C-130/01

COMMISSION v FRANCE

O P I N I O N OF ADVOCATE GENERAL MISCHO deliveredon 11 July 2002 1

I — Introduction quality objectives for the 99 dangerous substances listed in an annex to the appli- cation and to have failed to communicate to the Commission summaries of those programmes and the results of their imple- 1. Council Directive 76/464/EEC of 4 May mentation, contrary to Article 7 of the 1976 on pollution caused by certain dan- Directive. gerous substances discharged into the aquatic environment of the Community 2 (hereinafter: the Directive) has been the focus of the Court's attention on a number of occasions. 3

I I — Relevant legislation

2. On this occasion, the Court is called upon to examine the action brought by the Commission concerning the implemen- tation of the Directive by the French 4. The Directive is intended to eliminate Republic. pollution from the aquatic environment caused by certain particularly dangerous substances set out in List I of the annex thereto (hereinafter: List I) and to reduce pollution of the aquatic environment by certain other dangerous substances set out 3. More specifically, the French authorities in List II of the annex thereto (hereinafter: are claimed to have failed to adopt pollu- List II). To achieve that goal, Member tion reduction programmes including States must, under Article 2 of the Direc- tive, take the appropriate steps.

1 — Original language: French. 2 —OJ 1976 L 129, p. 23. 3 — See Commission v Greece (Joined Cases C-232/95 and C-233/95 [1998] ECR I-3343); Commission v Luxembourg (Case C-206/96 [1998] ECR I-3401); Commission v Italy (Case C-285/96 [1998] ECR I-5935); Commission v Spain (Case C-214/96 [1998] ECR I-7661); Commission v Bel- gium (Case C-207/97 [1999] ECR I-275); Commission v 5. As regards the substances within List I, Germany (Case C-l 84/97 [ 1999] ECR I-7837); Commission v Greece (Case C-384/97 |2000] ECR I-3823); Commission Member States must, under Articles 3 and v Portugal (Case C-261/98 [2000] ECR I-5905) and Commission v Netherlands (Case C-152/98 [2001] ECR 5 of the Directive, subject all discharges I-3463). into the aquatic environment to prior

4. The programmes may also include spe- 8. The rules applying to the substances cific provisions governing the composition within List II are designed, under Article 2 and use of substances or groups of sub- of the Directive, to reduce water pollution stances and products and shall take into by those substances by means of appropri- account the latest economically feasible ate steps that the Member States must take. technical developments. I - 5832

COMMISSION v FRANCE

5. The programmes shall set deadlines for be drawn up on the basis of a questionnaire their implementation. or outline drafted by the Commission in accordance with the procedure laid down in Article 6 of Directive 91/692/EEC. The questionnaire or outline shall be sent to the Member States six months before the start of the period covered by the report. The report shall be sent to the Commission 6. Summaries of the programmes and the within nine months of the end of the results of their implementation shall be three-year period covered by it. communicated to the Commission.

The first report shall cover the period from 7. The Commission, together with the 1993 to 1995 inclusive. Member States, shall arrange for regular comparisons of the programmes in order to ensure sufficient coordination in their implementation. If it sees fit, it shall submit relevant proposals to the Council to this end.' ...'

10. Article 13(1) of the Directive, as amended by Council Directive 91/692/EEC of 23 December 1991 standardising and I I I— Analysis rationalising reports on the implementation of certain Directives relating to the environ- ment, 4provides:

12. The Commission takes the view that the waters into which those substances are quality objectives are, therefore, both an discharged. integral part of the programmes provided for under that article in that their absence from them would render such programmes incomplete, and the quality indicator in the light of which the decision whether to issue 15. It should be pointed out that authorisation to discharge is made. There- Article 7(3) of the Directive specifies that fore, in the absence of programmes and the programmes referred to in Article 7(1) quality objectives, authorisation cannot include quality objectives for water. It have been granted in accordance with inevitably follows, and the Commission Article 7(2) of the Directive. itself mentions this for that matter, that where there is a continued failure on the part of a Member State to lay down such objectives, it must have failed to fulfil its obligation to establish programmes. Whether or not, in such circumstances, it 13. The Commission observes that the has also failed to fulfil that obligation on French Republic has failed to implement a another ground, for example, on account of programme/programmes to reduce pollu- a failure to provide comprehensive, coor- tion by dangerous substances in accordance dinated and coherent arrangements, is with Article 7 of the Directive. It points out therefore of secondary importance in my that, notwithstanding the failure to adopt view because, in the absence of quality programmes in a manner consistent with objectives, the failure to fulfil the obli- the Directive, that observation does not gation to establish programmes would in necessarily preclude that Member State any event be found to exist. from having met the requirement to have quality objectives for the waters affected, objectives which, under Article 7(2), have to be fixed in order to be able to lay down emission standards. The Commission main- 16. I will therefore begin by considering the tains, however, that that is not the case Commission's complaint relating to those here. objectives, the second complaint raised in the application.

18. It followed that authorisation could not be granted for a new discharge of a given substance, regardless of the emission stan- 23. The French Government explains in dards applicable, where an aquatic environ- particular that it is Loi n° 64-1245, du 16 ment affected by such discharges contained décembre 1964, relative au régime et à la that substance in a quantity greater than repartition des eaux et à la lutte contre leur that which is apparent from the relevant p o l l u t i o n (Law N o 6 4 - 1 2 4 5 of quality objectives. 16 December 1964 concerning the regime and distribution of water, and water pol- lution control) 6 which defines quality objectives. 19. The Commission adds that, in the same way, emission standards, which are required to be laid down in authorisations, may not be established in general or abstract terms; they must be established 24. It adds that the Circulaire du 17 mars on a case-by-case basis with reference to 1978 relative à la politique des objectifs de the condition of the relevant aquatic qualité des cours d'eau, sections de cours environment affected so as to facilitate d'eau, canaux, lacs ou étangs (Circular of compliance with the quality objectives. 17 March 1978 concerning the quality objectives policy for watercourses, sections of watercourses, canals, lakes or ponds) set out the two levels appropriate for estab- lishing those objectives. Under the ordinary 20. The requirement to lay down such law approach, first, departmental quality objectives for each body of water and for objective charts had to be drawn up in each every substance was likewise apparent from département, those charts bringing together the Court's case-law and in particular from the quality objectives that, secondly, the its abovementioned judgment in Commis- département concerned was required to lay sion v Germany. 5 down for each watercourse in turn.

25. The French Government describes how waters needing protection or improvement those charts are an essential tool in imple- in order to support fish life, surface water menting Loi n° 76-663, du 19 juillet 1976, intended for the abstraction of drinking relative aux installations classées pour la water and bathing water. protection de l'environnement (Law No 76-663 of 19 July 1976 on facilities classified for the purpose of environmental protection). 7 Under that law, orders may 28. By Circulaire n° 90-55 du 18 mai 1990, be issued which authorise the operation of relative aux rejets toxiques dans les eaux some 65 000 industrial facilities and (Circular No 90-55 of 18 May 1990 include provisions on discharges which concerning toxic substances discharged are laid down by reference to the quality into the water; hereinafter: Circular of objectives drawn up for each watercourse. 18 May 1990), the French Ministry of the Environment had introduced, at regional level, an inventory of industrial waste which specifically covered the 132 sub- 26. According to the French Government, stances contained in List II and was to be quality objectives are established in accord- compiled from the results of investigations ance with a scale of criteria for assessing into industrial processing by classified facilities and of tests on the substances general water quality which was set up by discharged. The French Government points the Institut de recherches hydrologiques out that that inventory was compiled at (French Hydrological Research Institute) in regional level and made it possible to 1971. By reference to that scale, five review the orders granting authorisation separate water quality levels could be for such facilities where considered necess- established, the attainment of which in ary. each case being subject to observance of a large number of parameters. The French Government points out in this regard that although not all of those parameters fall within the scope of measures to control 29. With a view to strengthening the legal dangerous substances, one of them does, basis of the national rules in force, the however, specifically concern the level or French Republic had adopted Loi n° 92-3, concentration in water of dangerous sub- du 3 Janvier 1992, sur l'eau (Law No 92-3 stances deriving from industrial waste. of 3 January 1992 on water) 8 and the Nevertheless, steps were not taken to Arrêté du 1 e r mars 1993, relative aux measure the level of concentration in all prélèvements et à la consommation d'eau the waters concerned of each of the 99 ainsi qu'aux rejets de toute nature des substances contained in List II. installations classées pour la protection de l'environnement soumises à autorisation (Order of 1 March 1993 on water with- drawal and consumption, and discharges of any kind by facilities classified for the 27. Particular objectives also existed in the purpose of environmental protection and case of waters forming the subject-matter subject to authorisation). 9 Under those of particular Community directives, for provisions, quality objectives were to be example in the case of shellfish waters,

34. It was clear from the scale of criteria 30. The French Government does not dis- forming the basis of assessment of the pute the fact that it must base its system of quality objectives, which was communi- authorisation on quality objectives drawn cated to the Commission in an annex to the up individually for each watercourse. In defence, that one of those criteria, the this context it points out that it indeed has biotic index, specifically and exclusively drawn up such objectives, watercourse by relates to dangerous substances. According watercourse, and that one of the par- to the French Government, an aggregate ameters of those objectives concerns the index is also, therefore, a value expressed scale of the industrial waste discharged. as a figure, consequently making it possible to assess with precision the authorisations to be granted without fixing objectives for 31. It does, by contrast, take the view that discharges on a substance-by-substance there is no requirement for those objectives basis. to be presented as they apply to each substance and that the interpretation of the term Objective' advocated by the Commission is unworkable, too complex and calls for an unreasonable degree of 35. The defendant, unlike the Commission, cost. After all, the number of substances considers that its interpretation of the affected and the combinations of those Directive is not contradicted by any judg- substances that would have to be studied ment of the Court. It explains that the was almost infinite. Furthermore, an Court has never interpreted Article 7 of the approach of that kind, taking each sub- Directive, which is unclear on this matter, stance in turn, overlooked the combined as requiring objectives to be laid down, effects (whether positive or negative) of substance by substance, for each water- pollutants. course.

36. According to the French Government, values for the individual compounds although the Court referred in its judgment therein. To illustrate that point, it presents in Commission v Germany, cited above, to the example of the AOX parameter which the importance of laying down quality expresses the total amount of organic objectives as part of the approach of chlorine compounds and which, it claims, adopting programmes, it refers only to for technical reasons cannot be established objectives 'for all the substances' and at and monitored as regards the low concen- no stage specifies that those objectives must trations inevitable for some of the com- relate to each substance individually. Thus, pounds belonging to that family of sub- the matter in actual fact turned on whether stances. the 99 substances must individually embody a parameter covered by a measure and a quality objective or whether all or some of those 99 substances can be brought together within one parameter relating to 'dangerous substances' which would be 39. Quality objectives referred to the subject to monitoring and be covered by chemical and biological characteristics of one quality objective. the environment into which the relevant substances are discharged. Therefore, they had to be drawn up with precision and, consequently, expressed as a figure for the substance concerned, and it was impossible to work out emission standards in the 37. While questioning whether the French absence of such objectives expressed in authorities have in fact applied such com- figures. prehensive parameters at all, the Commis- sion maintains that those parameters in any event do not meet the requirements of the Directive. It explains in this regard that the quality objectives which must be drawn up pursuant to Article 7 of the Directive must 40. It must, clearly, be observed that the relate specifically to the List II substances defendant's argument is not supported in mentioned in the annex to that Directive. case-law. General objectives, such as the attainment of water that is of a high quality in environmental terms, an objective laid down without any reference to the Direc- tive, were not acceptable. 41. Thus, in its judgment in Commission v Netherlands, cited above, the Court expressly referred to the obligation to determine limit values for the 114 priority substances. 10 In that judgment it also mentions the close link between the quality 38. The Commission adds that although of the aquatic environment and the level of quality objectives may be laid down for the polluting substances. Accordingly, that sum of individual parameters, experience has shown, however, that the parameters applied do not provide sufficiently stringent 10 — Paragraph 34 thereof.

44. As to the defendant's argument that it 47. Indeed, in my view, by adopting an is impossible in practice to set objectives for approach based on reference to five overall all the substances in question, it should be levels of quality which are established on pointed out that a similar line of argument the basis of multiple parameters, only one has already been rejected by the Court in its of which covers dangerous substances, the abovementioned judgment in Commission priority that those substances are granted v Netherlands where it held that difficulties by the Directive clearly cannot be of benefit relating to identification of the substances in the control of those substances. Such an concerned cannot release a Member State approach on the contrary implies that those from the obligation to transpose the Direc- overall objectives are the result of a com- promise as between a number of consider- ations, all of which are not necessarily 11 — At paragraph 56. connected with the combating of pollution

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by the substances listed in the annex to the 51. It is therefore only for purposes of Directive. It is apparent from the wording exhaustiveness that it is necessary to exam- of Article 7 that the objectives mentioned ine whether there are other grounds for therein must, on the contrary, specifically considering that the measures communi- relate to reduction of pollution caused by cated by the French authorities do not those substances. constitute a programme within the meaning of the Directive and whether, consequently, a failure to comply with Article 7 thereof exists on two grounds.

COMMISSION v FRANCE

— include the setting of practical objec- 53. The Commission goes on to assess the tives for reducing emissions within measures adopted by the French authorities specified time-scales; in the light of those criteria.

— cover the entire State concerned; 54. First of all, it carries out a comprehen- sive analysis of the 'national programme' or of the 'programme of measures to reduce pollution caused by discharges of toxic substances' communicated in the annex to — apply to the substances and those the letter of 25 October 1991 by which the belonging to the groups of substances defendant replied to the letter of formal in List II which are liable to be present notice of 26 February 1991. In the Com- in the waters of the Member State mission's view, that programme comprises concerned, and the relevant substances a series of uncoordinated measures with no must be identified by the competent objectives or overall schedule. It therefore authorities on the basis of the results was not such as to provide any practical or obtained from studies on the waters coordinated arrangements or to set any affected, and the 99 substances men- practical objectives for reducing emissions tioned in the Commission's communi- within specified time-scales. cation of 1982 must, of course, be included in the measures taken by Member States, unless those substances have not been found in their waters;

55. The Commission notes that not all óf the waters affected in French territory are covered and that no reference whatsoever — include, as I have stated above, quality concerning territorial coverage is made in objectives drawn up on the basis of that letter. Furthermore, no documents analyses specifically targeted at the concerning any near-shore waters or areas individual bodies of water affected, of water have been communicated. those objectives serving as the point of reference for calculating the emission standards specified in the authorisations; and

substances discharged and the measures there was no overall schedule or overall regulating discharges from classified facil- objective, then that was because objectives ities) refer to the 99 priority substances, and programmes have to be determined by they cannot, however, be defined as 'pro- assessing each watercourse individually. grammes'. As regards the other measures The main provision of the French pro- contained in that 'national programme', gramme in actual fact consisted in the they did not specifically refer to the dan- juxtaposition of thousands of work sched- gerous substances in List II. In that regard ules designed to meet locally defined objec- the Commission points out that, in prac- tives and embodying as many practical tice, the Member States were able to focus arrangements. their efforts on substances mentioned by name, an approach based on the individual substance concerned which, moreover, facilitates the setting of quality objectives and by which implementation of the pro- 60. As regards the Commission's observa- grammes in question can be monitored tion that the programme is not directed at more effectively. any specific substance, the French Govern- ment explains that the dangerous sub- stances liable to be discharged into the water, the impact of such discharges into the water, the need, if at all, to carry out additional work and the timetable for 57. The Commission concludes that the completion of such work are all determined 'national programme' does not meet the upon consideration of the order to grant requirements of a 'programme' for the authorisation to the individual facility purpose of Article 7(1), (5) and (6) of the Directive. concerned.

application of the Directive in a manner objectives to reduce pollution by the dan- that is locally relevant, identifying sub- gerous substances referred to in List II or stances and carrying out work to reduce for those of the 99 priority substances discharges of those substances, there is no which are relevant in the national context benefit in identifying a particular substance for France, or any implementation dead- at national level. In so far as the pro- lines. gramme concerned is, above all, the jux- taposition of a large number of local programmes, the Commission should be taking account of the link that exists between the French rules governing classi- fied facilities and the national programme for combating pollution. 65. The applicant points out that the Directive makes a clear distinction between 'prior authorisation' and 'pollution reduc- tion programmes' and that it makes no provision whatsoever for the adoption of either of those instruments instead of the 63. Secondly, the Commission conducts a other. In its view, it cannot be argued that more detailed analysis of the various meas- the programmes in question can make ures contained in that 'national program- redundant the prior authorisation system, me' to assess whether those measures, the setting up of which is a specific either as a whole or separately, are such requirement of the Directive. The Commis- as to constitute programmes to reduce sion explains that the pollution reduction pollution by dangerous substances in programmes are designed to make arrange- accordance with Article 7 of the Directive. ments as far as possible for such reduction It explains that that programme has been to a level lower than that existing when described as consisting of five separate they were drawn up and implemented and parts, namely sectoral programmes, local to achieve this within a reasonable time- programmes to recycle the main types of scale to be specified by the competent industrial waste, measures relating to dif- authorities. From that point of view, the fuse sources (spent batteries and accumu- Commission considers it self-evident that, lators, dry-cleaning of textiles), quality vital though it is, a prior authorisation objectives and measures relating to acci- system for discharges of dangerous sub- dents. stances cannot be considered to make redundant the programmes mentioned in Article 7 of the Directive.

67. It similarly criticises the local reduction 71. As regards the measures relating to programmes mentioned by the defendant. diffuse sources, the defendant does not dispute that although those sources cannot be identified and dealt with by means of the rules governing classified facilities, they are for the most part caught, if only entirely 68. Indeed, according to the Commission, incidentally, not to say contingently, by the letter from the French authorities of general rules on the manufacture of prod- 30 July 1993 which refers to 'methodology ucts or on waste management, which problems', the 'limitations of the approach' clearly does not correspond to the concept consisting in pollution reduction pro- of the programme as provided for in the grammes implemented on a substance-by- Directive but, rather, at best, to the concept substance basis and the introduction of of measures which may be included in a minimum national discharge rules by the programme for the purpose of Article 7(4) Order of 1 March 1993 would suggest that of the Directive, a provision relied on, for the local reduction programmes have not, that matter, by the French Government in in fact, been carried out, if they were ever that context. commenced in the first place.

69. The Commission infers from the above 72. Similarly, measures relating to acci- that the 'local recycling programmes' have dents cannot constitute a programme. not been set up to deal specifically with pollution by all the relevant substances in List II.

65 000 of the 550000 French classified framework that lays down quality objec- facilities. Lastly, and in any event, the tives concerning the various watercourses Commission points out, as I have stated or areas of water. The Commission points above, that the order in question was out in this connection that it follows from annulled by the Conseil d'État on paragraph 58 of the abovementioned judg- 21 October 1996, meaning that the Direc- ment in Commission v Germany that tive could not even be transposed retro- 'neither general rules nor ad hoc measures actively. adopted by a Member State which, though comprising a wide range of water-protec- tion standards, none the less do not lay down quality objectives relating to a given watercourse or area of water can be 75. In that regard the French Government deemed to constitute a programme within contends that the body of rules governing the meaning of Article 7 of the directive'. authorisation of classified facilities covers facilities which present serious risks or drawbacks in terms of inconvenience for the neighbourhood and in terms of public health and safety, agriculture, nature con- servation and environmental protection, 77. As regards the 'long-term action pro- which includes the aquatic environment, grammes of the respective financial bodies or preservation of beauty spots and monu- of the six river authorities', in respect of ments. It therefore concludes that, by which there was nothing, in the Commis- definition, the concept of the classified sion's view, to suggest that they included facility includes fixed facilities which are any arrangements that provided for practi- liable to discharge the substances in Lists I cal objectives to reduce pollution by List II and II and adds that, where it appears that substances or implementation deadlines, a facility not subject to authorisation the French Republic draws attention to presents serious risks or drawbacks, on the importance of those programmes in account of substances discharged into the terms of quantity, claiming that they cover aquatic environment for example, the rel- all the drainage basins of metropolitan evant préfet may lay down requirements as France and make up the financial part of to the discharge values to be observed or the programme to eliminate pollution from indeed may suspend the operation of that the waters into which the dangerous sub- facility altogether. stances referred to by the Directive are discharged and, in general, all forms of industrial pollution.

79. However, the French Republic does 82. The French Government adds that the concede that whilst the action of those provisions of Article 7(1) and (4) of the authorities may contribute to the imple- Directive clearly show that the authori- mentation of the programmes mentioned sation system under which emission stan- by the Directive, it cannot in any event be a dards are laid down and calculated on the substitute for those programmes. basis of quality objectives for water must constitute a key element in programmes for eliminating pollution. It also challenges the Commission's interpretation of paragraph 28 of the judgment, cited above, in Com- mission v Germany. 80. The French Government none the less considers itself to have fulfilled its obli- gations under the Directive and to have established a 'programme' as provided for in the Directive. 83. It is apparent from the foregoing con- siderations that there are two parts to the disagreement between the Commission and the defendant. First, they have different conceptions of the scope of the obligations 81. It explains in that regard that the laid down by the Directive and, secondly, fundamental component of that pro- they consequently disagree as to whether gramme is the link made with the issuing, the defendant has fulfilled those obli- by prefectorial decision, of authorisations gations. to classified facilities on the basis of the quality objectives for the waters into which the substances concerned are to be dis- charged, and that each decision incorpor- ates a schedule of work to be carried out by the manufacturer concerned at the same time as a new order is adopted authorising 84. As regards the first point, the two the continued operation of the facility. In parties are at odds over the scope of order to facilitate the implementation of Article 7 of the Directive which, it should that mechanism, first, funding for the work be borne in mind, reads as follows: designed to eliminate pollution, which became essential as a result of the orders granting authorisation to discharge, was available through the programmes set up by the water authorities and, secondly, sectoral rules applying at all times and covering the whole of France existed for the ' 1 . In order to reduce pollution of the purpose of reducing comprehensively pol- waters referred to in Article 1 by the lution by certain types of waste. Those substances within List II, Member States rules, implemented by means of the orders shall establish programmes in the imple- granting a u t h o r i s a t i o n , constituted mentation of which they shall apply in national measures which applied to highly particular the methods referred to in para- polluting sectors. graphs 2 and 3. I - 5846

5. The programmes shall set deadlines for their implementation.

87. What is more, the defendant does not arrive at a different conclusion in its 6. Summaries of the programmes and the arguments relating to that article. It points results of their implementation shall be out that authorisation systems are a key communicated to the Commission. element in reduction programmes and that the very use in Article 7(1) of the expression 'in particular' in itself shows that other measures may be involved in those programmes. The optional nature of 7. The Commission, together with the such measures was, again, apparent from Member States, shall arrange for regular the use of the word 'may' in Article 7(4).

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88. It must be pointed out, however, that 92. In the French Government's view, the although authorisation systems are a key Court had accordingly confirmed the cen- element in reduction programmes, this by tral, if not almost exclusive, nature of the no means implies that those programmes provisions relating to the authorisation have to be confined to a system of auth- mechanism within the programmes, which orisation. was inconsistent with the Commission's argument that the programmes are separate from the system of prior authorisation.

89. This is, moreover, expressly shown by 93. Indeed, the defendant submits that the Article 7(3) of the Directive which, unlike clause introduced by 'which include' and Article 7(4), does not set out an option, that introduced by 'a requirement providing instead that the programmes that... be subject ...' both qualify the referred to in Article 7(1) are to include concept of the programme. It argues that quality objectives for water. It necessarily that paragraph should therefore be follows that such programmes cannot regarded as a definition of the programmes merely be a system of authorisation. under Article 7 of the Directive which must, in essence, require that any discharge of substances in List II be subject to auth- orisation, and, therefore, as confirmation that the French programme exists.

99. Besides, whilst the defendant, as I have shown above, challenges the Commission's arguments regarding any number of spe- cific matters, it does not, however, succeed 96. It is apparent from the case-law 13 that in demonstrating that it has set up a the programmes to be established under comprehensive and coherent programme Article 7 of the Directive 'must embody a to reduce pollution by all the priority comprehensive and coherent approach, substances in any of the waters affected. covering the entire national territory of each Member State and providing practical and coordinated arrangements for the reduction of pollution caused by any of the substances in List II which is relevant in the particular context of the Member State concerned, in accordance with the quality 100. It itself concedes that the mechanism objectives fixed by those programmes for is essentially made up of a juxtaposition of the waters affected. They differ, therefore, thousands of work schedules designed to both from general purification programmes meet locally defined objectives and and from bundles of ad hoc measures embodying as many practical arrange- designed to reduce water pollution'. ments, which would account for the absence of any overall schedule or, where appropriate, overall objective.

97. However, it must be noted, as the documents before the Court show, that I am dealing specifically with such a bundle 101. It should therefore be concluded that, of measures in these proceedings. according to the French authorities' own description, the measures they adopted do not meet the conditions listed in that case-law.

107. The defendant considers itself to have thus rebutted the Commission's criticisms in particular as regards the geographical scope of the French measures, the failure to refer in those measures to specific sub- 104. After all, the defendant points to the stances or even the extent to which those various characteristics of the authorisation measures have actually been implemented. system in order to highlight its central role as regards implementing a bundle of meas- ures, some specifically concerning the reduction of pollution by dangerous sub- stances, which includes timetabling factors and takes as its basis consideration of the 108. However, it must be observed that condition of the local waters as opposed to such a mechanism, by its very nature, one standard national value. cannot constitute a programme. Authori- sations are, after all, granted on the basis of various considerations relating to the local situation, not on the basis of comprehen- sive arrangements focused on reducing pollution in each watercourse by priority substances, which are defined from an 105. The system of authorisation covered overall perspective. all the relevant facilities since, under the relevant Law, all facilities which were liable to discharge the substances con- cerned were regarded as 'classified facil- ities'. Moreover, authorisations were 109. Even if they covered the entire terri- issued, where necessary, together with a tory and all the relevant facilities, thou- sands of local measures cannot compensate for the absence of comprehensive arrange- 14 — Commission v Belgium, cited above, at paragraph 45. ments. This point is illustrated perfectly by I - 5850

114. The French Republic maintains that it has communicated a substantial amount of information to the Commission, if only most recently in the annex to its defence. The French Government does not deny that 111. Accordingly, the breach of obligations the manner in which the documents for- under Article 7 of the Directive is also warded to the Commission during the established by virtue of the fact that the pre-litigation procedure were presented French authorities have failed to establish could have made it difficult to grasp the programmes within the meaning of that reasoning underlying its strategy for trans- provision. posing the Directive. It therefore considers

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it necessary to re-examine those documents 118. I shall therefore, purely in the alter- in order to show that the measures set out native, proceed to examine in greater detail in the various items of correspondence the arguments of the parties in that regard. indeed had been notified to the Commis- sion in accordance with Article 7(6) of the Directive.

121. As regards the 'local programmes to recycle the main types of industrial waste', the Commission points out that it did not receive notification of any laws, regulations or administrative measures forming the 117. It must therefore follow that the basis of such programmes, even though failure to fulfil obligations is established the legal framework appears to have devel- in this respect too. oped.

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122. The Commission adds that the docu- report communicated on 26 November ments communicated by the French Gov- 1996 on the implementation of the Direc- ernment as regards those local programmes tive as a programme in any event con- are very vague. It dwells on the fact that the stitutes a failure to fulfil the obligation defendant has not provided a single under Article 7(6) of the Directive; that example of one such programme, not even obligation is separate from the obligation in summary form, which, it argues, is under Article 13(1) resulting from the indeed sufficient to determine that amendment laid down by Council Directive Article 7(6) of the Directive has been 91/692/EEC. infringed, and that no items of correspon- dence from the French authorities establish that those programmes have in fact been implemented.

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COMMISSION v FRANCE

new programme that has never been noti- 137. The defendant adds that, in its view, it fied when the report in actual fact merely seems contradictory to require notification sets out the broad outline of the French of the circular relating to the inventory and programme and presents the first recorded at the same time to maintain that that results. inventory does not constitute a programme for the purposes of the Directive. However, the Commission rightly responds that, in the absence of such notification, it cannot possibly assess whether the substance of the circular meets the criteria of a programme under the Directive. 134. The defendant considers itself to have demonstrated that the abovementioned inventory has been successfully completed and communicated in the form of a sum- mary to the Commission.

— declare that, by failing to adopt pollution reduction programmes including quality objectives for the 99 dangerous substances listed in the annex to the application and by failing to communicate to the Commission summaries of those programmes and the results of their implementation, contrary to Article 7 of Council Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environ- ment of the Community, the French Republic has failed to fulfil its obligations under the EC Treaty;

— order the French Republic to pay the costs.

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