Opinion of Mr Advocate General Lenz delivered on 15 March 1988. - Commission of the European Communities v Italian Republic. - Failure by a Member State to fulfil its obligations - Failure to transpose Council Directive 78/659/EEC into national law - Protection of the quality of fresh waters capable of supporting fish life. - Case 322/86.



European Court reports 1988 Page 03995



Opinion of the Advocate-General

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Mr President,

Members of the Court,

A - The facts

1 . In the proceedings in which I deliver my Opinion today, the Commission seeks a declaration that the Republic of Italy has failed to fulfil its obligations under the EEC Treaty by not adopting within the prescribed period the measures necessary in order to implement 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 . ( 1 )

2 . Under the directive, the protection of waters is to be achieved by Member States initially designating, within a two-year period following the notification of the directive, that is to say by July 1980, "salmonid waters and cyprinid waters" ( Article 4 ). Within a further period of five years following designation, specific values laid down by the Member States in accordance with the provisions of the directive must be complied with by means of programmes established by the Member States .

3 . In the pre-litigation procedure, in which the applicant contended that the Italian legislation did not comply with the directive, the defendant argued that the directive contained no values actually to be attained; the initiative was instead left to the Member States . Moreover, a consolidated text was in preparation providing for the implementation of several directives relating to water . However, this process had been delayed, so that the text could not be adopted during the pre-litigation procedure .

4 . Only in its statement of defence did the defendant, whilst conceding that its explanations in the pre-litigation procedure were misleading and incomplete, state that the division of powers under existing legislation already afforded all the means necessary for the directive' s proper transposition . Moreover, a designation had already been made in respect of the autonomous province of Bolzano . The applicant did not contest these submissions but maintained its claim on the ground that after a period of almost nine years some 98% of waters were still unprotected within the meaning of Directive 78/659/EEC .

B - Opinion

5 . ( a ) As the applicant has not challenged the defendant' s description of the legal situation, in which it explained the existing division of powers, it may be assumed that under the existing legislation the means are available for the proper implementation of the directive . The required designation falls within the sphere of competence of the Minister for Agriculture and Forestry, whilst the actual selection of waters to be protected is the responsibility of the regions . On the other hand, the Ministry of the Environment is responsible for the drawing up of programmes and supervision . Since the applicant has entertained no doubts as to this division of responsibility or the underlying legal provisions allocating such powers, it must be assumed that it has abandoned its claim that the procedures necessary for the implementation of the directive have not yet been adopted by the legislature .

6 . ( b ) In addition to the obligation to enact the requisite legal and administrative provisions, Article 17 also contains an obligation to give notice of those measures . The applicant in its submissions also alleged an infringement of this provision . As the existing division of powers was not established for the purpose of implementing the directive, it is questionable whether such general provisions can fall under the duty to notify under Article 17 of the directive . In any event, once the legislative position was explained in the defence the applicant no longer claimed that the late notification was a separate breach of this obligation but merely relied on it to justify its lack of knowledge of the action, however little, which had already been taken .

7 . The failure to clarify the legal position should therefore be regarded as an aspect of the defendant' s incomplete and in part also misleading explanations in its conduct prior to the proceedings, which will have a bearing on the question of costs .

8 . ( c ) The defendant did not deny the substance of the allegation that the measures necessary for implementation had not been taken, as regards either the adequate designation of waters, as a first step, or the establishment of programmes to attain the values set, as a second step . Indeed, the defendant' s representative expressly acknowledged at the hearing that "there was a failure on the part of the Italian Republic to implement the directive" and that "the insufficient implementation consists in insufficient designation of waters ". In reply to a question on this point, the defendant' s representative once again repeated that "a failure to implement is not contested by our side ". It may therefore be concluded that the defendant admits its failure to fulfil its obligations .

9 . Moreover, I may also point out that even the designation of waters in respect of the Province of Bolzano was late . The two-year period came to an end in July 1980, and the designation was made only in January 1981 .

10 . Accordingly, the applicant' s claim should be allowed in full . As the allegation of a failure to bring into force legal and administrative provisions is attributable to the defendant' s failure to notify them, the abandonment of this claim can have no positive consequence as to costs for the defendant . The decision on costs should be made in accordance with Article 69 ( 2 ) of the Court' s Rules of Procedure .

C - Conclusion

I therefore suggest the following decision :

11 . "1 . The Italian Republic has failed to fulfil its obligations under the EEC Treaty by not adopting within the prescribed period the measures necessary for the implementation of the Council Directive of 18 July 1978 on the quality of fresh waters needing protection or improvement in order to support fish life .

12 . 2 . The Italian Republic shall pay the costs of the proceedings ."

(*) Translated from the German .

( 1 ) Official Journal 1978 No . L 222, p . 1 .