C-360/87
ECLI:EU:C:1990:331
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COMMISSION v ITALY
OPINION OF MR ADVOCATE GENERAL VAN GERVEN delivered on 25 September 1990 *
Mr President, relevant to the assessment of the more Members of the Court, concrete dispute as to whether any given provision of the Directive is transposed into Italian law in a technically correct manner. First of all, however, I must review the provisions of the Directive which are relevant to this case.
1. In this case the Commission seeks a declaration that by failing to take the necessary measures to implement Directive 80/68/EEC on the protection of groundwater against pollution caused by 2. The purpose of the Directive is to certain dangerous substances ' (hereinafter prevent the pollution of groundwater by referred to as 'the Directive') in national preventing or restricting the discharge of law within the prescribed period, the Italian certain substances. The rules in the Republic has failed to fulfil its obligations Directive concern two kinds of substances, under the EEC Treaty. The period for each of which is set out in a list in the implementation of the Directive expired on Annex to the Directive. With regard to 19 December 1981. substances in list I the Member States must take the necessary measures to prevent their introduction into groundwater; with regard to substances in list II the Member States must take the necessary measures to restrict their introduction into groundwater, in order to prevent pollution of groundwater by those substances (see Article 3 of the Directive). For that purpose the Directive In another case now pending before the contains a number of detailed provisions for Court, Case C-131/88, the Commission has the implementation of the basic principles brought identical proceedings against the set out in Article 3. Federal Republic of Germany. In my Opinion in that case I discussed the parties' arguments concerning the scope of the Member State's duty to implement the Directive. In this case the parties have not raised that issue as such. I think it may be helpful, however, to give a brief summary of Article 4 defines more specifically the obli my conclusions in that regard in this gation of the Member States to prevent the Opinion (see below, point 3). They are introduction into groundwater of substances * in list I; Article 5 concerns the restriction Original language. Dutch. 1 — Council Directive of 17 December 1979 (OJ 1980 L 20, on the introduction of substances in list II. p. 43). Articles 7 to 16 of the Directive contain a
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number of detailed procedural rules. Articles for that reason the full implementation of 7 and 8 concern the prior investigation the Directive must be ensured by sufficiently which must be carried out in a number of clear and precise provisions transposing it, cases by the competent authorities in the so that those persons are made aware of Member States before an authorization can their rights and duties under Community be issued. Articles 9 and 10 concern the law and the extent to which they may rely provisions that must be included in authori on Community law before the national zations which may in certain cases be issued courts. 2 by the Member States. Articles 11 to 13 deal with the grant, refusal and withdrawal of authorizations and monitoring of the conditions laid down in authorizations. Article 14 allows the Member States to stipulate a transitional period for discharges of substances which were already taking place at the time of publication of the Directive. Article 15 requires the Member States to keep an inventory of authori Secondly, the very precise and detailed zations granted in accordance with the provisions of the Directive cannot be Directive. Finally, Article 16 concerns the transposed by the combined application of obligation of the Member States to provide already existing imprecise provisions and information to the Commission on the administrative practice (which, moreover, is results of the prior investigations carried out usually reversible). That is particularly true pursuant to the Directive, the authorizations when a directive contains a prohibition. The granted, the results of monitoring and effective and full implementation of a inspection and details of the inventory prohibition can only be ensured when the referred to above. authorities which are responsible for implementing the Directive and deciding on applications for discharge authorizations can rely on an express prohibition laid down in national law. 3
3. In my investigation in Case C-131/88 of the scope of the duty to transpose this Directive, I mentioned four points from which it appeared that the Member States retained only a restricted discretion in the transposition of the rules in the Directive:
Thirdly, in examining national implemen tation measures it is necessary to take into account the absence of economic stimuli for enforcing the rules in the Directive and the difficulty of taking conclusive monitoring The Directive requires the Member States to and inspection measures with regard to establish a set of rights and duties on the activities which might lead to the pollution part of the national authorities and persons of groundwater. The need for accurate who deal with the substances referred to by the Directive. In other words, it is intended 2 — See point 7 of my Opinion in Case C-131/88. to create rights and duties for individuals; 3 — See point 8 of the abovementioned Opinion.
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transposition of the Directive into national precise and detailed rules of the Directive it law is thus all the more compelling. 4 seems obvious that such provisions which are not derived from the Directive will leave gaps and give rise to problems of interpre tation and legal uncertainty.
Finally, it must also be borne in mind that the Directive is intended to create equal conditions of competition in the Community 4. Let me now turn to the complaints put for undertakings which discharge forward by the Commission. First of all we substances, by eliminating disparities must examine how Article 4 of the Directive between national provisions on discharges has been transposed into Italian law. As I of certain dangerous substances. For that have already said, that Article gives purpose the Directive contains very precise substance to the basic rule laid down in and detailed rules. 5 Article 3(a), that is to say the obligation to prevent the introduction into groundwater of substances in list I. For that purpose the Member States must take two kinds of measures: the direct discharge of substances in list I must be prohibited; authorization The relevance of the above conclusions for may be granted for activities which may this case is reinforced by the fact that both result in indirect discharge, but only on the German Government in Case C-131/88 condition that all precautions are taken in and the Italian Government in this case order to prevent such indirect discharge. deny the need for precise and specific rules drawn from the Directive, and take the view that the Directive (which was adopted in December 1979) may be considered to have been transposed by a number of fairly general provisions (that is to say, provisions 5. In its reply to the Commission's reasoned which do not relate specifically to the opinion the Italian Government took the protection of groundwater) which date from position that the Italian legislation contains before the Directive. In my view both Case rules which are even stricter than those of C-131/88 and this case illustrate quite the Directive: it argues that all direct clearly to what difficulties such a manner of discharges into groundwater are prohibited. implementation can give rise.
It must be observed right away that Article More specifically, the Italian Government 4 of the Directive contains not only has referred for the transposition of the provisions with regard to direct discharges Directive almost exclusively to provisions of of substances in list I but also a number of national law which were adopted during the requirements concerning activities that period 1976 to 1977. Having regard to the might lead to indirect discharge of those substances. Furthermore, the provisions of 4 — See point 9 of the abovementioned Opinion Italian law referred to in the abovemen- 5 — See point 10 of the abovementioned Opinion tioned letter do not appear to contain any
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absolute prohibition on direct discharges, as Thirdly, the Italian Government refers to is required by Article 4 of the Directive. The another provision of the abovementioned letter speaks of three rules the combined Decision of 4 February 1977, which effect of which is said to be an absolute provides that discharge into the subsoil may prohibition on direct discharges. Reference be used as a means of disposing of industrial is made in the first place to the last but one effluent only when it is established that there paragraph of Article 4 of Law No 319 of is no technically or economically feasible 6 1976, under which all discharges into the alternative and where all the required 8 subsoil which are likely to cause harm to geological conditions are met. This groundwater are prohibited. That is merely provision too appears to contain only a a conditional prohibition which depends on conditional prohibition, and one which in the assessment of the harmful nature of a comparison with Article 4 of the Directive is discharge. subject to very unclear conditions.
6. I am therefore surprised that in its application the Commission states that it takes note of the Italian Government's Secondly, reference is made to the Decision statement that any direct discharge of waste of the Interministerial Committee of water into groundwater is forbidden, and 4 February 1977 adopted in implementation asks the Italian Government to confirm that of Articles 2 and 3 of Law No 319 of 1976 interpretation before the Court of Justice. In which provides that where sewage is not my view it can in no way be said that there discharged into surface water its discharge is is a prohibition such as is required by 9 only permitted on the ground or in the the Directive. Since the Commission's upper layers of the soil, or in the subsoil, representative confirmed at the hearing that but only if the effluent is discharged into it did not wish to maintain its complaint deep geological strata (that expression is with regard to this point, I have no alter defined as porous structures of sufficient native but to take note of that statement in capacity which are isolated from my turn. groundwater by impermeable geological 7 barriers). This provision, too, is far from being a prohibition of direct discharges; it concerns activities which may lead to an indirect discharge into groundwater, and fails to make such activities subject to auth 7. Secondly, the Commission maintains that orization. Furthermore, it is not made clear the Italian legislation makes no distinction that such authorization can only be granted between discharges of substances in list I when all precautions are taken to prevent and of those in list II. That distinction is any indirect discharge into groundwater. important, since the Directive requires the Member States to prevent the introduction 6 — Official Gazette of the Iulian Republic No 141 of 29 May 1976, p. 4125. 7 — See the first paragraph of part I of Annex 5 to the 8 — Paragraph 3.1 of part I of Annex 5 to the decision. decision, published in the Official Gazette of the Italian 9 — The Commission's attitude on this point is all the more Republic, Ordinary Supplement No 48, 28 February 1977, surprising inasmuch as in support of another complaint it p. 1. The Commission has not questioned the normative correctly pointed out that the Italian Law No 319 (cited character of that decision, and I do not think it necessary above, note 6) permits all discharges under certain to consider that issue. conditions (see section 7, below).
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into groundwater of substances in list I, The failure of the Italian Government to while the introduction into groundwater of fulfil its obligations is therefore established. substances in list II must only be restricted in As regards the desired clarification, I see no order to prevent its pollution by those reason why its absence should present an substances (Article 5). Referring to Article 9 obstacle to the adoption of a provision of 1 of Law No 319 of 1976, 0the Commission national law concerning those substances. argues that as a rule all discharges are There is nothing to prevent the Italian permitted in Italy when they do not exceed Government from drawing up a list desig certain 'limits of acceptability'. In its nating such substances, for example by way defence and its rejoinder the Italian of an implementing regulation, after consul Government took no position on this point tation with the Commission if it so wishes. and for that reason the Court asked the Having regard to the continuing devel Italian Government to reply to a written opment of scientific knowledge, moreover, question. it does not seem appropriate to draw up an exhaustive list at Community level of substances with a carcinogenic, mutagenic or teratogenic effect.
The Italian Government's answer relates only to discharges of sewage (a substance which does not as such appear on list I or list II), and such discharges are authorized Finally, I find it striking that in connection under certain conditions. In respect of with some provisions of the Directive the substances in list I there thus does not Italian Government submits to the Court appear to be any prohibition of direct that the Directive is not intended to achieve discharges or any system of authorizations complete harmonization and thus leaves the to ensure that indirect discharges are Member States a certain degree of prevented. On this point the Commission's discretion," while in connection with other application is therefore well founded. provisions it wishes to be provided with a detailed and comprehensive set of Community rules.
8. Thirdly, the Commission submits that the Italian legislation contains no provisions concerning a number of substances in list I 9. The Commission further complains that and list II. In its defence and its rejoinder in the Italian legislation there are no the Italian Government did not deny this provisions on the issue of discharge authori deficiency. It simply pointed out that with zations which correspond to the rules regard to point 4 in list I ('substances which contained in the Directive. We are possess carcinogenic, mutagenic or tera concerned here with Article 7 to 13 of the togenic properties in or via the aquatic Directive, and I shall deal with the environment') the Commission has failed to Commission's complaints article by article. state which specific substances are meant. 11 — See, for example, paragraphs 28 and 33 of the Report for 10 — Cited above, note 6 lhe Hearing and section 13 of this Opinion
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10. Let us first (this is the fourth complaint points out in that regard that Article 15 of of the Commission) examine the transpo Law No 319 makes it possible to grant sition of Articles 7 and 8 of the Directive. authorization on simple demand. Under Articles 4 and 5 of the Directive, in a Furthermore, under the same article number of cases authorization can be provisional authorization is deemed to be granted only after a prior investigation. granted where the application for the grant Article 7 lays down a number of detailed of authorization has not been refused within rules with regard to that investigation; it six months from its submission. must include
'examination of the hydrogeologicai conditions of the area concerned, the 12. Those provisions manifestly make no possible purifying powers of the soil and mention of the prior investigations required subsoil and the risk of pollution and by Article 7 of the Directive. In answer to a alteration of the quality of the groundwater written question from the Court the Italian from the discharge and shall establish Government did refer to 'very detailed whether the discharge of substances into rules' which it said were contained in Annex groundwater is a satisfactory solution from 5 to the abovementioned Decision of 4 13 the point of view of the environment'. February 1977. That Decision, which is based on Articles 2 and 3 of Law No 319 of 1 1976 , 4mainly contains a number of general criteria and technical standards which must be taken into account in the use Article 8 of the Directive goes on to provide of water for industrial purposes. Both the that authorizations may be issued only if the law and the decision were adopted well competent authorities of the Member States have before the Directive, and it is therefore hardly surprising that the Italian Government was not able to point to any specific provision of that Annex which implemented the clear and precise 'checked that the groundwater, and in requirements in Article 7 of the Directive particular its quality, will undergo the concerning the subject-matter and purpose requisite surveillance'. of the prior investigation.
12 11. Under Law No 319 of 10 May 1976 an authorization must be obtained for all discharges (see Article 9). That authori For the implementation of Article 8 of the zation is granted when the intended Directive the Italian Government refers to discharges remain below the 'limits of paragraph 2.8 of part I of Annex 5 to the acceptability' established by the law (see Decision of 4 February 1977. It provides Article 15 in conjunction with Article 9). In that a number of checks must be carried out certain cases provisional authorization can concerning the impact of discharges on the be issued beforehand, even where the environment. However, the Italian intended discharge exceeds the limits of Government was not able to show that the acceptability (Article 15). The Commission 13 — Cited above, note 7. 12 — Cited above, note 6. 14 — Cited above, note 6.
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results of those checks were decisive for the regard to Law No 62 of 5 March 1982. issue of a discharge authorization or an The Italian Government states that Article 2 authorization for activities which might lead of that law provides that regional authorities to indirect discharge. Indeed, on the basis of must designate appropriate zones for the material before the Court that is discharges of waste water, and in so doing improbable. Article 9 of Law No 319 of must apply the criteria laid down in the 1976 appears to make the permissibility of Decision of the Interministerial Committee discharges subject only to compliance with of 4 February 1977. The Italian limits of acceptability (see above, section 7). Government has not, however, shown that Consequently, neither Article 7 nor Article 8 the very precise and detailed provisions and of the Directive are correctly transposed in conditions contained in Anieles 9 and 10 Italian law. must be included in an authorization. I think this failure to fulfil obligations is therefore established.
13. Finally, I must also deal with the argument of the Italian Government that the 15. The Commission's sixth complaint is system of 'tacit provisional authorizations' is that Italy has not transposed Article 11 of in conformity with the Directive. The Italian the Directive into national law. That article Government takes the view that such a rule provides that authorizations may be granted is not expressly prohibited by the Directive only for a limited period and must be and is therefore permitted. It is sufficient reviewed at least every four years. It must in once again to refer to Articles 4, 5 and 7 of addition be possible for them to be renewed, the Directive (which require a detailed prior amended or withdrawn. investigation for certain authorizations) and to Article 8 of the Directive (which provides that authorization may be granted only where the competent authorities have checked that the quality of the groundwater will undergo surveillance). A rule that provides that where the administration takes The Italian Government did not take a no action provisional authorization is position on this point in its defence or in its deemed automatically to be granted is rejoinder. In answer to a question from the clearly incompatible with those provisions. Court it did not deny that there are no provisions regarding the duration of the authorization (there is nothing in the Italian Government's reply concerning the other rules contained in Article 11). The Italian Government considers, however, that the transposition of this article is not at issue because it is not mentioned in the 14. Fifthly, the Commission argues that Commission's application. It is mistaken; on Articles 9 and 10 of the Directive, which 9 December 1987 the Commission contain a number of specific matters and conditions which must be included in an 15 — That law is entitled 'Conversione in legge, con modifi authorization, have not been properly cazioni, del decreto legge 30 dicembre 1981, No 801, concernente provvedimenti urgenti in materia di tutela transposed into Italian law. In its defence delle acque dall'inquinamento' (Official Gazette of lhe the Italian Government referred in this Italian Republic No 63 of 5 March 1982. p 1713)
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submitted an addendum to its application in national law. That article provides as which it raises this issue. follows :
Accordingly, it can only be concluded that Article 11 of the Directive has not been 'The competent authorities of the Member transposed properly into Italian law. States shall monitor compliance with the conditions laid down in the authorizations and the effects of discharges on groundwater.'
16. The Commission's seventh complaint is that Italy has not transposed Article 12 of the Directive into national law. That article provides that if it appears that the applicant for authorization will be unable to comply There are two provisions of Italian law with the conditions to be laid down, the which might be considered to transpose that authorization must be refused. If the article. First of all, Article 15 of Law No conditions contained in an authorization are 319 of 10 May 1976 17 provides that the not complied with, the competent authority technical functions of surveillance and in the Member State concerned must take control of all discharges are to be carried all appropriate steps to ensure that those out by provincial laboratories. Secondly, conditions are fulfilled, and if necessary Article 9 of that law defines how that super withdraw the authorization. vision is to be carried out. In answer to a written question from the Court the Italian Government also referred to a number of provisions which require local and regional authorities to monitor discharges, to the 16 Article 15 of Law No 319 of 1976 does establishment of a special force of environ require the competent authorities to mental police, and to the fact that failure to withdraw an authorization where the 'limits comply with a discharge authorization gives of acceptability' are not complied with. rise to criminal penalties. However, that provision bears no relation to the conditions and requirements referred to in Articles 4 to 10 of the Directive, and is therefore not sufficient. Neither in its defence nor in its rejoinder did the Italian Government refer to any other provision The Commission is correct to argue that which might be regarded as implementing those provisions do not transpose Article 13 Article 12. On this point too, therefore, the of the Directive in a sufficiently precise and Commission's application is well founded. detailed manner. The abovementioned Italian law requires only spot checks of discharged substances and does not provide that compliance with the conditions which are included in authorizations in accordance 17. The Commission's eighth complaint is with the Directive must be monitored; nor that Italy has not transposed Article 13 into does it make clear that the monitoring must
16 — Cited above, note 6. 17 — Cited above, note 6.
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also relate to the impact of the discharge on permitted, indicating the place and the tvpe the groundwater. Here too, therefore, the of discharge. The Commission makes no failure to fulfil obligations is established. submission as to the formal compatibility of such a provision with Article 15 of the Directive. It simply points out that, having regard to the fact that the abovementioned procedural rules of the Directive with 18. The Commission's ninth complaint is regard to the issue, monitoring and with that Italy has failed to comply properly with drawal of discharge authorizations have not Article 15 of the Directive. That article properly been transposed in Italy, the requires an inventory to be kept of the keeping of an inventory of the authori discharge authorizations issued under zations referred to in Articles 4, 5 and 6 of Articles 4, 5 and 6 of the Directive. the Directive is impossible.
The Italian Government argues that the In the Commission's view, which has not applicable provisions of Italian law ensure been contradicted by Italy, the only rule of that the inventory required by Article 15 of Italian law which is of such a nature as to the Directive is kept, but it does not dispute implement that obligation is contained in the Commission's argument that in practice the fifteenth subparagraph of paragraph 2.1 no register of the authorizations referred to of part 1 of Annex 5 to the Decision of 4 in the Directive is kept. On this point too 18 February 1977. It provides that a register the failure to fulfil obligations must be must be kept of all discharges which are regarded as established.
Conclusion
19. My examination of the matter brings me to the conclusion that the Commission's application must be upheld in its entirety with the exception of its complaint concerning Article 4 of the Directive. I therefore propose that the Court hold that by failing to implement Directive 80 / 68 / EEC properly in national law the Italian Republic has failed to fulfil its obligations under the EEC Treaty, and order the Italian Republic to pay the costs.
18 — Cited above, note 7,
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