C-14/86

Mr President, Finally, it asked the Pretore to take Members of the Court, measures against the concessionaries or, in any event, those responsible for diverting he water not merely in order to protect the various fish species but also for the protection of health and the environment. 1. In the context of criminal proceedings against persons unknown, the Pretore di Salò (Brescia Province) asks the Court to interpret Council Directive 78/659 of 18 The order for reference states that the facts July 1978 on the quality of fresh waters set out by the complainants correspond to a needing protection or improvement in order series of offences of varying degrees of to support fish life (Official Journal 1978, gravity. The more serious offences — L 222, p. 1). The national judge wishes to aggravated pollution of waters, diversion of know (a) whether the Italian legislation on water and interference with the state of the the protection of waters against pollution is premises — are provided for in Articles 635, consistent with the principles and objectives 625 (7) and 632 of the Criminal Code. The of quality laid down in that measure, and less serious offences are covered by three (b) whether there is laid down in that series of provisions: Articles 6 and 33 of the measure an obligation to maintain the Consolidated Law on Fishing (Royal Decree quantity of water essential to the survival of No 1604 of 8 October 1931), Article 21 the protected forms of aquatic life. of Law No 319 of 10 May 1976, which punishes the discharge of substances harmful to fish in the framework of rules designed to protect water against pollution, and Articles 25 to 29 of Decree No 915 of the President of the Republic of 10 2. On 5 July 1984 the Pretura di Salò September 1982 in which the Italian legis­ (Magistrate's Court for the District of Salò) lature transposed into Italian law Council received a document from the 'Gruppo Directives 75/442 on waste, 76/403 on the Ecologico Pescatori per la Salvaguardia del disposal of polychlorinated biphenyls and Fiume Chiese' (Anglers' Ecological Group polychlorinated terphenyls, and 78/319 on for the Protection of the River Chiese). The toxic and dangerous waste. association complained first of the frequent fish die-offs observed in the watercourse which, between Lake Idro and the River Oglio, crosses the judicial district On the basis of those factors, the Pretore, ('mandamento') of the said court. The who, as we will see later, also performs the group also claimed that this phenomenon functions of public prosecutor, initiated was due essentially to the significant and criminal proceedings and carried out certain sudden changes in the level of the Chiese preliminary enquiries. More precisely, he brought about by the many dams built for extracted from the file of proceedings irrigation and for hydro-electric purposes. terminated on 31 December 1982 three

documents which other anglers' associations contains 'undeniable possibilities [for] had sent to him some years previously. broadening the sphere of the protection Those statements indicated that the Chiese afforded by the criminal law'. That is particularly suited to the reproduction of conclusion led him to stay the proceedings salmonid species and complained both of and refer the following questions to the the excessive amounts of water which were Court of Justice for a preliminary ruling by being removed from it for the purposes of order of 13 January 1986: irrigation and the production of electric energy and of the discharge of noxious '(1) Is the existing system of rules estab substances into it by industry and local lished by the Italian Republic for the authorities.

source. In other words, he considered (a) (2) Do the quality objectives, as laid down that the criminal liability for the damage to in the directive, presuppose the the Chiese basin and, in particular, for the comprehensive management of water periodic destruction of aquatic fauna could resources — that is to say a system for be determined only on the basis and in the regulating the discharge and the light of provisions which specifically regard volume of water — and, consequently, water as being a habitat for fish; (b) that the need for rules which apply to water provisions of that nature are to be found in basins or watercourses and are capable Directive 78/659; and (c) that there are of ensuring a constant flow with a view doubts as to whether the Italian legislation to preserving the minimum volume of on the protection of waters, as contained in water which is essential for the devel Law No 319 of 1976, as later supplemented opment of the fish species?' and amended, and other laws adopted by the State or the region of Lombardy concerning the protection of the envi

The Italian Government

doubts that in this case the conditions laid in mind — that defect is not so much the down in the second paragraph of Article result of a subjective fact (the persons 177 of the EEC Treaty have been fulfilled responsible for the diversion of the water and, in particular, it expresses doubts as to are in reality known to everybody) as of an whether the reference comes from a 'court objective factor, namely the uncertainty as or tribunal'. Those doubts arise from the to whether the facts may be regarded as ambiguous nature of the office of Pretore, a constituting criminal offences. peculiar institution in the Italian legal system in which the functions of public prosecutor and judge are combined.

The making to the Court of Justice for a preliminary of the request removes recourse to the ruling. In any event, the Pretore was not a Community mechanism provided for in judge. If the Court were to give him an Article 177 from the trial properly so-called. answer which led him to the conclusion that the diversion of the water was not of a criminal nature, he would have to order that no further action be taken. However, the 4. Having regard to the case-law of the order that he makes for that purpose can Court, that argument cannot be upheld.

The principle laid down in those judgments and the fact, which follows from it, that no reliance may be placed on the conditions which a measure must satisfy under the laws of the Nor is that all, according to the argument various Member States in order to be of a mentioned under (b). What is most striking judicial nature, render totally irrelevant, for about the procedural situation in which the example, the argument based on the nature Pretore formulated the questions is, so to of the order that no further action be taken.

OPINION OF MR MANCINI —CASE H/86

decisive. The criteria by which the la Serie Speciale, No 60, p. 20). The Community concept of 'court or tribunal' is attempts to render it more palatable by defined could not be wider. That explains separating the functions performed by the why the Court has permitted national Pretore according to the sequence of the judicial bodies of all kinds to consult it, measures which he takes in such a way as to irrespective of the nature and purpose of the fit his office once again into the traditional proceedings in the course of which they dualist scheme are therefore understandable. raise a question or of whether the robe they This, however, does not render them any , are wearing when they do so is more or less the less misconceived from the point of view markedly judicial. The Italian Pretori acting of the jus conditum or any the less in criminal cases are fully qualified members exemplary, as an eminent specialist has of that class and it is of little importance written, of the tendency of many lawyers to whether they refer questions to the Court of 'distort even the most recalcitrant facts' and Justice in their judicial capacity or in their to 'devise weird formulae in order to capacity as prosecutors because the corre conceal the real situation' (Cordero, sponding duties overlap, are interlinked and Procedura Penale, 6th Edition, Milan, 1982, complement each other so as to form an page 27). indivisible whole. The Pretore, as has been well put, is a person to whom the judicial system accords the status of judge and who in the exercise of that function 'formulates the charge [initiating] the proceedings, carries out the enquiry and investigates [the I accept none the less that someone who is case] for and against the accused, ensures impressed by the fact that the Pretore is that the charges are finalized, accorded the status of a 'part/ when acting

However, everybody knows that in that context the court is not a 'third party', that is to say, it has no connection with the interests to be Undoubtedly, that derogation from the rule protected or that at the very least the point ne procedat judex ex officio, that concen is debatable.

However, the Court of Justice has decided differently. Thus, in its judgment of 10 6. The third ground on which it is alleged March 1981 in Joined Cases 36 and 71/80 that the reference submitted by the Pretore (Irish Creamery Milk Suppliers'Association v di Salò is inadmissible is based on the stage Ireland [1981] ECR 735, paragraphs 6 and of the main proceedings at which it was 7), the Court accepted that, by establishing made and that argument was advanced 'the facts in the case' settling 'questions of primarily by the Commission. According purely national law' before the reference is to the Commission, the fact that the made, the national court does not assist it. proceedings were brought against persons However, the Court added that 'those unknown entails two alternative conse­ considerations do not in any way restrict the quences, both of which are unacceptable, discretion' of the national court. It alone has namely to render the judgment of this Court 'a direct knowledge of the facts of the case useless in practical terms or to give rise to a and of the arguments of the parties' and it serious restriction of the right to a fair alone will have 'to take responsibility' for hearing in the proceedings before it. giving judgment and it is therefore 'in the best position to appreciate at what stage in the proceedings it requires a preliminary ruling'. Hence, the choice of the appropriate time for making a reference must be It is true, says the Commission in the first dictated 'by considerations of procedural place, that 10 years ago the Court did not organization and efficiency to be weighed refuse to reply to the Pretore di Cento even by that court' (paragraph 8) (see also the though the proceedings before him were judgment of 10 July 1984 in Case 72/83 Campus Oil Ltd and Others v Minister for also against persons unknown (judgment of Energy and Others [1984] ECR 2727, 5 May 1977 in Case 110/76 [1977] ECR paragraph 10). 851). However, that court had raised a question of procedure which in any event dealt with one precise point. He asked the Court whether the Community could be regarded as an injured party in the proceedings which he had initiated and the In my opinion, that approach is fully in Court's interpretation was necessary in conformity with the spirit of Article 177. I order to determine whether he was required

Let us suppose, however — the Commission added at the hearing — that our Pretore 7. The Commission's arguments do not does obtain sufficient information to seem to me to be any more persuasive than identify the persons responsible for erecting those put forward by the Italian the dams on the Chiese and let us imagine Government. Thus, the arguments con­ moreover that the Court replies to his cerning the accused's right to a fair hearing second question in the way that he wishes, are tenable only if the special nature of the that is to say, that it accepts that the proceedings under Article 177 and the parameters of quality laid down in the position which the parties occupy in the directive impose an obligation to maintain context of those proceedings is ignored or the quantity of water necessary to maintain minimized. fish life. In that case it must be presumed that the Pretore will summon the accused and charge them with a criminal offence — unlawful diversion of waters — punishable under Article 632 of the Penal It has long been accepted that proceedings Code by a term of imprisonment of up to for a preliminary ruling are not subject to three years and a fine of up to LIT 400 000. the rules governing adversary proceedings. It was stated in the order of 3 June 1964 (Case 6/64 Costa v Enel [1964] ECR 614) that Article 177 'does not envisage contentious proceedings designed to settle a That situation, however, would be even dispute but prescribes a special procedure' more serious than the one envisaged earlier. under which the national courts seek 'the

interpretation of Community provisions The theoretical results of the situation thus which they have to apply in disputes outlined seem to me to be obvious. The brought before them'. From that principle, Court's decision is addressed only to the the judgment of 9 December 1965 (Case national court which requested it whereas 44/65 Hessische Knappschafi v Singer et fils the parties to the main proceedings may [1965] ECR 965) draws the conclusion that draw from it only indirect and purely 'any initiative of the parties' is excluded. factual inferences because these are derived They are 'merely invited to be heard' (see, via the judgment of the national court in the same sense, the order of 14 July 1971 which, for their purposes, is the only in Case 6/71 Rheinmühlen v Einfuhr- und decision having legal effects.

That means a person who, without necessarily being the holder of the right asserted before the court, is entitled to take certain procedural steps, for example, with a view to giving effect to the right or interest of another person or to ensuring that the rules applicable to the case are correctly construed (see, in that regard, However, the most significant decision in Ferrari-Bravo, 'Commento all'Articolo 177' that respect, also in view of its obvious link in Commentario al Trattato CEE, Milan, with the problem now before us, is the 1965, Vol. III, p. 1319, and Monaco, 'Le judgment of 16 June 1981 (Case 126/80 Parti nel Processo Comunitario', in Studi Salonia v Poidomani and Giglio [1981] ECR Morelli, Milan, 1975, p. 574 et seq.).

OPINION OF MR MANCINI — CASE 14/86

. . Case 29/68 Milch-, Fett- und Eierkontor v bears no relation to the actual nature of the Hauptzollamt Saarbrücken [1969] ECR 165, case or to the subject-matter of the main paragraph 3, and recently the order of action' (judgment of 16 June 1981, cited 5 March 1986 in Case 69/85 Wünsche v above, paragraph 6; judgment of 26 Sep Federal Republic of Germany [1986] ECR tember 1985 in Case 166/84 Thomasdünger 947, paragraph 15. As is clear, those two v Oberfinanzdirektion Frankfurt am Main decisions also refute the Italian [1985] ECR 3001, paragraph 11; judgment Government's argument, to which I referred of 19 December 1968 in Case 13/68 Salgoil in paragraph 3, in fine). v Italy [1968] ECR 453).

of it. What I mean is that it is possible to should be established. imagine that a judge would let himself be persuaded to refer to the Court of Justice a question raised by parties in a civil case which is more or less clearly 'manufactured'. However, I find it frankly impossible to believe that he would himself 'manufacture' However, the view which I am now criminal proceedings in order to obtain a considering is demolished by another preliminary ruling on interpretation from argument. It is essentially contrary to the the Court and on the basis of this put into rules laid down in the aforementioned effect a legal policy of his own. judgment in Irish Creamery Milk Suppliers' Association v Ireland (supra, paragraph 5) and, more generally, to the principle upon which that judgment is based, namely the allocation of jurisdiction between the To come to the core of the problem, the national courts and the Court of Justice. Commission's view is already placed in The reason is clear.

PRETORE DI SALÒ v PERSONS UNKNOWN

Commission realizes it or not, it is asking expressed in a form which is too indefinite the Court to decide that it is for the Court to bring out 'those elements which come not merely to interpret the Community rules within the interpretation of Community law' but also to decide whether the national and, for that reason, to 'lend itself to a court must or may use the Court's interpre­ suitable reply'(judgment of 21 March 1972 tation in the proceedings pending before it. in Case 82/71 Pubblico Ministero v Società That in fact is what a refusal to reply to the Agricola Industria Latte [1972] ECR 119, question would amount to if it was based on paragraph 3, and the judgment of 28 March the futility (in concrete terms: the doubtful 1979 in ICAP, cited above, paragraph 20). utility) of the preliminary ruling because the That said, if the Court does not agree with reference was made too early in the my opinion, I think it useful to point out (a) proceedings for it to be certain that those that there is still pending before the Court a proceedings would in fact reach their case (Case 322/86) under Article 169 in ultimate conclusion, and that, logically, is which the Commission is asking the Court what is prohibited by the judgment of 28 to declare that Italy has not implemented March 1979 in Case 222/78 ICAP v the directive at issue; (b) that there is in fact Beneventi [1979] ECR 1163, paragraphs 11 a considerable divergence between the and 12. methods of intervention provided for in the Italian and the Community legislation.

OPINION OF MR MANCINI — CASE 14/86

. . and shall adopt appro- directive in requiring protection of the priate measures' (the italics are mine). quality of waters is the protection of fish stocks from the harmful conse quences — reduction or extinction of certain species — brought about by the discharge of polluting substances. Other That is not all. The Commission has rightly forms of water management are not directly pointed out that, considered in the context imposed. In particular, no provision requires of the spirit of the directive, the protection the Member States to assess the overall of 'designated waters' is not an end in itself situation of the hydrographie system of but rather a means of ensuring the survival which fresh waters form part. Naturally, of the species of fish referred to in Article 1 that does not mean that the national admin

practical effect. That argument is attractive but it does not stand up to a systematic interpretation of the Community measure. The Commission has observed that at least 11 of the 14 parameters laid down in Annex I are given in milligrams per litre and that the corre 11. As I pointed out when considering the sponding maximum values may be exceeded facts of the case {supra, paragraph 2), the in two ways: by causing or permitting reason which led the Pretore di Salò to ask excessive discharges of substances harmful the Court to interpret Directive 78/659 is to to fish life or by diminishing to an excessive be found in its importance for the purposes degree the quantity of water in which such of the proceedings initiated by him as 'an substances are dissolved. If that observation essential basis' under the rules of criminal is correct I find it difficult not to accept that law in force and in view of the 'undeniable

broadening' of the 'sphere of the protection may not of itself impose obligations on an afforded by the criminal law' which it individual and that a provision of a directive entails. The judge thus seems to consider, may not be relied upon as such against such although he does not say so expressly and a person. It must therefore be examined still less does he ask the Court to rule on whether, in this case, the respondent must the view which he puts forward, that a be regarded as having acted as an indi directive which has not been implemented vidual' (paragraph 48). I must say that the or has been incorrectly implemented may premise on which that paragraph is based impose on individuals obligations as to leaves me rather puzzled, but I agree with conduct the breach of which may give rise its conclusion, at least in so far as it may be to criminal penalties under national law. understood as meaning that the directive cannot of itself impose obligations on indi viduals vis-à-vis the public administration. For my part, I would observe (a) that the In any event, I accept that the abovemen- directive applies only to 'waters designated tioned judgment puts an end to any by the Member States' (Articles 1 (1) and discussion of the question whether the (4)); (b) that the Member States are premise in the light of which (if not on the required to fix limit-values only in regard to basis of which) the Pretore di Salò seems to such waters (Article 3); (c) that the Member have formulated his question is well- States are entitled to set more stringent founded. values than those indicated in Annex I (Article 9); (d) that the Member States are not required to back up the measures But the question does not for that reason required by Article 17 with criminal become irrelevant.

He tional character — which, according to the admitted, however, that the measure in case-law of the Court, must be satisfied if a question might have the effect of rendering measure is to be capable of producing direct offences against existing or future provisions effects. of criminal law more serious. Waters that are 'designated' by the State in the manner prescribed by the provisions of Community law constitute an object of legal protection Let me add that in the recent judgment of which, in so far as it assures a benefit for 26 February 1986 in Case 152/84 Marshali v the Community as a whole, has a special Southampton and South-West Hampshire value. Offences of which these waters are Area Health Authority (Teaching) [1986] the subject may therefore entail a more ECR 723 at p. 737, the Court stated that: severe penalty because they involve not just

OPINION OF MR MANCINI — CASE 14/86

directive may, once Article 4 is put into the Chiese, if this were to occur before the effect, have an impact on the proceedings termination of the proceedings, would in initiated by the Pretore, at least in so far as fact be a jus supervenient, but this would the protection afforded by the criminal law remain irrelevant since the seriousness of the is thereby reinforced. The 'designation' of damage is plainly of objective significance.

12. On the basis of all the foregoing considerations, I propose that the Court reply as follows to the questions referred to it by the Pretore di Salò by order of 13 January 1986 in the context of proceedings against persons unknown:

'(1) Article 177 of the EEC Treaty is based on a clear distinction between the jurisdiction of the national courts and that of the Court of Justice. It therefore does not allow the Court of Justice to rule on the compatibility of the Italian legislation on the protection of waters against pollution with Council Directive 78/659 of 18 July 1978 on the quality of fresh waters needing protection or improvement in order to support fish life.

(2) The parameters of quality laid down in Annex I to Directive 78/659 are to a large extent indicated in terms of milligrams per litre. On the other hand, the protection of waters capable of supporting fish life from the point of view of quality implies that excessive quantities must not be drawn from them to an extensive degree or, in any event, in such a way as to frustrate the purpose which the directive seeks to achieve. It follows that the Member States are obliged to ensure that so far as waters which they classify as 'designated waters' within the meaning of the said directive (Article 4) are concerned, the quantity of water indispensable for the survival of protected fish species is conserved.'