European Commission v United Kingdom of Great Britain and Northern Ireland.
Date: 2009-12-10
25. Since the Commission and the United Kingdom are not in full agreement on the meaning of the term ‘eutrophication’ defined in Article 2(11) of Directive 91/271, it is appropriate, before examining the complaints set out by the Commission in its action, to note the meaning of that term, as explained by the Court in paragraphs 12 to 25 of the judgment in Case C-280/02 Commission  v France  [2004] ECR I‑8573.
28. In addition, for there to be eutrophication within the meaning of Directive 91/271, there must be a relationship of cause and effect between enrichment by nutrients and the accelerated growth of algae and of higher forms of plant life on the one hand and, on the other hand, between that accelerated growth and undesirable disturbance to the balance of organisms present in the water and to the quality of the water ( Commission  v France , paragraph 19).
29. Finally, it is also to be recalled that, having regard to 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 Commission  v France , paragraph 25, and, by analogy, Case C‑293/97 Standley and Others  [1999] ECR I‑2603, paragraph 35).
35. Admittedly, the Court held in Commission  v France , at paragraph 21, that any proliferation of a particular species of algae or other plant constitutes, as such, a disturbance to the balance of the aquatic ecosystem and, accordingly, to the balance of the organisms present in the water, even when other species remain stable. The Court observed in this connection that, given the competition between plant species for nutrient salts and luminous energy, the proliferation of one or several species, by monopolising the resources necessary for the growth of other algae and aquatic plants, very often if not always entails reductions in other species.
37. Similarly, the Court held in paragraph 24 of Commission  v France  that the fourth eutrophication criterion refers to deterioration of the quality of the water which produces harmful effects for ecosystems and to 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, gathering shellfish and shellfish farming, abstraction of drinking water or cooling of industrial installations.
38. It follows that proof of an accelerated growth of algae and higher forms of plant life cannot be considered, as such, to demonstrate undesirable disturbance to the balance of organisms present in the water and to the quality of the water within the meaning of Article 2(11) of Directive 91/271, the undesirability or harmfulness of a proliferation having to be examined not in the context of the second eutrophication criterion, as the Commission suggests, but in that of the third and fourth criteria (see, by analogy, Commission  v France , paragraphs 48, 61 and 97).
42. It is to be noted that, under Article 5(1) of Directive 91/271, the Member States were to identify by 31 December 1993 areas sensitive with respect to eutrophication in accordance with the criteria laid down in Annex II to that directive, in order to ensure by 31 December 1998 in respect of all discharges from agglomerations of more than 10 000 p.e., in accordance with Article 5(2), that, before discharge into sensitive areas, urban waste water entering collecting systems was subject to more stringent treatment. That obligation to identify sensitive areas entailed collection by the Member States of the data needed for those purposes (see, by analogy, Case C‑221/03 Commission  v Belgium  [2005] ECR I‑8307, paragraph 79).
43. However, in proceedings under Article 226 EC 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 and the case-law cited; the judgment of 7 May 2009 in Case C‑530/07 Commission  v Portugal , paragraph 32; and the judgment of 6 October 2009 in Case C-335/07 Commission  v Finland , not yet published in the ECR, paragraph 46).
44. The Member States are nevertheless required, under Article 10 EC, to facilitate the achievement of the Commission’s tasks, which consist inter alia, pursuant to Article 211 EC, in ensuring that the provisions of the EC 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 the case-law cited).
45. 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 Commission  v Ireland , paragraph 44 and the case-law cited).
46. Consequently, in the present case, even though the Member States were required to gather the data needed in order to determine the bodies of water that had to be identified as sensitive to eutrophication under Article 5(1) of Directive 91/271, read in conjunction with Annex II thereto, the Commission has the task of adducing in support of the present action for failure to fulfil obligations at least a certain amount of evidence, in respect of each of the areas at issue, first, of fulfilment of the four eutrophication criteria set out in paragraph 27 of the present judgment, in particular as regards the significant adverse environmental effects covered by the last two criteria, and second, of the existence of the relationships of cause and effect referred to in paragraph 28 of the present judgment (see, to this effect, Case C-508/03 Commission  v United Kingdom  [2006] ECR I‑3969, paragraph 78).
47. The same obligation also applies with regard to bodies of water which ‘in the near future may become eutrophic’ within the meaning of Annex II.A(a) of Directive 91/271, the Commission being able at most, in such a case, to demonstrate that, given the available scientific and technical knowledge, the degree of probability of fulfilment of the four eutrophication criteria and of the existence of those relationships of cause and effect is sufficient to require the adoption of the environmental protection measures provided for by that directive (see, by analogy, Commission  v France , paragraph 34). Such a requirement of probability falls fully within the scheme and system of the directive since Annex II.B suggests identification of an area as ‘less sensitive’ to eutrophication where the area is ‘unlikely’ to become eutrophic.
50. 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, Case C‑23/05 Commission  v Luxembourg  [2005] ECR I-9535, paragraph 9; Case C‑32/05 Commission  v Luxembourg  [2006] ECR I-11323, paragraph 22; and the judgment of 11 September 2008 in Case C-316/06 Commission  v Ireland , paragraph 20).
121. In any event, the United Kingdom cannot legitimately submit in this regard that, since sewage treatment works contribute less than 5% of nitrogen inputs to the Wash, the identification of that body of water as a sensitive area would entail disproportionate expenditure in that it necessitates more stringent treatment of urban waste water. It is settled case-law that a Member State cannot plead practical or administrative difficulties to justify failure to comply with 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 (see, inter alia, Case C-433/02 Commission  v Belgium  [2003] ECR I‑12191, paragraph 22, and the judgment of 30 November 2006 in Case C-293/05 Commission  v Italy , paragraph 35).
122. It is likewise necessary to reject the United Kingdom’s contention that enrichment by nitrogen is more effectively addressed through measures taken pursuant to 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). A Member State cannot avoid complying with Directive 91/271 on the ground that it observes Directive 91/676, since the latter, being intended to reduce and prevent water pollution caused or induced by nitrogen from agricultural sources ( Standley and Others , paragraph 35), does not affect, inter alia, the enrichment of water by phosphorus, which Directive 91/271 seeks to remedy amongst other matters. The United Kingdom does not contest the findings of the ERM report that phosphorus inputs also lie behind the enrichment of the Wash by nutrients.
162. However, as the Court has already held, the proliferation of macroalgae such as Ulva , which are opportunistic algae, constitutes an undesirable disturbance to the balance of organisms present in the water and, because of their adverse effects inter alia on tourist activities, green tides also constitute an undesirable disturbance to the quality of the water. Those algae, which are easily torn from their substrate and ultimately wash up on beaches, often covering them to some depth, strongly disturb or even render impossible tourist activities such as bathing, fishing or hiking along the coast (see, to this effect, Commission  v France , paragraphs 23, 73 and 74).
330. So far as concerns, second, the presence of toxic algae, while the United Kingdom acknowledged in its report in response to the reasoned opinion of 19 April 2001 that algae of this type can be found in the North East Irish Sea, it is apparent from the 2007 Gowen study, adduced by the United Kingdom, that the toxic species observed in 1992 and 1993 in certain areas of that region were not abundant and the Commission indeed did not contest this in its reply. A limited algae presence of this kind cannot be considered a severe outbreak of harmful phytoplankton capable of constituting undesirable disturbance to the balance of organisms present in the water and to the quality of the water (see Commission  v France , paragraph 23).
339. On the other hand, in so far as, in the form of order sought by it set out in the application, the Commission complains that the United Kingdom has infringed the collection obligations laid down in Article 3(1) and (2) of Directive 91/271 as regards discharges of urban waste water into Lough Neagh and Upper and Lower Lough Erne, it is to be remembered that, in accordance with the case-law, an application must, by virtue of Article 21 of the Statute of the Court of Justice and Article 38(1)(c) of the Rules of Procedure, contain inter alia a brief statement of the pleas in law on which the application is based. Accordingly, in any application lodged under Article 226 EC, the Commission must indicate the specific complaints upon which the Court is called to rule and, at the very least in summary form, the legal and factual particulars on which those complaints are based (see, inter alia, Case C-347/88 Commission  v Greece  [1990] ECR I-4747, paragraph 28, and Case C‑456/03 Commission  v Italy  [2005] ECR I‑5335, paragraph 23).
341. It is irrelevant that the reasoned opinion of 9 July 2004, by contrast, included the complaint that the United Kingdom had not complied with Article 3 of Directive 91/271, since the Commission is free, when it brings its application before the Court, to withdraw certain complaints put forward in the reasoned opinion (see, to this effect, Commission  v Ireland , paragraph 36).