C-285/96
ECLI:EU:C:1998:307
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COMMISSION v ITALY
OPINION OF ADVOCATE GENERAL MISCHO delivered on 18 June 1998 *
1. This action for failure to fulfil obligations 4. In these circumstances, the Commission against the Italian Republic is one of a series requests the Court, pursuant to Article 94(1) of such actions brought by the Commission of the Rules of Procedure, to allow its appli- in relation to the implementation by the cation and to Member States of Council Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances dis- charged into the aquatic environment of the Community (hereinafter 'the Directive'). 1
2. More particularly, the Commission com- '— declare that, by failing to establish pollu- plains that the Member States in question tion reducing programmes with quality have, in breach of Article 7 of the Directive, objectives for the 99 substances listed in failed to establish programmes with quality the annex, and failing to communicate objectives to reduce pollution. summaries of the programmes and the results of the implementation to the Com- mission in breach of Article 7 of Direc- tive 76/464/EEC, and failing to provide the requisite information to the Commis- sion in breach of Article 5 of the EC Treaty, the Italian Republic has failed to fulfil its obligations under that Treaty;
3. This case is unusual in that it is one of a minority of actions in which the Court is called upon to give judgment by default, the Italian Republic having failed to lodge a defence in the proper form and within the time prescribed.
— order the Italian Republic to pay the costs'. * Original language: French. 1 — OJ 1976 L 129, p. 23.
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General background to the Directive 7. List I contains certain individual substances which belong to the families and groups of substances set out therein, selected mainly on the basis of their toxicity, persistence and bio- accumulation. Under Article 6 of the Direc- tive, the Council is to lay down the limit values which the emission standards must not exceed, together with quality objectives for 5. The Directive, which was adopted on the the substances in List I. basis of Articles 100 and 235 of the E E C Treaty, states in its first recital that
8. According to the Annex to the Directive, 'there is an urgent need for general and simul- List II contains: taneous action by the Member States to pro- tect the aquatic environment of the Commu- nity from pollution, particularly that caused by certain persistent, toxic and bioaccumu- lable substances'.
'— substances belonging to the families and groups of substances in List I for which the limit values referred to in Article 6 of the Directive have not been determined,
6. Article 2 of the Directive provides:
— certain individual substances and catego- ries of substances belonging to the fami- lies and groups of substances listed below,
'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 and which have a deleterious effect on the groups of substances in List II of the Annex, aquatic environment, which can, however, be in accordance with this Directive, the provi- confined to a given area and which depend sions of which represent only a first step on the characteristics and location of the towards this goal'. water into which they are discharged'.
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9. Article 7 of the Directive provides: 5. The programmes shall set deadlines for their implementation.
' 1 . In order to reduce pollution of the waters referred to in Article 1 by the substances 6. Summaries of the programmes and the within List II, Member States shall establish results of their implementation shall be com- programmes in the implementation of which municated to the Commission. they shall apply in particular the methods referred to in paragraphs 2 and 3.
7. The Commission, together with the 2. All discharges into the waters referred to Member States, shall arrange for regular com- in Article 1 which are liable to contain any of parisons of the programmes in order to ensure the substances within List II shall require sufficient coordination in their implementa- prior authorisation by the competent authority tion. If it sees fit, it shall submit relevant pro- in the Member State concerned, in which posals to the Council to this end.' emission standards shall be laid down. Such standards shall be based on the quality objec- tives, which shall be fixed as provided for in paragraph 3.
10. Pursuant to Article 12 of the Directive:
3. The programmes referred to in paragraph 1 shall include quality objectives for water; these shall be laid down in accordance with Council Directives, where they exist. ' 1 . The Council, acting unanimously, shall take a decision within nine months on any Commission proposal made pursuant to Article 6 ...
4. The programmes may also include specific provisions governing the composition and use of substances or groups of substances and products and shall take into account the latest economically feasible technical developments.
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2. The Commission shall, where possible, the limit value for emissions or quality objec- within 27 months following notification of tives pursuant to Article 6 of the Directive, this Directive, forward the first proposals they fall within List II. made pursuant to Article 7(7). The Council, acting unanimously, shall take a decision within nine months.'
15. In fact, because List I essentially com- prises families and groups of substances (apart 11. Finally, Article 13 provides that, for the from mercury and cadmium), it is not pos- purposes of the Directive, Member States are sible to lay down limit values for emissions to supply the Commission, at its request, inter and quality objectives without first identi- alia, with additional information on the pro- fying the individual substances within those grammes referred to in Article 7. groups and families.
12. The Directive, which entered into force on the date of its notification, namely 5 May 16. The work carried out by the Commission 1976, does not expressly provide for a time- in cooperation with the Member States to limit for the actual performance of the obliga- achieve this has resulted in a list of 129 tions it sets out. substances being drawn up. This is appended to the communication from the Commission to the Council of 22 June 1982 on dangerous substances which might be included in List I of Directive 76/464. 2
13. In its application, the Commission alleges that the Italian Republic failed to establish pollution reduction programmes with quality objectives for the 99 substances listed in annex I to the application. 17. Meanwhile three further substances were added to the Ust, thus bringing the total to 132. Of these, 18 are the subject of a Council Directive laying down limit values for emis- sions and quality objectives and 15 have resulted in a proposal for a Council Directive 14. The 99 substances in question do, according to the Commission, fall within List I, but since the Council has not yet laid down 2 — OJ 1982 C 176, p. 4.
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amending Directive 76/464/EEC submitted ernment would lay them down. N o reply was by the Commission on 14 February 1990. 3 received to that letter.
18. This action therefore relates to the 99 substances remaining on the list annexed to the communication from the Commission 21. By letter of formal notice dated 10 July 1991 the Commission informed the Italian referred to above. Government that it considered that, by failing to establish programmes with quality objec- tives, or by failing to communicate summa- ries of such programmes and the results of their implementation contrary to Article 7 of Procedure the Directive, and by failing to provide to the Commission information requested by it in this regard contrary to Article 5 of the E C Treaty, the Italian Republic had failed to fulfil its obligations under the EC Treaty. The Italian Government did not respond to the invitation sent to it to submit its observations 19. Following a meeting with national experts, within a time-limit of two months. the Commission, by letter of 26 September 1989, requested the defendant State to send it the programmes relating to priority substances. The defendant State did not reply to that letter.
22. O n 15 May 1993 the Commission sent to the defendant State a reasoned opinion repeating the complaint contained in the letter 20. In a letter dated 4 April 1990 the Com- of formal notice. It requested the defendant mission requested the Italian Government to State to take the necessary measures to comply send it an up-to-date list specifying which of with the reasoned opinion within two months. the 99 substances had been discharged into That reasoned opinion also elicited no the aquatic environment in Italy; the appli- response. cable quality objectives at the time when authorisation for discharging waste liable to contain one of those substances was granted; and, if applicable, the reasons for which those objectives had not been laid down, together with a timetable stating when the Italian Gov-
23. The Commission's application was lodged 3 — OJ 1990 C 55, p. 7. at the Court on 22 August 1996.
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24. The Italian Republic did not respond to Substance the application in the proper form and within the time prescribed.
First head of complaint
25. In a letter dated 15 July 1997 the Com- 28. The Commission's first head of com- mission applied, pursuant to Article 94(1) of plaint is that the Italian Republic failed to the Rules of Procedure of the Court, for fulfil its obligations under the EC Treaty by judgment in the terms sought in the applica- failing to establish pollution reduction pro- tion. grammes with quality objectives for the 99 dangerous substances usted by it in an annex, and failing to communicate to the Commis- sion summaries of the programmes and the results of their implementation in breach of Article 7 of the Directive. Admissibility
29. It is clear both from the general back- ground to the Directive, which is set out above, and from the judgment in Commission v Luxembourg 4 that the Member States had an obligation to adopt the pollution reduc- 26. Under Article 94(2) of the Rules of Pro- tion programmes referred to in Article 7 of cedure, the Court, after hearing the Advocate the Directive and to communicate to the General, is to consider whether the applica- Commission summaries of those programmes tion initiating proceedings is admissible and and the results of their implementation. It is whether the appropriate formalities have been also clear from that judgment that the Member complied with. States had an obligation to include the 99 substances mentioned above in their pollu- tion reduction programmes.
27. I have not been able to find any proce- 30. The Commission's first head of com- dural irregularity affecting the admissibility plaint must therefore be upheld. of the application and therefore consider that I may go on to examine the merits of the Commission's claim. 4 — C-206/96 [1998] ECR I-3401.
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Second head of complaint thereby also failed to fulfil its obligations under Article 5 of the EC Treaty.
31. The Commission's second head of com- plaint is that the Italian Republic breached Article 5 of the EC Treaty by not providing it with the information it requested in rela- 35. In this case, the information requested by tion to the implementation of the Directive. the Commission does not substantially differ from the information which should have been available from the pollution reduction pro- gramme which the Italian Republic was, pur- suant to Article 7 of the Directive, obliged to establish and communicate to the Commis- 32. The Commission submits that, as a result sion. of this, the Italian Republic failed to fulfil the obligation, laid down for Member States in Article 5 of the EC Treaty, to collaborate with the institutions of the Community to facili- tate the Community in the achievement of its tasks.
36. Since it has been held in the context of the Commission's first head of complaint that the Italian Republic failed to fulfil this spe- cific obligation under the Directive I propose 33. The documents before the Court show that the Court reject the second head of com- that the Commission raises this head of com- plaint. plaint because the Italian Republic failed to reply to two letters dated respectively 26 Sep- tember 1989 and 4 April 1990 in which the Commission asked the Italian Republic for information relating to the aforementioned 99 substances. Costs
34. In this respect, I would point out that the Court has consistently held 5 that if a Member State has failed to fulfil its specific obligations 37. Since the main ground for the action is under a directive, no purpose is served by the failure by the Italian Republic to fulfil its considering the question whether it has obligations under Article 7 of the Directive, I suggest that the Court should order the defen- dant government to pay all the costs, not- withstanding the rejection of the second head 5 — See, for example, Case C-133/94 Commission v Belgium [1996] ECR I-2323, paragraph 56. of complaint.
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Conclusion
38. In the light of the foregoing I propose that the Court:
— declare that, by failing to adopt pollution reduction programmes with quality objectives for the 99 dangerous substances listed in the annex to the Commis- sion's application and failing to communicate to the Commission summaries of those programmes and the results of their implementation in breach of 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 Community, the Italian Republic has failed to fulfil its obligations under the E C Treaty;
— for the rest, dismiss the application;
— order the Italian Republic to pay the costs.
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