Opinion of Mr Advocate General Tesauro delivered on 26 June 1997. - Commission of the European Communities v Hellenic Republic. - Failure to fulfil obligations - Directive 76/464 - Water pollution - Non-transposition. - Joined cases C-232/95 and C-233/95.



European Court reports 1998 Page I-03343



Opinion of the Advocate-General

1 In two applications made under Article 169 of the Treaty the Commission has asked the Court to declare that the Hellenic Republic has failed to fulfil its obligations under the Treaty and under Council Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community (1) (hereinafter `the Directive').

In particular, the Commission charges the Hellenic Republic, on the one hand, with having failed to establish the programmes laid down in Article 7 of the Directive for reducing pollution in the waters of Lake Vegoritis, the River Soulos and the Pagasetic Gulf or to set deadlines for their implementation, and, on the other hand, of having failed to submit for the prior authorisation required by Article 7(2) of the Directive the potentially harmful discharges into the aquatic areas mentioned above.

2 The aim of the Directive, adopted on the basis of Articles 100 and 235 of the Treaty, is set out in Article 2, which provides:

`Member States shall take the appropriate steps to eliminate pollution of the waters referred to in Article 1 by the dangerous substances in the families and groups of substances in List I of the Annex and to reduce pollution of the said waters by the dangerous substances in the families and groups of substances in List II of the Annex, in accordance with this Directive, the provisions of which represent only a first step towards this goal.' (2)

The methods of attaining this goal are laid down in the following articles of the Directive. In this respect Article 7 assumes a particular significance. It is worded as follows:

`1. In order to reduce pollution of the waters referred to in Article 1 by the substances within List II, Member States shall establish programmes in the implementation of which they shall apply in particular the methods referred to in paragraphs 2 and 3.

2. All discharges into the waters referred to in Article 1 which are liable to contain any of the substances within List II shall require prior authorisation by the competent authority in the Member State concerned, in which emission standards shall be laid down. Such standards shall be based on the quality objectives, which shall be fixed as provided for in paragraph 3.

3. The programmes referred to in paragraph 1 shall include quality objectives for water; these shall be laid down in accordance with Council Directives, where they exist.

4. ...

5. The programmes shall set deadlines for their implementation.

6. Summaries of the programmes and the results of their implementation shall be communicated to the Commission.

7. The Commission, together with the Member States, shall arrange for regular comparisons of the programmes in order to ensure sufficient coordination in their implementation. If it sees fit, it shall submit relevant proposals to the Council to this end.'

3 Following two complaints by private individuals about the state of environmental degradation of the waters of Lake Vegoritis and its principle tributary, the River Soulos, as well as those of the Pagasetic Gulf, the Commission asked the Greek authorities for various items of information concerning the measures adopted to eliminate or reduce pollution in the areas concerned in application of the relevant Community directives.

At first, the Commission's complaints related to numerous alleged infringements of equally numerous provisions of Community directives on the environment. (3) During the pre-litigation procedure, however, the Commission decided to abandon most of its complaints and to limit the two infringement procedures to the one directive now under consideration, the infringement of which, according to the Commission, was, in substance, admitted having regard to the terms of the replies received from the Greek authorities.

4 The Commission therefore sent to the Greek Government two letters of formal notice, followed by two reasoned opinions; (4) finally, considering the positions taken by the Greek authorities to be unsatisfactory, it decided to bring the actions now before the Court.

Let me recall the subject-matter of the actions: the Commission is asking the Court to declare that, by having failed to establish the programmes referred to in Article 7 of the Directive or set deadlines for their implementation and by having failed to submit for the prior authorisation required by Article 7(2) of the Directive the discharges liable to contain one of the substances listed in Annex II, as regards Lake Vegoritis, the River Soulos (Case C-232/95) and the Pagasetic Gulf (Case C-233/95), the Hellenic Republic has failed to fulfil its obligations under the Treaty and Articles 2 and 7 of the Directive.

5 As already mentioned, the Greek Government has contended that the Commission's action should be dismissed, basing itself on an argument which, developed in its written pleadings and confirmed at the hearing, is not, in fact, free from contradictions. The Greek Government has expressly acknowleged that, at least prior to the expiry of the deadlines mentioned in the reasoned opinions, it had not established the programmes laid down in Article 7 of the Directive (and, as a result, had not set specific dates for their implementation); still less had it communicated them to the Commission as required by Article 7(5). Similarly it has acknowledged that, at the very least, certain industrial establishments on the periphery of the areas concerned were still making discharges into the waters concerned, without possessing the authorisation required by Article 7(2).

The Greek Government has nevertheless submitted that the Commission's actions are unfounded, putting forward arguments based on provisions of domestic law, varying in rank and nature, (5) which, according to it, demonstrate that the conditions of the aquatic resources in dispute are fundamentally in conformity with the requirements of the Directive. In particular, the need to establish the programmes in question does not exist in this case, in view of the fact that other general programmes for the qualitative and quantitative management of the waters exist, as do other methods (such as studies carried out by specialised or university centres, oceanographic reports, or others), which enable the areas concerned to be constantly monitored. Moreover, and in any event, the competent authorities have already established a specific programme for Lake Vegoritis, which should come into force during 1997; (6) as far as the Pagasetic Gulf is concerned, the funds necessary for the realisation of a similar programme have already been obtained. Therefore, according to the Greek Government, any infringement which may exist in this respect should, in any event, be regarded as having ceased to exist.

From the specific point of view of the authorisations to discharge harmful substances, the defendant Government has provided a detailed list of the various industrial establishments which are already in possession of an authorisation and which, as a result, discharge industrial effluents into the waters in question under the control of the competent authorities. However, as regards the establishments which are still without an authorisation, the Greek Government emphasises that they are limited in number and that the discharges produced are minimal and not inordinately harmful. It asserts that, in any event, procedures are in hand for regularising the situation also with respect to the establishments still without an authorisation so that, even from this point of view, the Commission's actions are unfounded.

6 It is however obvious that the line of argument adopted by the defendant Government cannot be accepted, either in relation to the programmes at issue or in relation to the prior authorisations.

First of all, as far as the programmes are concerned, these are laid down, as already mentioned, by Article 7(1) of the Directive, precisely in order to `reduce pollution of the waters referred to in Article 1 by the substances within List II'. The programmes are therefore regarded by the Directive itself as essential in order to attain the environmental protection objectives which it sets itself as a primary target. A corollary to the specific obligation to establish such programmes is the obligation to set deadlines for their implementation (Article 7(5)), as is the obligation to communicate them to the Commission in order to enable it to verify that the programmes are appropriate to the aim pursued by the Directive and to ensure that their implementation is sufficiently coordinated between the various Member States (Article 7(7)). (7)

7 Thus, it is not disputed that the Greek Government has not fulfilled its obligations within the time-limits laid down in the reasoned opinion, the only ones which matter. As I have said, the programme relating to Lake Vegoritis was established only this year (more than four years after the expiry of the deadline set in the reasoned opinion) and, in any case, is not yet in force; that relating to the Pagasetic Gulf is still only at the preparation stage.

In these circumstances, the fact that other, different methods exist (national provisions, scientific studies, appropriation of funds and so forth) is totally irrelevant in relation to the infringement of the specific requirements of Article 7 of the Directive, which is the subject of these proceedings. Even if those methods, taken as a whole, allowed the objectives set by the Directive to be regarded as achieved - which, in any event, has not been shown to be the case - the fact still remains that they could not make up for the failure to adopt and to communicate the programmes in question, which, as already indicated, answer to different and quite specific requirements. (8)

8 On the other hand, this approach accords perfectly with the case-law of the Court. In the most general terms, the Court has had frequent occasion to state that while transposition of a directive into domestic law does not necessarily require that its provisions be incorporated formally and verbatim in an express and specific provision of law, a general legal context may constitute a proper transposition only if it does indeed guarantee, in a sufficiently clear and precise manner, (9) the full implementation of the directive. Moreover, the requirement of precision and accuracy of transposition has assumed a particular importance in the decisions of the Court relating to directives on the environment, in which the management of the common heritage is entrusted to the Member States in their respective territories. (10)

Furthermore, ruling on a case not dissimilar to that which concerns us today, the Court did not hesitate to condemn the Grand Duchy of Luxembourg for not having complied with (inter alia) the requirements of a directive which prescribed the adoption of specific methods for achieving the aims laid down by the directive itself. (11) The specific provision in point was Article 3 of Council Directive 85/339/EEC of 27 June 1985 on containers of liquids for human consumption, (12) on the basis of which the Member States were required to establish and to communicate to the Commission specific programmes to reduce the tonnage and/or the volume of packaging contained in domestic waste to be eliminated permanently.

9 As regards the authorisations referred to in Article 7(2) of the Directive, it need merely be pointed out here that the Greek Government limits itself, in substance, to indicating that it is gradually moving towards the regularisation of those situations in which potentially harmful substances are discharged without authorisation, thereby escaping the control of the competent authorities. This, quite obviously, constitutes an express admission of failure to fulfil obligations which would render any further consideration superfluous. (13)

10 Ultimately, one has the impression that, in this case, rather than challenging the complaints made against it by the Commission, the Greek Government is in fact confining itself to stressing the efforts made to date and the initiatives launched and in the process of being given effect in order to comply with the objectives of the Directive, knowing full well that it has not implemented it completely or within the prescribed time-limit.

It is plain, however, that, according to now firmly established case-law, those efforts - which should, however, be noted with satisfaction - cannot in any event justify the failure to transpose the Directive.

11 In the light of the foregoing observations I propose that the Court should:

(1) declare that, by failing to establish the programmes referred to in Article 7 of Council Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community and intended to reduce pollution caused by the discharge of substances within List II into the waters of Lake Vegoritis, the River Soulos and the Pagasetic Gulf or to set deadlines for the implementation of such programmes and by failing to submit for prior authorisation within the meaning of Article 7(2) the discharges liable to contain any of the substances within List II into those same waters, the Hellenic Republic has failed to fulfil its obligations under Article 189 of the Treaty and under Articles 2 and 7 of the said directive;

(2) order the Hellenic Republic to pay the costs.

(1) - OJ 1976 L 129, p. 23.

(2) - Article 1 specifies that the Directive shall apply to inland surface water, territorial waters, internal coastal waters and ground water. The Annex lists the families and groups of substances considered harmful and divides them into two lists, I or II, according to the level of harm which they represent for the waters into which they are discharged.

(3) - More specifically, apart from the directive which is the subject of these proceedings, the complaints put forward by the Commission related to the implementation of Council Directive 76/160/ EEC of 8 December 1975 concerning the quality of bathing water (OJ 1976 L 31, p. 1) as far as the Pagasetic Gulf is concerned, and also a number of other directives applying in particular to the situation of Lake Vegoritis and the River Soulos: Council Directive 75/440/EEC of 16 June 1975 concerning the quality required of surface water intended for the abstraction of drinking water in the Member States (OJ 1975 L 194, p. 26); Council Directive 79/869/EEC of 9 October 1979 concerning the methods of measurement and frequencies of sampling and analysis of surface water intended for the abstraction of drinking water in the Member States (OJ 1979 L 271, p. 44); Council Directive 80/778/EEC of 15 July 1980 relating to the quality of water intended for human consumption (OJ 1980 L 229, p. 11); 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 (OJ 1978 L 222, p. 1); Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), as well as Council Directive 78/319/EEC of 20 March 1978 on toxic and dangerous waste (OJ 1978 L 84, p. 43).

(4) - On 29 June 1989 and 16 October 1992 for Lake Vegoritis and 27 May 1991 and 22 June 1994 for the Pagasetic Gulf respectively.

(5) - Some of which existed even before the Directive was adopted.

(6) - This information was communicated for the first time at the hearing by the Representative of the Greek Government.

(7) - In this respect, let me point out that the Directive finds its legal basis in Articles 100 and 235 of the Treaty; moreover, according to its third recital, `any disparity between the provisions on the discharge of certain dangerous substances into the aquatic environment already applicable or in preparation in the various Member States may create unequal conditions of competition and thus directly affect the functioning of the common market ...'; which confirms, should this be necessary, the central role which the Commission is called upon to play in monitoring the programmes adopted by the Member States and their implementation.

(8) - This was, moreover, expressly confirmed at the hearing by the Representative of the Greek Government who, in reply to a question put by the Court, admitted that the methods in question do not make it possible to achieve the results which the Directive sets itself through the adoption of specific programmes.

(9) - See, for example, Case C-131/88 Commission v Germany [1991] ECR I-825, paragraph 6.

(10) - See Case 247/85 Commission v Belgium [1987] ECR 3029, paragraph 9, and Case 262/85 Commission v Italy [1987] ECR 3073, paragraph 9, both of which concern the conservation of wild birds.

(11) - Case C-252/89 Commission v Luxembourg [1991] ECR I-3973, summary publication.

(12) - OJ 1985 L 176, p. 18.

(13) - There is hardly any need to recall on this point that the Court has consistently held that partial fulfilment of the obligations under a directive cannot constitute proper transposition of that directive (principle already established by the judgment in Case 91/79 Commission v Italy [1980] ECR 1099, paragraph 6).