Commission of the European Communities v Kingdom of Sweden.
Date: 2009-10-06
30. In this respect, the Court has previously ruled that a discharge for the purposes of Article 5(2) of Directive 91/271 exists irrespective of whether the waste water discharges directly or indirectly into a sensitive area (see, to that effect, Case C‑396/00 Commission v Italy [2002] ECR I-3949, paragraphs 29 to 32). As the Advocate General observed at point 72 of her Opinion, this is in keeping with the high level of protection provided for by Community policy on the environment under Article 174(2) EC.
37. The Court has already established that those requirements apply subject to the second paragraph of Annex II.A(a) to Directive 91/271 (Case C‑280/02 Commission v France  [2004] ECR I-8573, paragraphs 104 and 105). Letter (ii) of that provision thus provides that, as regards coastal waters which are found to have a poor water exchange, or which receive large quantities of nutrients, for large agglomerations the removal of phosphorus and/or nitrogen should be included unless it can be demonstrated that the removal will have no effect on the level of eutrophication.
49. In that regard, it is to be remembered that, according to settled case‑law, in proceedings under Article 226 EC for failure to fulfil obligations it is for the Commission to prove the alleged failure. It is the Commission’s responsibility to place before the Court all 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 presumption (see, inter alia, Case 96/81 Commission v Netherlands  [1982] ECR 1791, paragraph 6, and Case C-135/05 Commission v Italy  [2007] ECR I‑3475, paragraph 26).
50. Moreover, where the Commission has adduced sufficient evidence to prove the relevant facts which occurred in the territory of the defendant Member State, it is for the latter to challenge in substance and in detail the information produced and the consequences flowing therefrom (see, to that effect, Case 272/86 Commission v Greece  [1988] ECR 4875, paragraph 21, and Case C-365/97 Commission v Italy  [1999] ECR I‑7773, paragraphs 84 and 86).
52. In those circumstances, the Court does not have sufficient evidence to enable it to appreciate exactly the scope of the infringement of Community law of which the Kingdom of Sweden is accused and thus to determine whether there is a breach of obligations as alleged by the Commission (see Case C-195/04 Commission v Finland  [2007] ECR I‑3351, paragraph 32).
53. As regards, in the second place, the treatment plants listed in the amended Annexes 2 and 3, it must be borne in mind that in an action for failure to fulfil obligations, it is for the Court to determine whether or not the alleged breach of obligations exists, even if the State concerned does not deny the breach (see, to that effect, Case C-439/99 Commission v Italy  [2002] ECR I-305, paragraph 20, and Case C-43/05 Commission v Germany [2006], paragraph 11).
88. In those circumstances, the Commission has failed to show that the transfer of nitrogen from Swedish treatment plants of urban waste water from agglomerations of more than 10 000 p.e. whose discharges flow into the Gulf of Bothnia towards the Baltic Sea proper can be categorised as significant for the purposes of the case‑law according to which the flow of nitrogen caused by urban waste water discharged into eutrophied waters can be considered significant if it accounts for approximately 10% of the total flow of nitrogen (see, to that effect, Commission v France , paragraph 77).