Judgment of the Court of 28 February 1991. - Commission of the European Communities v Italian Republic. - Failure to fulfil obligations - Failure to implement a directive - Groundwater. - Case C-360/87.



European Court reports 1991 Page I-00791



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

++++

1. Measures adopted by the Community institutions - Directives - Implementation by Member States - Implementation of a directive without legislative action - Conditions - Existence of a general legal context which ensures full application of the directive

(EEC Treaty, Art. 189, third paragraph)

2. Approximation of laws - Protection of groundwater - Directive 80/68 - Need for precise implementation by Member States

(Council Directive 80/68/EEC)

Summary

1. The transposition of a directive into national law does not necessarily require the relevant provisions to be enacted in precisely the same words in a specific express legal provision; a general legal context may be sufficient if it does ensure the full application of the directive in a sufficiently clear and precise manner.

Legislation which leaves the persons subject to it in a state of uncertainty as to the extent to which they may rely on Community law does not fulfil the obligation to transpose a directive into national law.

2. Directive 80/68 seeks to ensure full and effective protection of groundwater in the Community; its transposition into national law requires precise and clear measures, and vague and general legislative provisions are not sufficient.

Parties

In Case C-360/87,

Commission of the European Communities, represented by Guido Berardis, a member of its Legal Department, acting as Agent, with an address for service in Luxembourg at his office, Wagner Centre, Kirchberg,

applicant,

v

Italian Republic, represented by Professor Luigi Ferrari Bravo, Head of the Legal Department of the Ministry of Foreign Affairs, assisted by Pier Giorgio Ferri, Avvocato dello Stato, acting as Agents, with an address for service in Luxembourg at the Italian Embassy, 5 Rue Marie-Adélaïde,

defendant,

APPLICATION for a declaration that by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary for the full and correct implementation in its national law of Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances (OJ 1980 L 20, p. 43), the Italian Republic has failed to fulfil its obligations under the EEC Treaty,

THE COURT

composed of O. Due, President, G. F. Mancini, J. C. Moitinho Almeida and M. Díez de Velasco (Presidents of Chambers), C. N. Kakouris, F. Grévisse and M. Zuleeg, Judges,

Advocate General: W. Van Gerven

Registrar: H. A. Ruehl, Principal Administrator,

having regard to the Report for the Hearing and further to the hearing on 4 July 1990,

after hearing the Opinion of the Advocate General delivered at the sitting on 25 September 1990,

gives the following

Judgment

Grounds

1 By an application lodged at the Court Registry on 2 December 1987 the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary for the full and correct implementation in its national law of Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances (OJ 1980 L 20, p. 43) (hereinafter referred to as "the Directive"), the Italian Republic has failed to fulfil its obligations under the EEC Treaty.

2 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the Community and national provisions at issue, the course of the procedure and the pleas in law and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

The subject-matter of the dispute

3 In the course of the pre-litigation procedure and the written procedure before the Court the Italian Republic stated inter alia that Italian water was protected against pollution by Law No 319 of 10 May 1976, entitled "Norme per la tutela delle acque dall' inquinamento" (the "Legge Merli I", Official Gazette of the Italian Republic No 141 of 29 May 1976, p. 4125), by Law No 650 of 24 December 1979, entitled "Integrazioni e modifiche delle leggi 16 aprile 1973, No 171, e 10 maggio 1976, No 319, in materia di tutela delle acque dall' inquinamento" (the "Legge Merli II", Official Gazette of the Italian Republic No 352 of 29 December 1979, p. 10533) and by the Decision of 4 February 1977 of the Interministerial Committee for the protection of water against pollution (Official Gazette of the Italian Republic, Ordinary Supplement No 48 of 21 February 1977, p. 2). However, at the hearing the Italian Republic stated that on certain points its legislation was not entirely in conformity with the Directive and indicated that the legislative procedure intended to bring about full conformity was in progress.

4 During the pre-litigation procedure the Italian Republic maintained that according to the legislation in force in Italy all direct discharges of waste water into groundwater were prohibited. The Italian legislation thus fulfilled the requirements of the first indent of Article 4(1) and the first indent of Article 5(1) of the Directive.

5 In its application the Commission stated that it took note of the statements made by the Italian Republic concerning the prohibition of direct discharges. At the hearing it stated that it had been established that the Italian legislation provided indirectly for the prohibition of any direct discharge and it accepted that on that point the absolute prohibition of direct discharge was in conformity with the Directive.

6 Having regard to those statements of the parties' respective positions, the specific complaints made by the Commission regarding the conformity of the Italian legislation with the Directive remain to be examined.

7 It should be observed as a preliminary point that the transposition of Community legislation into national law does not necessarily require the relevant provisions to be enacted in precisely the same words in a specific express legal provision; a general legal context may be sufficient if it does ensure the full application of the Directive in a sufficiently clear and precise manner (see the judgment in Case 252/85 Commission v France [1988] ECR 2243). Each of the Commission' s complaints must therefore be examined on that basis.

The distinction between the substances in list I and those in list II

8 The Commission argues first that the Italian legislation on discharges makes no distinction between substances in list I and those in list II. That distinction is important in relation to the objective of the Directive, that is to say the effective protection of groundwater against pollution, because discharges of substances in list I must be prevented whereas discharges of substances in list II must merely be limited.

9 The Italian Republic did not take any position on that complaint in its defence or in its rejoinder; in its reply to the written question addressed to it by the Court, it referred to point 1 of Annex 5 to the Decision of 4 February 1977 of the Interministerial Committee, referred to above, and stated that under that Decision the direct discharge of substances in list I is absolutely precluded and the risk of indirect discharge is practically eliminated.

10 The Italian Republic also admitted at the hearing that the Italian legislation made no distinction between direct and indirect discharges, but it submits that the Decision of 4 February 1977 ensures that discharges cannot reach groundwater since that Decision authorizes discharge on the ground only where there is natural purification and discharges in the subsoil only where the discharge is carried out in deep and impermeable strata. The Italian Republic states, however, that through the distinction it makes between substances in lists I and II the Directive authorizes a certain degree of pollution in respect of substances in list II, contrary to the legislation in force in Italy, which is more rigorous on this point.

11 As is clear from the statements of the Italian Republic, it admits that its legislation makes no distinction between the substances in lists I and II. Article 3 of the Directive treats differently discharges of substances in list I, which must always be prohibited in the case of direct discharges and are subject to authorization, after an investigation, in the case of indirect discharges, and discharges of substances in list II, which are subject to other rules. Consequently, the distinction between the two types of substances is mandatory in view of the objective of the Directive. It follows that it must be incorporated in national legislation with the requisite precision and clarity in order to meet the requirement of certainty.

12 Legislation which leaves the persons subject to it in a state of uncertainty as to the extent to which they may rely on Community law does not fulfil the obligation to transpose a directive into national law (see the judgment in Case 116/86 Commission v Italy [1988] ECR 1323).

13 As regards the argument of the Italian Republic to the effect that its legislation in practice eliminates the risk of indirect discharge, it should be observed that, as the Court held in its judgment in Case C-339/87 Commission v Netherlands [1990] ECR I-851, at paragraph 25, in order to secure the full implementation of directives in law and not only in fact, Member States must establish a specific legal framework in the area in question.

14 Consequently, this complaint of the Commission must be upheld.

Substances omitted by the Italian legislation

15 The Commission submits that the Italian legislation omits several of the substances included in lists I and II in the Annex to the Directive.

16 With regard to list I, the Commission submits that there is no mention in the Italian legislation of "organotin compounds" (list I, point 3) or of most substances which "possess carcinogenic, mutagenic or teratogenic properties in or via the aquatic environment" (list I, point 4), and that among the organohalogen compounds and substances which may form such compounds in the aquatic environment and organophosphorus compounds (list I, points 1 and 2), the Italian legislation refers only to chlorine-based pesticides, chlorine-based solvents and phosphor-based pesticides.

17 With regard to substances in list II, the Commission submits that the Italian legislation does not take into account the following chemical substances: antimony, molybdenum, titanium, beryllium, uranium, vanadium, cobalt, thallium, tellurium and silver, and that it does not cover several compounds which may be classed as "biocides and their derivatives not appearing in list I". It refers in that regard to examples such as carbamates, dithiocarbamates, organosulphate fungicides, quaternary ammonium derivatives etc., and the group of "toxic or persistent organic compounds of silicon, and substances which may cause the formation of such compounds in water, excluding those which are biologically harmless or are rapidly converted in water into harmless substances" (points 1, 2 and 4 of list II).

18 In reply to a question in this regard from the Court, the Italian Republic admitted that the complaint concerning all those substances was well founded, and it confirmed that admission at the hearing. It observes, however, that with regard in particular to the substances referred to in point 4 of list I, that is to say those which possess carcinogenic, mutagenic or teratogenic properties, it has experienced some difficulty as a result of the fact that the Directive does not state what these substances are and that although it has asked the Commission for clarification on that point it has received no reply.

19 It is true that the Directive does not identify the substances which possess carcinogenic, mutagenic or teratogenic properties and that, as the Commission rightly stated, its silence is due to the constant developments in scientific knowledge in that regard. However, that difficulty does not justify the absence of any general mention of those substances in national legislation.

20 Consequently, this complaint of the Commission must be upheld.

The procedure for the issue of discharge authorizations

21 The Commission submits that the Italian Republic has not transposed Article 7 of the Directive, which specifies the nature of the prior scientific investigation, or Article 8, which lays down the condition that a discharge authorization cannot be issued before it has been checked that the groundwater, and in particular its quality, will undergo the requisite surveillance.

22 The Italian Republic submits that Law No 62 of 5 March 1982 (Official Gazette of the Italian Republic No 63 of 5 March 1982, p. 1713) meets the requirements of Article 7 of the Directive inasmuch as it provides that the regions are required to identify, by means of an appropriate plan, zones suitable for discharges of waste water and sludge, in accordance with the criteria laid down in Annex 5 of the Decision of the Interministerial Committee of 4 February 1977, which establishes very detailed rules concerning prior verifications. According to the Italian Republic those rules serve to predetermine the conditions under which any discharges are carried out.

23 That argument cannot be upheld. Article 7 of the Directive requires, having regard to the specific nature of the subject-matter of the investigation, that is to say the environment into which the discharge is to be made, that the investigation should have a specific objective, that is to say the study of the hydrogeological conditions of the area concerned, the possible purifying powers of the soil and subsoil and other factors; indeed, it is for that reason that the provision gives a precise indication of the factors which must be covered by the prior investigation. It thus makes the grant of authorization subject to precise and detailed conditions which must be regarded as mandatory in order to achieve the aim of the Directive. It follows that national legislation which defines in a vague and general manner a number of criteria and technical standards for the use of water cannot be regarded as complying with the requirements of the Directive.

24 With regard to the transposition of Article 8 of the Directive, the Italian Republic submits that the surveillance of water required by that article is ensured by point 2.8 of Annex 5 to the Decision of the Interministerial Committee of 4 February 1977, under which provision must be made for all the necessary verifications in order to assess the environmental impact of the discharge system and which indicates a number of checks to be carried out.

25 That argument cannot be upheld either. Article 8 of the Directive makes the grant of authorizations provided for in Articles 4, 5 and 6 subject in mandatory terms to prior specific checks of a well-defined nature.

26 The provisions relied on by the Italian Republic provide only for vague and general measures which cannot be regarded as implementing the article in question with the requisite precision and clarity to satisfy fully the demands of legal certainty (see the judgment in Case 291/84 Commission v Netherlands [1987] ECR 3483, at paragraph 15).

27 Consequently, this complaint on the part of the Commission must also be upheld.

The tacit "provisional authorization"

28 The Commission also submits that the Italian Republic has not transposed Articles 9 and 10 of the Directive, which indicate the matters which must be specified in authorizations, or Article 12 of the Directive, which sets out the circumstances in which authorization must be refused or withdrawn. The Commission submits that Article 15 of Law No 319 of 10 May 1976, cited above, makes the issue of authorization subject to no condition other than the obligation for the applicant to submit an application accompanied by a precise description of the discharge. The Commission further states that in accordance with that article provisional authorization is deemed to be granted when the application for grant of authorization has not been rejected within six months. According to the Commission, that provision establishes a system of authorization on demand and a "tacit agreement" procedure which has repercussions as regards both authorization and verification, since in the event of tacit authorization it is not certain whether any verification has taken place, and where it has not the authorization is granted without compliance with the conditions laid down in Articles 9, 10 and 12 of the Directive.

29 The Italian Republic argues that the fact that the Italian legislation provides for tacit authorization does not mean that the system is incompatible in itself with the aim of the Directive, since the Member States are entitled to choose the manner in which they implement it. According to the Italian Republic, the competent authority must in any event verify, as regards tacit authorizations, that the area chosen for the discharge falls within that previously defined by the regional authority. Consequently Italian law ensures preventive and effective monitoring in accordance with the Directive.

30 The Directive provides that the refusal, grant or withdrawal of authorizations must take place by way of an express measure in accordance with precise rules of procedure which comply with a number of necessary conditions, conditions which create rights and obligations on the part of individuals.

31 Consequently, tacit authorization cannot be considered compatible with the requirements of the Directive, since in addition, as the Commission has stated, such authorization does not make it possible to carry out prior enquiries, subsequent enquiries or checks. It follows that the national legislation does not transpose the Directive with the requisite precision and clarity to satisfy fully the requirements of legal certainty.

32 Consequently, this complaint by the Commission must also be upheld.

The duration of authorization

33 According to the Commission, the Italian legislation, in particular Article 15 of Law No 319 of 10 May 1976, cited above, provides for definitive authorization, which, even if it can be withdrawn or amended at any time, is incompatible with Article 11 of the Directive, which requires the Member States to grant authorizations for a limited period which must be reviewed at least every four years.

34 The Italian Republic did not take any position on this issue in its written pleadings, but in reply to a question from the Court it admitted that the provisions of Italian legislation in force do not regulate the duration of authorization.

35 Consequently, this complaint of the Commission must be upheld.

Monitoring of compliance with the conditions laid down in authorizations and the effects of discharges

36 The Commission submits that Article 13 of the Directive, which requires Member States to monitor compliance with the conditions laid down in each authorization and the effects of discharges on groundwater, has not been correctly transposed since the sixth paragraph of Article 15 of Law No 319 of 10 May 1976, as amended by Law No 650 of 24 December 1979, cited above, gives the Italian authorities powers of supervision and monitoring which are vague in nature and are restricted to monitoring compliance with the limits of acceptability laid down by the legislation.

37 With regard to the complaint concerning the monitoring of compliance with the conditions laid down in the authorization, the Italian Republic, in reply to a written question from the Court, states that Article 9 of Law No 650 of 24 December 1979 meets the requirements of the Directive since municipalities and mountain local authorities are required to monitor discharges and Article 22 of Law No 319 of 10 March 1976 lays down criminal penalties for persons who fail to observe the conditions laid down in authorizations. It points out that Article 8(4) of Law No 349 of 15 July 1986 (Official Gazette of the Italian Republic No 162 of 8 July 1986) established an environmental unit of carabinieri. According to the Italian Republic, the fact that failure to observe the conditions laid down in authorizations constitutes a criminal offence automatically entails a duty of surveillance and monitoring on the part of the authorities responsible for investigating offences.

38 With regard to the complaint concerning the monitoring of the effects of discharges, the Italian Republic, in reply to a question from the Court, states that such monitoring is ensured by point 2.8 of the Decision of the Interministerial Committee of 4 February 1977.

39 In reply to those arguments, the Commission maintains that the Italian legislation is vague and that the criminal penalties provided for in Article 22 of Law No 319 of 10 May 1976 are insufficient to ensure compliance with the Directive, because the Law itself does not take account of the precise and detailed provisions of the Directive. Furthermore, the Commission considers that the carabinieri unit, composed of some 20 men, cannot ensure effective protection against all offences concerning the environment.

40 Article 13 of the Directive places on the authorities of the Member States a specific duty to monitor all the conditions laid down in authorizations which have been issued and all the effects of discharges on groundwater.

41 The Italian legislation establishes a general criminal offence intended to penalize failure to comply with the conditions laid down in authorizations which are issued, but does not require any specific monitoring of compliance with those provisions. Nor does it provide for monitoring of the effects of discharges on groundwater.

42 It follows that the measures taken by the Italian Republic are not sufficient to meet the specific requirements of the Directive as regards both the monitoring of compliance with the conditions laid down in authorizations which are issued and the monitoring of the effects of discharges on groundwater.

43 Consequently, this complaint of the Commission must also be upheld.

The obligation to keep an inventory of authorizations.

44 The Commission submits that the Italian legislation does not comply with Article 15 of the Directive, which requires Member States to keep an inventory of authorizations. At present there is no such inventory in Italy, and even if there was one it would necessarily be incomplete at least in respect of tacit authorizations.

45 The Italian Republic replies that the fact that national legislation permits tacit authorization does not preclude the possibility of drawing up the inventory required by the Directive, because every application for authorization lodged with the competent department is accompanied by documentation containing all the information on the discharge.

46 That argument cannot be upheld, because the documentation referred to does not satisfy the obligation laid down by the Directive to keep an inventory of authorizations.

47 Consequently, this complaint of the Commission must also be upheld.

48 Having regard to all the foregoing considerations, it must be held that by not adopting within the prescribed period all the measures necessary to comply with Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances the Italian Republic has failed to fulfil its obligations under the EEC Treaty.

Decision on costs

Costs

49 Under Article 69(2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. Since the Italian Republic has been unsuccessful, it must be ordered to pay the costs.

Operative part

On those grounds,

THE COURT

hereby:

(1) Declares that by not adopting within the prescribed period all the measures necessary to comply with Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances the Italian Republic has failed to fulfil its obligations under the EEC Treaty;

(2) Orders the Italian Republic to pay the costs.