1. By its application, the European Commission seeks a declaration by the Court that, by failing to make provision for the collection and treatment of urban waste water in 57 small agglomerations with a population equivalent (p.e.) of more than 2 000 and less than 10 000, the Kingdom of Belgium has failed to fulfil its obligations under Articles 3 and 4 of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment (OJ 1991 L 135, p. 40) (‘the Directive’). Legal context
2. The third and eighth recitals in the preamble to the Directive state: ‘… to prevent the environment from being adversely affected by the disposal of insufficiently-treated urban waste water, there is a general need for secondary treatment of urban waste water; … … it is necessary to monitor treatment plants, receiving waters and the disposal of sludge to ensure that the environment is protected from the adverse effects of the discharge of waste waters’.
3. Article 1 of the Directive provides: ‘This Directive concerns the collection, treatment and discharge of urban waste water and the treatment and discharge of waste water from certain industrial sectors. The objective of the Directive is to protect the environment from the adverse effects of the abovementioned waste water discharges.’
4. Article 2 of the Directive provides: ‘For the purpose of this Directive: 1. “urban waste water” means domestic waste water or the mixture of domestic waste water with industrial waste water and/or run-off rain water; … 4. “agglomeration” means an area where the population and/or economic activities are sufficiently concentrated for urban waste water to be collected and conducted to an urban waste water treatment plant or to a final discharge point;
5. “collecting system” means a system of conduits which collects and conducts urban waste water;
6. “1 p.e. …)” means the organic biodegradable load having a five-day biochemical oxygen demand (BOD5) of 60 g of oxygen per day;
7. “primary treatment” means treatment of urban waste water by a physical and/or chemical process involving settlement of suspended solids, or other processes in which the BOD5 of the incoming waste water is reduced by at least 20% before discharge and the total suspended solids of the incoming waste water are reduced by at least 50%;
8. “secondary treatment” means treatment of urban waste water by a process generally involving biological treatment with a secondary settlement or other process in which the requirements established in Table 1 of Annex I are respected; …’ 5. Article 3 of the Directive is worded as follows: ‘1. Member States shall ensure that all agglomerations are provided with collecting systems for urban waste water, … - at the latest by 31 December 2005 for those with a p.e. of between 2 000 and 15 000. … Where the establishment of a collecting system is not justified either because it would produce no environmental benefit or because it would involve excessive cost, individual systems or other appropriate systems which achieve the same level of environmental protection shall be used. 2. Collecting systems described in paragraph 1 shall satisfy the requirements of Annex I (A). …’ 6. Article 4 of the Directive provides: ‘1. Member States shall ensure that urban waste water entering collecting systems shall, before discharge, be subject to secondary treatment or an equivalent treatment as follows: … - at the latest by 31 December 2005 for discharges to fresh water and estuaries from agglomerations of between 2 000 and 10 000 p.e. … 3. Discharges from urban waste water treatment plants described in paragraphs 1 and 2 shall satisfy the relevant requirements of Annex I.B. … 4. The load expressed in p.e. shall be calculated on the basis of the maximum average weekly load entering the treatment plant during the year, excluding unusual situations such as those due to heavy rain.’ 7. Article 15(1) of the Directive provides: ‘Competent authorities or appropriate bodies shall monitor: - discharges from urban waste water treatment plants to verify compliance with the requirements of Annex I.B in accordance with the control procedures laid down in Annex I.D, …’ 8. Annex I to the Directive, entitled ‘Requirements for urban waste water’, is worded as follows: ‘A. Collecting systems … Collecting systems shall take into account waste water treatment requirements. The design, construction and maintenance of collecting systems shall be undertaken in accordance with the best technical knowledge not entailing excessive costs, notably regarding: - volume and characteristics of urban waste water, - prevention of leaks, - limitation of pollution of receiving waters due to storm water overflows. B. Discharge from urban waste water treatment plants to receiving waters … 1. Waste water treatment plants shall be designed or modified so that representative samples of the incoming waste water and of treated effluent can be obtained before discharge to receiving waters. 2. Discharges from urban waste water treatment plants subject to treatment in accordance with Articles 4 and 5 shall meet the requirements shown in Table 1. … D. Reference methods for monitoring and evaluation of results 1. Member States shall ensure that a monitoring method is applied which corresponds at least with the level of requirements described below. … 2. Flow-proportional or time-based 24-hour samples shall be collected at the same well-defined point in the outlet and if necessary in the inlet of the treatment plant in order to monitor compliance with the requirements for discharged waste water laid down in this Directive. Good international laboratory practices aiming at minimising the degradation of samples between collection and analysis shall be applied. 3. The minimum annual number of samples shall be determined according to the size of the treatment plant and be collected at regular intervals during the year: - 2 000 to 9 999 p.e.: 12 samples during the first year. four samples in subsequent years, if it can be shown that the water during the first year complies with the provisions of the Directive; if one sample of the four fails, 12 samples must be taken in the year that follows. …’
9. The titles of Annex I.A and I.B to the Directive refer to a footnote which is worded as follows: ‘Given 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 during situations such as unusually heavy rainfall, Member States shall decide on measures to limit pollution from storm water overflows. Such measures could be based on dilution rates or capacity in relation to dry weather flow, or could specify a certain acceptable number of overflows per year.’
10. Table 1 of Annex I is entitled ‘Requirements for discharges from urban waste water treatment plants subject to Articles 4 and 5 of the Directive’. It is set out as follows: >lt>16
11. Following the title of that Table 1, it is stated that ‘[t]he values for concentration or for the percentage of reduction shall apply’.
12. The title of the third column of Table 1 refers to a footnote which specifies: ‘Reduction in relation to the load of the influent.’
13. The title of the second line of the same Table 1 refers to a footnote worded thus: ‘The parameter can be replaced by another parameter: total organic carbon (TOC) or total oxygen demand (TOD) if a relationship can be established between BOD5 and the substitute parameter.’
14. It is apparent from Table 1 of Annex I to the Directive that the ‘biochemical oxygen demand (BOD5 at 20 °C) without nitrification’ of discharges from urban waste water treatment plants subject to the requirements of Articles 4 and 5 of the Directive must satisfy a condition of a maximum concentration of 25 mg/l of oxygen or be reduced by a minimum of 70% in relation to the load of the influent of those plants, and that the ‘chemical oxygen demand (COD)’ of those discharges must not exceed the maximum concentration value of 25 mg/l of oxygen or must be reduced by 75% in relation to the load of the influents of those plants. Pre-litigation procedure
15. By letter of 29 May 2007, the Commission requested the Belgian authorities to provide it with data relating to compliance with their collection and treatment obligations imposed by Articles 3 and 4 of the Directive. Those authorities replied to that request on 15 July 2009. The examination of that reply revealed that, in a significant number of agglomerations having a p.e. of more than 2 000 and less than 10 000 - ‘small agglomerations’ - the provisions of Articles 3 and 4 of the Directive had not been complied with. The Commission therefore sent a letter of formal notice to the Kingdom of Belgium on 25 November 2009.
16. Following its analysis of the Belgian authorities’ reply to that letter of formal notice, sent by letters of 29 January and 10 March 2010, the Commission concluded that, in several agglomerations, the provisions of Articles 3 and 4 of the Directive were still not being complied with. Consequently, on 28 April 2011, it sent to the Kingdom of Belgium a reasoned opinion. As a result of the Belgian authorities’ response to the reasoned opinion and the ensuing exchange of documents, the Commission concluded that 57 agglomerations, in both the Flemish and Walloon Regions, were still not in compliance with the provisions of the Directive, and for that reason decided to bring the present action. The action Arguments of the parties
17. The Commission, citing paragraph 25 of the judgment in Commission v Spain (C‑219/05, EU:C:2007:223), argues that Article 3(1) of the Directive imposes a collection obligation which, according to the case-law of the Court, constitutes an obligation to achieve a specific result, drafted in a clear and unequivocal manner, that, within the period set by the Directive, all urban waste waters originating from agglomerations had to enter collecting systems. Article 4(1) of the Directive, it contends, imposes a treatment obligation under which Member States are required to ensure that all urban waste water entering collecting systems set up pursuant to Article 3 of the Directive are, prior to their discharge into receiving waters, subjected to secondary treatment or to an equivalent treatment carried out by means of a process which makes compliance possible with the requirements set out in Table 1 of Annex I to the Directive.
18. The Commission also argues that the eighth recital in the preamble to the Directive makes it clear that Member States are required to ensure implementation of a method for monitoring treatment plants which meets the requirements set out in Annex I.D to the Directive. In the Commission’s view, therefore, the fact that a treatment plant exists and that its operation has been established by means of a single sample listing, the specific values for which were in compliance with the requirements of Table 1 of Annex I to the Directive, is not sufficient to demonstrate that the treatment of urban waste water by that plant satisfied the requirements of Article 4 of the Directive. It is for the Member States to ensure that, in accordance with the requirements of Annex I.D to the Directive, the proper functioning of treatment plants is checked by taking a minimum of 12 samples over the course of a year.
19. The Commission notes that the Directive does not apply to agglomerations which have a p.e. of less than 2 000, with the result that the fact that urban waste water corresponding to a p.e. of less than 2 000 has not been collected does not, in itself, constitute an infringement of Article 3 of the Directive. Moreover, notwithstanding the fact that the Directive requires a collection rate of 100%, the Commission, in the exercise of its discretionary power to initiate infringement proceedings, deemed a collection rate of 98% to be sufficient in the present case, while also requiring that the remaining 2% of the uncollected load should not represent a p.e. greater than or equal to 2 000. Citing paragraph 25 of the judgment in Commission v Greece (C‑440/06, EU:C:2007:642), the Commission also maintains that, given that certain agglomerations do not, as required by Article 3 of the Directive, have collecting systems for 98% of the urban waste water that they discharge, the obligation to subject all those discharges to secondary treatment or equivalent, set out in Article 4(1) of the Directive, has a fortiori not been met.
20. On the basis of those considerations, the Commission finds that the situation of one agglomeration in the Flemish Region in not compliant with Article 4 of the Directive and that the situation of 56 agglomerations in the Walloon Region complies neither with Article 4 of the Directive nor with Articles 3 and 4 thereof in conjunction.
21. The Belgian Government challenges the Commission’s argument that compliance of the functioning of a treatment plant with Article 4 of the Directive has to be assessed in the light of Annex I.D to the Directive. It argues that there was no legal basis imposing a one-year period of sampling given that Article 4 of the Directive refers, not to Annex I.D, but to Annex I.B, which does not impose the obligation that samples must be taken over a period of at least one year after the treatment plant has commenced operations in order for the agglomeration concerned to be deemed to be compliant with Article 4 of the Directive.
22. The Belgian Government notes that it is Article 15 of the Directive that makes reference to Annex I.D. That article, however, is not mentioned in the application and is therefore not, it submits, the subject-matter of the present proceedings. It must therefore be concluded that, pursuant to Article 4 and Annex I.B to the Directive, once a treatment plant serving an agglomeration has been brought into operation and the first analysis results show that the effluent composition conforms to the standards listed in Table 1 of Annex I to the Directive, the obligations under the Directive are fulfilled.
23. While not disputing the Commission’s discretionary power to deem an agglomeration not to be compliant with Article 3 of the Directive in the case where less than 98% of its urban waste waters are collected, the Belgian Government maintains that such a position is very strict, disproportionate and fails to have regard for the objective of the Directive in that, in such a case, the environmental risk is very marginal, or even non-existent, especially since, within Belgian agglomerations, taken as a whole, the collection rate of those waters exceeded 98%.
24. While acknowledging that the Walloon Region did not carry out all of its obligations under Articles 3 and 4 of the Directive within the period set by that directive, the Belgian Government submits that it was absolutely impossible for that region to comply with all of those obligations given the material, technical and budgetary constraints facing it.
25. In view of the information and results contained in the annexes to the statement of defence lodged by the Belgian Government, the Commission has circumscribed the subject-matter of its action to the complaints relating to 48 agglomerations, and no longer to those relating to 57 agglomerations.
26. Accordingly, for the 15 agglomerations of Aywaille, Baelen, Blegny, Chastre, Grez-Doiceau, Jodoigne, Lasne, Obourg, Oreye, Orp, Raeren, Sart-Dames-Avelines, Soiron, Sombreffe and Yvoir-Anhée, the Commission takes the view, in the light of the information mentioned in the previous paragraph, that the rate of collection of urban waste waters does not reach 98%. That, it submits, gives rise to a failure to fulfil the collection obligation as laid down in Article 3 of the Directive, which also results in a failure to fulfil the treatment obligation laid down in Article 4 of the Directive.
27. With regard to the 31 agglomerations of Bassenge, Chaumont-Gistoux, Chièvres, Crisnée, Dalhem, Dinant, Écaussinnes, Estinnes, Feluy-Arquennes, Fexhe-Slins, Fosses-la-Ville, Godarville, Hannut, Havré, Jurbise, Le Rœulx, Leuze, Lillois-Witterzée, Profondeville, Rotheux-Neuville, Saint-Georges-sur-Meuse, Saint-Hubert, Sirault, Sprimont, Villers-la-Ville, Villers-le-Bouillet, Virginal-Hennuyères, Walcourt, Welkenraedt, Wépion and Wiers, their non-compliance with the treatment obligation laid down in Article 4 of the Directive has, the Commission submits, been established in so far as those agglomerations do not have a treatment plant.
28. In relation to the two agglomerations of Gaurain-Ramecroix and Hélécine, the Commission submits that, although they are equipped with treatment plants, they are not in compliance with Article 4 of the directive in so far as the taking of 12 samples provided for in that article was not carried out in the course of the first year of operation of those facilities.
29. Those 48 agglomerations are situated in the Walloon Region.
30. The Commission adds that, according to settled case-law, a Member State cannot plead practical or administrative difficulties in order to justify failure to comply with obligations and time-limits laid down by a directive. In addition, it states, first, that the EU legislature, conscious of the scale of the infrastructure work to be carried out for the purpose of implementing the Directive, granted the Member States a sufficiently long period - namely 14 years - which was to end on 31 December 2005, for meeting their obligations in regard to agglomerations such as those at issue and, secondly, that it filed its action in the present case almost eight years after that period had expired. Findings of the Court
31. It must be stated, at the outset, that Article 3(1) of the Directive imposes an obligation to achieve a specific result, drafted in a clear and unequivocal manner, that, by 31 December 2005 at the latest, all urban waste waters originating from agglomerations with a p.e. of between 2 000 and 15 000 had to enter a collecting system for urban waste water (see, by analogy, judgments in Commission v Spain , EU:C:2007:223, paragraph 25, and in Commission v Greece , EU:C:2007:642, paragraph 25).
32. That being so, the Commission alone is competent to decide whether it is appropriate to bring proceedings against a Member State for failure to fulfil its obligations and to determine the conduct or omission attributable to the Member State on the basis of which those proceedings should be brought (see, to that effect, judgments in Commission v Germany , C‑431/92, EU:C:1995:260, paragraph 22; Commission v Germany , C‑476/98, EU:C:2002:631, paragraph 38; and Commission v Greece , C‑394/02, EU:C:2005:336, paragraph 28).
33. In the present case, the Commission thus decided to bring infringement proceedings, in accordance with its general practice in regard to urban waste water collection in agglomerations, according to which, notwithstanding the fact that the Directive requires a collection rate of 100%, it brings such proceedings only in respect of agglomerations whose collection rate is lower than 98% or where the uncollected 2% residue represents a p.e. greater than or equal to 2 000.
34. On the basis of those considerations, the Commission, abandoning in part the initial claim in its application with regard to certain agglomerations in the light of the information provided by the Belgian Government, is now definitively requesting that the 15 agglomerations mentioned in paragraph 26 of the present judgment be held not to be in compliance with the collection obligation laid down in Article 3 of the Directive.
35. It is common ground that those 15 agglomerations are listed in the table contained in Annex 1 to the Belgian Government’s statement of defence lodged with the Court on 15 October 2013. It is indicated in that table that, on that date, those agglomerations did not meet the requirements of Article 3 of the Directive, as defined in this case by the Commission.
36. The Belgian Government does not rely on any situations such as those referred to in the last subparagraph of Article 3(1) of the Directive, which authorises Member States to derogate from the obligations concerning the establishment of a collecting system that arise out of Article 3 of the Directive.
37. The Belgian Government does, however, argue that the Commission’s decision, as apparent from paragraph 33 of the present judgment, is in this case too strict and disproportionate, inasmuch as the Belgian agglomerations, considered as a whole, ensure a collection rate of urban waste waters which is in excess of 98%. The risk to health and the environment is, it submits, therefore very limited.
38. It should be pointed out in this regard that the system provided for by the Directive is centred on the concept of an ‘agglomeration’ as defined in Article 2 of that directive. Thus, Member States’ obligations under Articles 3 and 4 of the Directive, at issue in this case, relate specifically to agglomerations and vary depending on their size. Accordingly, non-compliance with the requirements of the Directive must be ascertained in relation to each agglomeration considered individually.
39. In any event, 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 that Member State at the end of the period laid down in the reasoned opinion (see judgments in Commission v Italy , C‑525/03, EU:C:2005:648, paragraph 14 and the case-law cited, and in Commission v Ireland , C‑279/11, EU:C:2012:834, paragraph 18 and the case-law cited).
40. In response to questions put by the Court during the hearing, the Belgian Government acknowledged that, on the date on which the period prescribed in the reasoned opinion expired, namely 28 June 2011, the 15 agglomerations to which the Commission’s complaints relate, and which are mentioned in paragraph 26 of the present judgment, did not meet the requirements relating to the collection of urban waste water laid down in Article 3 of the Directive.
41. Therefore, in accordance with the case-law of the Court, the obligation to ensure that all discharges are subject to secondary treatment or equivalent, laid down in Article 4(1) of the Directive, was likewise not fulfilled (see, to that effect, judgment in Commission v Greece , C‑440/06, EU:C:2007:642, paragraph 25 and the case-law cited).
42. Consequently, it must be held that, by failing to ensure the collection and treatment of urban waste waters of the agglomerations of Aywaille, Baelen, Blegny, Chastre, Grez-Doiceau, Jodoigne, Lasne, Obourg, Oreye, Orp, Raeren, Sart-Dames-Avelines, Soiron, Sombreffe and Yvoir-Anhée, the Kingdom of Belgium has failed to fulfil its obligations under Articles 3 and 4 of the Directive.
43. The Commission, abandoning in part the initial claim in its application concerning certain agglomerations in the light of the information provided by the Belgian Government, seeks a declaration that the 31 agglomerations listed in paragraph 27 of the present judgment are not in compliance with the obligation to treat urban waste water laid down in Article 4 of the Directive.
44. It is common ground that those 31 agglomerations are listed in the table contained in Annex 1 to the Belgian Government’s statement of defence, referred to above, in which it is indicated that, on 15 October 2013, those agglomerations did not meet the requirements of Article 4 of the Directive.
45. In any event, the Belgian Government does not dispute that, on the expiry of the period prescribed in the reasoned opinion, those 31 agglomerations did not have operational urban waste water treatment plants and that, consequently, the requirements of Article 4 of the Directive were not met.
46. With regard to the two agglomerations referred to in paragraph 28 of the present judgment, it must be stated that, on the date on which the application was lodged, they did have treatment plants but, contrary to what is required by Annex I.D to the Directive, 12 samples had not been taken over the course of the first year of their operation.
47. Taking the view, therefore, that those agglomerations still did not satisfy the requirements of Article 4 of the Directive, the Commission maintained its action in their regard. During the hearing, the Commission did, however, state that, in the case of those two agglomerations, it did not intend to amend the date on which the existence of an infringement had to be assessed.
48. It is however, not disputed by the Belgian Government that, on the expiry of the period prescribed in the reasoned opinion, the two agglomerations at issue did not have treatment plants and that, consequently, they were not in compliance with the requirements of Article 4 of the Directive.
49. Accordingly, it must be held that, by failing to ensure the treatment of urban waste waters of the agglomerations of Bassenge, Chaumont-Gistoux, Chièvres, Crisnée, Dalhem, Dinant, Écaussinnes, Estinnes, Feluy-Arquennes, Fexhe-Slins, Fosses-la-Ville, Godarville, Hannut, Havré, Jurbise, Le Rœulx, Leuze, Lillois-Witterzée, Profondeville, Rotheux-Neuville, Saint-Georges-sur-Meuse, Saint-Hubert, Sirault, Sprimont, Villers-la-Ville, Villers-le-Bouillet, Virginal-Hennuyères, Walcourt, Welkenraedt, Wépion, Wiers, Gaurain-Ramecroix and Hélécine, the Kingdom of Belgium has failed to fulfil its obligations under Article 4 of the Directive.
50. In connection with the delay in carrying out the work necessary to ensure the collection and secondary treatment of urban waste water, and the subsequent failure to fulfil its obligations arising under Articles 3 and 4 of the Directive, the Belgian Government cites the material, technical and budgetary constraints which affected the Walloon Region.
51. It should be noted that the EU legislature, conscious of the scope of the infrastructure work required for the application of the Directive and the costs of its full implementation, granted the Member States a period of several years to carry out their obligations, which in this case expired on 31 December 2005. In any event, according to settled case-law, a Member State cannot plead difficulties in its domestic legal order to justify a failure to observe obligations arising under EU law (see, to that effect, judgments in Commission v Greece , C‑407/09, EU:C:2011:196, paragraph 36 and the case-law cited, and in Commission v Ireland , EU:C:2012:834, paragraph 71).
52. Having regard to the foregoing, it must be held that, by not ensuring the collection and treatment of urban waste waters of the agglomerations of Aywaille, Baelen, Blegny, Chastre, Grez-Doiceau, Jodoigne, Lasne, Obourg, Oreye, Orp, Raeren, Sart-Dames-Avelines, Soiron, Sombreffe and Yvoir-Anhée, and by not ensuring the treat ment of urban waste waters of the agglomerations of Bassenge, Chaumont-Gistoux, Chièvres, Crisnée, Dalhem, Dinant, Écaussinnes, Estinnes, Feluy-Arquennes, Fexhe-Slins, Fosses-la-Ville, Godarville, Hannut, Havré, Jurbise, Le Rœulx, Leuze, Lillois-Witterzée, Profondeville, Rotheux-Neuville, Saint-Georges-sur-Meuse, Saint-Hubert, Sirault, Sprimont, Villers-la-Ville, Villers-le-Bouillet, Virginal-Hennuyères, Walcourt, Welkenraedt, Wépion, Wiers, Gaurain-Ramecroix and Hélécine, the Kingdom of Belgium has failed to fulfil its obligations under Articles 3 and 4 of the Directive. Costs
53. Under Article 138(1) of the Court’s Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the other party’s pleadings. Since the Commission has applied for costs and the Kingdom of Belgium’s failure to fulfil its obligations has been established, the Kingdom of Belgium must be ordered to pay the costs.