C-206/96
ECLI:EU:C:1997:331
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COMMISSION v LUXEMBOURG
OPINION OF ADVOCATE GENERAL TESAURO delivered on 26 June 1997 *
1. By application under Article 169 of the ment a policy on the environment pursuant EC Treaty, lodged on 18 June 1996, the to the first programme of action of the Euro 2 Commission is asking the Court to declare pean Communities on the environment. that the Grand Duchy of Luxembourg has With the aim of ensuring effective protection failed to fulfil its obligations under the of the aquatic environment, the Directive Treaty and under Council Directive singles out two categories of dangerous 76/464/EEC of 4 May 1976 on pollution substances, reproduced in the lists annexed caused by certain dangerous substances dis to it. The first category includes substances, charged into the aquatic environment of the referred to in List I, which are particularly 1 Community (hereinafter 'the Directive'). harmful because of their toxicity, persistence, and bioaccumulation; pollution caused by those substances must be eliminated. Under Article 6 of the Directive, the Council is to lay down the limit values which the emission standards must not exceed for the substances within List I. The second category includes In particular, the Commission charges the substances, referred to in List II, whose Grand Duchy of Luxembourg with having harmful effects on the aquatic environment failed to establish programmes to reduce pol can be confined to a given area and which lution or to communicate summaries of the depend on the characteristics and location of programmes and also to communicate the the water into which they are discharged. results of their implementation in breach of The substances within List II are, on the one Article 7 of the Directive. hand, expressly indicated by reference to individual substances and to families and groups of substances; included within them, on the other hand, are substances 'belonging to the families and groups of substances in List I for which the limit values referred to The relevant legislation in Article 6 of the Directive have not been determined'. For the substances within List II, the aim of the Directive is to reduce pol lution. To attain this objective, the Member States should therefore have 'establish[ed] programmes which incorporate quality
2. The Directive is one of the first instru ments adopted by the Community to imple
2 — OJ 1973 C 112, p. 1, where the programme is annexed to the declaration of the Council of the European Communities * Original language: Italian. and of the Representatives of the Governments of the Mem- 1 — OJ 1976 L 129, p. 23. ber States meeting in the Council of 22 November 1973.
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objectives for water' and laid down emission communicated the programmes by 5 August standards 'calculated in terms of these qual 1978 at the latest. 3 ity objectives'.
In the absence of such a communication within that time-limit, the Commission, by 3. The content of the programmes is laid letter of 3 November 1976, proposed to the down in Article 7 of the Directive. That Member States the adoption of 15 September article provides that the programmes are to 1981 as a final date for the communication of include 'quality objectives for water; these the programmes to reduce pollution caused shall be laid down in accordance with Coun by the substances within List II. That dead 4 line was not challenged by the Member cil Directives, where they exist'. The pro grammes must take into account the latest States. economically feasible technical developments and must set deadlines for their implementa 5 tion. Moreover, Article 7(6) provides that summaries of the programmes and the results of their implementation are to be communicated to the Commission. The pur Procedure pose of the obligation to communicate seems to be connected with the Commission's duty, together with the Member States, to arrange for regular comparisons of the pro grammes in order to ensure sufficient coordi 6 nation in their implementation. 5. The Commission first reminded the Luxembourg Government of the obligation to comply with the provisions of Article 7 of the Directive by a letter dated 21 August 1985. By letter of 26 September 1989, the Commission then requested it to forward the programmes to reduce pollution relating to 99 substances in List II which were regarded 4. The Directive was notified to the Member as having priority. This request was repeated States on 5 May 1976. No deadline had been in a letter of 4 April 1990. expressly provided for its implementation by the Member States; however, according to Article 12(2), the Member States should have 7 — The article referred to provides that the Commission is, within 27 months following notification of the Directive, to forward the first proposals for the harmonisation of pro- grammes to the Council. From this it is to be inferred that 3 — Sec the preamble to the Directive, particularly the ninth the Member States should have sent their programmes to the recital, and also Article 7 which constitutes the legislative Commission prior to that date. The deadline indicated by 'transposition' thereof. the article does not however appear to be mandatory, but seems instead to be merely of indicative value, in that trans- 4 — See Article 7(3) of the Directive. mission is dependent upon a vague 'possibility', which is 5 — See Articles 7(4) and (5) of the Directive. obviously contingent upon the availability of the pro- 6 — See Article 7(7) of the Directive. grammes communicated by the Member States.
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The Commission reports that the Luxem Partial inadmissibility of the action bourg Government has replied to none of the letters mentioned above.
7. In the interests of a rigorous approach, as is required in the context of infringement proceedings against a Member State, a possi bility that the action may be partially inad 6. The letter of formal notice subsequently missible should be dealt with before the sent by the Commission has also remained substance of the Commission's application is unanswered. examined.
In the letter of formal notice, as in the rea soned opinion, the Commission charged the In the reasoned opinion of 25 May 1993 the Grand Duchy of Luxembourg with having Commission considered that, by failing to failed to establish, or to communicate, the establish the programmes to reduce pollution programmes to reduce pollution for just 99 comprising quality objectives for the 99 substances, to be regarded as having priority substances listed in the annex to that docu in the context of List II and which were ment, or to communicate those programmes listed in an annex to the reasoned opinion and the results of their implementation to ('list of 99 substances which are the subject the Commission, in breach of Article 7 of of the infringement procedure'). 9 On the the Directive, and by neglecting to provide other hand, in its application to the Court, the information requested on this matter, in the Commission is asking the Court to breach of Article 5 of the Treaty, the Grand declare the defendant Member State's failure Duchy of Luxembourg had failed to fulfil its to fulfil its obligations to consist in its fail obligations under the Treaty. ure, in breach of Article 7 of the Directive, to establish (or to communicate) the pro grammes to reduce pollution, with no fur ther specification, so that the breach of obli gations which is alleged must be taken to refer to all the substances in List II annexed to the Directive and not merely to the 99 The reasoned opinion also failed to produce substances which are the subject of the rea a response, which justified the application to soned opinion and of the letter of formal the Court under Article 169 of the Treaty in notice. the terms I have mentioned earlier.
9 — In particular, the substances are those for which, whilst 8 — In fact, it would appear from the letter of formal notice that belonging to the families and groups of substances within the Grand Duchy of Luxembourg replied to the first letter List I, the Council has not yet determined the limit values to by a communication of 31 January 1986. It would, however, be complied with by the Member States in laying down the have been a partial response, containing information con- emission standards. Consequently, as provided in the Annex cerning the programmes to reduce pollution caused by lead, to the Directive, those substances should be regarded as con- zinc, copper and nickel. The defendant Member State, how- tained in List II and are therefore subject to the system ever, has not raised the point. referred to in Article 7 of the Directive.
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8. As the Court has consistently held, an in these proceedings. That complaint was action for failure to fulfil obligations is inad not pursued in the application and should, missible to the extent to which it includes therefore, be regarded as having been with complaints which were not the subject of the drawn. pre-litigation procedure and in respect of which there has, as a result, been no exchange of argument between the Commis sion and the Member State concerned, in 10 breach of that State's right to be heard.
It Substance follows that, in so far as the action seeks a declaration that the Grand Duchy of Luxem bourg has failed to fulfil its obligations under Article 7 of the Directive in relation to the substances which, whilst set out in List II, 11 are not amongst the 99 priority substances, 10. Within the limits I have just specified, it must be declared inadmissible. the Commission's action is not only admis sible, but also well founded. Firstly, as regards the failure to communicate, in sum mary form, the programmes and the results of their implementation, and hence the infringement of Article 7(6) of the Directive, the defendant itself acknowledges its failure to fulfil its obligations and omits, moreover, to provide any justification whatever on this
point. 9. On the other hand, the complaint made in the letter of formal notice and in the rea soned opinion, alleging a separate infringe ment of Article 5 of the Treaty and based on the fact that the Grand Duchy of Luxem bourg had not provided the information 11. On the other hand, as regards the failure requested by the Commission on the imple to establish programmes, and hence the mentation of the Directive, cannot be raised infringement of Articles 2 and 7(1) of the Directive, the Grand Duchy of Luxembourg denies that it was in breach of its obligations. 10 — See the Court's judgments in Case 298/86 Commission v More specifically, according to the defen Belgium [1988] ECR 4343 and Case 51/83 Commission v Italy [1984] ECR 2793, at paragraphs 2 to 10.
In the latter dant, the absence of programmes to reduce case, in particular, the Court held that the action was inad- missible to the extent to which, in the letter of formal notice, the alleged failure to fulfil obligations concerned only the restriction on the use of gelatin in sweets, whilst the reasoned opinion and the application to the Court also 12 — The Directive itself did not require information to be for- related to confectionery products, preserved meat products warded about the methods adopted for its implementation, and ice cream. but simply the communication of summaries of the pro- 11 — It is irrelevant that the Grand Duchy of Luxembourg has grammes established and the results of their implementa- not raised any plea of inadmissibility on this point and that tion. Consequently, the obligation to provide the infor- it has even put forward a defence on the merits during the mation requested by the Commission on several occasions litigation. The harm caused to its rights to be heard prior to the letter or formal notice finds its own basis in the occurred, however, in its entirety during the pre-litigation duty of Member States to cooperate with the Community procedure, the proper conduct of which is an indispensable institutions. For a different situation, where the obligation prerequisite for the formal legality of the proceedings for a to provide details on the implementation of the Directive declaration of infringement by a Member State: see Com- derives directly from the Directive itself, see Case C-69/90 mission v Italy, cited in the previous footnote, at paragraph Commission v Italy [1991] ECR I-6011, paragraphs 11 to 7 in particular. 13.
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pollution and of determination of quality established. I would add that the defendant objectives is justified by the fact that there does not deny the presence of polluting are no industrial or commercial sectors deal substances in Luxembourg; in fact it asserts ing with the polluting substances in question that the competent authorities have laid or, as regards the existing sources of pollu down emission standards for different types tion, by the adoption by the Luxembourg of waste. authorities of emission standards on a case- by-case basis, which, in certain instances, are rendered even more stringent by the manag ers of industrial plant in a spirit of voluntary cooperation. The Commission replied that the existence of emission standards, even if particularly stringent, and the absence of industries using the polluting substances in question are irrelevant. These factors are not such as to absolve the Member States from the obligation to establish programmes com 13. The undeniable absence of programmes prising quality objectives. can only be offset, and the Directive thereby complied with, by the existence of emission standards laid down by the competent authorities for each and every source of pol lution on a case-by-case basis. The Directive prescribes for the programmes a structural content including quality objectives, dead lines and specific provisions governing the use of substances and products, determined The Commission's analysis should be by taking into account the latest economi upheld. cally feasible technical developments. It is solely on the basis of the quality objectives, and in terms of those objectives, that the competent authorities are required to lay down the emission standards. That interpre tation seems to be entirely consistent with the ratio of the Directive, the function of which is not only to satisfy the need to pro tect the environment, but also to harmonise the laws on the discharge of dangerous 12. Purely on the basis of a literal interpreta substances into the aquatic environment, so tion of the provisions it may be seen that a as to prevent disparities in the conditions of Member State which has not established pro competition from affecting the functioning grammes has failed to fulfil its obligations. of the common market. That emerges clearly 13 The preparation of the programmes is not only from the preamble, but also from required by Article 7 in order to attain the objective referred to in Article 2, namely to reduce pollution caused by the dangerous 13 — See in particular the third recital of the preamble to the substances set out in List II of the Annex. As Directive. This dual requirement also explains why the a result, the mere presence of polluting Directive was founded on a dual legal basis, Articles 100 and 235, at a time when the environmental policy did not substances itself requires programmes to be expressly fall within Community competence.
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the principles of an environmental policy in in the territory of a Member State up to the the Community as defined in the programme limit of the territorial waters, including of action on the environment mentioned underground waters, Directive 78/659 only above, of which the Directive constitutes one applies to the fresh waters designated by the 1 of the means of implementation. 4 Such a Member States as needing protection or need for harmonisation can only be satisfied improvement in order to support fish life. by coordinating programmes which incorpo Furthermore, and it is this that carries rate quality objectives since the mere imposi greater importance, the qualitative criteria tion of emission standards at the time when laid down by Directive 78/659 for both prior authorisation is granted for each dis salmonid and cyprinid waters respond to dif charge of polluting substances is shown to be ferent requirements and, in any event, they unsuitable for this purpose. It is precisely for do not coincide with the quality objectives that purpose that Article 7(7) provides, as I which the Member States must establish in have already mentioned, for a comparison by the programmes required by Directive the Commission of the various national pro 76/464 to reduce pollution by dangerous grammes 'to ensure sufficient coordination in substances. their implementation'.
Costs
14. The reference by the Grand Duchy of Luxembourg to the national measures for the 15. The failure to comply with the Directive implementation of Council Directive so far as the 99 priority substances are con 78/659/EEC of 18 July 1978 on the quality cerned constitutes the most serious aspect of of fresh waters needing protection or the breach of obligations complained of 15 improvement in order to support fish life before the Court and is also the main reason does not justify a different conclusion. In which prompted the Commission to initiate particular, it should be pointed out that the the proceedings. For the rest, the Grand areas of application and objectives of the two Duchy of Luxembourg not having raised any diretives do not coincide. Whereas the direc plea of inadmissibility, it has failed in all its tive which is the subject of these proceedings arguments, so that there is no reason for not concerns, in practice, all the waters situated ordering it to pay all the costs.
14 — In particular, the programme stresses the need to coordinate 16 — Moreover, by a declaration annexed to the Directive the and to harmonise at Community level the national policies Member States have undertaken to lay down requirements on the environment, based on a common long-term per- which are to be not less stringent with regard to the dis- spective. charge of waste water into the open sea by means of pipe- 15 — OJ 1978 L 222, p. 1. lines.
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Conclusion
16. In the light of the foregoing observations, I propose that the Court should:
— declare that, by failing to establish and to communicate in summary form the programmes to reduce pollution with respect to the 99 dangerous substances indicated in the annex to the reasoned opinion and the result of their imple mentation, in breach of Article 7 of Council Directive 76/464/EEC of 4 May 1976 on the pollution caused by certain dangerous substances discharged into the aquatic environment of the Community, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Articles 2 and 7 of that directive;
— declare the application inadmissible in so far as it seeks a declaration of failure to fulfil obligations in respect of the failure to establish and to communicate in summary form the programmes and the results of their implementation with respect to the dangerous substances other than the 99 substances mentioned above;
— order the Grand Duchy of Luxembourg to pay the costs.
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