WRITTEN QUESTION E-0571/98

by Graham Watson (ELDR) to the Commission

(4 March 1998)

Subject: Shellfish waters directive 79/923/EEC

On 17 December the High Court in London handed down a judgement pertaining to the Shellfish Waters Directive 79/923/EEC(1). The dispute centred on a mussel fisherman's claim that owing to the failure of South West Water Services to treat its effluent effectively, he was driven out of trade.

The judgement infers that EU citizens who suffer loss as a result of European environmental standards cannot sue the state authorities, including water companies, in European law.

The duties of the state, therefore, are too general to allow the public to have legally enforceable environmental rights. However, the judgement appears to be at a variance with the ECJ's decision of December 1996 relating to the Shellfish Waters Directive which confirmed that persons concerned with a directive which has implications for human health "must be in a position to rely on mandatory rules in order to be able to assert their rights".

Does the Commission consider that, in view of the ECJ ruling, shellfishermen do have rights and that their shellfish waters, and livelihoods, are protected from pollution?

Can the Commission confirm that this is the first such judgement by any EU court on the liability of states to individuals arising out of any such directive?

Following a Commission communication dated 22 October 1996 which expressed the need for more environmental claims to be dealt with in the national courts and in view of the Hight Court's decision, will the Commission re-examine current transposition of EU environmental legislation in the UK to ascertain whether it is indeed being enforced appropriately?

Answer given by Mrs Bjerregaard on behalf of the Commission

(20 April 1998)

The Honourable Member has drawn the Commission's attention to a recent judgement in the High Court in the United Kingdom concerning Directive 79/923/EEC on the quality of shellfish waters. The Commission has not has not seen the text of this judgement and so is not able to respond to the Honourable Member's question in detail. As the Commission is not aware of the exact nature of the High Court's judgement it is not in a position to confirm whether it is the first such judgement of its type in any European court.

The Honourable Member also refers to a judgement of the Court of justice delivered in December 1996. The Commission assumes that the Honourable Member is referring to the judgement in Case C-298/95, Commission v. Germany, which concerned the failure to adopt within the periods prescribed by Directive 79/923/EEC all the measures necessary to comply with Articles 3 and 5 of that Directive. The Court held that "in all cases where non-implementation of the measures required by a directive could endanger human health, the persons concerned must be in a position to rely on mandatory rules in order to be able to assert their rights". This judgement is primarily concerned with the non-transposition of Community law and so should be considered in this context. Thus the principle reconfirmed by the Court is that Member States must transpose certain provisions of directives in order to allow citizens to rely upon mandatory rules in national legislation. It is distinct from the principle mentioned by the Honourable Member whether directives themselves can confer rights on individuals. Therefore, this judgement does not appear to have a direct bearing upon the Honourable Member's first question.

In addition, the Commission wishes to remind the Honourable Member that Article 164 of the EC Treaty states that the Court of justice shall ensure that in the interpretation and application of this Treaty the law is observed. Therefore the interpretation of Community law falls to the Court and it is ultimately for the Court to interpret the provisions of Directive 79/923/EEC.

As the Honourable Member is aware, the Commission is responsible for ensuring that the provisions of the EC Treaty establishing the Community and the measures taken under it are applied by the Member States. The Commission investigates allegations that Community law is not being properly applied in Member States. In this regard, the Commission is able to inform the Honourable Member that it is currently examining the United Kingdom's implementation of Directive 79/923/EEC.

The Commission would be pleased to receive a copy of the High Court judgement, and any further information from the Honourable Member which indicates that the United Kingdom is failing to apply Directive 79/923/EEC.

(1) OJ L 281, 10.11.1979, p. 17.