Case C-301/10

European Commission

v

United Kingdom of Great Britain and Northern Ireland

‛Failure of a Member State to fulfil obligations — Pollution and nuisance — Urban waste water treatment — Directive 91/271/EEC — Articles 3, 4 and 10 — Annex I(A) and (B)’

Summary — Judgment of the Court (First Chamber), 18 October 2012

Environment — Urban waste water treatment — Directive 91/271 — Member State having failed to put in place an appropriate system for the collection and treatment of the urban waste water of agglomerations with a population equivalent of more than 15000 — Failure to fulfil obligations

Actions for failure to fulfil obligations — Examination of the merits by the Court — Situation to be taken into consideration — Situation on expiry of the period laid down in the reasoned opinion

Actions for failure to fulfil obligations — Proof of failure — Burden of proof on the Commission — Duty of the Member States — Cooperation in investigations into whether a Member State has failed to fulfil its obligations — Obligation to check, and to provide information — Onus of rebuttal on the Member State proceeded against

In order to meet the objective of protecting the environment pursued by Directive 91/271 concerning urban waste water treatment, the concept, laid down in Article 10 of that directive, of ‘sufficient performance’ of treatment plants, although not defined numerically, must be understood as meaning that, under usual climatic conditions and account being taken of seasonal variations, all urban waste water must be collected and treated. Consequently, failure to treat urban waste water can be tolerated only where the circumstances are out of the ordinary, and it would run counter to Directive 91/271 if overflows of untreated urban waste water occurred regularly. In addition, by footnote 1 of Annex I to that directive, the European Union legislature acknowledged that situations exist in which all the urban waste water will not be capable of being collected or treated. The term ‘unusually heavy rainfall’ is mentioned in that footnote by way of illustration only. However, the objective pursued by Directive 91/271 does not permit the inference that it is normal and common for those other circumstances to arise, in particular as the word ‘unusually’ clearly indicates that failure to collect or treat waste water cannot occur in normal circumstances. It cannot therefore be accepted that discharges may take place outside exceptional situations. (see paras 53, 54, 56-59)

Although the concept of ‘best technical knowledge not entailing excessive costs’ appears in Annex I(A) to Directive 91/271 concerning urban waste water treatment only in relation to collecting systems, it nevertheless constitutes a concept inherent in all the provisions of that directive designed to secure its objective of protecting the environment whilst avoiding too strict an application of the rules laid down. Thus, that concept is also to be extended to treatment plants in so far as in certain cases it allows discharges of untreated waste water even though the latter has adverse effects on the environment. The concept thus enables compliance with the obligations of Directive 91/271 to be secured without imposing upon the Member States unachievable obligations which they might not be able to fulfil, or only at disproportionate cost. The concept must be examined by weighing the best technology and the costs envisaged against the benefits that a more effective water collection or treatment system may provide. Within this framework, the costs incurred cannot be disproportionate to the benefits obtained. (see paras 63, 64, 67)

See the text of the decision. (see paras 66, 91, 92)

In proceedings under Article 258 TFEU for failure to fulfil obligations it is for the Commission to prove the allegation that the obligation has not been fulfilled. It is therefore the Commission’s responsibility to place before the Court the information needed to enable the Court to establish that the obligation has not been fulfilled, and in so doing the Commission may not rely on any presumptions. The Member States are nevertheless required, under Article 4(3) TEU, to facilitate the achievement of the Commission’s tasks, which consist inter alia, pursuant to Article 17(1) TEU, in ensuring that the provisions of the FEU Treaty and the measures taken by the institutions pursuant thereto are applied. In particular, account should be taken of the fact that, where it is a question of checking that the national provisions intended to ensure effective implementation of a directive are applied correctly in practice, the Commission, which does not have investigative powers of its own in the matter, is largely reliant on the information provided by any complainants and by the Member State concerned. It follows in particular that, where the Commission has adduced sufficient evidence of certain matters in the territory of the defendant Member State, it is incumbent on the latter to challenge in substance and in detail the information produced and the consequences flowing therefrom. (see paras 70-72)

See the text of the decision. (see para. 74)