C-225/96
ECLI:EU:C:1997:438
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COMMISSION v ITALY
OPINION OF ADVOCATE GENERAL JACOBS delivered on 25 September 1997 *
1. In this case, the Commission is seeking a objectives are to protect waters, including declaration under Article 169 of the E C shellfish waters, against pollution and to Treaty that Italy has failed properly to safeguard certain shellfish populations from implement Council Directive 79/923/EEC of various harmful consequences resulting from 30 October 1979 on the quality required of the discharge of pollutant substances into the shellfish waters. 1 sea. 3
2. In particular the Commission alleges that Italy has failed properly to implement Articles 3, 4 and 5 of the Directive.
4. It is stated in the preamble to the Direc- tive:
The Shellfish Waters Directive
3. The Directive concerns the quality of shellfish waters and applies to those coastal and brackish waters designated by the Mem- 'in order to attain the objectives of the ber States as needing protection or improve- Directive, the Member States will have to ment in order to support shellfish life and designate the waters to which it will apply growth and thus to contribute to the high and will have to set limit values correspond- quality of shellfish products directly edible ing to certain parameters; ... the waters so by man. 2 According to its preamble, its designated will have to conform to these val- ues within six years of designation'. 4
* Original language: English. 1 — OJ 1979 L 281, p. 47. 3 — First and second recitals. 2 — Article 1. 4 — Sixth recital.
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5. The provisions of the Directive at issue Article 4 are as follows:
1. Member States shall, initially within a two-year period following the notification of 'Article 3 this Directive, designate shellfish waters.
2. Member States may subsequently make 1. Member States shall, for the designated additional designations. waters, set values for the parameters listed in the Annex, in so far as values are listed in column G or in column I. They shall comply with the comments contained in both col- umns. 3. Member States may revise the designation of certain waters owing in particular to fac- tors unforeseen at the time of designation, taking into account the principle set out in Article 8.
2. Member States shall not set values less stringent than those listed in column I of the Annex and shall endeavour to observe the values in column G, while taking into Article 5 account the principle set out in Article 8. 5
Member States shall establish programmes in order to reduce pollution and to ensure that designated waters conform, within six years following designation in accordance with Article 4, to both the values set by the Mem- 5 — Article 8 provides that implementation of the measures taken ber States in accordance with Article 3 and pursuant to the Directive mav on no account lead, directly the comments contained in columns G and I or indirectly, to increased pollution of coastal and brackish waters. of the Annex.'
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COMMISSION v ITALY
6. Article 13 requires Member States to pro- 10. The Italian authorities forwarded to the vide the Commission with information con- Commission in December 1981 the legal cerning, inter alia, waters designated in measures purporting to implement the accordance with Article 4(1) and (2). abovementioned provisions of the Directive. The Commission however did not consider that those measures satisfied the require- ments of the Directive, in particular as regards the parameters. It accordingly requested further information concerning the designation of shellfish waters. Having received no response, the Commission sent Italy a letter in August 1991 giving Italy the 7. Article 15 requires Member States to opportunity to submit its observations on implement the Directive within two years of the alleged infringements. its notification. The Directive was notified on 5 November 1979 and hence required implementation by 5 November 1981.
11. In 1992, Legislative Decree N o 131 implementing the Directive was published. 8. The Annex sets out parameters for tem- Article 4 provides that the regions concerned perature, coloration, suspended solids, salin- must designate shellfish waters within 180 ity and concentration of numerous chemical days from the Decree's entry into force and constituents and other substances. Point 8 that the Minister for the Environment, in refers to organohalogenated substances and conjunction with the Minister for Health point 9 lists certain metals. Some parameters and the Minister for Industry, is to set limit are expressed as a guide (column G), some values for concentrations of petroleum are mandatory (column I, the initial being hydrocarbons, organohalogenated substances presumably a relic of the French text) and and metals within one year of the Decree's others contain figures in both columns. entry into force.
9. Articles 6 and 7 lay down detailed criteria 12. The Commission accepts that Decree N o for determining conformity within the 131 substantially implements the Directive. meaning of Article 5. Those criteria concern However, Article 4 of the Decree refers to sampling points and periods (frequency is later measures to be taken by the regions; no dealt with in the Annex) and the percentage such measures have to date been notified to of samples which, for each parameter, must the Commission as required by Article 13 of conform to the values and comments. the Directive. The Commission accordingly
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sent Italy a reasoned opinion in July 1993. other than for mercury and lead, in accord- Italy sent an allegedly unsatisfactory ance with Article 3 of the Directive. response in March 1994, whereupon the Commission decided to bring proceedings.
13. The Commission seeks a declaration that Italy has failed to fulfil its obligations under 14. The Commission observes that there has the Treaty: as yet been no designation of shellfish waters, at least for the whole of Italy, or that the designated waters have not yet been noti- fied to it. Clearly without designation the competent authorities cannot establish pro- grammes as required by Article 5 of the Directive; it cannot therefore be ascertained whether the values set in accordance with by failing to designate waters needing pro- Article 3 have been observed. tection or improvement in order to support shellfish life and growth in accordance with Article 4 of the Directive and/or to notify such designations to the Commission in accordance with Article 13 of the Directive;
by failing to establish programmes in order to reduce pollution in accordance with 15. The Commission also adds that the Article 5 of the Directive; Decree shows clearly that the setting of limit values for the parameters referred to in points 8 and 9 of the Annex to the Directive, except for mercury and lead, has been del- egated to a later ministerial decree. Since no such decree or other measure to the same effect has been notified to the Commission, it must be concluded that Italy has not fully and by failing to set values for the param- complied with Article 3 of and points 8 and eters listed at points 8 and 9 of the Annex, 9 of the Annex to the Directive.
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COMMISSION v ITALY
16. Italy contends that it was not possible to 18. Italy makes the point, which has the vir- obtain and communicate to the Commission tue of common sense, that land-locked details of the regional measures implement- regions can hardly be expected to designate ing the Directive within the time-limit of shellfish waters, which, at least for the pur- two months set by the reasoned opinion. poses of the Directive, are by nature coastal. However, since then such information has It further points out that the Directive does been collected with regard to the designation not lay down criteria for the designation of of waters and, in part, the establishment of shellfish waters; in its view, Member States programmes; measures have been adopted by accordingly have some discretion and desig- 12 of the 15 coastal regions and those mea- nation of waters by a Member State will con- sures have been notified to the Commission. stitute proper implementation of the Direc- In addition, the procedure for approving the tive unless it is derisory or manifestly decree setting the parameters indicated in inadequate. points 8 and 9 of the Annex should shortly be completed.
19. In my view there is force in the first of those contentions, and it may be that the measures taken by Italy and by the regions are now sufficient to comply with the Direc- tive on this point. However it is clear that Italy had failed to designate the waters or 17. The Commission in its reply notes Ita- had failed to notify them to the Commission ly's continued failure fully to implement the by the material date, namely within two Directive. Of the 12 regions mentioned by months from the reasoned opinion, and it Italy, only 11 (excluding Sicily) appear to follows that the Commission is entitled to have designated shellfish waters as required the declaration which it seeks under that by Article 4. The Commission considers that head. notification by only 11 out of the 20 regions, constituting little more than 50% of the national territory, cannot demonstrate proper implementation. Moreover, pro- grammes in order to reduce pollution have, with sporadic exceptions, not been estab- lished or notified. In any event, since the number of regions which have designated shellfish waters is incomplete, the establish- ment of programmes ensuring that desig- 20. As for the other heads of the Commis- nated waters conform to the Directive must sion's action, Italy accepts that it has not yet a fortiori be incomplete. Finally, as the Ital- complied with the Directive and states that ian Government itself admits, the parameters the implementing measures will shortly be mentioned in points 8 and 9 of the Annex notified. The Commission is therefore have still not been set. entitled to succeed under those heads also.
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Conclusion
21. Accordingly in my opinion the Court should:
(1) declare that Italy has failed to fulfil its obligations under the Treaty:
by failing to designate waters needing protection or improvement in order to support shellfish life and growth in accordance with Article 4 of Council Directive 79/923/EEC of 30 October 1979 on the quality required of shellfish waters and/or to notify such designations to the Commission in accordance with Article 13 of the Directive;
by failing to establish programmes in order to reduce pollution in accordance with Article 5 of the Directive;
and by failing to set values for the parameters listed at points 8 and 9 of the Annex, other than for mercury and lead, in accordance with Article 3 of the Directive;
(2) order Italy to pay the costs.
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