C-298/95
ECLI:EU:C:1996:391
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COMMISSION v GERMANY
OPINION OF ADVOCATE GENERAL JACOBS delivered on 17 October 1996
1. In this case, the Commission is seeking a The Fresh Water Directive declaration under Article 169 of the Treaty that Germany has failed properly to imple ment 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 ('the Fresh Water Direc tive') 1 and Council Directive 79/923/EEC of 30 October 1979 on the quality required of shellfish waters ('the Shellfish Water Direc 3. The aim of the Fresh Water Directive is 2 tive'). stated in Article 1(3) to be:
'to protect or improve the quality of those running or standing fresh waters which sup port or which, if pollution were reduced or eliminated, would become capable of sup porting fish belonging to:
— indigenous species offering a natural diversity, or 2. In particular the Commission alleges that Germany has failed to implement Articles 3 and 5 of the Fresh Water Directive and Articles 3 and 5 of the Shellfish Water Direc tive.
— species the presence of which is judged desirable for water management purposes * Original language: English. 1 — OJ 1978 L 222. p. 1. by the competent authorities of the 2 — OJ 1979 L 281, p. 47. Member States.'
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4. It is further stated in the preamble to the Annex I, in so far as values are listed in col Fresh Water Directive: umn G or in column I. They shall comply with the comments contained in each of these two columns.
'in order to attain the objectives of the Directive, the Member States will have to designate the waters to which it will apply and will have to set limit values correspond 2. Member States shall not set values less ing to certain parameters; ... action will be stringent than those listed in column I of taken to ensure that the waters so designated Annex I and shall endeavour to respect the will conform to these values within five values in column G taking into account the 3 6 years of this designation'. principle set out in Article 8.
5. Member States are required within two 4 years of notification of the directive to des 5 ignate salmonid waters and cyprinid waters, defined respectively as waters capable of supporting species such as salmon, trout, grayling and whitefish and waters capable of supporting fish of the carp family or other species such as pike, perch and eel. Article 5
6. The provisions of the directive at issue are Member States shall establish programmes in as follows: order to reduce pollution and to ensure that designated waters conform within five years following designation in accordance with Article 4 to both the values set by the Mem ber States in accordance with Article 3 and the comments contained in columns G and I 'Article 3 of Annex I.'
1. Member States shall, for the designated 7. Annex I sets out parameters for tempera waters, set values for the parameters listed in ture, acidity, suspended solids and numerous
3 — Sixth recital. 6 — Article 8 provides that implementation of the measures taken 4 — Sec paragraph 11. pursuant to the Directive may on no account lead, directly 5 — Article 4(1). or indirectly, to increased pollution of fresh water.
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chemical constituents. There are separate its objectives are to protect waters, including parameters for salmonid and cyprinid waters, shellfish waters, against pollution and to set out in two columns, column G and col safeguard certain shellfish populations from umn I. Some of the parameters are a guide various harmful consequences resulting from (column G) and some are mandatory (col the discharge of pollutant substances into the 8 umn I, the initial being presumably a relic of sea. the French text).
8. Articles 6 and 7 lay down detailed criteria for determining conformity within the meaning of Article 5. Those criteria concern sampling points and periods (frequency is dealt with in Annex I) and the percentage of 10. The sixth recital in the preamble and samples which, for each parameter, must Articles 3 to 7 are in essentially the same conform to the values and comments. terms, mutatis mutandis, as the correspond ing terms of the Fresh Water Directive, except that (i) there is an Article 3(3) relating to discharges of effluents and (ii) Article 5 refers to a six-year period rather than a five- year period.
The Shellfish Water Directive
9. The Shellfish Water Directive concerns the quality of shellfish waters and applies to 11. Both directives required implementation those coastal and brackish waters designated 9 within two years of notification, namely by by the Member States as needing protection 20 July 1980 in the case of the Fresh Water or improvement in order to support shellfish Directive and 5 November 1981 in the case life and growth and thus to contribute to the of the Shellfish Water Directive. high quality of shellfish products directly 7 edible by man. According to its preamble,
8 — First and second recitals. 9 — Article 17(1) of the Fresh Water Directive and Article 15(1) 7 — Article I. of the Shellfish Water Directive.
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The complaint relating to Article 3 executive to make the necessary decrees; even those six do not yet seem to have adopted the draft law prepared for imple mentation of the Fresh Water Directive (no mention is made in the defence of a draft law for implementation of the Shellfish Water Directive).
12. The Commission's principal complaint is that Germany failed properly to transpose Article 3 of both directives into national law 14. The Court has consistently held that a by the prescribed date. More specifically, it Member State may not plead provisions, argues that the two directives also seek to practices or circumstances in its internal legal protect human health and that the Court has order to justify a failure to comply with its 11 stated in such cases that implementation obligations under a Community directive. 10 must be by mandatory rules. Moreover, the fact that Germany is currently attempting to rectify its non-compliance does not afford it a defence. An action based on Article 169 of the Treaty requires only an objective finding of a failure to fulfil obliga tions and not proof of any inertia or opposi tion on the part of the Member State con 12 cerned.
13. It is common ground that to date the values which Article 3 requires Member States to set have not been set by Germany in binding legislation. This represents a con siderable delay, in part attributable to Ger The complaint relating to Article 5 many's apparent assumption until 1992 that administrative provisions sufficed to imple ment the directives. Germany has since accepted that mandatory legal measures are necessary for proper implementation. It states in its defence that the necessary steps 15. With regard to Article 5 of both are now being taken. However it appears directives, the Commission asserts that that in only six of the 16 Länder (the com no programme has been presented. Germa petent entities for the transposition of the ny's defence to the allegation of non- directives) has the legislature empowered the implementation of Article 5 is as follows.
10 — Case C-361/88 Commission v Germany [1991] ECR I-2567, paragraph 16 of the judgment; Case C-59/89 Commission v 11 — Case 58/81 Commission v Luxembourg [1982] ECR 2175, Germany [1991] ECR 1-2607, paragraph 19 and Case paragraph 4 of the judgment. C-58/89 Commission v Germany [1991] ECR I 4983, para 12 — Case 301/81 Commission v Belgium [1983] ECR 467, para graph 14. graph 8 of the judgment.
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16. In relation to the Fresh Water Directive, and precise. Furthermore, Article 6 lays it states that in its view attaining or main down comprehensive criteria expressed to be taining water quality permitting indigenous for the purposes of implementing Article 5. fish life is only a partial goal of a general It is clear from the wording of these provi water protection plan and cannot be consid sions that, as stated by the Commission, they ered in isolation. In Germany, the basis of require Member States to draw up specific that general plan is the extension of preven five or six-year programmes. tive water protection. The aim is the reduc tion of water pollution by waste water, achieved by means of control of waste water quality. Over the last two decades the Länder have carried out exceptionally effec tive water protection measures by extensive (and expensive) programmes of actions and investments. As a result, water cleanliness generally and the quality of water capable of supporting fish life in particular have signifi cantly improved. The broad objective of 18. Moreover it is clear from the scheme and the Fresh Water Directive as set out in objectives of the Fresh Water Directive that Article 1(3) corresponds to an essential par it seeks to ensure that water is specifically of tial objective of the water protection policy. a quality to support fish life. It is not obvi The action programmes which have been in ous, at least without corroboration, that gen place in the Länder since the 1950s were not eral measures for improving the cleanliness aimed solely at making fish life possible, but of water will of necessity have that effect: it essentially constitute programmes which may, for example, be the case that certain improve the quality of water and may be pollutants may be neutralized by other recognized under Article 5. chemicals which, while making the water purer in one sense, may not be beneficial to fish life.
17. That argument is to my mind uncon vincing. Article 5 is both mandatory and explicit. It requires programmes to be estab lished in order both to reduce pollution gen 19. In relation to the Shellfish Water Direc erally and to ensure compliance within a pre tive, Germany states that the controls which scribed period with values set for the arc in practice carried out on designated parameters listed in Annex I and with the shellfish waters show that the requirements comments in columns G and I of that annex. of the directive arc met. It contends that pro Those parameters, of which there arc 14 in grammes within the meaning of the directive the Fresh Water Directive and 12 in the arc necessary only if the parameters laid Shellfish Water Directive, arc both detailed down in the directive arc not respected.
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20. It appears from the application that 21. The Commission responds that the Germany is referring to sampling operations results communicated to it for the purposes apparently carried out by it in Lower of that argument concern only one Land and Saxony pursuant to Article 7 of the direc one year. Even if results were communicated tive. In its response to the reasoned opinion, for all the Länder, however, the Commission Germany states that the results of those rightly points out that a specific state of operations correspond with the requirements affairs in 1991 cannot in any event replace a of the directive. It annexes the results for programme which should have been estab 1991. lished in 1981 at the latest.
Conclusion
22. I accordingly conclude that the Court should rule as follows:
(1) By failing to adopt by the prescribed date all the measures necessary to com ply with Articles 3 and 5 of 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 and Articles 3 and 5 of Council Directive 79 / 923 / EEC of 30 October 1979 on the quality required of shellfish waters , Germany has failed to fulfil its obligations under the EC Treaty.
(2) Germany is ordered to pay the costs.
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