Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE COURT (Sixth Chamber)

11 June 1998 (1)

(Failure to fulfil obligations - Directive 76/464 - Water pollution - Non-transposition)

In Joined Cases C-232/95 and C-233/95,

Commission of the European Communities, represented by Maria Condou-Durande, of its Legal Service, acting as Agent, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

applicant,

v

Hellenic Republic, represented by Panagiotis Mylonopoulos and Evi Skandalou, Legal Assistants, First Class, in the Special European Community Legal Service of the Ministry of Foreign Affairs, acting as Agents, with an address for service in Luxembourg at the Greek Embassy, 117 Val Sainte-Croix,

defendant,

APPLICATION for a declaration that, by failing to establish programmes including quality objectives and setting deadlines for their implementation in order to reduce the pollution of Lake Vegorrítis and the Soulos River (in Case C-232/95) and of the Gulf of Pagasaí (in Case C-233/95) by the dangerous substances within List II 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 (OJ 1976 L 129, p. 23), and by failing to make discharges into Lake Vegorrítis and the Soulos River (in Case C-232/95) and the Gulf of Pagasaí (in Case C-233/95), which are liable to contain substances within List II, conditional on the grant of prior authorisation laying down emission standards, the Hellenic Republic has failed to fulfil its obligations under the EC Treaty and Directive 76/464, in particular Articles 2 (in Case C-232/95) and 7 (in Cases C-232/95 and C-233/95) thereof,

THE COURT (Sixth Chamber),

composed of: R. Schintgen, President of the Second Chamber, acting for the President of the Sixth Chamber, G.F. Mancini and G. Hirsch (Rapporteur), Judges,

Advocate General: G. Tesauro,

Registrar: L. Hewlett, Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 12 June 1997,

after hearing the Opinion of the Advocate General at the sitting on 26 June 1997,

gives the following

Judgment

1. By two applications lodged at the Court Registry on 5 July 1995, the Commission of the European Communities brought two actions under Article 169 of the EC Treaty for a declaration that, by failing to establish programmes including quality objectives and setting deadlines for their implementation in order to reduce the pollution of Lake Vegorrítis and the Soulos River (in Case C-232/95) and of the Gulf of Pagasaí (in Case C-233/95) by the dangerous substances within List II 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 (OJ 1976 L 129, p. 23), and by failing to make discharges into Lake Vegorrítis and the Soulos River (in Case C-232/95) and the Gulf of Pagasaí (in Case C-233/95), which are liable to contain substances within List II, conditional on the grant of prior authorisation laying down emission standards, the Hellenic Republic has failed to fulfil its obligations under the EC Treaty and Directive 76/464, in particular Articles 2 (in Case C-232/95) and 7 (in Cases C-232/95 and C-233/95) thereof.

   Directive 76/464

2. According to the seventh and ninth recitals in the preamble to Directive 76/464 and Article 2 thereof, it is intended to secure, first, the elimination of pollution of the aquatic environment caused by the discharge of various dangerous substances within an initial list, referred to as 'List I', and, second, the reduction of pollution of that environment caused by substances within a second list, referred to as 'List II'. Those two lists are annexed to Directive 76/464.

3. Article 1(1) of Directive 76/464 provides that it is to apply to inland surface water, internal coastal waters, territorial waters and ground water.

4. The term 'discharge' is defined in Article 1(2)(d) as 'the introduction into the waters referred to in paragraph 1 of any substances in List I or List II of the Annex'. 'Pollution' is defined in Article 1(2)(e) as 'the discharge by man, directly or indirectly, of substances or energy into the aquatic environment, the results of which are such as to cause hazards to human health, harm to living resources and to aquatic ecosystems, damage to amenities or interference with other legitimate uses of water'.

5. According to Article 2 of Directive 76/464, 'Member States shall take the appropriate steps to eliminate pollution of the waters referred to in Article 1 by the dangerous substances in the families and groups of substances in List I of the Annex and to reduce pollution of the said waters by the dangerous substances in the families and groups of substances in List II of the Annex, in accordance with this Directive, the provisions of which represent only a first step towards this goal'.

6. Article 7 of Directive 76/464 provides:

   '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 authorization 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.

   ...

   5. The programmes shall set deadlines for their implementation.

   ...'.

   Greek domestic law

7. At a general level, the measures taken under Greek domestic law to improve the quality of the aquatic environment include, first, Health Regulation No E1b/221/1965 laying down quality objectives for catchment areas with a view to maintaining quality objectives in the discharge of waste.

8. Second, Common Ministerial Decree No 46399/1352/86 of 27 June 1986 established new quality standards for catchment areas in accordance with Council Directives 75/440/EEC of 16 June 1975 concerning the quality required of surface water intended for the abstraction of drinking water in the Member States (OJ 1975 L 194, p. 26), 76/160/EEC of 8 December 1975 concerning the quality of bathing water (OJ 1976 L 31, p. 1), 78/659/EEC of 18 July 1978 on the quality of fresh waters needing protection or improvement in order to support fish life (OJ 1978 L 222, p. 1) and 79/923/EEC of 30 October 1979 on the quality required of shellfish waters (OJ 1979 L 281, p. 47).

9. As regards, more particularly, Lake Vegorrítis and its tributary, the Soulos River, which form the subject-matter of Case C-232/95, Common Decree No 1900 of the Prefects of Kozáni, Flórina and Pélla of 22 March 1979 provides, as a quality objective, that those waters must be made suitable for bathing and for the support of fish life.

10. On 4 September 1987 those Prefects adopted Common Decree No 10032 on the basis of quality standards conforming to the directives contained in the decree cited in paragraph 8.

11. Lastly, Decree No 555 of the Prefect of Flórina of 26 March 1990 established and specified in detail the emission standards applying to discharges of waste water and other waste into Lake Vegorrítis.

12. As regards the Gulf of Pagasaí, forming the subject-matter of Case C-233/95, Presidential Decree No 117/87 lays down the conditions for connecting the factories in the agglomeration of Vólos to the network of the DEYAMB, the public water supply and disposal undertaking serving the Vólos region. Authorisation for the connection of each installation is thereafter to be granted in accordance with Ministerial Decision 69269/5387/90, which lays down, inter alia, the quality required of discharges at the time when the authorisation is granted.

13. Discharges from the DEYAMB network are released into the Gulf of Pagasaí pursuant to Decision No 8219 of the Health Department of the Prefecture of

    Magnisía of 19 May 1994, which takes into account the environmental conditions provided for by the aforesaid Ministerial Decision 69269/5387/90 and by Decision No 119731 of the Prefect of 15 February 1978. Discharges from factories in the Vólos region which are not connected are also governed by the two latter decisions.

14. Finally, Prefectorial Decree No 8440 of 21 December 1995 has been adopted pursuant to the provisions of Common Ministerial Decrees Nos 46399/1352/86, cited above, and 18186/88; the latter decrees set out details of the authorised purposes for which the Pagasaí catchment area may be used and specify the standards to be applied in the elimination of effluents.

15. The various studies, plans and programmes concerning the state of the aquatic environment of the expanses of water and watercourses in issue, which were described during the course of the proceedings, are hereinafter referred to only in so far as may be necessary for the purposes of considering the pleas in law and arguments of the parties.

    Pre-litigation procedure

16. In response to complaints submitted to it in 1987 concerning the level of pollution of Lake Vegorrítis and its tributary, the Soulos River, and in 1989 regarding that of the waters of the Gulf of Pagasaí, the Commission requested the Greek authorities to provide information concerning the measures taken pursuant to, inter alia, Directive 76/464.

17. The Commission considered that the replies given in the two cases were inadequate; consequently, by letters of 29 June 1989 (in Case C-232/95) and 27 May 1991 (in Case C-233/95), it gave formal notice to the Hellenic Republic requiring the latter to submit its observations within two months.

18. The Greek authorities replied to the Commission by letters of 26 September 1989 and 11 September 1991, in which they described the measures taken by them.

19. The Commission considered that those measures were not in accordance with Directive 76/464; consequently, on 16 October 1992 (in Case C-232/95) and 16 May 1994 (in Case C-233/95), it sent the Hellenic Republic two reasoned opinions requesting the defendant to take the measures required by that directive within two months.

20. The Greek authorities replied to the Commission by letters of 8 August 1994.

21. The Commission considered that those replies were inadequate and brought the present proceedings.

22. By order of 20 September 1995 the President of the Court joined the two cases for the purposes of the written and oral procedure and of the judgment.

    Pleas in law of the Commission

23. The Commission relies on three pleas in law in support of its application in Case C-232/95, the first two of which are the same as the two pleas advanced in Case C-233/95.

24. By its first plea, which is the same in both cases, the Commission complains that the Hellenic Republic has infringed Article 7(1) of Directive 76/464 by failing to establish programmes to reduce the pollution of the waters in Lake Vegorrítis and the Soulos River (in Case C-232/95) and in the Gulf of Pagasaí (in Case C-233/95).

25. By its second plea, which is also the same in both cases, the Commission claims that the Hellenic Republic has infringed Article 7(2) of Directive 76/464 by failing to make discharges of waste from industrial plants and other establishments, which are liable to contain substances within List II of Directive 76/464, conditional on the grant of prior authorisation.

26. Lastly, although this finds no expression in the form of order sought by the Commission, it is clear from the grounds of the application in Case C-232/95 that the Commission also complains that the Hellenic Republic has failed to take the appropriate measures provided for in Article 2 of Directive 76/464 to reduce the pollution of the waters of Lake Vegorrítis and the Soulos River by urban waste water.

27. It should be noted, as a preliminary point, that if, as the Commission claims in its first plea, the Hellenic Republic has failed to establish programmes as provided for in Article 7(1) of Directive 76/464, no authorisations can have been granted in accordance with Article 7(2).

28. The effect of the latter provision is, in particular, to require the authorisations in question to contain emission standards which are applicable to authorised individual discharges and which have been calculated in accordance with the quality objectives previously laid down in a programme established pursuant to Article 7(1) to protect the expanses of water and watercourses in question.

29. Consequently, whilst it appears that the first plea is well founded, the second is subsumed into it and is thus rendered nugatory, so that there is no need to examine it further.

    The plea alleging a lack of programmes as provided for in Article 7(1) of Directive 76/464

    Case C-232/95

30. As regards the pollution of the aquatic environment of Lake Vegorrítis and its tributary, the Soulos River, the Commission complains that the Hellenic Republic has totally failed to establish the programmes provided for by Article 7(1) of Directive 76/464 and, more specifically, that it has not even communicated to the Commission an overall study of the level of pollution of the waters in question in order to enable a general assessment of the quality of those waters to be undertaken with reference to the substances mentioned in List II of Directive 76/464 and to determine the quality objectives in accordance with which the pollution of those waters is to be reduced.

31. According to the Commission, such a study should have been based on analyses of the quality of the waters in question. As it is, the Greek authorities are unable to produce any precise information concerning concentrations of dangerous substances in industrial waste and urban waste water discharged into their expanses of water and watercourses.

32. The Hellenic Republic refers, first, to its domestic legislation, as described in paragraph 7 et seq. of this judgment; it then proceeds to mention a number of studies and programmes. In that regard, it refers in particular to two appropriations intended, as part of a '1994-1999 environmental programme', first, for the implementation of a programme to upgrade the environment of the region encompassing Lake Vegorrítis and the Soulos River and, second, for an action programme concerning the wider ecosystem of Lake Vegorrítis. In addition, the Hellenic Republic refers to a comprehensive programme (entitled 'Master Plan') for the qualitative and quantitative management of the aquatic resources of the region, in the context of which the level of treatment of effluents and the emission standards are to be scientifically laid down.

33. At the hearing, the Hellenic Republic also drew attention to the existence of a new programme entitled 'Stability of water levels and purification of Lake Vegorrítis'. That programme, according to the Hellenic Republic, commenced on 4 July 1997 and should be completed by 2001.

34. It should be noted in that regard that the objectives of Directive 76/464 include, in particular, the reduction of pollution caused by substances which, by reason of their noxious qualities, are enumerated in List II in the annex thereto. In order to attain that objective, the Member States are required by Article 7(1) of Directive 76/464, first of all, to establish programmes laying down quality objectives in accordance with Article 7(3) of that directive.

35. In Case C-298/95 Commission v Germany [1996] ECR I-6747, paragraphs 22 and 26, the Court held that the Member States are obliged in that context not only to establish programmes for the reduction of pollution but also to establish specific

    programmes. The Court stressed that the objective of reducing pollution pursued by general purification programmes does not necessarily correspond to the more specific objective of the directive in issue.

36. Although the Hellenic Republic has submitted that (a) the '1994-1999 environmental programme' or those parts of it which relate to the aquatic environment of Lake Vegorrítis and its tributary and (b) the 'Master Plan' programme referred to above constitute programmes within the meaning of Article 7(1) of Directive 76/464, it has not shown that those two programmes relate specifically to the substances mentioned in List II; nor has it indicated the quality objectives on the basis of which the pollution caused by those substances is to be reduced.

37. Consequently, those two programmes cannot constitute programmes within the meaning of Article 7(1) of Directive 76/464. That conclusion is borne out by the existence, revealed at the hearing, of a new programme entitled 'Stability of water levels and purification of Lake Vegorrítis', which is designed, according to the Greek Government, to 'achieve the quality objectives mentioned in the Directive'.

38. Moreover, that new programme does not as such bring to an end the failure to fulfil obligations of which the Commission complains. According to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion, and subsequent changes cannot be taken into account (Case C-60/96 Commission v France [1997] ECR I-3827, paragraph 15, and Case C-289/94 Commission v Italy [1996] ECR I-4405, paragraph 20). However, as the Greek Government itself admitted at the hearing, the programme in question had not yet been implemented on the material date.

39. As regards the various legislative and regulatory measures, both ministerial and prefectorial, referred to in paragraph 7 et seq. of this judgment, the Greek Government also stated at the hearing that these could not be regarded as programmes within the meaning of Article 7(1) of Directive 76/464.

40. Consequently, it must be held that, by failing to establish specific programmes to reduce the pollution caused to the waters of Lake Vegorrítis and the Soulos River by the abovementioned substances within List II, the Hellenic Republic has failed to fulfil its obligations under Article 7(1) of Directive 76/464.

    Case C-233/95

41. With regard to the aquatic environment of the Gulf of Pagasaí, the Commission has produced a list of the various substances polluting the waters in question, and complains that the Hellenic Republic has failed to establish any programme as provided for by Article 7(1) of Directive 76/464. The decrees communicated by the

    Hellenic Republic impose limits on the discharge of industrial waste only in relation to certain substances, and furthermore are not based on any quality objectives for the reduction of existing pollution which are defined within the framework of specific programmes.

42. Having referred in the written procedure to the legislative and regulatory measures mentioned above, and in addition to a number of studies concerning the environmental situation in the Gulf of Pagasaí and the drawing up of an integrated programme established in 1995 by a special team of experts from the competent ministry, the Greek Government acknowledged at the hearing that it was not in a position to submit to the Court any specific programmes designed to implement Articles 2 and 7 of Directive 76/464.

43. It must therefore be held that, by failing to establish specific programmes designed to reduce the pollution of the waters of the Gulf of Pagasaí by the abovementioned substances within List II, the Hellenic Republic has failed to fulfil its obligations under Article 7(1) of Directive 76/464.

    The plea alleging a lack of measures as provided for in Article 2 of Directive 76/464

44. In Case C-232/95 the Commission complains that the Hellenic Republic has failed to adopt any measures within the meaning of Article 2 of Directive 76/464 to control the discharge of urban waste water into the Soulos River and Lake Vegorrítis.

45. The Hellenic Republic points out, first, that a plant for the comprehensive purification of urban waste already exists at Ptolemaís and that another plant is under construction at Amyndaion and, second, that, according to Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment (OJ 1991 L 135, p. 40), agglomerations of less than 2 000 inhabitants are not required to have a collecting system.

46. It must be observed in that regard that, according to Article 2 of Directive 76/464, 'Member States shall take the appropriate steps ... to reduce pollution of the ... waters [referred to in Article 1] by the ... substances ... and groups of substances in List II ... , in accordance with this Directive, the provisions of which represent only a first step towards this goal'.

47. Thus, although it is not impossible to construe the wording of that provision as meaning that the obligation laid down by Article 2 of Directive 76/464 is restricted to measures provided for by the directive itself, it must be observed, in any event, that the Greek Government has provided details, which have not been contested by the Commission, concerning an urban waste water purification plant which is in operation and another such plant which is under construction; moreover, under

    Directive 91/271, the Member States are not required to provide agglomerations of less than 2 000 inhabitants with collecting systems for urban waste water.

48. In those circumstances, the plea alleging infringement of Article 2 of Directive 76/464 must be rejected.

49. In view of all the foregoing considerations, it must therefore be held that, by failing to establish programmes including quality objectives and setting deadlines for their implementation in order to reduce the pollution of the waters of Lake Vegorrítis and its tributary, the Soulos River, and of the waters of the Gulf of Pagasaí, by the dangerous substances within List II of Directive 76/464, the Hellenic Republic has failed to fulfil its obligations under that directive, in particular Article 7 thereof.

    Costs

50. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the defendant has been essentially unsuccessful, it must be ordered to pay the costs.

On those grounds,

THE COURT (Sixth Chamber)

hereby:

1. Declares that, by failing to establish programmes including quality objectives and setting deadlines for their implementation in order to reduce the pollution of the waters of Lake Vegorrítis and its tributary, the Soulos River, and of the waters of the Gulf of Pagasaí, by the dangerous substances within List II 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 Hellenic Republic has failed to fulfil its obligations under that directive, in particular Article 7 thereof;

2. Dismisses the remainder of the application;

3. Orders the Hellenic Republic to pay the costs.

SchintgenMancini Hirsch

Delivered in open court in Luxembourg on 11 June 1998.

R. Grass H. Ragnemalm

Registrar President of the Sixth Chamber

---

1: Language of the case: Greek.