Opinion of Mr Advocate General Léger delivered on 28 October 1999. - Commission of the European Communities v Hellenic Republic. - Failure of a Member State to fulfil its obligations - Water pollution - Obligation to adopt programmes in order to reduce pollution caused by certain dangerous substances - Failure to transpose Directive 76/464/EEC. - Case C-384/97.



European Court reports 2000 Page I-03823



Opinion of the Advocate-General

1. The Commission of the European Communities has brought before this Court an action for failure to fulfil obligations under Article 169 of the EC Treaty (now Article 226 EC) against the Hellenic Republic which, the Commission contends, has failed to transpose into national law Council Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community.

2. In particular, the Commission charges the Greek Government with failing to establish programmes including quality objectives and setting deadlines for their implementation in order to reduce the pollution of waters by certain substances designated in the Annex to the Directive. The Commission also criticises it for failing to subject discharges made into waters and liable to contain those substances to prior authorisation granted by the competent authority, setting emission standards based on the quality objectives established in the reduction programmes.

I - Directive 76/464

3. The Directive states, in its first recital, that ... there is an urgent need for general and simultaneous action by the Member States to protect the aquatic environment of the Community from pollution, particularly that caused by certain persistent, toxic and bioaccumulable substances.

4. The Directive aims to eliminate pollution of the aquatic environment by a number of particularly dangerous substances, set out in a list, known as List I, and to reduce such pollution by certain other dangerous substances set out in another list, known as List II, which two lists comprise an Annex to the Directive. The Directive provides that Member States are to take the appropriate steps to achieve those objectives.

5. List I contains certain individual substances which belong to the ... families and groups of substances [referred to in the Annex], selected mainly on the basis of their toxicity, persistence and bioaccumulation, with the exception of those which are biologically harmless or which are rapidly converted into substances which are biologically harmless.

6. Member States must, under Article 3 and Article 5 of the Directive, make any discharge into the aquatic environment of substances within List I subject to prior authorisation by the competent authorities and set emission standards which must not exceed certain limit values. Under Article 6, those limit values are to be laid down by the Council.

7. List II contains in particular substances belonging to List I for which the Council has not yet set limit values.

8. Article 7(1) and Article 7(3) of the Directive require Member States to establish programmes aimed at reducing pollution of the aquatic environment (hereinafter programmes), including quality objectives for their waters. The same article provides, in paragraph 2, that all discharges into the aquatic environment liable to contain any of the substances within List II must be subject to prior authorisation, granted by the competent authority of the Member State concerned and laying down emission standards. The latter are to be calculated on the basis of quality objectives prescribed in accordance with paragraph 3 of that article. Paragraph 5 provides that [t]he programmes shall set deadlines for their implementation.

9. Under Article 7(6) of the Directive, [s]ummaries of the programmes and the results of their implementation shall be communicated to the Commission.

10. The Directive does not set any time-limit for transposition. Article 12(2), however, provides that [t]he Commission shall, where possible within 27 months following [its] notification ... forward the first proposals made pursuant to Article 7(7). Under the latter provision, [t]he 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.

11. A reading of List I reveals that it mainly comprises families and groups of substances, and the Commission accordingly considered it necessary, before setting emission limit values or quality objectives, to identify the individual substances of which those categories are composed.

12. In cooperation with the Member States, the Commission drew up a list of 129 individual substances annexed to the Communication from the Commission to the Council of 22 June 1982, on dangerous substances which might be included in List I of Directive 76/464.

13. In its Resolution of 7 February 1983 concerning the combating of water pollution, the Council stated that the list of 129 substances contained in the Commission's Communication would serve the Community as a basis for further work on implementation of the Directive.

14. Three other substances were later added to that list. Of that total of 132 substances, the Commission set emission limit values and quality objectives for 18, whilst 15 others were the subject of a Proposal for a Council Directive amending Directive 76/464, submitted by the Commission on 14 February 1990.

15. The remaining 99 substances should properly appear in List I, but so long as the Council has not set limit values for emissions of those substances, they are subject to the provisions applicable to List II substances, as provided in the first indent to that list.

II - Infringement procedure

16. By letter of formal notice of 27 December 1990, the Commission drew the attention of the Greek authorities to the issue of implementation in Greece of Article 7 of the Directive. It pointed out that the Community had established a list of 132 substances to be included in List I of the Annex, 33 of which were already the subject of specific directives or proposals for directives. The Commission drew to the notice of the Greek Government the fact that a list of 99 substances remained, covered by the obligations laid down in Article 7, which were not the subject of regulatory measures, nor would be in the near future.

17. The Commission also referred to the request, made in its previous letters, to forward an up-to-date list indicating which of the 99 substances were discharged into the Greek aquatic environment, the quality objectives in force at the time when discharge authorisations were granted in the various regions affected by such discharges, the reasons, where no objectives had been set, for which this was so, and a timetable showing by what date those quality objectives would be established.

18. In the same letter, the Commission, having put the Greek Government on notice that it considered that it had failed to comply with the provisions of Article 7 of the Directive and had failed to fulfil the obligations incumbent on it under the Directive and the Treaty, invited the Hellenic Republic to submit its comments to the Commission within two months, in accordance with Article 169 of the Treaty.

19. The Commission did not annex the list of 99 substances to its letter. To avoid any misunderstanding, it made it clear in a further letter of 5 October 1993 that the list of 132 substances appeared in its Communication to the Council of 22 June 1982, cited above, that the Council had confirmed that Communication in its Resolution of 7 February 1983, cited above, and that three further substances had been added. The Commission enclosed the full list of 99 substances.

20. The Commission, on that occasion, again invited the Greek Government to communicate to it, within two months, its observations regarding the drawing up and implementation of programmes.

21. The Hellenic Republic replied by letter of 12 August 1994, stating that the only new factor since one of its previous letters was that it had signed an agreement with the University of the Aegean to carry out a specific study. The Greek authorities, in addition, gave a certain amount of information on the presence in Greece of substances covered by the Directive.

22. In particular, they stated that 32 substances belonging to the one list or the other were broken down by photochemical or microbial action and were not discharged directly into the aquatic environment. They indicated that the Ministry of Agriculture granted no authorisations for the discharge of pesticides into the aquatic environment, with the exception of one such substance, used in the form of a preparation in rice fields, and that the industrial plant which packaged those preparations did not discharge any waste water.

23. The Greek Government added that nine substances were not marketed in Greece. It acknowledged, furthermore, that 17 substances could potentially be present in waste water. One of those was not discharged into surface water. As regards 10 other substances and those on which it provided no information, the Greek Government indicated that a study would be commissioned in relation to those substances to obtain data on the concentrations in which they are present in the waste from industrial plant and on the possible presence in the aquatic environment of other substances covered by List II.

24. As regards authorisation for discharge into catchment water of waste water liable to contain certain of the 99 substances in List II, it stated that the environmental health department granted such authorisations, conditional upon compliance with the quality objectives set for each of the catchment waters whose use was decided by prefectorial decree.

25. The Commission drew the conclusion from the foregoing considerations that, for 72 of the 99 substances covered by List II, the Greek authorities had failed to take the necessary steps to reduce water pollution by those substances, either because they had provided no information, or because they acknowledged the potential presence in the aquatic environment of certain substances, or, lastly, because it transpired that the information communicated was insufficiently precise.

26. Taking the view, in the light of these considerations, that there was a failure to fulfil the obligations laid down by the Directive, the Commission delivered a reasoned opinion setting out the complaints raised against the Hellenic Republic, which was communicated to the latter on 23 December 1996.

27. By letter of 20 March 1997, the Greek Government sent the Commission information on the permanent monitoring network for substances on List I of the Directive, which, it stated, had commenced operation in 1996, and on the actions undertaken by the competent authorities in relation to substances covered by List II and, more specifically, on the fact that the University of the Aegean had been commissioned to carry out a study on the situation in Greece regarding the substances in List II. The Hellenic Republic indicated that, pursuant to that study, should it be necessary, a permanent network would be set up to monitor those substances and programmes to reduce them would be initiated.

III - The action for failure to fulfil obligations

Pleas raised by the parties

28. The Commission criticises the Hellenic Republic, on the one hand, for failing to establish programmes to reduce the pollution of its waters by the discharge of certain substances and, on the other, for not making such discharges subject to prior authorisation granted by the competent authority setting emission standards based on the quality objectives established in those programmes.

29. In support of its action, the Commission maintains that, although no time-limit was set for transposition of the Directive, Member States should have communicated to it no later than 5 August 1978 the programmes for reducing pollution by the substances contained in List II, in accordance with Article 12(2) of the Directive. The Commission states that, no such programmes having been communicated, it proposed to the Member States, by letter of 3 November 1976, the transmission of the programmes to it before 15 September 1981, and that the Member States did not challenge this time-limit.

30. The Commission adds that, under Article 7 of the Directive, the Hellenic Republic should have adopted programmes for the 99 substances and for the families and groups of substances set out in the second indent of List II. It states, however, that its action is confined to the 99 substances belonging to the first indent of List II, since its letters of formal notice and reasoned opinion make reference only to those substances.

31. It asks this Court, therefore, to declare that, by failing to establish programmes including quality objectives and setting deadlines for their implementation, in order to reduce pollution of its waters caused by the 99 dangerous substances covered by the first indent of List II of the Annex to the Directive and, consequently, by not making discharges made into its waters which are liable to contain any of the substances in List II subject to prior authorisation granted by the competent authority setting emission standards based on the quality objectives established in those programmes, the Hellenic Republic has failed to fulfil its obligations under the Treaty and Article 7 of the Directive.

32. The Hellenic Republic defends the action. It states that, since its reply of 20 March 1997, new factors have arisen in that the study referred to was indeed commissioned from the University of the Aegean. According to the Hellenic Republic, it emerges from a report by the University that the Greek authorities have laid down legislative provisions and taken specific administrative measures to protect catchment waters and have set quality objectives to protect those waters against any potential discharge arising from use of the dangerous substances in issue.

33. In its defence, the Hellenic Republic cites various domestic enactments (interministerial, interdepartmental, departmental and prefectorial decrees, together with an interministerial decision and the decision of a regional director), which lay down a number of prohibitions and restrictions as regards the waste which can be discharged into the aquatic environment.

34. It also quotes the available data on imports into Greece, between 1983 and 1989, of 17 agrochemical products of the 25 belonging to List II. The Greek Government points out that, although a number of agrochemical products were imported in significant quantities, surface-water analyses carried out at the request of the Ministry of the Environment did not reveal the presence of agrochemical products in quantities liable to give rise to a risk of contamination.

35. The Hellenic Republic adds that, according to the study being carried out, 24 autonomous departmental authorities out of 52 are unaware of any activities, on their territories, which involve the production of waste containing the substances referred to in the Commission's reasoned opinion. In the other autonomous administrative departments, the study is not yet complete so that it is not possible to give complete data on the matter.

36. The Hellenic Republic states that it has fulfilled the obligations laid down by the Directive. In its view, quality objectives were in fact set for the catchment waters for which this was necessary and ceilings prescribed for effluent discharged into surface water. Further, every part of the national territory falls within at least one of the following three categories: departments which have established quality objectives, departments which have set ceilings for discharge into water or departments with no industrial activities producing waste liable to contain any of the 99 substances belonging to List II.

37. In its reply, the Commission observes that, in its view, the study entrusted to the University of the Aegean forms part of the preventive measures which have to be taken in order to be able to finalise the programmes referred to in Article 7 of the Directive; this shows that those programmes are not yet in existence.

38. It disputes that the national provisions on which the Hellenic Republic relies can be classified as programmes within the meaning of Article 7 of the Directive, since those enactments are designed, according to the Commission, to transpose other Community directives. It confirms that the programmes have not yet been notified to it.

39. It contends that the Hellenic Republic cannot set quality objectives without waste emission standards. Conversely, imposing emission thresholds for the various substances involved cannot, it maintains, serve to satisfy the obligation to set quality objectives for reducing pollution, in implementation of the Directive. The fact that there is no industrial plant does not exempt the Hellenic Republic from the requirement to establish programmes for those regions.

40. The Commission adds that the defending Government has set quality objectives for only a limited number of regions and for certain of the substances on List II. According to the Commission, those quality objectives do not derive from a specific study identifying existing pollution and setting out the method to follow in order to reduce it. It is impossible, therefore, to evaluate how significant they are in terms of the Directive. Nor, furthermore, do those quality objectives relate to reducing pollution which has been detected, as the Directive requires, but to specific goals laid down by other directives.

41. The Greek Government states in response that the first stage of the study being carried out by the University of the Aegean (inventory of sources of pollution and List II toxic substances, evaluation of data collected, drawing up a list of substances liable to be present in the Greek aquatic environment, developing a surface-water monitoring network) has been completed. The second stage of the study (the taking of samples and analysis of surface water into which discharges are made, interim technical reports containing the results of sampling and a full report together with programmes for reducing discharges of the substances in question) was to commence in July 1998 and last 16 months.

42. The Hellenic Republic adds that an inventory of sources of pollution has been drawn up for the whole territory and that the monitoring network covers almost all surface water on Greek territory as well as the industries which give rise to the discharge of waste water containing certain of the substances in List II. Measures have been taken setting quality objectives for certain waters into which discharges are made and for a number of List II substances. The Greek Government relies on the principle, derived from the case-law of this Court, that transposition of a directive into domestic law does not necessarily require that its provisions be incorporated formally and verbatim in express, specific legislation, and that, depending on the content of the directive, a general legal context may fulfil the requirements of transposition.

Assessment of the pleas raised

43. In relation to the first plea, that the Hellenic Republic has failed to establish any programmes, the Commission notes the obligations on that Member State, stating that the latter had a duty to draw up a statement of the position regarding pollution of inland and coastal waters by the 99 substances contained in List II and, on the basis of that data, to establish a programme to reduce pollution, setting quality objectives and time-limits for their implementation.

44. Contradicting itself somewhat, the defendant Government, whilst claiming that it has complied with the obligations incumbent on it, acknowledges that the study commissioned from the University of the Aegean, which is intended, to a certain extent, to draw up an inventory of pollution of the Greek aquatic environment by the substances on List II before setting out the content of the programmes in a final report, was not completed in July 1998. It adds that it should be completed 16 months later, that is to say, in December 1999.

45. According to the established case-law of this Court, failure to comply with obligations must be determined by reference to the situation prevailing at the end of the period laid down in the reasoned opinion. Subsequent changes cannot, therefore, be taken into account.

46. The defendant Government itself acknowledges that the inventory part of the study, designed to identify the sources of pollution in the Greek aquatic environment, a phase preliminary to preparation of the programmes under Article 7(1), was not yet completed in all the autonomous departmental authorities ... making it impossible to provide complete data on the situation regarding surface water in terms of pollution of such water by the substances with which this study is concerned.

47. Even if the final report commissioned by the Greek authorities is completed by the date announced, there is no doubt that, as at the date on which this action came before this Court, the programmes required by the Directive were not in place. It suffices to note, on this point, that the Commission delivered its reasoned opinion on 23 December 1996, inviting the Greek Government to comply with it within two months. However, as is discernible from Annex II to the Hellenic Republic's defence and as the Commission has rightly pointed out, the research assignment was commissioned by a decision of 4 June 1997.

48. The fact that the study commissioned from the University of the Aegean was not complete by expiry of the time-limit set by the Commission is in my view sufficient to substantiate the first plea on which the Commission relies in support of its action, since the programmes were not, by definition, in place.

49. For the sake of completeness, however, it is appropriate to examine the other arguments advanced by the Greek Government, contending that various enactments did in any event transpose the Directive into domestic law.

50. The programmes to be set up under Article 7(1) of the Directive have been clearly defined in proceedings previously brought before this Court against other Member States.

51. According to the case-law of this Court, they must be specific. The Court has held, in this regard, that [w]hat is specific to the programmes in question is the fact that they must embody a comprehensive and coherent approach, covering the entire national territory of each Member State and providing practical and coordinated arrangements for the reduction of pollution caused by any of the substances in List II which is relevant in the particular context of the Member State concerned, in accordance with the quality objectives fixed by those programmes for the waters affected. They differ, therefore ... from bundles of ad hoc measures designed to reduce water pollution.

52. The provisions of Greek law on which the defendant Government relies are, however, disparate in nature.

53. The Greek authorities, by admitting that certain parts of the national territory are not covered either by measures which include the setting of quality objectives or by provisions laying down emission standards, are acknowledging that the alleged transposition of the Directive does not reflect the comprehensive approach which it prescribes.

54. In order to justify those omissions, and also those arising from the fact that the emission standards adopted cover, for each location, only some of the substances in List II, the Hellenic Republic points out that the part of national territory concerned has no industrial activities producing waste liable, in its view, to contain the substances in question.

55. As the Commission has rightly pointed out, that argument cannot be accepted, since polluting activities may come into being and develop at any time in regions not subject to the constraints associated with the setting of emission standards. A Member State cannot, therefore, without disregarding the intention of the Directive, exclude particular parts of its territory, a priori and permanently, from the scope of application of the national transposing provision.

56. As regards, in particular, programmes and the quality objectives they must include, one must agree with the Commission's contention that a region which has no industrial activities may be exposed to serious risks of pollution by reason either of other types of activity, such as agricultural activities, or of polluting activities located in other regions, which constitute specific justification for comprehensive regulatory cover in accordance with the Directive.

57. Nor has the Hellenic Republic complied with the requirement for planning covering the entire national territory aimed at reducing pollution caused by all the substances in List II, in that a number of the national provisions relied on establish ceilings for the discharge of certain substances without previously setting quality objectives. It is only those objectives, then, which the Directive requires must be set, which can ensure proper monitoring of the condition of the aquatic environment and ongoing adjustment of levels under the emission standards previously laid down, where those standards are found to be inadequate. Establishing such standards is therefore a true obligation of result incumbent on Member States, safeguarding effective protection of the environment.

58. Furthermore, the Hellenic Republic has not established that it has set time-limits for implementing quality objectives, even where those objectives are laid down in certain of the measures relied on.

59. I would add that, whilst it states, in its rejoinder, that ... all surface water is monitored by a network for the close surveillance of its quality in terms of the presence of substances in List II of the Directive ..., the Hellenic Republic clearly indicated in its defence, that is, well after the time-limit set in the reasoned opinion had expired, that this network did not exist. It stated, in fact, that the University of the Aegean ... [had] been charged with setting up a network for monitoring surface water into which discharges are made throughout the country ....

60. In short, although it indisputably seeks to achieve objectives relating to the protection of the environment, and, in particular, of the aquatic environment, the regulatory framework established by the Greek authorities does not appear to have been conceived in the spirit of the Directive nor for the purpose of transposing it into national law. As, moreover, this Court has already held in relation to other national measures which, it is claimed, were laid down in application of that enactment, the legislation of the Hellenic Republic ... constitutes only a series of ad hoc legislative measures which cannot amount to an organised and coordinated system of quality objectives relating to specific watercourses or bodies of standing water .... It cannot, accordingly, be considered to be a programme within the meaning of Article 7 of the Directive.

61. I must propose, therefore, that this Court uphold the first plea raised by the Commission.

62. As regards the second plea, it is closely bound up with the first in that, since the Hellenic Republic has not adopted programmes within the meaning of Article 7(1) of the Directive, no authorisations can have been granted in accordance with Article 7(2).

63. This Court has held that [t]he effect of the latter provision is, in particular, to require the authorisations in question to contain emission standards which are applicable to authorised individual discharges and which have been calculated in accordance with the quality objectives previously laid down in a programme established pursuant to Article 7(1) to protect the expanses of water and watercourses in question. Consequently, whilst it appears that the first plea is well founded, the second is subsumed into it and is thus rendered nugatory, so that there is no need to examine it further.

64. Since there are no programmes within the meaning of Article 7(1) of the Directive, it is impossible to set up a system of prior authorisations in compliance with Article 7(2). It seems no longer necessary, therefore, to examine the second plea.

Conclusion

65. In the light of the foregoing considerations, I propose that this Court should:

- declare that, by not establishing programmes which incorporate quality objectives and set deadlines for their implementation, in order to reduce water pollution caused by the 99 dangerous substances in the first indent of List II in the Annex to 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, consequently, by not making the discharges which are made into its waters and are liable to contain any of those substances subject to prior authorisation from the competent authority laying down emission standards on the basis of quality objectives set in those programmes, the Hellenic Republic has failed to fulfil its obligations under the Treaty and Article 7 of the aforementioned Directive;

- order the Hellenic Republic to pay the costs.