, has not adduced any evidence to this effect. On the contrary, as has already been noted in paragraph 316 of the present judgment, the ERM report itself states that the data provided concerning Phaeocystis
blooms concern a period too short for trends to be determined. Likewise, the 2005 Gowen and Stewart study, adduced by the Commission, reaches the conclusion that a lack of historical data precludes any assessment of long-term trends in the composition of Irish Sea phytoplankton. Furthermore, the United Kingdom has submitted, in reliance upon a recent scientific contribution (Reid, P.C., and John, A.W.G., The occurrence of Phaeocystis in Liverpool Bay/Eastern Irish Sea since the early 1970s, 2008) which studied the occurrence of Phaeocystis
in the area in question between 1971 and 2006 and whose results have not been disputed by the Commission, that the highest levels of Phaeocystis
were recorded before 1993 and that this alga’s frequencies of occurrence have been lower since that time.
327. The Commission has submitted at the most in this regard that, according to the 2005 Gowen and Stewart study, which furnishes certain historical data concerning the relevant period, there is a long-term upward trend in phytoplankton production in Liverpool Bay and the offshore areas of the North East Irish Sea. However, this fact, even if proven, would concern all phytoplankton and therefore would provide no indication as to the frequency and intensity of Phaeocystis
blooms. According to that study, phytoplankton production in the area in question was dominated in 1995 and 1997 by diatoms.
328. For the same reasons as those in paragraph 159 of the present judgment concerning the Wash, the Commission also cannot profitably rely, in this regard, on the fact that there is increased recognition in the scientific community of the link between the frequency of occurrence of blooms of algae, including those forming scum, such as Phaeocystis, and increased nutrient inputs, a link which it states to be confirmed by the 2008 OSPAR report, which it produced at the hearing.
329. Nor can the Commission complain that there has been a lack of assessment by the United Kingdom of the relevance of toxic blooms, in particular a failure to record cell numbers. As has already been stated in paragraphs 42 to 48 of the present judgment, the Commission has the burden of proving that each of the eutrophication criteria is fulfilled. In this connection, as is already clear from paragraph 316 of the present judgment, the Commission cannot, in particular, attempt to make up for the absence of data concerning the frequency and extent of blooms of Phaeocystis
in the North East Irish Sea by drawing an analogy with the trends observed in the Marsdiep, since these two regions constitute separate bodies of water. As the Commission has the burden of proving that an obligation has not been fulfilled, it cannot rely on presumptions to establish a failure to fulfil the obligation.
330. So far as concerns, second, the presence of toxic algae, while the United Kingdom acknowledged in its report in response to the reasoned opinion of 19 April 2001 that algae of this type can be found in the North East Irish Sea, it is apparent from the 2007 Gowen study, adduced by the United Kingdom, that the toxic species observed in 1992 and 1993 in certain areas of that region were not abundant and the Commission indeed did not contest this in its reply. A limited algae presence of this kind cannot be considered a severe outbreak of harmful phytoplankton capable of constituting undesirable disturbance to the balance of organisms present in the water and to the quality of the water (see Commission
v France, paragraph 23).
331. Furthermore, although the Commission mentions the possibility of action having to be taken with respect to shellfisheries because of the presence of toxic algae, it does not adduce any evidence that such action was in fact taken during the relevant period, as the only cases listed in the 2007 Gowen study concern 2002 and 2004.
332. Finally, so far as concerns, third, the dissolved oxygen level in the Mersey and Ribble Estuaries, suffice it to state that the Commission does not adduce any evidence in support of its contentions. Contrary to what is submitted by the Commission in its application, the 2007 Gowen study, adduced by the United Kingdom, which contains certain historical data covering the relevant period, concludes that, ‘other than the small oxygen deficit which builds in the … western Irish sea bottom water’, which is not however covered by the present complaint, ‘there is no evidence of deoxygenation in the Irish Sea’. The Commission did not contest these conclusions in its reply.
333. Accordingly, it must be found that the Commission has not adduced at least a certain amount of evidence capable of proving that the accelerated growth of algae and higher forms of plant life in the North East Irish Sea – with the exception of the Solway Firth – produced or could in the near future have produced in that area undesirable disturbance to the balance of organisms present in the water and to the quality of the water.
334. Consequently, as fulfilment of the third and fourth criteria has not been proved to the requisite legal standard, the first complaint must be rejected so far as concerns the part of the Irish Sea concerned, that is to say the North East Irish Sea with the exception of the Solway Firth.
3. Conclusion on the first complaint
335. Having regard to all of the foregoing, the first complaint must be rejected in its entirety.
B – The second complaint: infringement of the obligations to collect and treat urban waste water
336. By its second complaint, the Commission alleges that the United Kingdom has infringed Articles 3(1) and (2) and 5(2), (3) and (5) of Directive 91/271 by having failed to make subject to the collection and treatment obligations laid down by those provisions discharges of urban waste water from agglomerations with a p.e. of more than 10 000 into the Humber Estuary, the Wash, the Deben and Colne Estuaries, the Outer Thames Estuary, Southampton Water and the North East Irish Sea – with the exception of the Solway Firth – and into Lough Neagh and Upper and Lower Lough Erne.
337. In so far as the second complaint concerns the areas at issue examined under the first complaint, that is to say, the Humber Estuary, the Wash, the Deben and Colne Estuaries, the Outer Thames Estuary, Southampton Water and the North East Irish Sea with the exception of the Solway Firth, the Commission has failed, as is apparent from paragraph 335 of the present judgment, to prove to the requisite legal standard that the United Kingdom was obliged to identify those bodies of water as sensitive areas within the meaning of Article 5 of Directive 91/271 and the second complaint must therefore be rejected, since the alleged infringement of the collection and treatment obligations laid down in Articles 3 and 5 of the directive concerns discharges of urban waste water into such sensitive areas.
338. In so far as the second complaint concerns Lough Neagh and Upper and Lower Lough Erne, it must be stated that, contrary to what the United Kingdom maintains without thereby putting forward a plea of inadmissibility, the reasoned opinion of 9 July 2004, addressed to the United Kingdom with regard to those bodies of water, asserted an infringement of, inter alia, Articles 3(2) and 5(3) of Directive 91/271. No objection can therefore be raised to the fact that the Commission pleads infringement of those provisions in the present action.
339. On the other hand, in so far as, in the form of order sought by it set out in the application, the Commission complains that the United Kingdom has infringed the collection obligations laid down in Article 3(1) and (2) of Directive 91/271 as regards discharges of urban waste water into Lough Neagh and Upper and Lower Lough Erne, it is to be remembered that, in accordance with the case-law, an application must, by virtue of Article 21 of the Statute of the Court of Justice and Article 38(1)(c) of the Rules of Procedure, contain inter alia a brief statement of the pleas in law on which the application is based. Accordingly, in any application lodged under Article 226 EC, the Commission must indicate the specific complaints upon which the Court is called to rule and, at the very least in 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.
Operative part
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.