European Commission v United Kingdom of Great Britain and Northern Ireland.
Date: 2012-10-18
47. As stated in the second paragraph of Article 1, the objective of Directive 91/271 is to protect the environment from the adverse effects of urban waste water discharges (see, inter alia, Case C-280/02 Commission  v France [2004] ECR I-8573, paragraph 13).
48. The objective pursued by Directive 91/271 goes beyond the mere protection of aquatic ecosystems and seeks to conserve man, fauna, flora, soil, water, air and landscapes from any significant adverse effects of the accelerated growth of algae and higher forms of plant life that results from discharges of urban waste water ( Commission  v France , paragraph 16).
51. In this connection, the Court has already found a failure to fulfil obligations in cases where the collection or treatment rate for urban waste water amounted to 80% or even 90% of the existing load (judgments of 7 May 2009 in Case C-530/07 Commission  v Portugal , paragraphs 28 and 53, and 14 April 2011 in Case C-343/10 Commission  v Spain , paragraphs 56 and 62).
56. By that footnote, the European Union legislature acknowledged that situations exist in which all the urban waste water will not be capable of being collected or treated. In particular, it stated that ‘it is not possible in practice to construct collecting systems and treatment plants in a way such that all waste water can be treated’ and it provided that failure to collect and treat waste water may be tolerated during ‘situations such as unusually heavy rainfall’. However, in that case, Member States are to decide on ‘measures to limit pollution from storm water overflows’.
57. It is clear that the term ‘unusually heavy rainfall’ is mentioned in footnote 1 of Annex I to Directive 91/271 by way of illustration only, since the term is preceded by the words ‘during situations such as’. Thus, failure to collect or treat waste water may also be allowed in other circumstances.
58. However, contrary to the United Kingdom’s assertions, 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.
60. Furthermore, it should be pointed out that, where a Member State is faced with an exceptional situation not allowing it to collect or treat waste water, it remains obliged to adopt appropriate measures to limit pollution under footnote 1 of Annex I to Directive 91/271.
61. Also, since the concept of ‘unusually heavy rainfall’ is not defined by Directive 91/271, it is legitimate for the Commission, in carrying out its supervision of compliance with European Union law, to adopt guidelines and, as the Court does not have jurisdiction to define numerically obligations laid down by that directive, the concept of ‘unusually heavy rainfall’ must therefore be assessed in the light of all the criteria and conditions prescribed by the directive, in particular the concept of BTKNEEC.
62. Third, the concept of BTKNEEC, which is mentioned in Annex I(A) to Directive 91/271, must, like the other concepts referred to by Directive 91/271 that have already been elaborated upon, be examined in the light of the objective of protecting the environment. Also, it is to be noted that the obligations of that directive which require the collection and treatment of all waste water, except in the case of exceptional or unforeseeable events, must be complied with at the date laid down by the directive.
63. Although the concept of BTKNEEC appears in Annex I(A) to Directive 91/271 only in relation to collecting systems, it nevertheless constitutes a concept inherent in all the provisions of Directive 91/271 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.
64. The concept of BTKNEEC 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.
66. In this connection, it should be borne in mind that, in accordance with settled case-law, a Member State may not plead practical or administrative difficulties in order to justify non-compliance with the obligations and time-limits laid down by a directive. The same holds true of financial difficulties, which it is for the Member States to overcome by adopting appropriate measures (judgment of 30 November 2006 in Case C-293/05 Commission  v Italy , paragraph 35 and the case-law cited).
67. The concept of BTKNEEC 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.
70. It is true that the Court’s case-law provides that 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 (see, inter alia, Case C-494/01 Commission  v Ireland  [2005] ECR I-3331, paragraph 41; Commission  v Portugal , paragraph 32; Case C-335/07 Commission  v Finland  [2009] ECR I-9459, paragraph 46; and the judgment of 10 December 2009 in Case C-390/07 Commission  v United Kingdom , paragraph 43).
71. 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 (see, inter alia, Commission  v Ireland , paragraphs 42 and 43, and Commission  v United Kingdom , paragraph 44).
72. 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, inter alia, Commission  v Ireland , paragraph 44 and the case-law cited, and Commission  v United Kingdom , paragraph 45).
74. With regard to the obligation to have a collecting system as referred to in Article 3(1) of Directive 91/271, it should be recalled first of all, that, according to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that Member State at the end of the period laid down in the reasoned opinion and the Court cannot take account of any subsequent changes (see, inter alia, Commission  v United Kingdom , paragraph 50, and Commission  v Spain , paragraph 54).
90. As regards whether it is technologically impossible to reduce the number of waste water discharges from the collecting system for London and whether the costs are disproportionate to the environmental benefit obtained, it is to be noted that the United Kingdom decided, in April 2007, to carry out the works proposed by the TTSS report of November 2005 consisting in particular in the construction of a new underground tunnel. Thus, technological solutions to the problem of the collecting system for London exist and their costs cannot be regarded as disproportionate given that the United Kingdom has already taken the decision to implement them.