European Commission v Ireland.
Date: 2019-03-28
Directive 91/271 refers, in section A of Annex  I, to the concept of  ‘best technical knowledge not entailing excessive costs’,  which specifies, in essence, that the design, construction and maintenance of collecting systems for urban waste water are to be undertaken in accordance with such knowledge not entailing excessive costs. In addition, by footnote 1 of that annex, the EU legislature acknowledged that situations exist in which the urban waste water will not be capable of being collected or treated in its entirety. 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’ (judgment of  18 October 2012, Commission v United Kingdom, C‑301/10, EU:C:2012:633, paragraph 56).
First, as regards the term ‘unusually heavy rainfall’, that term is mentioned in footnote 1 of Annex I to Directive 91/271 by way of illustration only, since it is preceded by the words ‘during situations such as’. Thus, failure to collect or treat waste water may also be allowed in other circumstances (judgment of  18 October 2012, Commission v United Kingdom, C‑301/10, EU:C:2012:633, paragraph 57).
However, 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 (judgment of  18 October 2012, Commission v United Kingdom, C‑301/10, EU:C:2012:633, paragraph 58).
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 (judgment of  18 October 2012, Commission v United Kingdom, C‑301/10, EU:C:2012:633, paragraph 60).
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 EU 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 ‘best technical knowledge not entailing excessive costs’  (judgment of  18 October 2012, Commission v United Kingdom, C‑301/10, EU:C:2012:633, paragraph 61).
Second, the concept of ‘best technical knowledge not entailing excessive costs’ must be examined in each specific case in the light of the objective of protecting the environment pursued by Directive 91/271, as it constitutes a concept inherent in all the provisions of that directive designed to secure such an objective whilst avoiding the imposition upon the Member States of unachievable obligations which they might not be able to fulfil, or only at disproportionate cost  (see, to that effect, judgment of  18 October 2012, Commission v United Kingdom, C‑301/10, EU:C:2012:633, paragraphs 62  to 64).
Thus, examination of that concept requires weighing the best technology and the costs envisaged against the benefits that a more effective water collection or treatment system may provide, so that the costs incurred are not disproportionate to the benefits obtained (judgment of  18 October 2012, Commission v United Kingdom, C‑301/10, EU:C:2012:633, paragraph 67).
Specifically, the Court has held that facilities  cannot be regarded as complying with the concept of ‘best technical knowledge not entailing excessive costs’, within the meaning of section A of Annex I to  Directive 91/271, where, first, a Member State has embarked upon a large programme of works proving that there are technological solutions in order to overcome the problem of excessive spills of waste water, but that they have not been applied, and second, such a Member State has decided to finance such works, so that the related costs cannot be regarded as excessive  (see, to that effect, judgment of  4 May 2017, Commission  v  United Kingdom, C‑502/15, not published, EU:C:2017:334, paragraph 44).
It is settled case-law that,  although, in proceedings brought under Article 258 TFEU for failure to fulfil obligations, it is for the Commission to prove the allegation that an obligation has not been fulfilled, by placing before the Court all the information required to enable the Court to establish that the obligation has not been fulfilled, without the Commission being entitled to rely on any presumption, 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 this area, is largely reliant on the information provided by any complainants and by the Member State concerned (judgment of  28 January 2016, Commission v Portugal, C‑398/14, EU:C:2016:61, paragraph 47).
It follows, inter alia, that, where the Commission has adduced sufficient evidence to establish that the national provisions transposing a directive are not applied correctly in practice 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 inferences drawn (judgment of  28 January 2016, Commission v Portugal, C‑398/14, EU:C:2016:61, paragraph 48).
It should be noted that the EU legislature, conscious of the scope of the infrastructure works required for the application of Directive 91/271 and the costs of its full implementation, granted the Member States a period of several years to carry out their obligations (judgment of  4 May 2017, Commission v United Kingdom, C‑502/15, not published, EU:C:2017:334, paragraph 48).
Furthermore, the question whether a Member State has failed to fulfil 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 and the Court cannot take account of any subsequent changes (judgment of  28 November 2018, Commission v  Slovenia, C‑506/17, not published, EU:C:2018:959, paragraph 50  and the case-law cited).
Since Ireland  puts forward arguments in respect of each complaint in order to prove the compliance of the systems for collecting and treating urban waste water, and also relies, for the whole of the present action for failure to fulfil obligations, on exceptional circumstances and the concept of ‘best technical knowledge not entailing excessive costs’ to justify any divergence from  the provisions of Directive 91/271, it is appropriate to examine the merits of each complaint put forward by the Commission, before assessing the matters advanced by Ireland to justify the cases in which the Court concludes that there are divergences from the directive’s provisions, whilst, under the Court’s case-law, even if the Member State concerned does not deny a failure to fulfil obligations, it is incumbent upon the Court, in any event, to determine whether or not that alleged breach of obligations exists (see, to that effect, judgment of  14 September 2017, Commission  v  Greece, C‑320/15, EU:C:2017:678, paragraph 21).
First of all, it is to be recalled that, although, in proceedings brought under Article 258 TFEU for failure to fulfil obligations, it is for the Commission to prove the allegation that an obligation has not been fulfilled, by placing before the Court all the information required to enable the Court to establish that the obligation has not been fulfilled, without the Commission being entitled to rely on any presumption, 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 this area, is largely reliant on the information provided by any complainants and by the Member State concerned (judgment of 28 January 2016, Commission v Portugal, C‑398/14, EU:C:2016:61, paragraph 47).
In any event, in order to guarantee the rights of defence of the Member State concerned, the subject  matter of an action under Article 258 TFEU for failure to fulfil obligations is determined by the Commission’s reasoned opinion, so that the action must be based on the same grounds and pleas as that opinion (judgment of  8 July 2010, Commission v Portugal, C‑171/08, EU:C:2010:412, paragraph 25).
In that regard, the Court has held that facilities cannot be regarded as complying with the concept of ‘best technical knowledge not entailing excessive costs’, within the meaning of section A of Annex I to Directive 91/271, where, first, a Member State has embarked upon a large programme of works proving that there are technological solutions in order to overcome the problem of excessive spills of waste water, but that they have not been applied, and second, such a Member State has decided to finance such works, so that the related costs cannot be regarded as excessive  (see, to that effect, judgment of  4 May 2017, Commission  v  United Kingdom, C‑502/15, not published, EU:C:2017:334, paragraph 44).
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 for financial difficulties, which it is for the Member States to overcome by adopting appropriate measures (see, to that effect, judgment of  18 October 2012, Commission  v  United Kingdom, C‑301/10, EU:C:2012:633, paragraph 66  and the case-law cited).
In that regard, it is to be borne in mind that  the EU legislature, conscious of the scope of the infrastructure works that resulted from the transposition of Directive 91/271 and the costs of its full implementation, granted the Member States a period of several years to carry out their obligations (judgment of  4 May 2017, Commission  v  United Kingdom, C‑502/15, not published, EU:C:2017:334, paragraph 48).
As the question whether a Member State has failed to fulfil 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, the Court cannot take account, in that regard, of any subsequent changes  (judgment of  28 January 2016, Commission v Portugal, C‑398/14, EU:C:2016:61, paragraph 49).
The Court has already held that, since discharges of waters that have not been treated at all do not satisfy the requirements of section B of Annex I to Directive 91/271, the treatment of urban waste water by facilities suffering from under-capacity cannot be regarded as complying with Article 4(3) of that directive  (see, to that effect, judgment of  11 September 2008, Commission v  Ireland, C‑316/06, not published, EU:C:2008:487, paragraphs 12  and 22).
Consequently, in so far as agglomerations are not equipped with a system enabling all their urban waste water to be collected in accordance with Article 3  of Directive 91/271, the obligation laid down in Article 4 of the directive to subject all discharges to secondary or equivalent treatment is a fortiori not fulfilled (judgment of  19 July 2012, Commission  v  Italy, C‑565/10, not published, EU:C:2012:476, paragraph 34).
At the outset, it should be recalled  that the question whether a Member State has failed to fulfil 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 and the Court cannot take account of any subsequent changes (judgment of  28 November 2018, Commission v  Slovenia, C‑506/17, not published, EU:C:2018:959, paragraph 50  and the case-law cited).