Conclusions
OPINION OF ADVOCATE GENERAL
MISCHO
delivered on 11 July 2002 (1)
Case C-130/01
Commission of the European Communities
v
French Republic
((Failure by a Member State to fulfil its obligations – Council Directive 76/464/EEC – Pollution of the aquatic environment – Pollution reduction programmes including quality objectives for certain dangerous substances))
I ─ Introduction
1. Council Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous 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)
2. On this occasion, the Court is called upon to examine the action brought by the Commission concerning the implementation of
the Directive by the French Republic.
3. More specifically, the French authorities are claimed to have failed to adopt pollution reduction programmes including quality
objectives for the 99 dangerous substances listed in an annex to the application and to have failed to communicate to the
Commission summaries of those programmes and the results of their implementation, contrary to Article 7 of the Directive.
II ─ Relevant legislation
4. The Directive is intended to eliminate 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 in List II of the annex thereto (hereinafter: List II). To achieve that goal, Member States
must, under Article 2 of the Directive, take the appropriate steps.
5. As regards the substances within List I, Member States must, under Articles 3 and 5 of the Directive, subject all discharges
into the aquatic environment to prior authorisation by the competent authorities and impose emission standards which must
not exceed the limit values. Those values are laid down by the Council on the basis of the substances' effects on the aquatic
environment.
6. According to its first indent, List II contains substances belonging to the families and groups of substances in List I for
which, however, the emission limit values referred to in Article 6 of the Directive have not as yet been determined by the
Council. The Council has laid down limit values for 18 substances and has received proposals concerning an additional 15.
This means that 99 substances within List I are currently included in the first indent of List II.
7. Furthermore, according to its second indent, List II contains certain substances whose deleterious effect on the aquatic environment
can be confined to a given area and depends on the characteristics and location of the water into which those substances are
discharged.
8. The rules applying to the substances within List II are designed, under Article 2 of the Directive, to reduce water pollution
by those substances by means of appropriate steps that the Member States must take.
9. Those steps are defined in Article 7 of the Directive as follows:
1. In order to reduce pollution of the waters referred to in Article 1 by the substances within List II, Member States shall
establish programmes in the implementation of which they shall apply in particular the methods referred to in paragraphs 2
and 3.
2. All discharges into the waters referred to in Article 1 which are liable to contain any of the substances within List II shall
require prior authorisation by the competent authority in the Member State concerned, in which emission standards shall be
laid down. Such standards shall be based on the quality objectives, which shall be fixed as provided for in paragraph 3.
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.
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.
5. The programmes shall set deadlines for their implementation.
6. Summaries of the programmes and the results of their implementation shall be communicated to the Commission.
7. The Commission, together with the 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 2(1) of the Directive, as amended by Council Directive 91/692/EEC of 23 December 1991 standardising and rationalising
reports on the implementation of certain Directives relating to the environment,
(4)
provides: At intervals of three years the Member States shall send information to the Commission on the implementation of this Directive,
in the form of a sectoral report which shall also cover other pertinent Community Directives. This report shall be drawn up
on the basis of a questionnaire 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 within nine months of the end of the three-year
period covered by it.The first report shall cover the period from 1993 to 1995 inclusive....
III ─ Analysis
11. In its application, the Commission observes that Member States are required, in accordance with Article 7(1) of the Directive
in conjunction with Article 1 thereof, to establish programmes which include quality objectives and are intended to reduce
water pollution within a specified period. All discharges into the waters concerned require prior authorisation by the competent
authority; such authorisation lays down emission standards which are based on the quality objectives fixed in the relevant
programmes.
12. The Commission takes the view that quality objectives are, therefore, both an 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 authorisation to discharge is made. Therefore, in the absence of programmes and
quality objectives, authorisation cannot have been granted in accordance with Article 7(2) of the Directive.
13. The Commission observes that the French Republic has failed to implement a programme/programmes to reduce pollution by dangerous
substances in accordance with Article 7 of the Directive. It points out that, notwithstanding the failure to adopt programmes
in a manner consistent with the Directive, that observation does not necessarily preclude that Member State 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 maintains, however, that that is not the case here.
14. Thus, the Commission's criticism is structured around two main points: first, it argues that the measures communicated by
the French Government which are supposedly intended to implement Article 7 of the Directive do not amount to programmes to
reduce pollution caused by all relevant substances in List II for the purposes of that article; secondly, it criticises the
French authorities for having failed to implement quality objectives for the waters into which those substances are discharged.
15. It should be pointed out that Article 7(3) of the Directive specifies that the programmes referred to in Article 7(1) include
quality objectives for water. It inevitably follows, and the Commission 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 has also failed to fulfil that obligation on another ground,
for example, on account of a failure to provide comprehensive, coordinated and coherent arrangements, is therefore of secondary
importance in my view because, in the absence of quality objectives, the failure to fulfil the obligation to establish programmes
would in any event be found to exist.
16. I will therefore begin by considering the Commission's complaint relating to those objectives, the second complaint raised
in the application.
The complaint concerning the failure to implement quality objectives for the waters into which the substances in List II are
discharged
17. As I have noted above, the applicant points out that quality objectives are the quality indicator in the light of which the
decision whether to issue authorisation to discharge is made; authorisation cannot have been issued in accordance with Article
7(2) of the Directive in the absence of such objectives. According to the Commission, those objectives have to be laid down
on the basis of consideration for the aquatic environment affected and by basin, taking into account all discharges affecting
a certain area of water, irrespective of their nature or their origin.
18. It followed that authorisation could not be granted for a new discharge of a given substance, regardless of the emission standards
applicable, where an aquatic environment affected by such discharges contained that substance in a quantity greater than that
which is apparent from the relevant 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 on a case-by-case basis with reference to the condition
of the relevant aquatic environment affected so as to facilitate compliance with the quality objectives.
20. The requirement to lay down such objectives for each body of water and for every substance was likewise apparent from the
Court's case-law and in particular from its abovementioned judgment in
Commission v
Germany .
(5)
21. The measures communicated by the French Government did not cover all the relevant bodies of water and in any event were not
caught by such a definition of quality objectives.
22. The defendant disputes the Commission's analysis, taking the contrary view that it has taken the steps required by the Directive.
23. The French Government explains in particular that it is Loi n
o 64-1245, du 16 décembre 1964, relative au régime et à la repartition des eaux et à la lutte contre leur pollution (Law No
64-1245 of 16 December 1964 concerning the regime and distribution of water, and water pollution control)
(6)
which defines quality objectives.
24. It adds that the Circulaire du 17 mars 1978 relative à la politique des objectifs de qualité des cours d'eau, sections de
cours d'eau, canaux, lacs ou étangs (Circular of 17 March 1978 concerning the quality objectives policy for watercourses,
sections of watercourses, canals, lakes or ponds) set out the two levels appropriate for establishing those objectives. Under
the ordinary law approach, first, departmental quality objective charts had to be drawn up in each département, those charts
bringing together the quality objectives that, secondly, the département concerned was required to lay down for each watercourse
in turn.
25. The French Government describes how those charts are an essential tool in implementing Loi n
o 76-663, du 19 juillet 1976, relative aux installations classées pour la 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 be issued which authorise the operation of some 65 000 industrial facilities and include provisions
on discharges which are laid down by reference to the quality objectives drawn up for each watercourse.
26. According to the French Government, quality objectives are established in accordance with a scale of criteria for assessing
general water quality which was set up by the Institut de recherches hydrologiques (French Hydrological Research Institute)
in 1971. By reference to that scale, five separate water quality levels could be established, the attainment of which in 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 dangerous substances, one of them does, however,
specifically concern the level of concentration in water of dangerous substances deriving from industrial waste. Nevertheless,
steps were not taken to measure the level of concentration in all the waters concerned of each of the 99 substances contained
in List II.
27. Particular objectives also existed in the case of waters forming the subject-matter of particular Community directives, for
example in the case of shellfish waters, waters needing protection or improvement in order to support fish life, surface water
intended for the abstraction of drinking water and bathing water.
28. By Circulaire n
o 90-55 du 18 mai 1990, relative aux rejets toxiques dans les eaux (Circular No 90-55 of 18 May 1990 concerning toxic substances
discharged into the water; hereinafter: Circular of 18 May 1990), the French Ministry of the Environment had introduced, at
regional level, an inventory of industrial waste which specifically covered the 132 substances contained in List II and was
to be compiled from the results of investigations into industrial processing by classified facilities and of tests on the
substances discharged. The French Government points out that that inventory was compiled at regional level and made it possible
to review the orders granting authorisation for such facilities where considered necessary.
29. With a view to strengthening the legal basis of the national rules in force, the French Republic had adopted Loi n
o 92-3, du 3 janvier 1992, sur l'eau (Law No 92-3 of 3 January 1992 on water)
(8)
and the Arrêté du 1
er mars 1993, relative aux prélèvements et à la consommation d'eau ainsi qu'aux rejets de toute nature des installations classées
pour la protection de l'environnement soumises à autorisation (Order of 1 March 1993 on water withdrawal and consumption,
and discharges of any kind by facilities classified for the purpose of environmental protection and subject to authorisation).
(9)
Under those provisions, quality objectives were to be fixed, taking each watercourse in turn, and those objectives were to
be taken into account by applying the rules on classified facilities, and in addition limit values were to be adopted in respect
of those substances set out in Lists I and II of the Directive for which adoption of such values was necessary. The French
Government makes it clear that limit values more stringent than those applied nationally may be adopted at prefectorial level
if, taking the water quality objectives as the basis for his analysis, the Préfet (prefect of the relevant département) considers
such a measure to be necessary, and that the Order of 1 March 1993 supplements the sectoral measures in that it lays down
a series of requirements which must be met by those industries chiefly involved in discharging the substances in question.
30. The French Government does not dispute the fact that it must base its system of authorisation on quality objectives drawn
up individually for each watercourse. In this context it points out that it indeed has drawn up such objectives, watercourse
by watercourse, and that one of the parameters of those objectives concerns the scale of the industrial waste discharged.
31. It does, by contrast, take the view that there is no requirement for those objectives 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 cost. After all, the number
of substances affected and the combinations of those substances that would have to be studied was almost infinite. Furthermore,
an approach of that kind, taking each substance in turn, overlooked the combined effects (whether positive or negative) of
pollutants.
32. In the French Government's view, by considering the objectives as a whole, the approach it has adopted, the Directive is,
on the contrary, applied properly.
33. In this regard it submits that under the French system specifically those discharges of dangerous substances covered by the
lists contained in the Directive can be measured and water quality objectives for each separate watercourse can be applied
on the basis of several parameters, one of which, it claims, relates to those substances alone.
34. It was clear from the scale of criteria forming the basis of assessment of the quality objectives, which was communicated
to the Commission in an annex to the defence, that one of those criteria, the biotic index, specifically and exclusively relates
to dangerous substances. According to the French Government, an aggregate index is also, therefore, a value expressed as a
figure, consequently making it possible to assess with precision the authorisations to be granted without fixing objectives
for discharges on a substance-by-substance basis.
35. The defendant, unlike the Commission, considers that its interpretation of the Directive is not contradicted by any judgment
of the Court. It explains that the Court has never interpreted Article 7 of the Directive, which is unclear on this matter,
as requiring objectives to be laid down, substance by substance, for each watercourse.
36. According to the French Government, although the Court referred in its judgment in
Commission v
Germany , cited above, to the importance of laying down quality objectives as part of the approach of adopting programmes, it refers
only to objectives
for all the substances and at no stage specifies that those objectives must relate to each substance individually. Thus, the matter in actual fact
turned on whether 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 subject to monitoring and be covered by one quality objective.
37. While questioning whether the French authorities have in fact applied such comprehensive parameters at all, the Commission
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 relate specifically to the List
II substances mentioned in the annex to that Directive. 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 Directive, were not acceptable.
38. The Commission adds that although quality objectives may be laid down for the sum of individual parameters, experience has
shown, however, that the parameters applied do not provide sufficiently stringent values for the individual compounds therein.
To illustrate that point, it presents the example of the AOX parameter which expresses the total amount of organic chlorine
compounds and which, it claims, for technical reasons cannot be established and monitored as regards the low concentrations
inevitable for some of the compounds belonging to that family of substances.
39. Quality objectives referred to the chemical and biological characteristics of 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 absence of such objectives expressed in figures.
40. It must, clearly, be observed that the defendant's argument is not supported in case-law.
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 of the aquatic environment and the level of polluting
substances. Accordingly, that level must be determined with precision for each of those substances; in that context data that
merely relates to such substances as a whole is insufficient.
42. In the judgment in
Commission v
Belgium , cited above, the Court likewise held that it was for the Kingdom of Belgium to fix quality objectives for the 99 substances
listed in the annex to the application in that case, the same substances as those to which the Commission refers in this case.
43. As regards the abovementioned judgment in
Commission v
Germany , on which the defendant relies, although the expression
all the substances used in paragraph 34 of the judgment provides no absolute certainty in this matter, the expression is to be construed in
the light of the judgment as a whole and, specifically, the Court's reference to pollution
by any of the substances in question.
(11)
44. As to the defendant's argument that it is impossible in practice to set objectives for all the substances in question, it
should be pointed out that a similar line of argument has already been rejected by the Court in its abovementioned judgment
in
Commission v
Netherlands where it held that difficulties relating to identification of the substances concerned cannot release a Member State from
the obligation to transpose the Directive and pointed out that the Member State in question could have contacted the Commission
or had scientific studies carried out at the appropriate time.
45. Furthermore, I share the Commission's view, which for that matter is not contested by the defendant, that the use of aggregate
parameters does not always make it possible to lay down values that are sufficiently stringent for the individual compounds
contained therein. Therefore, such parameters cannot be considered to be an appropriate quality objective under the Directive.
46. I should like to add that, even if the approach involving aggregate objectives were, in principle, compatible with the requirements
of the Directive, as it is interpreted by the Court, which it is not, I agree with the other criticisms raised by the Commission
concerning the approach adopted by the French authorities.
47. Indeed, in my view, by adopting an approach based on reference to five overall levels of quality which are established on
the basis of multiple parameters, only one of which covers dangerous substances, the priority that those substances are granted
by the Directive clearly cannot be of benefit in the control of those substances. Such an approach on the contrary implies
that those overall objectives are the result of a compromise as between a number of considerations, all of which are not necessarily
connected with the combating of pollution by the substances listed in the annex to the Directive. It is apparent from the
wording of Article 7 that the objectives mentioned therein must, on the contrary, specifically relate to reduction of pollution
caused by those substances.
48. Lastly, it is clear that the defendant fails to dispel the doubts raised by the Commission as to whether the measures at issue
have in fact been implemented. Accordingly, Law No 92-3, for instance, is a measure of general application, implemented
inter alia by the Order of 1 March 1993, which refers to many limit values but which, as the Commission points out and the French Republic
does not refute, has been annulled by the Conseil d'État (French Council of State).
49. It follows from all the foregoing considerations that by failing to establish quality objectives for the 99 substances listed
in the annex to the application, the French Republic has failed to fulfil its obligations under the Directive.
50. Moreover, since the programmes that the Member States must establish under Article 7 of the Directive include those objectives,
it necessarily follows that the defendant could not have established such programmes and that the Commission's complaint as
regards the absence of such programmes is valid.
51. It is therefore only for purposes of exhaustiveness that it is necessary to examine whether there are other grounds for considering
that the measures communicated by the French authorities do not constitute a programme within the meaning of the Directive
and whether, consequently, a failure to comply with Article 7 thereof exists on two grounds.
The complaint concerning the establishment of programmes to reduce pollution caused by the substances in List II
52. The Commission infers from the case-law relating to the Directive that the programmes referred to in Article 7 thereof must:
- ─
be specific and designed to reduce pollution caused by any of the relevant substances in List II, thereby differing both from
general purification programmes and from bundles of
ad hoc measures designed to reduce water pollution;
- ─
comprise a transparent, comprehensive and coherent structure providing practical and coordinated arrangements;
- ─
include the setting of practical objectives for reducing emissions within specified time-scales;
- ─
cover the entire State concerned;
- ─
apply to the substances and those belonging to the groups of substances in List II which are liable to be present in the waters
of the Member State concerned, and the relevant substances must be identified by the competent authorities on the basis of
the results obtained from studies on the waters affected, and the 99 substances mentioned in the Commission's communication
of 1982 must, of course, be included in the measures taken by Member States, unless those substances have not been found in
their waters;
- ─
include, as I have stated above, quality objectives drawn up on the basis of analyses specifically targeted at the individual
bodies of water affected, those objectives serving as the point of reference for calculating the emission standards specified
in the authorisations; and
- ─
be communicated to the Commission in a form which facilitates comparative appraisal and their harmonised implementation in
all the Member States.
53. The Commission goes on to assess the measures adopted by the French authorities in the light of those criteria.
54. First of all, it carries out a comprehensive 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 the letter of 25 October 1991 by which the defendant replied to the letter of formal notice
of 26 February 1991. In the Commission's view, that programme comprises a series of uncoordinated measures with no objectives
or overall schedule. It therefore was not such as to provide any practical or coordinated arrangements or to set any practical
objectives for reducing emissions within specified time-scales.
55. The Commission notes that not all of the waters affected in French territory are covered and that no reference whatsoever
concerning territorial coverage is made in that letter. Furthermore, no documents concerning any near-shore waters or areas
of water have been communicated.
56. Moreover, the
national programme did not lay down comprehensive arrangements for reducing pollution by any specific substances. The Commission states that
although some of the measures contained in that programme (such as the prerequisite that an inventory be drawn up of the substances
discharged and the measures regulating discharges from classified facilities) refer to the 99 priority substances, they cannot,
however, be defined as
programmes. As regards the other measures contained in that
national programme, they did not specifically refer to the dangerous substances in List II. In that regard the Commission points out that, in
practice, the Member States were able to focus 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 programmes
in question can be monitored more effectively.
57. The Commission concludes that the
national programme does not meet the requirements of a
programme for the purpose of Article 7(1), (5) and (6) of the Directive.
58. The French Government reasserts its view that its reply to the letter of formal notice may be regarded as a summary of the
measures taken by the French Republic pursuant to Article 7 of the Directive.
59. While observing that the Commission itself acknowledges that the Circular of 18 May 1990, annexed to the defence, includes
an objective, expressed as a figure, for pollution reduction that covers the entire territory for the period from 1985 to
1995, the defendant explains that if there was no overall schedule or overall objective, then that was because objectives
and programmes have to be determined by assessing each watercourse individually. The main provision of the French programme
in actual fact consisted in the juxtaposition of thousands of work schedules designed to meet locally defined objectives and
embodying as many practical arrangements.
60. As regards the Commission's observation that the programme is not directed at any specific substance, the French Government
explains that the dangerous substances 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 completion of such work are all determined upon consideration
of the order to grant authorisation to the individual facility concerned.
61. In particular, the French Government emphasises that the fundamental part of its action involves the criteria governing the
issue of authorisations to classified facilities, authorisations which are issued by prefectorial decision, on the basis of
the quality objectives for the waters into which substances are to be discharged. According to the French Government, those
objectives determine all the measures taken by French local authorities with a view to reducing industrial pollution.
62. The French Government therefore explains that, since what is involved is application of the Directive in a manner that is
locally relevant, identifying substances and carrying out work to reduce discharges of those substances, there is no benefit
in identifying a particular substance at national level. In so far as the programme concerned is, above all, the juxtaposition
of a large number of local programmes, the Commission should be taking account of the link that exists between the French
rules governing classified facilities and the national programme for combating pollution.
63. Secondly, the Commission conducts a more detailed analysis of the various measures contained in that
national programme to assess whether those measures, either as a whole or separately, are such as to constitute programmes to reduce pollution
by dangerous substances in accordance with Article 7 of the Directive. It explains that that programme has been described
as consisting of five separate parts, namely sectoral programmes, local programmes to recycle the main types of industrial
waste, measures relating to diffuse sources (spent batteries and accumulators, dry-cleaning of textiles), quality objectives
and measures relating to accidents.
64. As regards the
sectoral programmes, the Commission considers that they are no more than a description of the legal framework applicable (or even just contemplated),
resulting from national legislation relating to facilities classified for the purpose of environmental protection, and do
not contain any specific arrangements or objectives to reduce pollution by the dangerous substances referred to in List II
or for those of the 99 priority substances which are relevant in the national context for France, or any implementation deadlines.
65. The applicant points out that the Directive makes a clear distinction between
prior authorisation and
pollution reduction programmes and that it makes no provision whatsoever for the adoption of either of those instruments instead of the other. In its view,
it cannot be argued that the programmes in question can make redundant the prior authorisation system, the setting up of which
is a specific requirement of the Directive. The Commission explains that the pollution reduction programmes are designed to
make arrangements as far as possible for such reduction to a level lower than that existing when they were drawn up and implemented
and to achieve this within a reasonable time-scale to be specified by the competent authorities. From that point of view,
the Commission considers it self-evident that, vital though it is, a prior authorisation system for discharges of dangerous
substances cannot be considered to make redundant the programmes mentioned in Article 7 of the Directive.
66. The Commission therefore concludes that the part of the
national programme concerning
sectoral programmes cannot constitute a
reduction programme for the purpose of that provision.
67. It similarly criticises the local reduction programmes mentioned by the defendant.
68. Indeed, according to the Commission, the letter from the French authorities of 30 July 1993 which refers to
methodology problems, the
limitations of the approach consisting in pollution reduction programmes implemented on a substance-by-substance basis and the introduction of minimum
national discharge rules by the Order of 1 March 1993 would suggest that the local reduction programmes have not, in fact,
been carried out, if they were ever commenced in the first place.
69. The Commission infers from the above that the
local recycling programmes have not been set up to deal specifically with pollution by all the relevant substances in List II.
70. The French Government considers that the Commission's argument is incorrect and reflects its poor understanding of that mechanism.
It explains that the
local programme concerns reference to the orders granting authorisation issued in accordance with the body of rules governing classified
facilities, the characteristics of which, described on several occasions by the French authorities, were such as to provide
the answers to the Commission's questions concerning the local focus and time-scale of the French programme, the implementation
of the measures listed, the failure to deal specifically with the dangerous substances and the absence of any timetable.
71. As regards the measures relating to 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 incidentally, not to say contingently, by general rules on the manufacture of products or on waste management, which
clearly does not correspond to the concept of the programme as provided for in the Directive but, rather, at best, to the
concept of measures which may be included in a programme for the purpose of Article 7(4) of the Directive, a provision relied
on, for that matter, by the French Government in that context.
72. Similarly, measures relating to accidents cannot constitute a programme.
73. Thirdly, the Commission examines the other measures which, the defendant claims, are designed to implement Article 7 of the
Directive.
74. The Commission notes in particular that although the Order of 1 March 1993 indeed does lay down discharge standards for the
99 priority substances contained in List II, it by definition covers only point sources, not diffuse sources. Furthermore,
of all the point sources, the order applied only to those originating in facilities that were classified as being subject
to authorisation, that is to say it applied only to 65 000 of the 550 000 French classified facilities. Lastly, and in any
event, the Commission points out, as I have stated above, that the order in question was annulled by the Conseil d'État on
21 October 1996, meaning that the Directive could not even be transposed retroactively.
75. In that regard the French Government contends that the body of rules governing 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 conservation and environmental protection, which includes the aquatic environment,
or preservation of beauty spots and monuments. It therefore concludes that, by definition, the concept of the classified facility
includes fixed facilities which are liable to discharge the substances in Lists I and II and adds that, where it appears that
a facility not subject to authorisation presents serious risks or drawbacks, on account of substances discharged into the
aquatic environment for example, the relevant préfet may lay down requirements as to the discharge values to be observed or
indeed may suspend the operation of that facility altogether.
76. The Commission replies that the method by which the task of specifying emission standards for dangerous substances falls to
the préfet in each of his decisions to authorise a particular facility does not constitute a programme as provided for in
Article 7 of the Directive since it is based on
ad hoc measures for each of the substances at issue with no overall framework that lays down quality objectives concerning the various
watercourses or areas of water. The Commission points out in this connection that it follows from paragraph 58 of the abovementioned
judgment in
Commission v
Germany that
neither general rules nor
ad hoc measures adopted by a Member State which, though comprising a wide range of water-protection standards, none the less do
not lay down quality objectives relating to a given watercourse or area of water can be deemed to constitute a programme within
the meaning of Article 7 of the directive.
77. As regards the
long-term action programmes of the respective financial bodies of the six river authorities, in respect of which there was nothing, in the Commission's view, to suggest that they included any arrangements that provided
for practical objectives to reduce pollution by List II substances or implementation deadlines, the French Republic draws
attention to the importance of those programmes in terms of quantity, claiming that they cover all the drainage basins of
metropolitan France and make up the financial part of the programme to eliminate pollution from the waters into which the
dangerous substances referred to by the Directive are discharged and, in general, all forms of industrial pollution.
78. The work prescribed under the orders granting authorisation to classified facilities was financed in that way and those financial
bodies within the river authorities earmarked substantial funds for the completion of such work.
79. However, the French Republic does concede that whilst the action of those authorities may contribute to the implementation
of the programmes mentioned by the Directive, it cannot in any event be a substitute for those programmes.
80. The French Government none the less considers itself to have fulfilled its obligations under the Directive and to have established
a
programme as provided for in the Directive.
81. It explains in that regard that the fundamental component of that programme is the link made with the issuing, by prefectorial
decision, of authorisations to classified facilities on the basis of the quality objectives for the waters into which the
substances concerned are to be discharged, and that each decision incorporates a schedule of work to be carried out by the
manufacturer concerned at the same time as a new order is adopted authorising the continued operation of the facility. In
order to facilitate the implementation of that mechanism, first, funding for the work 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 purpose of reducing comprehensively pollution by certain types of waste. Those rules, implemented by means of the orders
granting authorisation, constituted national measures which applied to highly polluting sectors.
82. The French Government adds that the provisions of Article 7(1) and (4) of the Directive clearly show that the authorisation
system under which emission standards are laid down and calculated on the 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
Commission v
Germany .
83. It is apparent from the foregoing considerations 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 laid down by the Directive and, secondly,
they consequently disagree as to whether the defendant has fulfilled those obligations.
84. As regards the first point, the two parties are at odds over the scope of Article 7 of the Directive which, it should be borne
in mind, reads as follows:
1. In order to reduce pollution of the waters referred to in Article 1 by the substances within List II, Member States shall
establish programmes in the implementation of which they shall apply in particular the methods referred to in paragraphs 2
and 3.
2. All discharges into the waters referred to in Article 1 which are liable to contain any of the substances within List II shall
require prior authorisation by the competent authority in the Member State concerned, in which emission standards shall be
laid down. Such standards shall be based on the quality objectives, which shall be fixed as provided for in paragraph 3.
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.
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.
5. The programmes shall set deadlines for their implementation.
6. Summaries of the programmes and the results of their implementation shall be communicated to the Commission.
7. The Commission, together with the 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.
85. It is indisputable, in my view, from those provisions that the essential obligation of the Member States is to draw up programmes.
Such programmes include objectives and are implemented by means of a system of authorisation. Such authorisations are granted
by reference to the objective specified previously.
86. It therefore follows clearly from the wording of that article that authorisation systems are no more than a tool for setting
up a programme and that a Member State cannot therefore claim to have fulfilled its obligations by mere virtue of its having
established such a system.
87. What is more, the defendant does not arrive at a different conclusion in its arguments relating to that article. It points
out that authorisation systems are a key 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 such measures was, again,
apparent from the use of the word
may in Article 7(4).
88. It must be pointed out, however, that although authorisation systems are a key element in reduction programmes, this by no
means implies that those programmes have to be confined to a system of authorisation.
89. This is, moreover, expressly shown by Article 7(3) of the Directive which, unlike Article 7(4), does not set out an option,
providing instead that the programmes referred to in Article 7(1) are to include quality objectives for water. It necessarily
follows that such programmes cannot merely be a system of authorisation.
90. That conclusion also applies to the interpretation of case-law.
91. Indeed, it follows from the judgment in
Commission v
Germany , cited above, that under Article 7 of the Directive
the Member States are required,
inter alia , to adopt programmes which include both water quality objectives and a requirement that any discharge of substances in List
II be subject to prior authorisation laying down emission standards calculated on the basis of those quality objectives.
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92. In the French Government's view, the Court had accordingly confirmed the central, if not almost exclusive, nature of the provisions
relating to the authorisation mechanism within the programmes, which was inconsistent with the Commission's argument that
the programmes are separate from the system of prior authorisation.
93. Indeed, the defendant submits that the clause introduced by
which include and that introduced by
a requirement that ... be subject ... both qualify the concept of the programme. It argues that that paragraph should therefore be regarded as a definition of
the programmes under Article 7 of the Directive which must, in essence, require that any discharge of substances in List II
be subject to authorisation, and, therefore, as confirmation that the French programme exists.
94. As illustrated in the Court's use of the expression
both Y and Y, the fact remains that the Court held the establishment of a system of authorisation and the establishment of a programme
to be two different matters entirely and that consequently it is insufficient for a Member State to lay down provisions for
one of those mechanisms in order automatically to obtain the other and thereby fulfil its obligations under Article 7 of the
Directive.
95. The fact that the defendant's reasoning in terms of the scope of that provision does not stand up to examination still does
not point to any failure to fulfil obligations. I should like to explain here in this second point of my analysis that it
is necessary to ascertain whether or not the various measures which have been established by the French authorities and are
mentioned above do, all the same, constitute a programme for the purpose of the Directive.
96. It is apparent from the case-law
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that the programmes to be established under Article 7 of the Directive
must embody a comprehensive and coherent approach, 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 objectives fixed by those
programmes for the waters affected. They differ, therefore, both from general purification programmes and from bundles of
ad hoc measures designed to reduce water pollution.
97. However, it must be noted, as the documents before the Court show, that I am dealing specifically with such a bundle of measures
in these proceedings.
98. Indeed, the Commission's observations indicate that the French authorities communicated to it, as measures transposing the
Directive, a broad range of information from amongst which it appears difficult to distinguish a comprehensive set of programmes
as referred to in the case-law.
99. Besides, whilst the defendant, as I have shown above, challenges the Commission's arguments regarding any number of specific
matters, it does not, however, succeed in demonstrating that it has set up a comprehensive and coherent programme to reduce
pollution by all the priority substances in any of the waters affected.
100. It itself concedes that the mechanism is essentially made up of a juxtaposition of thousands of work schedules designed to
meet locally defined objectives and embodying as many practical arrangements, which would account for the absence of any overall
schedule or, where appropriate, overall objective.
101. It should therefore be concluded that, according to the French authorities' own description, the measures they adopted do
not meet the conditions listed in that case-law.
102. On the contrary, those measures are presented as
ad hoc measures, not comprehensive and coherent programmes for pollution reduction, based on studies of the waters affected and
setting quality objectives.
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103. This is apparent not only in view of the abovementioned assertion by the French authorities but also from the fact that the
main focus of the programmes in question, as those authorities point out, is the authorisation mechanism operating at local
level.
104. After all, the defendant points to the various characteristics of the authorisation system in order to highlight its central
role as regards implementing a bundle of measures, some specifically concerning the reduction of pollution by dangerous substances,
which includes timetabling factors and takes as its basis consideration of the condition of the local waters as opposed to
one standard national value.
105. The system of authorisation covered all the relevant facilities since, under the relevant Law, all facilities which were liable
to discharge the substances concerned were regarded as
classified facilities. Moreover, authorisations were issued, where necessary, together with a schedule requiring that the necessary work be completed
in order to achieve the quality objectives laid down in respect of the waters concerned.
106. Furthermore,
ad hoc measures imposed at prefectorial level and sectoral measures applying, where appropriate, to specific substances together
made up the mechanism.
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 substances or even the extent to which those
measures have actually been implemented.
108. However, it must be observed that such a mechanism, by its very nature, cannot constitute a programme. Authorisations are,
after all, granted on the basis of various considerations relating to the local situation, not on the basis of comprehensive
arrangements focused on reducing pollution in each watercourse by priority substances, which are defined from an overall perspective.
109. Even if they covered the entire territory and all the relevant facilities, thousands of local measures cannot compensate for
the absence of comprehensive arrangements. This point is illustrated perfectly by diffuse sources in that they are unlikely
to be caught by a system of authorisation. Another perfect illustration of that point is found in the Circular of 18 May 1990,
annexed to the defence, which itself mentions the piecemeal nature of the steps taken thus far and in which respect the Commission
points out that the circular does not cover all the substances at issue and that it does no more than request that a programme
be drawn up. Those criticisms are not rebutted by the defendant.
110. It is apparent from the foregoing that, as the Commission has pointed out, inasmuch as they are focused on the issue of authorisations,
the French rules meet a requirement other than the requirement to draw up a pollution reduction programme, given that the
authorisation system actually prescribed by the Directive is separate from the obligation to establish programmes including
water quality objectives. Therefore, it would be incorrect to consider the French Government as having fulfilled its obligations
under the Directive on the ground that a system of prior authorisation had been set up.
111. Accordingly, the breach of obligations under Article 7 of the Directive is also established by virtue of the fact that the
French authorities have failed to establish programmes within the meaning of that provision.
Thecomplaint concerning the failure to notify programmes
112. The Commission complains that the French Republic has also infringed Article 7 of the Directive by having failed to communicate
summaries of the programmes and the results of their implementation. It draws attention to the particular importance in these
circumstances of that obligation to communicate since such communication has to enable the Commission, in accordance with
Article 7(7), together with the Member States, to arrange for regular comparisons of the programmes in order to ensure sufficient
coordination in their implementation and, if it sees fit, to submit relevant proposals to the Council to that end.
113. The Commission points out that a large number of documents were not communicated to it within the appropriate time and that
the information it received was not presented in a format that lent itself to comparison with the programmes of other Member
States, a measure provided for in the Directive.
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 the manner in which the documents forwarded
to the Commission during the pre-litigation procedure were presented could have made it difficult to grasp the reasoning underlying
its strategy for transposing the Directive. It therefore considers it necessary to re-examine those documents in order to
show that the measures set out in the various items of correspondence indeed had been notified to the Commission in accordance
with Article 7(6) of the Directive.
115. Lastly, while accepting that failure to communicate measures to the Commission was inevitable in view of the highly decentralised
nature of the programme, the French Government none the less submits that the French authorities are occupied in the drawing
up of instruments with a view to improving the supply of information and communication to the Commission of the results obtained.
116. However, the fact remains on any view that the measures adopted by the French authorities did not constitute a programme for
the purposes of the Directive, as I have already established. It necessarily follows that those authorities could not have
communicated such a programme to the Commission, regardless, moreover, of the information they forwarded to the Commission.
117. It must therefore follow that the failure to fulfil obligations is established in this respect too.
118. I shall therefore, purely in the alternative, proceed to examine in greater detail the arguments of the parties in that regard.
119. On a number of occasions, the Commission dwells on the shortcomings of the information it received from the French authorities.
120. Thus, for instance, it observes that the specific results ensuing from implementation of the
national programme were never communicated to it. As regards the
sectoral programmes, to which the defendant refers, the Commission points out that it never received any notification of their results in terms
of pollution reduction, nor any information on how they were developing in the light of technical developments and changes
in the legal framework. Nor had it been informed as to whether the 10 industrial sectors covered by those programmes were
the only ones to discharge the 99 priority substances relevant in the national context for France.
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 basis of such programmes, even though the legal framework appears to have developed.
122. The Commission adds that the documents communicated by the French Government as regards those local programmes are very vague.
It dwells on the fact that the defendant has not provided a single example of one such programme, not even in summary form,
which, it argues, is indeed sufficient to determine that Article 7(6) of the Directive has been infringed, and that no items
of correspondence from the French authorities establish that those programmes have in fact been implemented.
123. The applicant raises similar complaints with regard to the measures concerning diffuse sources.
124. As to the system of prior authorisation for discharges, the Commission observes that it did not receive notification of the
Order of 25 April 1995 supplementing the Order of 1 March 1993. This was also true of the results of the inventory of substances
discharged into the water, any reference to which, it claims, in the end was not contained in any correspondence sent by the
French Government, and consequently there was no proof of the inventory's completion. Similarly, the Commission maintains
that it did not receive any notification of the legal framework for the
long-term action programmes of the respective financial bodies of the six river authorities.
125. The Commission adds that the fact that the French Government failed to refer to the various aspects contained in the report
communicated on 26 November 1996 on the implementation of the Directive as a programme in any event constitutes a failure
to fulfil the obligation under Article 7(6) of the Directive; that obligation is separate from the obligation under Article
13(1) resulting from the amendment laid down by Council Directive 91/692/EEC.
126. It also points out that that report comprises unexplained, substantive inconsistencies as compared with the previous items
of correspondence sent by the French Government, which likewise concern the implementation of the Directive, in that, it claims,
reference is no longer made in that report to any national programme or local recycling programmes, or to the measures concerning
diffuse sources and accidents. On the contrary, it made references merely to a
programme with no identifying features and to a programme relating to the Nord-Pas-de-Calais region, a copy of which was not received
by the Commission either.
127. The Commission states that the Circular of 18 May 1990, also mentioned in the 1996 report, was not communicated to it.
128. The defendant, also in this respect, points to the essential nature of orders granting authorisation
vis-à-vis its pollution reduction programme.
129. In that regard, the French Government first of all makes it clear that it indeed did notify the method it applied to the Commission,
in particular in the reply to the letter of formal notice and in subsequent documentation, and that, rather than containing
a summary of a new programme, the report of 26 November 1996 did no more than set out the broad outline of the French programme,
the essential focus of which, that is to say that work should be carried out in classified facilities in the event that the
discharges from such facilities do not meet the water quality objectives laid down at local level, had been determined right
at the outset.
130. Relying on the judgment in
Commission v
Germany , cited above,
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the French Government submits that it did not see fit to notify every analysis of the discharges concerned and every decision
requiring that work be carried out because the essential objective involved in communicating programmes to the Commission
was to arrange for
comparisons of the programmes implemented for the purpose of sharing experiences or facilitating the drawing up of future Community rules.
In its view therefore, it is more the link between the combating of water pollution and the authorisation system for classified
facilities, rather than the details of every works project undertaken, that seems relevant as far as the comparison provided
for under Article 7(7) of the Directive is concerned.
131. It is, after all, clear in the French Government's view that the Commission is not requesting notification of every analysis
made of the discharges concerned or notification of all the work projects required to be undertaken inasmuch as the main objective
involved in communicating programmes to the Commission is, ultimately, to achieve the most effective system possible as a
result of the Member States' contributions.
132. As regards the failure to notify
local programmes, the French authorities maintain that such programmes are covered by the mechanism contained in the second part of the reply
to the letter of formal notice and that their legal basis, Article 68 of the order concerning discharges from classified facilities,
has indeed been communicated to the Commission. They emphasise that this is not a matter concerning documents that should
have been communicated to the Commission; what is involved is, rather, a term describing the means by which recourse may be
had to orders granting authorisation.
133. The defendant therefore considers that it has communicated a national programme, its description clearly presenting the major
principles thereof: application at local level by means of the rules on classified facilities in connection with the locally
defined quality objectives, part-financing of the work by the water authorities and sectoral measures or measures on a product-by-product
basis for the minority of cases where the discharges do not issue from classified facilities. It therefore considers it incorrect
to describe the 1996 report as a summary of an entirely new programme that has never been notified when the report in actual
fact merely sets out the broad outline of the French programme and presents the first recorded results.
134. The defendant considers itself to have demonstrated that the abovementioned inventory has been successfully completed and
communicated in the form of a summary to the Commission.
135. Finally, it submits that the Circular of 18 May 1990 was informally communicated to the Commission by fax on 27 June 2000
and was, in any event, annexed to the defence.
136. It should, however, be pointed out that, for the purpose of establishing whether there has been an infringement, only the
information communicated prior to expiry of the period prescribed by the reasoned opinion is to be taken into account.
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Furthermore, information communicated in a purely informal manner cannot be regarded as the notification of measures transposing
a directive.
137. The defendant adds that, in its view, it seems contradictory to require notification of the circular relating to the inventory
and at the same time to maintain that that 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.
138. In the light of the foregoing, it is clear that the French Republic does not answer all the criticisms raised by the Commission.
Furthermore, and in particular, it itself accepts, as I have already shown, that, owing to the different terminology used
as well as the highly decentralised nature of its programme, there was room for improvement in terms of supplying information
to the Commission and that steps must be taken to remedy that situation.
139. Accordingly, the failure to fulfil obligations is in any event established.
Conclusion
140. In the light of the foregoing considerations, I propose that the Court should:
- ─
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 environment of the Community, the French Republic has failed to fulfil
its obligations under the EC Treaty;
- ─
order the French Republic to pay the costs.
- 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
Belgium (Case C-207/97 [1999] ECR I-275);
Commission v
Germany (Case C-184/97 [1999] ECR I-7837);
Commission v
Greece (Case C-384/97 [2000] ECR I-3823);
Commission v
Portugal (Case C-261/98 [2000] ECR I-5905) and
Commission v
Netherlands (Case C-152/98 [2001] ECR I-3463).
- 4 –
- OJ 1991 L 377, p. 48.
- 5 –
- Paragraphs 33 to 36 thereof.
- 6 –
- JORF, 18 December 1964, p. 11258.
- 7 –
- JORF, 20 July 1976, p. 4320.
- 8 –
- JORF, 4 January 1992, p. 2946.
- 9 –
- JORF, 28 March 1993, p. 5283.
- 10 –
- Paragraph 34 thereof.
- 11 –
- At paragraph 56.
- 12 –
- Paragraph 28 thereof.
- 13 –
- . Commission v
Belgium , cited above, at paragraphs 39 to 41.
- 14 –
- . Commission v
Belgium , cited above, at paragraph 45.
- 15 –
- Paragraphs 31 and 32 thereof.
- 16 –
- Case C-119/00
Commission v
Luxembourg [2001] ECR I-4795.
