C-214/96

COMMISSION v SPAIN

OPINION OF ADVOCATE GENERAL SAGGIO delivered on 25 June 1998 *

1. By an action brought under Article 169 of Community in order to implement an envi- the EC Treaty, the Commission seeks a dec- ronmental policy, pursuant to the First Pro- laration by the Court that the Kingdom of gramme of Action of the European Commu- Spain has failed to fulfil its obligations under nities on the Environment. 2 the Treaty and Council Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community (here- inafter 'the Directive'). 1

The Directive identifies two categories of dan- gerous substances, drawn up in two lists annexed to the Directive itself, with the pur- pose of effectively protecting the aquatic envi- In particular, the Commission complains that ronment, which includes inland surface water, the Kingdom of Spain has failed to adopt and territorial waters, internal coastal waters, and to communicate the programmes for the ground water. 3 reduction of pollution by substances within List II annexed to the Directive, as provided for in Article 7 thereof.

The second category contains substances, authorisation and emission standards must be appearing in List II, whose deleterious effect set. on the aquatic environment can be confined to a given area and depends on the character- istics and location of the waters into which they are discharged. The substances within List II are identified by two means. O n the one hand, List II contains individual substances and categories of substances belonging to the families and groups of substances specifically listed therein. O n the other hand, the list itself further contains substances belonging to the families and 5. Article 7(6) of the Directive requires the groups of substances in List I for which the programmes to be communicated to the Com- limit values referred to in Article 6 of the mission, which must arrange for regular com- Directive have not been determined. parisons of those programmes in order to According to the Commission's claim, which ensure sufficient coordination in their imple- has not been challenged by the defendant mentation. To that end, if it sees fit, the Com- State, there are 99 substances capable of mission must submit proposals to the Coun- belonging to List I but subject to the arrange- cil. 4 The need to harmonise national laws in ments for the substances within List II since this field is justified by the fact that any dis- no limit values have been determined for parity between the national provisions on the them. discharge of dangerous substances into the aquatic environment 'may create unequal con- ditions of competition and thus directly affect the functioning of the Common Market'. 5

6. The Directive did not lay down any time- 8. Since there was no reply from the Spanish limit for its transposition into national law. Government, the Commission sent an initial However, by letter of 3 November 1976, the letter on 19 December 1990, giving it formal Commission proposed 15 September 1981 to notice that it had failed to fulfil its obligations the Member States as the deadline for for- under Article 7 as regards both the substances warding programmes for reducing the pollu- enumerated in List II and the abovemen- tion caused by the substances in List II. N o tioned 99 substances, in respect of which the objection was raised to that deadline by any Commission considered the Spanish Govern- of the Member States. 7 By virtue of Article ment's failure to be particularly serious. 395 of the Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic and the adjustments to the Treaties, 8 the Kingdom of Spain was required to comply with the Directive by 1 January 1986.

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upon the Spanish Government to submit its 10. The Commission, considering the replies observations on the establishment and imple- provided by the Spanish Government to be mentation of the programmes referred to in inadequate, issued a reasoned opinion on 17 Article 7 of the Directive, and also attached November 1994 pursuant to Article 169 of the list of 99 substances belonging to List I the Treaty in which it complained of the but subject to the arrangements for the failure to adopt measures to implement the substances within List II. Directive, with reference to the failure to establish the programmes for reducing pollu- tion by the substances in List II.

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COMMISSION v SPAIN

Substance way of the immediate implementation of the Directive.

11. The Commission's action appears to be well founded and should be upheld.

13. In that connection, it is sufficient to observe that the Court has consistently held The arguments put forward by the Spanish that a Member State may not plead provi- Government may essentially be reduced to sions, practices or circumstances existing in two categories. its internal legal system in order to justify a failure to comply with its obligations under Community law, 9 and that no significance attaches to the fact that implementation is delegated in whole or in part to authorities other than the central State authorities, such Difficulties of an internal nature as an autonomous region 10 or a municipal- ity. 11

The absence of programmes for the reduction 16. So far as concerns the Spanish Govern- of pollution ment's assertion that, despite the absence of formally adopted programmes, attainment of the objective of the Directive was guaranteed to the same extent by the legislation in force combined with current administrative prac- tice, I am of the view that the provisions, of various ranks and types, on which the defen- dant State relies do not make it possible to establish the existence of programmes for the reduction of pollution, as required by the 14. Secondly, the Spanish Government refers Directive. to its own legislation on the protection of waters from pollution and, in particular, argues that, although no instruments formally des- ignated as programmes for reducing pollution exist (or have yet been approved), attainment of the objectives of the Directive was guar- anteed to the same extent by the legislation in force combined with the pollution moni- toring measures put in place by the Spanish authorities. The purpose of Law N o 29/85 on the moni- toring of waters, which entered into force shortly after the Treaty of Accession, 12 is to lay down a general scheme for national water resources and the use thereof replacing the earlier, superseded rules dating from 1879. Against that general background, Title V of that Law, which deals with protection of sur- face water quality, provides for a system of prior administrative authorisation for all dis- 15. In this connection, I would observe first charges of polluting substances into the aquatic of all that, in the present case, what is at issue environment. The decree implementing the is the infringement specifically set out in the abovementioned Law 13 governs in detail the reasoned opinion and in the application ini- procedure for issuing such authorisations, the tiating these proceedings, namely the absence most important aspect of which consists in of and the failure to forward programmes for the setting by the competent authority of the the reduction of pollution caused by emission standard with which every discharge substances in List II annexed to the Directive, must comply. However, the conditions for as provided for by Article 7 thereof. Thus, authorisation must be defined on the basis of although there is no doubt as to the existence the provisions contained in the plans for the of legislation for the protection of waters nor reduction of pollution provided for in respect as to the efforts expended by the Spanish authorities, in both their legislative and admin- istrative capacities, in filling a gap or rem- 12 — The Law is dated 2 August 1985 (BOE No 189 of 8 August edying a shortcoming in the relevant legisla- 1985) whereas the Treaty of Accession was signed on 12 tion in respect of environmental protection, June 1985. 13 — Royal Decree No 849 of 11 April 1986 (BOE No 103 of 30 those are not the points at issue. April 1986).

17. The Spanish Government itself acknowl- edges that the catchment basin plans have not been adopted, despite the fact that they are decisive for the definition of the programmes for reducing pollution caused by substances within List II which, it should be borne in mind, have various deleterious effects 19. So far as concerns pollution of sea water, depending on the characteristics and location the Spanish Government points to the exist- of the waters into which they are discharged. ence of Law N o 22/88, 16 which, in laying down general rules governing territorial waters, merely provides (at Articles 56 to 62) for a system of prior authorisation for dis- charges of dangerous substances into the sea. However, the system of authorisations and the general conditions to which they are sub- The existence of studies on certain catchment ject must be determined by the autonomous basins, setting out the characteristics of the communities. It has not been shown that polluting activities in the country and classi- those communities have established the pro- fying the polluting substances, does not grammes for the reduction of pollution amount to the establishment of programmes required by the Directive. The reports drawn for the reduction of pollution. At most, they up by some of the autonomous communities constitute preparatory material for drawing and forwarded to the Commission at the pre- u p programmes which must incorporate litigation stage of the infringement procedure quality objectives, set deadlines for their imple- merely set out the obligations under the Direc- mentation and include specific provisions gov- tive itself, such as the forthcoming establish- erning the use of certain substances. ment of specific programmes for the reduc- tion of pollution by the substances falling within List II, 17 or refer to action for the col- lection of data or inquiries aimed at drawing up appropriate legislation for the transposi- tion of the Directive, 18 but do not contain any actual programmes for the reduction of pollution. 18. Furthermore, the Spanish Government's reference to the Ministerial Order of 12

As the Court itself has pointed out, pro- grammes for reducing pollution must be spe- cific. The objective of reducing pollution which may be pursued by other measures, such as general improvement programmes, does not necessarily coincide with that of the Within the scheme of the Directive, the 'pro- Directive at issue. 21 gramme' provided for in Article 7 is an instru- ment the purpose of which is to define pro- cedures for the reduction of pollution, within a structured and potentially complete frame- work enabling a comparative assessment to be made of the various schemes in force for the protection of waters in the various Member States with the aim of coordinating them if possible. 21. It should be borne in mind that the estab- lishment of programmes is a means which the Directive itself treats as essential to the attain- ment of the objectives of environmental pro- tection which is its main purpose. The corol- lary to that essential aspect is the obligation to set deadlines for the implementation of the programme (Article 7(5)) and the obligation to communicate it to the Commission so that It follows that neither a series of legislative the latter may, in addition to ascertaining measures nor a system of prior authorisations whether it meets the objective pursued by for the discharge of dangerous substances the Directive, check that it has been coordi- which, despite being intended to protect the nated as between the various Member States aquatic environment, do not provide an orga- (Article 7(7)). nised and coordinated framework of measures to be implemented with a view to attaining

It follows from those provisions as a whole 22. Moreover, the requirement for particular that, even if the aim of reducing pollution accuracy in the transposition of directives was were pursued to a sufficient extent by the leg- underscored by the Court specifically with islative instruments provided for under regard to a directive on the environment, Spanish law, the absence of programmes for where the management of the common heri- bringing about that reduction prevents the tage is entrusted to the individual Member Commission from checking whether there has States in their respective territories. 23 That is been coordinated implementation in the var- precisely the case with respect to the objec- ious Member States, thereby jeopardising the tive, provided for in the Directive, of reducing attainment of one of the objectives of the pollution caused by the substances within List Directive which, as stated above, is to elimi- II, for which, unlike the substances within nate disparities in the conditions of competi- List I, the quality objectives are to be deter- tion which may adversely affect the imple- mined by each Member State. 24 mentation of the Common Market. 22

Conclusion

2 3 . I n t h e light of the foregoing, I p r o p o s e that the C o u r t :

— declare that, b y failing t o establish o r c o m m u n i c a t e p r o g r a m m e s for r e d u c i n g p o l l u t i o n b y substances falling w i t h i n List I I , as p r o v i d e d for b y Article 7 of C o u n c i l D i r e c t i v e 7 6 / 4 6 4 / E E C of 4 M a y 1976 o n p o l l u t i o n caused b y certain d a n g e r o u s s u b s t a n c e s d i s c h a r g e d i n t o t h e aquatic e n v i r o n m e n t of t h e C o m - m u n i t y , t h e K i n g d o m of Spain has failed t o fulfil its obligations u n d e r A r t i c l e 7 of t h a t directive a n d A r t i c l e 189 of t h e Treaty;