Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the quality of fresh waters needing protection or improvement in order to support fish life (Codified version)

(presented by the Commission)

EXPLANATORY MEMORANDUM

1. In the context of a people's Europe, the Commission attaches great importance to simplifying and clarifying Community law so as to make it clearer and more accessible to the ordinary citizen, thus giving him new opportunities and the chance to make use of the specific rights it gives him.

This aim cannot be achieved so long as numerous provisions that have been amended several times, often quite substantially, remain scattered, so that they must be sought partly in the original instrument and partly in later amending ones. Considerable research work, comparing many different instruments, is thus needed to identify the current rules.

For this reason a codification of rules that have frequently been amended is also essential if Community law is to be clear and transparent.

2. On 1 April 1987 the Commission therefore decided [1] to instruct its staff that all legislative acts should be codified after no more than ten amendments, stressing that this is a minimum requirement and that departments should endeavour to codify at even shorter intervals the texts for which they are responsible, to ensure that the Community rules are clear and readily understandable.

[1] COM(87) 868 PV.

3. The Conclusions of the Presidency of the Edinburgh European Council (December 1992) confirmed this [2], stressing the importance of codification as it offers certainty as to the law applicable to a given matter at a given time.

[2] See Annex 3 to Part A of the Conclusions.

Codification must be undertaken in full compliance with the normal Community legislative procedure.

Given that no changes of substance may be made to the instruments affected by codification, the European Parliament, the Council and the Commission have agreed, by an interinstitutional agreement dated 20 December 1994, that an accelerated procedure may be used for the fast-track adoption of codification instruments.

4. The purpose of this proposal is to undertake a codification of Council Directive 78/659/EEC of 18 July 1978 on the quality of fresh waters needing protection or improvement in order to support fish life [3]. The new Directive will supersede the various acts incorporated in it [4]; this proposal fully preserves the content of the acts being codified and hence does no more than bring them together with only such formal amendments as are required by the codification exercise itself.

[3] Carried out pursuant to the Communication from the Commission to the European Parliament and the Council - Codification of the Acquis communautaire, COM(2001) 645 final.

[4] See Annex III, Part A of this proposal.

5. The codification proposal was drawn up on the basis of a preliminary consolidation, in all official languages, of Directive 78/659/EEC and the instruments amending it, carried out by the Office for Official Publications of the European Communities, by means of a data-processing system. Where the Articles have been given new numbers, the correlation between the old and the new numbers is shown in a table contained in Annex IV to the codified Directive.

78/659/EEC

2004/0002 (COD) Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the quality of fresh waters needing protection or improvement in order to support fish life

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

78/659/EEC (adapted)

Having regard to the Treaty establishing the European Community, and in particular Article 175(1) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and Social Committee [5],

[5] OJ C

Having regard to the opinion of the Committee of the Regions [6],

[6] OJ C

Acting in accordance with the procedure laid down in Article 251 of the Treaty [7],

[7] OJ C

Whereas:

(1) Council Directive 78/659/EEC of 18 July 1978 on on the quality of fresh waters needing protection or improvement in order to support fish life [8] has been substantially amended several times [9]. In the interests of clarity and rationality the said Directive should be codified.

[8] OJ L 222, 14.8.1978, p. 1. Directive as last amended by Council Regulation (EC) No 807/2003 (OJ L 122, 16.5.2003, p. 36).

[9] See Annex III, Part A.

78/659/EEC Recital 1

(2) The protection and improvement of the environment necessitates concrete measures to protect waters against pollution, including waters capable of supporting freshwater fish.

78/659/EEC Recital 2

(3) It is necessary from the ecological and economic viewpoint to safeguard fish populations from various harmful consequences, resulting from the discharge of pollutant substances into the waters, such as, in particular, the reduction in number of fish belonging to a certain species and even in some cases the disappearance of a number of these species.

78/659/EEC Recital 3 (adapted)

(4) Decision No 1600/2002/EC of the European Parliament and of the Council of 22 July 2002 laying down the Sixth Community Environment Action Programme [10] has the objective of achieving levels of water quality that do not give rise to significant impacts on or to the environment.

[10] Ö OJ L 242, 10.9.2002, p. 1 Õ .

78/659/EEC Recital 6 (adapted)

(5) In order to attain the objectives of this Directive, the Member States will have to designate the waters to which it will apply and will have to set limit values corresponding to certain parameters. Action will be taken to ensure that the waters so designated will conform to these values within five years of this designation.

78/659/EEC Recital 7 (adapted)

(6) Provision should be made that waters capable of supporting freshwater fish will, under certain conditions, be deemed to conform to the relevant parametric values even if a certain percentage of samples taken does not comply with the limits specified.

78/659/EEC Recital 8

(7) To ensure that the quality of waters capable of supporting freshwater fish is checked, a minimum number of samples should be taken and the measurements relating to specified parameters be carried out. Such sampling may be reduced or discontinued in the light of the quality of the water.

78/659/EEC Recital 9

(8) The Member States are unable to control certain natural circumstances and it is therefore necessary to provide for the possibility of derogating from this Directive in certain cases.

78/659/EEC Recital 10 (adapted)

(9) Technical and scientific progress may make necessary the rapid adaptation of certain of the requirements laid down in Annex I . In order to facilitate the introduction of the measures required for this purpose, a procedure should be laid down whereby close cooperation would be established between the Member States and the Commission within a Committee on Adaptation to Technical and Scientific Progress.

(10) The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission [11].

[11] OJ L 184, 17.7.1999, p. 23.

(11) This Directive should be without prejudice to the obligations of the Member States relating to the time-limits for transposition into national law of the Directives set out in Annex III, Part B,

78/659/EEC

HAVE ADOPTED THIS DIRECTIVE:

Article 1

1. This Directive concerns the quality of fresh waters and applies to those waters designated by the Member States as needing protection or improvement in order to support fish life.

2. This Directive shall not apply to waters in natural or artificial fish ponds used for intensive fish-farming.

3. The aim of this Directive is to protect or improve the quality of those running or standing fresh waters which support or which, if pollution were reduced or eliminated, would become capable of supporting fish belonging to:

78/659/EEC (adapted)

(a) indigenous species offering a natural diversity ; or

(b) species the presence of which is judged desirable for water management purposes by the competent authorities of the Member States.

4. For the purposes of this Directive:

(a) salmonid waters shall mean waters which support or become capable of supporting fish belonging to species such as salmon (Salmo salar), trout (Salmo trutta), grayling (Thymallus thymallus) and whitefish (Coregonus) ;

(b) cyprinid waters shall mean waters which support or become capable of supporting fish belonging to the cyprinids (Cyprinidae), or other species such as pike (Esox lucius), perch (Perca fluviatilis) and eel (Anguilla anguilla).

Article 2

The physical and chemical parameters applicable to the waters designated by the Member States are listed in Annex I.

For the purposes of applying these parameters, waters are divided into salmonid waters and cyprinid waters.

78/659/EEC

Article 3

1. Member States shall, for the designated waters, set values for the parameters listed in Annex I, in so far as values are listed in column G or in column I. They shall comply with the comments contained in each of these two columns.

2. Member States shall not set values less stringent than those listed in column I of Annex I and shall endeavour to respect the values in column G taking into account the principle set out in Article 8.

78/659/EEC (adapted)

Article 4

1. Member States shall designate salmonid waters and cyprinid waters and may subsequently make additional designations.

2. Member States may revise the designation of certain waters owing to factors unforeseen at the time of designation, taking into account the principle set out in Article 8.

78/659/EEC

Article 5

Member States shall establish programmes in order to reduce pollution and to ensure that designated waters conform within five years following designation in accordance with Article 4 to both the values set by the Member States in accordance with Article 3 and the comments contained in columns G and I of Annex I.

Article 6

1. For the purposes of implementing Article 5, the designated waters shall be deemed to conform to the provisions of this Directive if samples of such waters, taken at the minimum frequency specified in Annex I at the same sampling point and over a period of 12 months, show that they conform to both the values set by the Member States in accordance with Article 3 and to the comments contained in columns G and I of Annex I, in the case of:

78/659/EEC (adapted)

(a) 95% of the samples for the parameters: pH, BOD5, non-ionized ammonia, total ammonium, nitrites, total residual chlorine, total zinc, and dissolved copper. When the sampling frequency is lower than one sample per month, both the abovementioned values and comments shall be respected for all the samples ;

(b) the percentages listed in Annex I for the parameters: temperature and dissolved oxygen ;

(c) the average concentration set for the parameter: suspended solids.

78/659/EEC

2. Instances in which the values set by Member States in accordance with Article 3 or the comments contained in columns G and I of Annex I are not respected shall not be taken into consideration in the calculation of the percentages provided for in paragraph 1 when they are the result of floods or other natural disasters.

Article 7

1. The competent authorities in the Member States shall carry out sampling operations, the minimum frequency of which is laid down in Annex I.

2. Where the competent authority records that the quality of designated waters is appreciably higher than that which would result from the application of the values set in accordance with Article 3 and the comments contained in columns G and I of Annex I, the frequency of the sampling may be reduced. Where there is no pollution or no risk of deterioration in the quality of the waters, the competent authority concerned may decide that no sampling is necessary.

3. If sampling shows that a value set by a Member State in accordance with Article 3 or a comment contained in either of columns G or I of Annex I is not respected, the Member State shall establish whether this is the result of chance, a natural phenomenon or pollution and shall adopt appropriate measures.

4. The exact sampling point, the distance from this point to the nearest point where pollutants are discharged and the depth at which the samples are to be taken shall be fixed by the competent authority of each Member State on the basis of local environmental conditions in particular.

5. Certain reference methods of analysis for the parameters concerned are set out in Annex I. Laboratories which employ other methods shall ensure that the results obtained are equivalent or comparable to those specified in Annex I.

Article 8

Implementation of the measures taken pursuant to this Directive may on no account lead, either directly or indirectly, to increased pollution of fresh water.

Article 9

Member States may at any time set more stringent values for designated waters than those laid down in this Directive. They may also lay down provisions relating to other parameters than those provided for in this Directive.

Article 10

When fresh waters cross or form national frontiers between Member States and when one of these States considers designating these waters, these States shall consult each other in order to determine the stretches of such waters to which the Directive might apply and the consequences to be drawn from the common quality objectives; these consequences shall be determined, after formal consultations, by each State concerned. The Commission may participate in these deliberations.

Article 11

The Member States may derogate from this Directive:

(a) in the case of certain parameters marked (0) in Annex I, because of exceptional weather or special geographical conditions;

(b) when designated waters undergo natural enrichment in certain substances, so that the values set out in Annex I are not respected.

Natural enrichment means the process whereby, without human intervention, a given body of water receives from the soil certain substances contained therein.

78/659/EEC (adapted)

Article 12

Such amendments as are necessary for adapting to technical and scientific progress the G values for the parameters and the methods of analysis, contained in Annex I shall be adopted in accordance with the procedure referred to in Article 13(2) .

807/2003 Art. 3 and Annex III, pt. 26 (adapted)

Article 13

1. The Commission shall be assisted by the Committee on Adaptation to Technical and Scientific Progress hereinafter referred to as "the Committee" .

2. Where reference is made to this paragraph , Articles 5 and 7 of Decision 1999/468/EC shall apply, in compliance with Article 8 thereof .

The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.

3. The Committee shall adopt its rules of procedure.

78/659/EEC Art. 15

Article 14

For the purposes of applying this Directive, Member States shall provide the Commission with information concerning:

78/659/EEC Art. 15 (adapted)

(a) the waters designated in accordance with Article 4(1), in summary form ;

(b) the revision of the designation of certain waters in accordance with Article 4 (2) ;

(c) the provisions laid down in order to establish new parameters in accordance with Article 9 ;

(d) the application of the derogations from the values listed in column I in Annex I.

78/659/EEC Art. 15

More generally, Member States shall provide the Commission, on a reasoned request from the latter, with any information necessary for the application of this Directive.

91/692/EEC Art. 2, pt. 1 and Annex I, pt. (c) (adapted)

Article 15

At intervals of three years Member States shall send information to the Commission on the implementation of this Directive, in the form of a sectoral report which shall also cover other pertinent Community Directives. The report shall be drawn up on the basis of a questionnaire or outline drafted by the Commission in accordance with the procedure laid down in Article 6 of Council Directive 91/692/EEC [12]. The questionnaire or outline shall be sent to the Member States six months before the start of the period covered by the report. The report shall be sent to the Commission within nine months of the end of the three-year period covered by it.

[12] OJ L 337, 31.12.1991, p. 48.

The first report shall cover the period 1993 to 1995 inclusive.

The Commission shall publish a Community report on the implementation of the Directive within nine months of receiving the reports from the Member States.

78/659/EEC Art. 17 (adapted)

Article 16

Member States shall communicate to the Commission the texts of the main provisions of national law which they adopt in the field governed by this Directive.

Article 17

Directive 78/659/EEC, as amended by the acts listed in Annex III, Part A, is repealed, without prejudice to the obligations of the Member States relating to the time-limits for transposition into national law of the Directives set out in Annex III, Part B.

References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex IV.

Article 18

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

78/659/EEC Art. 18

Article 19

This Directive is addressed to the Member States.

Done at Brussels,

For the European Parliament For the Council

The President The President

78/659/EEC (adapted)

ANNEX I

LIST OF PARAMETERS

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General observation:

It should be noted that the parametric values listed in this Annex assume that the other parameters, whether mentioned in this Annex or not, are favourable. This implies, in particular, that the concentrations of other harmful substances are very low.

Where two or more harmful substances are present in mixture, joint effects (additive, synergic or antagonistic effects) may be significant.

Abbreviations:

G = guide.

I = mandatory.

(0) = derogations are possible in accordance with Article 11.

_________________

78/659/EEC

ANNEX II

PARTICULARS REGARDING TOTAL ZINC AND DISSOLVED COPPER

Total zinc

(see Annex I, No 13, «Observations» column)

Zinc concentrations (mg/l Zn) for different water hardness values between 10 and 500 mg/l CaCO3:

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Dissolved copper

(See Annex I, No 14, «Observations» column)

Dissolved copper concentrations (mg/l Cu) for different water hardness values between 10 and 300 mg/l CaCO3:

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________________

ANNEX III

Part A

Repealed Directive with its successive amendments (referred to in Article 17)

Council Directive 78/659/EEC (OJ L 222, 14.8.1978, p. 1) [13] //

[13] Directive 78/659/EC has also been amended by the following unrepealed acts: - Act of Accession of Greece; - Act of Accession of Spain and Portugal; - Act of Accession of Austria, Finland and Sweden.

Council Directive 91/692/EEC (OJ L 377, 31.12.1991, p. 48) // Annex I, point (c) only

Council Regulation (EC) No 807/2003 (OJ L 122, 16.5.2003, p. 36) // Annex III, point 26 only

Part B

List of time-limits for transposition into national law (referred to in Article 17)

Directive // Time-limit for transposition

78/659/EEC // 20 July 1980

91/692/EEC // 1 January 1993

_____________

ANNEX IV

Correlation Table

Directive 78/659/EEC // This Directive

Article 1(1) and (2) // Article 1(1) and (2)

Article 1(3), introductory phrase // Article 1(3), introductory phrase

Article 1(3), first indent // Article 1(3)(a)

Article 1(3), second indent // Article 1(3)(b)

Article 1(4), introductory phrase // Article 1(4), introductory phrase

Article 1(4), first indent // Article 1(4)(a)

Article 1(4), second indent // Article 1(4)(b)

Article 2(1) // Article 2, first subparagraph

Article 2(2) // Article 2, second subparagraph

Article 3 // Article 3

Article 4(1) and (2) // Article 4(1)

Article 4(3) // Article 4(2)

Article 5 // Article 5

Article 6(1), introductory phrase // Article 6(1), introductory phrase

Article 6(1), first indent // Article 6(1)(a)

Article 6(1), second indent // Article 6(1)(b)

Article 6(1), third indent // Article 6(1)(c)

Article 6(2) // Article 6(2)

Article 7 // Article 7

Article 8 // Article 8

Article 9 // Article 9

Article 10 // Article 10

Article 11 // Article 11

Article 12 // Article 12

Article 13(1) // --

Article 14 // Article 13

Article 15, first subparagraph, introductory phrase // Article 14, first subparagraph, introductory phrase

Article 15, first subparagraph, first indent // Article 14, first subparagraph, point (a)

Article 15, first subparagraph, second indent // Article 14, first subparagraph, point (b)

Article 15, first subparagraph, third indent // Article 14, first subparagraph, point (c)

Article 15, first subparagraph, fourth indent // Article 14, first subparagraph, point (d)

Article 15, second subparagraph // Article 14, second subparagraph

Article 16 // Article 15

Article 17(1) // _____

Article 17(2) // Article 16

_______ // Article 17

_______ // Article 18

Article 18 // Article 19

Annex I // Annex I

Annex II // Annex II

_______ // Annex III

_______ // Annex IV

_____________