C-266/99

OPINION OF MRS STIX-HACKL — CASE C-266/99

OPINION OF ADVOCATE GENERAL STIX-HACKL delivered on 14 December 2000 1

I — Subject-matter of the proceedings point, the values applicable to surface water for all the parameters given in Annex II. 1. In this case, the Court is asked to declare that in connection with nitrate levels in surface waters in Brittany the French Republic has failed to fulfil its obligations under the EC Treaty by failing to transpose, or transposing only incompletely, Council Directive 75/440/EEC of 16 June 1975 concerning the quality required of surface Member States may refrain from setting the water intended for the abstraction of drink- values of parameters in respect of which no ing water in the Member States2 (herein- value is shown, in the table in Annex II, after 'Directive 75/440/EEC). pursuant to the first subparagraph pending determination of the figures in accordance with the procedure under Article 9.

I I — Directive 75/440/EEC

2. The relevant provisions of Directive 75/440 are worded as follows: 2. The values set pursuant to paragraph 1 may not be less stringent than those given in the "I" columns of Annex II.

'Article 3

1. Member States shall take all necessary measures to ensure that surface water con- forms to the values laid down pursuant to Article 3. Each Member State shall apply this Directive without distinction to national waters and waters crossing its 3. Surface water having physical, chemical frontiers. and microbiological characteristics falling short of the mandatory limiting values corresponding to treatment type A3 may not be intended for the abstraction of drinking water. However, such lower qual- ity water may, in exceptional circum- stances, be utilised provided suitable pro- 2. In line with the objectives of this Direc- cesses — including blending — are used tive, Member States shall take the necessary to bring the quality characteristics of the measures to ensure continuing improve- water up to the level of the quality stan- ment of the environment. To this end, they dards for drinking water. The Commission shall draw up a systematic plan of action must be notified of the grounds for such including a timetable for the improvement exceptions, on the basis of a water of surface water and especially that falling resources management plan within the area within category A3. In this context, con- concerned, as soon as possible, in the case siderable improvements are to be achieved of existing installations, and in advance, in under the national programmes over the the case of new installations. The Commis- next 10 years. sion will examine these grounds in detail and, where necessary, submit appropriate proposals to the Council.'

The timetable referred to in the first subparagraph will be drawn up in the light of the need to improve the quality of the environment, and of water in particular, and the economic and technical constraints which exist or which may arise in the III — Prelitigation procedure various regions of the Community.

(1) Breach of the limit values for nitrates 4. After receiving several complaints con- (infringement of Article 4(1) of Direc- cerning nitrate levels in surface water tive 75/440); intended for the abstraction of drinking water in Brittany, the Commission sent a request for information to the French Republic on 1 April 1992. The French Republic replied on 11 May 1993. The Commission sent a formal letter of notice on 30 November 1993. The French Repub- lic replied on 1 February 1994, 28 Novem- (2) Failure to establish and notify a sys- ber 1994, and 1 March 1995. The Com- tematic plan of action including a mission sent a reasoned opinion on timetable for the improvement of sur- 28 October 1997, referring to the French face water (infringement of Article 4(2) Republic's failure to fulfil its obligations of Directive 75/440); under Article 4(1), (2) and (3) of Directive 75/440, and set a period of two months from the date of notification for reply. The French Republic replied by letter of 2 Jan- uary 1998, wherein it stated that supple- mentary information would be sent within a period of six weeks from the date of expiry of the period set for reply to the (3) Use of surface water of insufficient reasoned opinion. The French Republic quality for the abstraction of drinking submitted this supplementary information water without notifying the Commis- on 18 June 1998. On 15 July 1999, the sion of a water resources management Commission brought an action against the plan in this regard (infringement of French Republic before the Court. Article 4(3) of Directive 75/440).

— to declare that measures have been adopted to deal in an appropriate and efficient way with the problem of Furthermore, it argues that considerable breaches of the 50 mg/l limit value for efforts have been undertaken in the French nitrates in water intended for the Republic since the late 1980s to improve abstraction of drinking water, some- the quality of surface water intended for times observed at a limited number of the abstraction of drinking water. Several abstraction and distribution points.

I - 1987

OPINION OF MRS STIX-HACKL — CASE C-266/99

V — Assessment France has therefore infringed this obliga- tion.

6. It would be practical to examine each of the three grounds that underlie the Com- mission's action in turn: B — Article 4(2) of Directive 75/440 (fail- ure to ensure a continuing improvement of the environment, non-definition of a sys- tematic plan of action)

A — Article 4(1) of Directive 75/440 9. This provision in the Directive contains (breach of limit values) two distinct problem complexes:

12. In answering the question whether Article 4(2) contains specific objectives or the Member States are simply required to make an effort at improvement, we need to examine the relationship between (a) Arti- 14. The argument of the French Republic cle 4(1) (limit values) and Article 3(3) can be accepted to the extent that Directive (guide values) of Directive 75/440, on the 75/440 should not be interpreted in such a one hand, and (b) Article 4(2) (improve- way that Article 4(2) is applied to trans- ment of the environment) of Directive form the discretionary guide values under 75/440, on the other hand. Article 4(1) Article 3(3) into mandatory values. This requires the Member States to ensure that conclusion follows from the scheme the limit values for certain pollutants are explained above. not exceeded. Article 3(3) of the Directive requires that the Member States must, in addition, make an effort to achieve even lower values. These are the discretionary guide values given in Annex II, column G.

19. Therefore, in the areas which the Commission has identified in Brittany where even the limit value of 50 mg/l of nitrates in surface water has not been ensured, the French Republic has also failed to fulfil Article 4(2) of Directive 75/440. 17. Nor may we interpret this require- ment — as the French Republic apparently intends — in the sense that it would be sufficient simply to carry out improvements on a case by case basis compared with the original situation in 1975, so that any improvement of the original situation would already satisfy the obligations pur- suant to Article 4(2). As I see it, the timetable differences in paragraphs 1 and 20. Contradicting the French Republic, the 2 of Article 4 make sense only if the Commission argues that the situation in 'considerable improvements' sought by Brittany is deteriorating, and that this Article 4(2) are not already achieved deterioration is ongoing and worsening. through progress towards achieving the The French Republic asks the Court to find objectives laid down in Article 4(1). that it has made an effort, and that conditions have been improved in some places in comparison with the original situation in 1975. In this regard, the French Republic relies on the judgment of the Court in Case C-365/97 Commission v Italy,4 cited in Case C-387/97 Commission v Greece. 5

18. Pursuant to Article 4(2) of Directive 4 _ [1999] ECR I-7773. 75/440/EEC, the Member States were 5 — [2000] ECR I-5047.

I - 1990

COMMISSION V FRANCE

21. The case-law referred to does not tion of drinking water throughout Brittany. support the French Republic's contention in so far as it states that, in the matter of improving the environment in the context of transposing a directive, the Member States retain a margin of discretion. 6 Whilst Article 4(2) of Directive 75/440 does not contradict this discretion, it is still necessary to 'ensure' that the improvements in question are achieved, something which the French Republic — as described (2) Lack of a systematic plan of action and above — has not accomplished as far as timetable the surface water intended for the abstrac- tion of drinking water throughout Brittany is concerned.

I - 1991

OPINION OF MRS STIX-HACKL — CASE C-266/99

thorough examination of the documents the Member State at the end of the period notified by the Member States to check laid down in the reasoned opinion. 7This their status as 'plans' in the sense of this position, as far as can be determined, can provision. Should this examination give rise be summarised as follows: to criticism of the measures, the Commis- sion should consult the Member State concerned and if necessary submit appro- priate proposals to the Council.

I - 1992

COMMISSION V FRANCE

pollution from agricultural sources (Pro- 30. The nationwide application of the gramme de Maîtrise des Pollutions d'Or- concept of the ZES (Zones en Excédent igine Agricole, 'PMPOA'), negotiated Structurel, 'ZES') has the aim of promoting between the Ministries of Agriculture and the resorption of nitrogen in the most Environment and agricultural organisa- heavily affected regions of the French tions. It is intended to promote structural Republic. In the designated ZES, the nitro- measures to reduce the spreading of organic gen content of the soil is to be reduced in nitrogen and to give farmers incentives to order to improve nitrate levels in surface change fertiliser application practices in water. The resorption programme lays order to reduce nitrate levels in surface down a master plan at the level of the water. The PMPOA, in principle, covers the affected canton. According to the French entire country but applies only to agricul- Republic, the affected zones in Brittany tural enterprises above a certain minimum certainly have been designated, but the size, which means that at most one third of resorption programmes to be applied were, enterprises producing altogether two thirds at the relevant point in time, still in of nitrates from agricultural operations are 'embryonic' form. covered by the programme. As can be seen from the French Government's authorised report on the PMPOA, the programme is being implemented rather slowly. 31. On close inspection, the Commission raises two different points against the documents submitted by the French Repub- lic:

the French Republic as systematic plans of measures concerned across the Community action and a timetable. The Court has and to present the results in a summary repeatedly stated the requirements that report to the Council. In Case C-214/97 'systematic plans' must meet: in Case Commission v Portugal, 13 the Court C-58/89 Commission v Germany, 8 the emphasised that all documents purporting Court ruled that, although in principle to be 'plans' must in any case contain several limited regional redevelopment measures and a timetable. plans can together constitute a 'plan' in the sense of Article 4(2) of Directive 75/440, the totality of the documents presented must have the recognisable qual- ity of a 'master plan'. In the same judg- ment, it explained that a systematic plan in the sense of Article 4(2) must 'comprise stages, taking account of certain priorities and... constraints'. 9 In Case C-207/97 Commission v Belgium, 10 the Court further stated: 'What is specific to the programmes in question is the fact that they must embody a comprehensive and coherent approach, covering the entire national territory of each Member State... They differ, therefore, both from general purifi- cation programmes and from bundles of ad hoc measures designed to reduce water pollution.' In Case C-298/97 Commission v 33. BEP I focused on the improvement of Spain,11 the Court ruled that: 'incomplete coastal waters. These are not covered by practical measures and fragmentary legisla- Directive 75/440, as Article 1(1) of that tion cannot discharge the obligation of a directive defines 'surface water' as 'surface Member State to draw up a comprehensive fresh water'. The PMPOA, which is in programme with a view to attaining certain principle countrywide, covers only a rela- objectives...'. In Case Commission v Ger- tively small part of Breton agricultural many, 12 the Court put decisive weight on undertakings because it is restricted to the purpose of the plans in order to assess undertakings of a certain size. The resorp- the quality of the 'plan', which, under tion programmes for the ZES and BEP II Article 4(2) of Directive 75/440, means apply only to particularly affected areas in putting the Commission in a position to Brittany, but not to all surface water with ascertain the reduction of pollution levels critical nitrate levels. Furthermore, the ZES in water falling within the scope of the concept was still at an early stage in Directive's requirements, to compare the Brittany at the relevant point in time, according to the French Republic's testi- mony. Similarly, under BEP II, only two agreements for Brittany were made which 8 — [1991] ECR I-4983, paragraph 25. could have provided the basis for measures 9 — Paragraph 25. yet to be determined. Nor were the SAGEs 10 — Case C-207/97 Commission v Belgium [1999] ECR 1-275, paragraph 40; Joined Cases C-232/95 and C-233/95 Commission v Greece [1998] ECR 1-3343, paragraph 35. 11 — [1998] ECR 1-3301, paragraph 16. 12 — Cited in footnote 8, paragraph 36. 13 — [1998] ECR 1-3839, paragraph 11.

35. As far as can be seen, it was only by letter of 18 June 1998 that the French Republic first notified a summary, broken down by abstraction point and region, of all surface water in Brittany intended for the abstraction of drinking water, which systematically allocated each problematic 38. It should be noted in this regard that geographical area to the abovementioned the effectiveness and appropriateness of programmes. But here, too, objectives and measures to reduce pollution levels in sur- schedules are lacking. According to the face water can only be determined after the settled case-law of the Court, the question fact. The plans required by Article 4(2) of whether a Member State has failed to fulfil Directive 75/440 were to have been pre- its obligations must be determined by sented within the two-year transposition reference to the situation prevailing in the period for the Directive; ten years were Member State at the end of the period laid allowed for the achievement of 'improve- down in the reasoned opinion. 14 This ments' (that is, proof of their effectiveness). It has already been found that the French Republic has failed to achieve any improve- 14 — See inter aha Case C-384/99 Commission v Belgium ments within the meaning of Article 4(2), [2000] ECR 1-10633, paragraph 16. so that effectiveness can hardly be brought

I - 1995

OPINION OF MRS STIX-HACKL — CASE C-266/99

forward again as a test for the existence of and duties of the Commission pursuant to a 'systematic plan of action'. Article 226 EC.

C — Article 4(3) (Abstraction of drinking (b) Duty of the Commission to carry out a thorough examination water, failure to present a management plan)

42. The first sentence of Article 4(3) of 40. This argument cannot be upheld. Directive 75/440 basically forbids this Directive 75/440 does not impose any practice, although allowing it if certain general obligation on the Commission, conditions are met. The second sentence going beyond the Commission's obligations allows water to be abstracted for drinking under Article 226 EC to examine Member water in exceptional circumstances 'on the States' implementation, to engage in dis- basis of a water resources management cussions with the Member States about the plan' within the area concerned, if this merits of notified documents. Besides, it is management plan is notified to the Com- not quite clear which legal consequences mission 'as soon as possible.' The plan must the Commission's alleged infringement be notified 'in advance' in the case of 'new should have for these proceedings. The installations'. Notification of a 'manage- French Republic itself admitted at the ment plan' is therefore one of several hearing that it could not affect the rights conditions imposed on the exceptional use

I - 1996

COMMISSION V FRANCE

45. In order to assess whether the measures 46. As regards the question whether the presented by the French Republic are French Republic has drawn up and pre- 'management plans' pursuant to those sented management plans as provided for provisions, it must first be explained that by the second sentence of Article 4(3), it the 'management plans' referred to in must therefore be concluded that only the Article 4(3) of Directive 75/440 have, as I SAGEs would appear to contain the germ see it, a purpose different to that of the of such management plans. But, according 'systematic plans of action' referred to in to its own admission, the French Republic Article 4(2). In my view, the 'water did not follow up this initiative. As far as resources management plans' referred to can be seen, it was only on 18 June 1998 in Article 4(3) have different health and that the French Republic first submitted a environmental policy objectives. In contrast systematic overview of all surface waters to the plans referred to in Article 4(2), they containing nitrates in Brittany, with are not intended to cover the monitoring of detailed information about their blending surface water critical from the point of with unpolluted surface water.

I - 1997

OPINION OF MRS STIX-HACKL — CASE C-266/99

47. As already stated, those documents 48. France has therefore failed to submit a were notified only after the expiry of the management plan justifying application of deadline for reply to the reasoned opinion. the exception provided for in the first sentence of Article 4(3) and thereby failed to satisfy the conditions for the use of surface water containing inadmissible levels of nitrates for the abstraction of drinking water.

— failed to fulfil its obligations under Article 4(3) of Directive 75/440/EEC by failing to observe the ban on the use of surface water containing inadmissible levels of nitrates for the abstraction of drinking water.

For the foregoing reasons, I propose that the Court should:

(1) declare that the French Republic has failed to fulfil its obligations under Council Directive 75/440/EEC of 16 June 1975 concerning the quality required of surface water intended for the abstraction of drinking water in the Member States by failing to take, or failing to take within the period allowed, the measures required pursuant to Article 4(1), (2) and (3) thereof;

(2) order the French Republic to bear the costs of the proceedings.

I- 1999