C-232/95
ECLI:EU:C:1997:322
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COMMISSION v GREECE
OPINION OF ADVOCATE GENERAL TESAURO delivered on 26 June 1997 *
1. In two applications made under Article 2. The aim of the Directive, adopted on the 169 of the Treaty the Commission has asked basis of Articles 100 and 235 of the Treaty, is the Court to declare that the Hellenic set out in Article 2, which provides: Republic has failed to fulfil its obligations under the Treaty and under Council Direc tive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances dis charged into the aquatic environment of the Community 1 (hereinafter 'the Directive').
'Member States shall take the appropriate steps to eliminate pollution of the waters referred to in Article 1 by the dangerous substances in the families and groups of substances in List I of the Annex and to reduce pollution of the said waters by the dangerous substances in the families and groups of substances in List II of the Annex, in accordance with this Directive, the provi sions of which represent only a first step 2 towards this goal.' In particular, the Commission charges the Hellenic Republic, on the one hand, with having failed to establish the programmes laid down in Article 7 of the Directive for reducing pollution in the waters of Lake Vegoritis, the River Soulos and the Pagasetic Gulf or to set deadlines for their implemen tation, and, on the other hand, of having failed to submit for the prior authorisation The methods of attaining this goal are laid required by Article 7(2) of the Directive the down in the following articles of the potentially harmful discharges into the aquatic areas mentioned above. 2 — Article 1 specifies that the Directive shall apply to inland surface water, territorial waters, internal coastal waters and ground water. The Annex lists the families and groups of substances considered harmful and divides them into two * Original language: Italian. lists, I or II, according to the level of harm which they rep- 1 — OJ 1976 L 129, p. 23. resent for the waters into which they are discharged.
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Directive. In this respect Article 7 assumes a 6. Summaries of the programmes and the particular significance. It is worded as fol results of their implementation shall be com lows: municated to the Commission.
'1 . In order to reduce pollution of the waters referred to in Article 1 by the substances within List II, Member States shall establish programmes in the implementation of which they shall apply in particular the methods 7. The Commission, together with the referred to in paragraphs 2 and 3. Member States, shall arrange for regular comparisons of the programmes in order to ensure sufficient coordination in their imple mentation. If it sees fit, it shall submit rel evant proposals to the Council to this end.'
2. All discharges into the waters referred to in Article 1 which are liable to contain any of the substances within List II shall require prior authorisation by the competent autho rity in the Member State concerned, in which emission standards shall be laid down. Such standards shall be based on the quality objectives, which shall be fixed as provided for in paragraph 3. 3. Following two complaints by private individuals about the state of environmental degradation of the waters of Lake Vegoritis and its principle tributary, the River Soulos, as well as those of the Pagasetic Gulf, the Commission asked the Greek authorities for 3. The programmes referred to in paragraph various items of information concerning the 1 shall include quality objectives for water; measures adopted to eliminate or reduce pol these shall be laid down in accordance with lution in the areas concerned in application Council Directives, where they exist. of the relevant Community directives.
4. ...
At first, the Commission's complaints 5. The programmes shall set deadlines for related to numerous alleged infringements of their implementation. equally numerous provisions of Community
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directives on the environment. 3During the the programmes referred to in Article 7 of pre-litigation procedure, however, the Com the Directive or set deadlines for their imple mission decided to abandon most of its com mentation and by having failed to submit for plaints and to limit the two infringement the prior authorisation required by Article procedures to the one directive now under 7(2) of the Directive the discharges liable to consideration, the infringement of which, contain one of the substances listed in Annex according to the Commission, was, in II, as regards Lake Vegoritis, the River Sou substance, admitted having regard to the los (Case C-232/95) and the Pagasetic Gulf terms of the replies received from the Greek (Case C-233/95), the Hellenic Republic has authorities. failed to fulfil its obligations under the Treaty and Articles 2 and 7 of the Directive.
4. The Commission therefore sent to the Greek Government two letters of formal 4 notice, followed by two reasoned opinions; 5. As already mentioned, the Greek Govern finally, considering the positions taken by ment has contended that the Commission's the Greek authorities to be unsatisfactory, it action should be dismissed, basing itself on decided to bring the actions now before the an argument which, developed in its written Court. pleadings and confirmed at the hearing, is not, in fact, free from contradictions. The Greek Government has expressly acknowl- eged that, at least prior to the expiry of the deadlines mentioned in the reasoned opin Let me recall the subject-matter of the ions, it had not established the programmes actions: the Commission is asking the Court laid down in Article 7 of the Directive (and, to declare that, by having failed to establish as a result, had not set specific dates for their implementation); still less had it communi cated them to the Commission as required by Article 7(5). Similarly it has acknowl 3 — More specifically, apart from the directive which is the sub- ject of these proceedings, the complaints put forward by the edged that, at the very least, certain indus Commission related to the implementation of Council Directive 76/160/EEC of 8 December 1975 concerning the trial establishments on the periphery of the quality of bathing water (OJ 1976 L 31, p. 1) as far as the areas concerned were still making discharges Pagasetic Gulf is concerned, and also a number of other directives applying in particular to the situation of Lake Veg- into the waters concerned, without possess oritis and the River Soulos: Council Directive 75/440/EEC of 16 June 1975 concerning the quality required of surface ing the authorisation required by Article water intended for the abstraction of drinking water in the 7(2). Member States (OJ 1975 L 194, p. 26); Council Directive 79/869/EEC of 9 October 1979 concerning the methods of measurement and frequencies of sampling and analysis of surface water intended for the abstraction of drinking water in the Member States (OJ 1979 L 271, p. 44); Council Direc- tive 80/778/EEC of 15 July 1980 relating to the quality of water intended for human consumption (OJ 1980 L 229, p. 11); Council Directive 78/659/EEC of 18 July 1978 on the quality of fresh waters needing protection or improvement in order to support fish life (OJ 1978 L 222, p. 1); Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), as well as Council Directive 78/319/EEC of 20 March 1978 on toxic and dangerous waste (OJ 1978 L 84, The Greek Government has nevertheless p. 43). submitted that the Commission's actions are 4 — On 29 June 1989 and 16 October 1992 for Lake Vegoritis unfounded, putting forward arguments and 27 May 1991 and 22 June 1994 for the Pagasetic Gulf respectively. based on provisions of domestic law, varying
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in rank and nature, which, according to it, that they are limited in number and that the demonstrate that the conditions of the discharges produced are minimal and not aquatic resources in dispute are fundamen inordinately harmful. It asserts that, in any tally in conformity with the requirements of event, procedures are in hand for regularising the Directive. In particular, the need to the situation also with respect to the estab establish the programmes in question does lishments still without an authorisation so not exist in this case, in view of the fact that that, even from this point of view, the Com other general programmes for the qualitative mission's actions are unfounded. and quantitative management of the waters exist, as do other methods (such as studies carried out by specialised or university cen tres, océanographie reports, or others), which enable the areas concerned to be con stantly monitored. Moreover, and in any event, the competent authorities have already established a specific programme for Lake Vegoritis, which should come into force dur 6 ing 1997; as far as the Pagasetic Gulf is con cerned, the funds necessary for the realisa tion of a similar programme have already 6. It is however obvious that the line of been obtained. Therefore, according to the argument adopted by the defendant Govern Greek Government, any infringement which ment cannot be accepted, either in relation to may exist in this respect should, in any the programmes at issue or in relation to the event, be regarded as having ceased to exist. prior authorisations.
From the specific point of view of the autho risations to discharge harmful substances, the defendant Government has provided a detailed list of the various industrial estab First of all, as far as the programmes are con lishments which are already in possession of cerned, these are laid down, as already men an authorisation and which, as a result, dis tioned, by Article 7(1) of the Directive, pre charge industrial effluents into the waters in cisely in order to 'reduce pollution of the question under the control of the competent waters referred to in Article 1 by the authorities. However, as regards the estab substances within List IF . The programmes lishments which are still without an authori are therefore regarded by the Directive itself sation, the Greek Government emphasises as essential in order to attain the environ mental protection objectives which it sets itself as a primary target. A corollary to the 5 — Some of which existed even before the Directive was specific obligation to establish such pro adopted. grammes is the obligation to set deadlines for 6 — This information was communicated for the first time at the hearing by the Representative of the Greek Government. their implementation (Article 7(5)), as is the
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obligation to communicate them to the been shown to be the case — the fact still Commission in order to enable it to verify remains that they could not make up for the that the programmes are appropriate to the failure to adopt and to communicate the pro aim pursued by the Directive and to ensure grammes in question, which, as already indi that their implementation is sufficiently cated, answer to different and quite specific coordinated between the various Member requirements. 8 7 States (Article 7(7)).
7. Thus, it is not disputed that the Greek Government has not fulfilled its obligations within the time-limits laid down in the rea soned opinion, the only ones which matter. As I have said, the programme relating to Lake Vegoritis was established only this year (more than four years after the expiry of the 8. On the other hand, this approach accords deadline set in the reasoned opinion) and, in perfecdy with the case-law of the Court. In any case, is not yet in force; that relating to the most general terms, the Court has had the Pagasetic Gulf is still only at the prepara frequent occasion to state that while transpo tion stage. sition of a directive into domestic law does not necessarily require that its provisions be incorporated formally and verbatim in an express and specific provision of law, a gen eral legal context may constitute a proper transposition only if it does indeed guaran In these circumstances, the fact that other, tee, in a sufficiently clear and precise man 9 different methods exist (national provisions, ner, the full implementation of the direc scientific studies, appropriation of funds and tive. Moreover, the requirement of precision so forth) is totally irrelevant in relation to and accuracy of transposition has assumed a the infringement of the specific requirements particular importance in the decisions of the of Article 7 of the Directive, which is the Court relating to directives on the environ subject of these proceedings. Even if those ment, in which the management of the com methods, taken as a whole, allowed the mon heritage is entrusted to the Member 10 objectives set by the Directive to be regarded States in their respective territories. as achieved — which, in any event, has not
8 — This was, moreover, expressly confirmed at the hearing by the Representative of the Greek Government who, in reply 7 — In this respect, let me point out that the Directive finds its to a question put by the Court, admitted that the methods in legal basis in Articles 100 and 235 of the Treaty; moreover, question do not make it possible to achieve the results which according to its third recital, 'any disparity between the pro- the Directive sets itself through the adoption of specific pro- visions on the discharge of certain dangerous substances into grammes. the aquatic environment already applicable or in preparation in the various Member States may create unequal conditions 9 — See, for example, Case C-131/88 Commission v Germany of competition and thus directly affect the functioning of the [1991] ECR I-825, paragraph 6. common market ...'; which confirms, should this be neces- 10 — See Case 247/85 Commission v Belgium [1987] ECR 3029, sary, the central role which the Commission is called upon to paragraph 9, and Case 262/85 Commission v Italy [1987] play in monitoring the programmes adopted by the Member ECR 3073, paragraph 9, both of which concern the conser- States and their implementation. vation of wild birds.
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Furthermore, ruling on a case not dissimilar an express admission of failure to fulfil obli to that which concerns us today, the Court gations which would render any further con did not hesitate to condemn the Grand sideration superfluous. Duchy of Luxembourg for not having com plied with {inter alia) the requirements of a directive which prescribed the adoption of specific methods for achieving the aims laid 1 down by the directive itself. 1The specific provision in point was Article 3 of Council Directive 85/339/EEC of 27 June 1985 on containers of liquids for human consump 12 tion, on the basis of which the Member States were required to establish and to com municate to the Commission specific pro grammes to reduce the tonnage and/or the 10. Ultimately, one has the impression that, volume of packaging contained in domestic in this case, rather than challenging the com waste to be eliminated permanently. plaints made against it by the Commission, the Greek Government is in fact confining itself to stressing the efforts made to date and the initiatives launched and in the process of being given effect in order to comply with the objectives of the Directive, knowing full well that it has not implemented it com pletely or within the prescribed time-limit.
9. As regards the authorisations referred to in Article 7(2) of the Directive, it need merely be pointed out here that the Greek Government limits itself, in substance, to It is plain, however, that, according to now indicating that it is gradually moving firmly established case-law, those efforts — towards the regularisation of those situations which should, however, be noted with satis in which potentially harmful substances are faction — cannot in any event justify the discharged without authorisation, thereby failure to transpose the Directive. escaping the control of the competent authorities. This, quite obviously, constitutes
13 — There is hardly any need to recall on this point that the Court has consistently held that partial fulfilment of the obligations under a directive cannot constitute proper 11 — Case C-252/89 Commission v Luxembourg [1991] ECR transposition of that directive (principle already established I-3973, summary publication. by the judgment in Case 91/79 Commission v Italy [1980] 12 — OJ 1985 L 176, p. 18. ECR 1099, paragraph 6).
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11. In the light of the foregoing observations I propose that the Court should:
(1) declare that, by failing to establish the programmes referred to in Article 7 of Council Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Commu nity and intended to reduce pollution caused by the discharge of substances within List II into the waters of Lake Vegoritis, the River Soulos and the Pagasetic Gulf or to set deadlines for the implementation of such programmes and by failing to submit for prior authorisation within the meaning of Article 7(2) the discharges liable to contain any of the substances within List II into those same waters, the Hellenic Republic has failed to fulfil its obligations under Article 189 of the Treaty and under Articles 2 and 7 of the said direc tive;
(2) order the Hellenic Republic to pay the costs.
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