Commission of the European Communities v Italian Republic.
Date: 1991-02-28
7 It should be observed as a preliminary point that the transposition of Community legislation into national law does not necessarily require the relevant provisions to be enacted in precisely the same words in a specific express legal provision; a general legal context may be sufficient if it does ensure the full application of the Directive in a sufficiently clear and precise manner (see the judgment in Case 252/85 Commission v France [1988] ECR 2243). Each of the Commission' s complaints must therefore be examined on that basis.
The distinction between the substances in list I and those in list II
11 As is clear from the statements of the Italian Republic, it admits that its legislation makes no distinction between the substances in lists I and II. Article 3 of the Directive treats differently discharges of substances in list I, which must always be prohibited in the case of direct discharges and are subject to authorization, after an investigation, in the case of indirect discharges, and discharges of substances in list II, which are subject to other rules. Consequently, the distinction between the two types of substances is mandatory in view of the objective of the Directive. It follows that it must be incorporated in national legislation with the requisite precision and clarity in order to meet the requirement of certainty.
12 Legislation which leaves the persons subject to it in a state of uncertainty as to the extent to which they may rely on Community law does not fulfil the obligation to transpose a directive into national law (see the judgment in Case 116/86 Commission v Italy [1988] ECR 1323).
13 As regards the argument of the Italian Republic to the effect that its legislation in practice eliminates the risk of indirect discharge, it should be observed that, as the Court held in its judgment in Case C-339/87 Commission v Netherlands [1990] ECR I-851, at paragraph 25, in order to secure the full implementation of directives in law and not only in fact, Member States must establish a specific legal framework in the area in question.
23 That argument cannot be upheld. Article 7 of the Directive requires, having regard to the specific nature of the subject-matter of the investigation, that is to say the environment into which the discharge is to be made, that the investigation should have a specific objective, that is to say the study of the hydrogeological conditions of the area concerned, the possible purifying powers of the soil and subsoil and other factors; indeed, it is for that reason that the provision gives a precise indication of the factors which must be covered by the prior investigation. It thus makes the grant of authorization subject to precise and detailed conditions which must be regarded as mandatory in order to achieve the aim of the Directive. It follows that national legislation which defines in a vague and general manner a number of criteria and technical standards for the use of water cannot be regarded as complying with the requirements of the Directive.
26 The provisions relied on by the Italian Republic provide only for vague and general measures which cannot be regarded as implementing the article in question with the requisite precision and clarity to satisfy fully the demands of legal certainty (see the judgment in Case 291/84 Commission v Netherlands [1987] ECR 3483, at paragraph 15).
31 Consequently, tacit authorization cannot be considered compatible with the requirements of the Directive, since in addition, as the Commission has stated, such authorization does not make it possible to carry out prior enquiries, subsequent enquiries or checks. It follows that the national legislation does not transpose the Directive with the requisite precision and clarity to satisfy fully the requirements of legal certainty.