C-228/87

CRIMINAL PROCEEDINGS AGAINST X

OPINION OF MR ADVOCATE GENERAL LENZ delivered on 31 May 1988*

Mr President, Criminal Code. It was in these proceedings Members of the Court, that the questions submitted by the Turin magistrate arose. A number of derogations were authorized from the decree fixing the maximum values under several ministerial orders and implementing regulations A — Facts adopted by the Piedmont regional adminis- tration. It is the compatibility of those dero- gations with the directive which is at issue. If they are lawful, the increased concen- trations of toxic substances are within the 1. The present case concerns a reference to temporarily authorized limits, so that the the Court by the Pretore di Torino (Turin constituent elements of a criminal offence magistrate) for a preliminary ruling on are lacking and the investigation procedure the interpretation of Council Directive which is under way should not be pursued. 80/778/EEC of 15 July 1980 relating to the quality of water intended for human consumption. 1

B — Opinion far as in the investigation procedure he performs two functions of a different legal nature. In seeking and establishing the facts, I — Admissibility he carries out the duties of the public pros- ecutor; on the other hand, both in deciding to close the procedure and pronouncing a verdict, his functions are judicial. Since the 5. The admissibility of the reference for a Turin magistrate, who has submitted the preliminary ruling appears questionable in several respects. The doubts arise both as a question to the Court, needs the Court's result of the stage reached in the main reply in order to be able to take his decision proceedings and from the way in which with regard to the subsequent procedure, the question submitted to the Court is namely whether he should pursue the inves- formulated. tigation or terminate the proceedings, he must be regarded as a 'court or tribunal' in the broadest sense for the purposes of the second paragraph of Article 177 of the EEC

8. By implication, the necessity of the case-law which has interpreted this decision of the Court 'to enable [the autonomous legal notion broadly. Thus any national court] to give judgment' has been independent authority charged with the acknowledged, since the determination of settlement of disputes constitutes a court or whether the conditions therefor is in tribunal for this purpose. It must be a principle left to the court making the permanent body, established by law, reference. 5That is why in Case 14/86 the endowed with binding jurisdiction and set Court confined examination in this respect up to give judgment in adversarial to the finding that the Pretore exercised proceedings by applying the rules of law. 2 judicial functions, although not in a typical Since the judgment in Case 162/73, 3 the manner and not in all his activities.

7. Nevertheless, the procedural position of paragraph of Article 177. the Turin magistrate poses a problem in so 4 — Judgment of the Court of 11 June 1987 in Case 14/86 2 — Judgment of 30 June 1966 in Case 61/65 Vaassen-Gobbels Pretore Ji Salò v X[1987] ECR 2545. [1966] ECR 377. 5 — Judgment of 16 December 1981 in Case 244/80 P. Foglia v 3 — Judgment of the Court of 21 February 1974 in Case M. Novello [1981] ECR 3045, paragraphs 15 et ¡eq. of the 162/73 Birra Dreher v Amministrazione delle finanze dello decision. Stalo [1974] ECR 201. 6 — Loc c i t ,paragraph 7 of the judgment.

9. In my view this case is a borderline one been given, the principle of the right to be as far as the procedural position is heard may be affected. With regard to the concerned. In this respect regard must be proceedings pending before the Court this had to other circumstances before reaching principle is expressed in the second the conclusion that the reference to the paragraph of Article 20 of the Protocol on Court is admissible. National courts should the Statute of the Court of Justice of the not be given the possibility of referring to EEC. This provision accords inter alia to the the Court abstract questions of law because 'parties' the right to submit observations to that would alter the character of the the Court within two months of the notifi- preliminary reference procedure — at least cation of the request for a preliminary as in the form hitherto given to it by the ruling. Court. 7In making this assessment, it is also necessary to take account of the fact that the main proceedings are investigation 11. The comment that it is open to the proceedings against persons unknown, since national court to refer the matter to the no one has yet been formally named as Court of Justice at a later stage of the

reply. Nor, if this decision is taken as the independent right to bring the matter before decisive point of reference, may doubt be the Court. cast on the possibly premature nature 8 of the reference for a preliminary ruling. It follows that the objection that the procedure under Article 177 of the EEC 12. In this case it is necessary to approach Treaty is superfluous also becomes the problem from the point of view of the irrelevant. It is only a decision of the Court concrete procedural situation prevailing at on the substantive legal issues involved the time when the proceedings are pending which will provide the Pretore with the before the court. In this respect it is also criteria on the basis of which he will be able necessary to draw a conclusion from the to determine whether the constituent approach that has been adopted from the elements of a criminal offence exist. outset, namely that the main proceedings already constitute at the stage in question a dispute which may give rise to a request for a preliminary ruling. It follows that for the

OPINION OF MR LENZ — CASE 228/87

preliminary ruling as admissible as far as the Community law. The Court makes every procedural situation of the dispute in the effort, by reformulating the question and by main proceedings is concerned. the reply which it gives to it, to provide the national court with criteria which will help it to decide the specific case before it. 10

14. However, when a question referred to it for a preliminary ruling is inaccurately formulated, the Court does not simply reject 17. The Commission takes the view that the it as inadmissible. As it has consistently maximum values set out in the directive stated, 9 it examines, having regard to the must be strictly complied with and that the circumstances of fact and of law, the possibilities of derogation can be used only relevance of the questions concerning restrictively. On the other hand, the Italian Government contends that it retains a rela- 9 — See judgment of 29 November 1978 in Case 83/78 Pigs tively wide discretion in determining Marketing Board v Raymond Redmond [1978] ECR 2347, and most recently, judgment of 20 April 1988 in Case 204/87 Bekam v French Republic [1988] ECR 2029. 10 — Case 204/87, loc. cit., paragraphs 5 et seq. of the decision.

CRIMINAL PROCEEDINGS AGAINST X

In these preamble). A Community directive on circumstances the directive must be quality standards for the supply of drinking construed as guaranteeing a degree of adap- water had already been adopted in June tability, of flexibility. This is expressly 1975. 11 The scope of Directive indicated in almost all the language 80/778/EEC is wider, but it also covers versions; moreover it is not contradicted by surface water intended for the supply of the wording of the German and English drinking water, so that directive introduces texts. In the light of this intention thus additional quality requirements in this expressed as regards the implementation of sphere. the directive in the Member States, it is therefore possible to depart from the rule of the strict interpretation of the factual conditions which may justify derogations. The declared aim of flexibility can be

of 8 February 1985, or, on the other hand, 20. In the preamble to the directive (11th that the provisions on derogations were recital) it is expressly stated that Member States are authorized to make provision for 12 — In Danish: en vis smidighed In Greek: enilixir derogations from the directive 'to take In Spanish: una cierta flexibilidad account of certain special situations'. This In French : une certaine souplesse In Italian: una certa elasticità In Dutch: een zekere soepelheid 11 — Council Directive 75/440/EEC of 16 June 1975, OJ 1975, In Portuguese: uma certa flexibilidade. L 194, p. 26. 13 — Article 189 of the EEC Treaty.

transposed into national law by separate 24. The existence of an 'emergency' should legal instruments. be able to be determined irrespective of its cause. It must therefore be possible to contemplate both natural events and human conduct. A restriction solely to events not caused by human conduct would pointlessly restrict the scope of the provision. Article 10 22. The only provision of the directive of the directive should in principle be relating to derogation which is capable of applicable to all emergencies, regardless of applying to this case is — and this is their origin. common ground between the participants in the proceedings before the Court — Article 10. That article provides for the possibility of derogating from the 'maximum admissible concentration' established by 25. In order to define the other features of Article 7 of the directive in conjunction with an emergency, it is necessary to take into Annex I thereto. The toxic substances, account the content of the legal term in atrazine and molinate, whose presence in question. The word 'emergency' admittedly appreciable quantities lies at the origin of suggests the rapid occurrence of an excep- this case come within that category. tional situation. However, the definition of an emergency cannot be regarded as disas- sociated from the other factual conditions. In particular it is necessary to take account of the last condition listed in Article 10 (1), namely the impossibility of maintaining the 23. The first condition to which recourse to supply of drinking water in any other way. the authorization to derogate under Article 10 (1) of the directive is subject is the existence of an 'emergency'. The very question of what constitutes conditions amounting to such an emergency is the subject of dispute between the participants 26. The terminology of this condition in the proceedings before the Court. nevertheless calls for a preliminary According to the Commission, this implies comment. The German and Danish versions an unforeseen unexpected event which of the directive are the only ones to refer in occurs suddenly. The Italian Government Article 10 (1) to 'the supply of drinking objects that the existence of an emergency water'. In the official versions in the other does not depend on the manner in which Community languages, reference is made, as the exceptional situation arises, but that it is in the title of the directive, to 'water only the fact that it is an exceptional intended for human consumption'. The situation is relevant. It considers that if notion 'water intended for human emergencies for the purposes of the consumption is broader than the expression directive were to be regarded as being 'supply in drinking water', because it covers caused only by events not resulting from means of supply other than the use of human conduct, typical emergencies, as for surface water. 15 Furthermore, Article 10 (2) example the poisoning of piped water by lays down separate rules on derogation for terrorist action, would not come within the the purpose of maintaining the supply of scope of the provision. 14 drinking water by recourse to surface water.

Both the consideration that Article 10 29. An obligation imposed by a legal logically provides in the first place for dero- instrument to transform the supply of water gations applying to the entire field of in order to avoid derogations under Article application of the directive and the fact that 10 of the directive could be justified only if a specific provision was adopted with regard it made it possible to improve the quality of to the supply of drinking water by recourse such supply. In fact this is far from being to surface water supports the view that the the case of the emergency supply to which I concurring version found in seven official have just alluded. It cannot be the aim and languages also constitutes the authentic text. the purpose of the factual conditions to which derogation is subject to compel a Member State to organize a supply of water of a lower quality and at a higher cost before being entitled to authorize a dero- 27. The inability to maintain supplies of gation. water intended for human consumption is an essential feature of an emergency. Clearly — and on this point it is necessary to concur with what was said by the Italian Government 1 4— a Member State cannot rely on an emergency to justify a previous failure on its part to fulfil its obligations. On 30. In addition, the Member State must the other hand, if the Member State is retain a measure of discretion as to the confronted with the problem of not being extent to which the use of other sources of able to comply with the values prescribed in supply is justifiable and reasonable in the directive and if it takes measures to economic terms. redress this situation, it must, in accordance with the object and purpose of the rules, be able to rely on the rule permitting dero- gation for a transitional period. Otherwise, where it is not possible to obtain the values set out in the directive immediately, a 31. A further argument, which is based on Member State would find itself in a the need for a regular supply of water situation in which its conduct infringed through the distribution network, is drawn Community law without its being able to from an analysis of the provisions relating establish a situation which was in to drinking water. Article 1 (2) of Directive conformity therewith. 75/440/EEC provides that: 'For the purpose of applying this directive, all surface water intended for human consumption and supplied by distribution networks for public use shall be considered 28. It is necessary to examine more closely to be drinking water.' the circumstances in which the supply of water intended for human consumption is not achieved. In particular it may be asked whether an emergency supply using tankers can constitute a sufficient supply so that recourse may not be had to the rules autho- rizing derogations. 32. The need to give Article 10 (1) a broad interpretation is also apparent from the fact 14 — See p. 10 of the transcript of the hearing. that paragraph (2) thereof provides for the

35. The Commission considers that this 33. The derogations are authorized in does not satisfy the requirement of a principle 'for a limited period of time'. The 'limited period of time'. It should be noted parties also disagree as to how this 'period in this respect that the directive gives no of time' should be assessed. In the case indication as to the maximum duration of before the national court, the derogations lawfully authorized derogations. The were first introduced for six months. At the various national legal instruments were of same time measures intended to eliminate limited duration and even taken together the higher concentrations of toxic the respective periods amount to an unac- substances were introduced in the same ceptable period of time. It is not desirable to legal instrument. 16 Before the expiry of the establish a fixed magnitude for a definitive six-month period, the duration of the period to define a 'limited period of time'. validity of the order in its entirety was On the contrary, in this connection too, it is extended by one year. 17 Thus a maximum necessary to make an assessment covering value of 1.0 microgram was authorized for such factors as the aptitude of the measures atrazine for a period of one-and-a-half aimed at remedying the emergency years instead of the concentration of 0.1 situation, the possibility of alternative microgram laid down in the directive. Well measures, and the need to authorize before the expiry of the period of validity of increased maximum values. the last-mentioned order, new, higher, maximum values were authorized in April 1987 both for atrazine (1.7 micrograms) and, for the first time, for molinate (6.0 micrograms). 36. The fact that the period of validity of a measure authorizing derogation is extended is not in itself sufficient to make it unlawful. 34. This new legislative intervention shows However, the unthinking renewal of a dero- that it had not been possible to comply gation once it has been authorized cannot be lawful. When such a measure is 16 — Sec decision of the Ministry of Health of 25 June 1986 extended, as when it is adopted, it is which provides for a period of validity lasting until 31 necessary to verify the need which the December 1986. measure is designed to meet, having regard 17 — See decision of 22 December 1986, in force until 31 December 1987. to the surrounding circumstances.

37. The various possibilities of derogation subject to certain conditions suggests that provided for under Article 10 can be there is no such absolute risk. The wording resorted to only in so far as they do 'not of the provision, according to which an constitute an unacceptable risk to public unacceptable risk constitutes a barrier to health'. The question arises as to the derogation also indicates that, where conditions which must be satisfied to meet necessary, a slight risk must be accepted. this criterion. The mere potential increase of a risk, which must always be presumed where the values of the directive are exceeded, cannot suffice to preclude the authorization of dero- gations.

39. The Italian Government, on the other ceptable risk' to public health, required by hand, contests this by arguing that what is the directive, must be at least probable for concerned here is not the classic question of that factor to be able to prevent a dero- the distribution of the burden of proof. The gation. In so far as there is no such prob- following considerations are cited to ability, the Member State has a measure of support this view. The Commission itself did discretion. The flexibility sought by the not claim that there was a real risk to directive can logically be attained only by human health in the event of the values laid means of conferring on the Member State a down in the directive being exceeded. The degree of discretion as to the conditions for directive does indeed pursue the aim of authorizing the derogation.

OPINION OF MR LENZ — CASE 228/87

unlawful (Article 10 (3) of Directive measure. In failing to notify or in notifying 80/778/EEC). Since the information in belatedly, the Member State is acting question is to be given a posteriori, this noti- contrary to Community law. This does not fication cannot constitute a condition for however invalidate a derogating provision the validity of the measure as for example whose adoption is lawful in other respects. an authorization which had to be requested would be. Nor, since the Commission is not informed of the derogation until the process 42. The costs incurred by the Italian of assessment has been completed, even Government and the Commission are not where the Member State acts correctly, it is recoverable. It is for the national court to not possible to argue that the Commission rule on the costs of the preliminary ruling should have the power, via Article 10 (3), to procedure (Article 104 (3) of the Rules of influence the adoption of the specific Procedure of the Court).

C — Conclusion

I p r o p o s e t h a t the reply t o the national court's question for a preliminary ruling be as follows:

4 3 . M e a s u r e s a u t h o r i z i n g d e r o g a t i o n are compatible with Article 10 (1) of Directive 8 0 / 7 7 8 / E E C w h e r e all the factual conditions are satisfied; t h e M e m b e r States enjoy a w i d e discretion in the assessment of the various c o n d i t i o n s .