Commission of the European Communities v French Republic.
Date: 2004-09-23
12. Since the Commission and the French Government do not agree on the scope of the definition set out in Article 2(11) of Directive 91/271, it is first of all necessary to clarify the meaning of eutrophication for the purposes of that directive.
13. 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.
14. That directive was adopted on the basis of Article 130s of the EC Treaty (now, after amendment, Article 175 EC), which is intended to achieve the objectives of Article 130r of the EC Treaty (now, following amendment, Article 174 EC). Pursuant to the latter article, Community policy on the environment is to contribute inter alia to preserving, protecting and improving the quality of the environment and protecting human health.
15. Such a policy thus seeks to prevent, mitigate or eliminate the harmful effects of human activities on flora and fauna, soil, water, air, climate, landscape and sites of particular interest, and on the health and quality of life of persons. It has been implemented, in their respective areas, by Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), as amended by Council Directive 91/156/EEC of 18 March 1991 (OJ 1991 L 78, p. 32); Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40), as amended by Council Directive 97/11/EC of 3 March 1997 (OJ 1997 L 73, p. 5); and Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources (OJ 1991 L 375, p. 1).
16. The objective pursued by Directive 91/271 therefore goes beyond the mere protection of aquatic ecosystems and attempts to conserve man, fauna, flora, soil, water, air and landscapes from any significant harmful effects of the accelerated growth of algae and higher forms of plant life resulting from discharges of urban waste water.
17. The definition of eutrophication in Article 2(11) of Directive 91/271 must be interpreted in the light of that objective.
18. Pursuant to that provision, eutrophication is characterised by the confluence of four criteria:
– the enrichment of water by nutrients, especially compounds of nitrogen and/or phosphorus;
– the accelerated growth of algae and higher forms of plant life;
– an undesirable disturbance of the balance of organisms present in the water;
– deterioration of the quality of the water concerned.
19. In addition, for there to be eutrophication within the meaning of Directive 91/271, there must be a cause and effect relationship between enrichment by nutrients and the accelerated growth of algae and higher forms of plant life on the one hand and, on the other hand, between the accelerated growth and an undesirable disturbance of the balance of organisms present in the water and to the quality of the water concerned.
20. As regards the third criteria, the French Government submits that the mere proliferation of a plant species is not sufficient to establish an undesirable disturbance so long as there is no disruption to the balance of other organisms present in the water.
21. As is clear from, inter alia, the report of January 2001 by the Institut français de recherche pour l’exploitation de la mer (hereinafter ‘Ifremer’), entitled ‘Eutrophication of marine and brackish waters in Europe and, in particular, in France’ (hereinafter ‘the Ifremer report of 2001’) and the report of April 2000 by Environmental Resources Management (hereinafter ‘ERM’), entitled ‘Criteria used for the definition of eutrophication in fresh and marine/coastal waters’, produced by the Commission, the equilibrium of an aquatic ecosystem is the result of complex interactions among the different species present and with the environment. Any proliferation of a particular species of algae or other plant therefore constitutes, as such, a disturbance of the balance of the aquatic ecosystem and, accordingly, of the balance of the organisms present in the water, even when other species remain stable. Moreover, given the competition between plant species for nutrient salts and luminous energy, the proliferation of one or several species, by monopolising the resources necessary to the growth of other algae and aquatic plants, very often if not always entails reductions in other species.
22. The third criterion requires, however, that such a disturbance of the balance of organisms present in the water be ‘undesirable’. To the extent that, as is clear from paragraph 16 of the pre sent judgment, the objective pursued by Directive 91/271 goes beyond the mere protection of aquatic ecosystems, that undesirability must also be considered to be established where there are significant harmful effects not only on flora and fauna but also on man, the soil, water, air or landscape.
23. Species changes involving loss of ecosystem biodiversity, nuisances due to the proliferation of opportunistic macroalgae and severe outbreaks of toxic or harmful phytoplankton therefore constitute an undesirable disturbance of the balance of organisms present in the water.
24. The fourth criterion, in contrast to the analysis by the French Government, refers not only to deterioration of the quality of the water which produces harmful effects for ecosystems but also deterioration of the colour, appearance, taste or odour of the water or any other change which prevents or limits water uses such as tourism, fishing, fish farming, clamming and shellfish farming, abstraction of drinking water or cooling of industrial installations.
25. Given the aim pursued by the Community legislature, which is to protect the environment from deterioration due to the discharge of urban waste water, the obligation on the Member States under Article 5(1) of Directive 91/271 requires only that they identify the areas where such discharges contribute significantly to eutrophication or the risk of eutrophication (see, by analogy, as regards Directive 91/676, Case C-293/97 Standley and Others  [1999] ECR I‑2603, paragraph 35).
Scope of the first complaint
29. In accordance with settled case-law, the letter of formal notice from the Commission to the Member State, and then the reasoned opinion issued by the Commission, delimit the subject-matter of the dispute, so that it cannot thereafter be extended. Consequently, the reasoned opinion and the action brought by the Commission must be based on the same complaints as those set out in the letter of formal notice initiating the pre-litigation procedure (Case C-365/97 Commission  v Italy  [1999] ECR I-7773, paragraph 23, and Case C-229/00 Commission  v Finland  [2003] ECR I-5727, paragraph 44).
32. It is not in dispute that the waters of the Seine bay suffer from both enrichment by nutrients, in particular nitrogen compounds, inputs of which have continued to increase, and the accelerated growth of algae and higher forms of plant life (see Case C-258/00 Commission  v France  [2002] ECR I‑5959, paragraph 64).
34. As regards the argument of the French Government that Mr Cugier’s thesis is based on an imperfect 3D ecological model, it should be recalled that pursuant to Article 174 EC, Community policy on the environment is to be based on the precautionary principle. In the present case, given the available scientific and technical knowledge, the degree of probability of a causal link between nutrient inputs into the Seine bay and the accelerated growth of phytoplankton in that area is sufficient to require the adoption of the environmental protection measures provided for in Directive 91/271 if the other criteria for eutrophication are fulfilled.
48. On the other hand, as regards the water courses which flow into the Seine downstream from its confluence with the Andelle, the Commission merely produced the SDAGE Seine-Normandie, which states that ‘the major rivers [of the Seine-Normandie basin] are affected by “algal blooms” in spring and summer’ and ‘numerous small watercourses are at certain periods invaded by higher forms of plant life, filamentous algae or benthic diatoms’, but it does not put forward any specific evidence showing that the third and fourth criteria of the definition of eutrophication are met.
61. In that regard, it should be pointed out that while one of the documents referred to in paragraphs 58 and 59 above specifies that the lagoons of the upper Somme and the canals of the Aa river delta suffer from eutrophication, it defines that term as ‘enrichment in nutrients … which can lead to plant growth’, so that it is not possible to tell from that document whether the waters referred to satisfy the third and fourth criteria for eutrophication.
73. The same report points out that the green tides of the Brittany coast, which generally last from May to August-September, are caused by a rapid proliferation of green Ulva algae following the enrichment of the water by nutrients. Those opportunistic algae are easily torn from their substrate, following which they drift about and end by washing up on beaches, often covering them to some depth. Green tides strongly disturb or even render impossible normal tourist activities such as bathing, fishing, hiking along the coast, etc. Communes must collect the algae in order to maintain tourist activity.
74. As pointed out in paragraph 23 above, such a proliferation of macroalgae constitutes an undesirable disturbance of the balance of organisms present in the water. The negative effects of the green tides which result from these, inter alia on tourist activities, also constitute a deterioration of the quality of the water.
77. The ERM report of 1999 produced by the Commission indicates that 9.8% of the spring and summer nitrogen inputs into the Lorient roadstead, even in the period of green algal blooms, are of urban origin, which amounts to 374 tonnes. Under those conditions, the Commission is right to conclude that urban waste water discharges contribute significantly to eutrophication of the waters of the Lorient roadstead.
97. In fact, according to that study, while the waters of Thau lagoon experience significant phytoplankton production, those species of phytoplankton are not toxic and do not prevent shellfish culture, principally of oysters, with high growth rates. Moreover, the amount of nitrogenous material removed by harvesting (mussels, oysters, etc.) represents over 60% of inputs from the catchment basin. Under those conditions, the waters of Thau lagoon are not at present experiencing an undesirable disturbance of the balance of the organisms present in the water.
104. Pursuant to Article 5(2) of Directive 91/271, the French authorities were required to take the necessary action, by 31 December 1998 at the latest, to ensure that before its discharge into sensitive areas urban waste water entering collecting systems from agglomerations with a p.e. of more than 10 000 is subject to more stringent treatment than that described in Article 4 of that directive.
105. Under Article 5(3), in conjunction with Annex I.B(3), of Directive 91/271 more stringent treatment means, inter alia, that discharges into areas sensitive to eutrophication must satisfy the requirements shown in Table 2 of that Annex, subject, however, to the provisions of the second paragraph of Annex II.A(a) of that directive.
108. In that regard, it is settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion (see, inter alia, Case C-446/01 Commission  v Spain  [2003] ECR I-6053, paragraph 15).