// Case C-282/02 - Judgment - dangerous substances aquatic
JUDGMENT OF THE COURT (Second Chamber)
2 June 2005 (*)
(Failure of a Member State to fulfil obligations - Water pollution - Directive 76/464/EEC)
In Case C-282/02,
ACTION under Article 226 EC for failure to fulfil obligations, brought on 31 July 2002,
Commission of the European Communities, represented by M. Shotter, acting as Agent, with an address for service in Luxembourg,
Ireland, represented by D.J. O'Hagan, acting as Agent, and A.M. Collins, BL, with an address for service in Luxembourg,
THE COURT (Second Chamber),
composed of C.W.A. Timmermans, President of the Chamber, R. Silva de Lapuerta (Rapporteur), C. Gulmann, J. Makarczyk and P. K?ris, Judges,
Advocate General: M. Poiares Maduro,
Registrar: R. Grass,
having regard to the written procedure,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
1 By its application, the Commission of the European Communities seeks a declaration by the Court that, in failing to take all of the measures necessary to ensure a correct transposition and application 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) (‘the Directive'), Ireland has failed to comply with its obligations under that directive, in particular Articles 7 and 9 thereof, and with its obligations under the EC Treaty.
The legal framework
2 The Directive seeks to protect the aquatic environment of the Community against pollution. To that end, it draws a distinction between two categories of dangerous substances coming respectively under List I and List II in the annex thereto. List I sets out substances that are particularly dangerous for the aquatic environment and have been selected mainly on the basis of their toxicity, their persistence and their bioaccumulation. List II contains substances which have a deleterious effect on the aquatic environment but which can, however, be confined to a given area and depend on the characteristics and location of the water into which they are discharged. That annex states that the substances contained in List I for which the limit values referred to in Article 6 of the Directive have not been determined are to be treated as List II substances.
3 Article 1(1) of the Directive provides that the latter is to apply to inland surface water, territorial waters, internal coastal waters and ground water.
4 Article 1(2) of the Directive sets out a number of definitions, including definitions of the terms ‘discharge' and ‘pollution'. ‘Discharge' is defined in Article 1(2)(d) as follows: ‘the introduction into the waters referred to in paragraph 1 of any substances in List I or List II of the Annex, with the exception of:
- discharges of dredgings,
- operational discharges from ships in territorial waters,
- dumping from ships in territorial waters'.
5 ‘Pollution' is defined in Article 1(2)(e) of the Directive as meaning ‘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'.
6 Article 2 of the Directive imposes an obligation on Member States to take the appropriate steps to eliminate pollution of water by the substances mentioned in List I of the annex to the Directive and to reduce pollution by the substances mentioned in List II of that annex.
7 Article 7 of the Directive provides 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.'
8 The second sentence of Article 8 of the Directive requires Member States to prohibit all acts which intentionally or unintentionally circumvent the provisions of the Directive.
9 Article 9 of the Directive provides that application of the measures taken pursuant to the Directive may on no account lead, either directly or indirectly, to increased pollution of the waters referred to therein.
10 Article 10 of the Directive provides that, where appropriate, one or more Member States may individually or jointly take more stringent measures than those provided for under the Directive.
11 The Directive did not lay down any express time-limit for its implementation. Article 12(2) thereof provides that ‘[the] Commission shall, where possible within 27 months following notification of this Directive, forward the first proposals made pursuant to Article 7(7). The Council, acting unanimously, shall take a decision within nine months.'
12 In a letter of 3 November 1976, the Commission proposed the following dates to the Member States for implementation of the Directive: 15 September 1978 for the authorisation system; 15 September 1981 for adoption of the programmes to reduce pollution by List II substances; and 15 September 1986 for implementation of those programmes.
13 Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (OJ 2000 L 327, p. 1) contains several provisions which relate to the Directive.
14 In particular, Article 22(2) of Directive 2000/60 is worded as follows:
‘The following shall be repealed with effect from 13 years after the date of entry into force of this Directive:
- Directive 76/464/EEC ...'
The pre-litigation procedure
15 Following a complaint, the Commission sent a formal letter of notice to Ireland on 4 February 1991 in which it stated that that Member State had failed to forward summaries of the pollution reduction programmes for certain substances covered by List II of the annex to the Directive.
16 The Commission sent a new letter of formal notice to Ireland on 23 December 1992 in which it contended, inter alia, that the Irish legislation did not correctly transpose Article 7 of the Directive. According to the Commission, that legislation failed to make pollution reduction programmes mandatory and failed adequately to provide for the laying down of quality objectives and an authorisation system for sewers. The Commission added that there had been failures to implement Article 7 of the Directive in a number of specific areas. Ireland replied by letter of 30 July 1993.
17 On 14 February 1996, after investigating a number of complaints relating to Irish marine fish farms, the Commission sent a letter of formal notice to Ireland in which it drew that Member State's attention to the fact that it was not applying Article 7 of the Directive to such farms.
18 Ireland replied to the Commission by letters of 11 and 14 June 1996, providing details as to its position in respect of Article 7.
19 In addition to that of 23 December 1992, the Commission sent a further letter of formal notice to Ireland on 3 October 1996.
20 On 12 June 1997 the Commission sent to Ireland a reasoned opinion in which it brought together those different procedures and addressed the various failures by that Member State which constituted breaches of Articles 7 and 9 of the Directive, in particular the failure to finalise pollution-reduction programmes and/or to communicate programme summaries and implementation results, failures in relation to mandatory implementation methods (that is to say, quality objectives, authorisations and emission standards) and the failure to prevent the emergence and worsening of widespread phosphorous pollution of fresh water.
21 On 11 June 1997, that is to say, the day before that reasoned opinion was dispatched, Ireland sent to the Commission a letter setting out a catchment-based strategy to counter eutrophication of Ireland's rivers and lakes. That strategy sought to combat the problem of phosphorous pollution referred to in the reasoned opinion.
22 Following an extensive exchange of correspondence between Ireland and the Commission, the latter sent to Ireland a supplementary reasoned opinion on 28 July 2000 in which it declared that, by failing to take all of the measures necessary to ensure correct transposition and application of the Directive, Ireland had failed to fulfil its obligations under the Directive, in particular Articles 7 and 9 thereof, and under the EC Treaty, and requested Ireland to take the necessary measures to comply with that opinion within two months of its notification.
23 On 2 February 2001 Ireland, in response to the reasoned opinion, notified to the Commission new legislation, namely the Water Quality (Dangerous Substances) Regulations 2001 of 30 January 2001 (S.I. No 12 of 2001) (‘the 2001 Regulations'). These new regulations lay down quality objectives for atrazine, dichloromethane, simazine, toluene, tryibutylin, xylenes, arsenic, chromium, copper, cyanide, fluoride, lead, nickel and zinc. Ireland stated that these new provisions were being notified in accordance with Directive 2000/60.
24 On 6 April 2001 Ireland forwarded to the Commission a copy of a report drawn up by the Irish Environmental Protection Agency on the presence of 78 dangerous substances in Irish surface waters.
25 Ireland notified a number of other measures to the Commission on 30 July 2001, including local bye-laws designed, inter alia, to give effect to the Directive as well as to Directive 2000/60.
26 On 15 February 2002, Ireland sent to the Commission a copy of a published report on the progress achieved by Irish local authorities in implementing phosphorous pollution reduction measures.
27 As it was not satisfied by the explanations provided by Ireland, the Commission decided to bring the present action.
The period within which the Directive had to be transposed
28 It should be noted at the outset that the Directive does not expressly lay down a period within which Member States are required to transpose it. Before the Court rules on whether or not the Commission's heads of complaint are well founded, it is necessary to determine whether the Member States were none the less required to comply with their obligations under that directive within a given period of time.
29 Article 12(2) of the Directive requires the Commission to forward to the Council, where possible within 27 months following notification of that directive, the first proposals for comparisons of the programmes established by the Member States pursuant to Article 7(7) of the Directive.
30 Article 12(2) does not, admittedly, lay down a mandatory time-limit. The expression ‘where possible' featuring in its wording makes it clear that this is not a period that is binding in nature. None the less, by providing for a relatively short period for the evaluation of the first results of the implementation of the Directive, Article 12 is intended to prevent late application of the Directive's provisions.
31 Furthermore, a directive, the transposition of which could remain suspended indefinitely, would be rendered meaningless and entirely ineffective. The purpose of the Directive, namely to eliminate or reduce water pollution, requires that it be transposed within a reasonable period of time in order to guarantee that it will be effective. If there is no transposition over a prolonged period, there will be no control over situations favouring the proliferation of pollution, something which would render the Directive entirely ineffective.
32 So far as concerns the concept of a ‘reasonable period', it should be borne in mind that the Commission proposed to the Member States, by letter of 3 November 1976, that they select 15 September 1978 for the authorisation system, 15 September 1981 for adoption of the programmes, and 15 September 1986 for implementation of those programmes. Ireland did not at that time call those dates into question. Furthermore, as protection of the environment is of fundamental importance within the context of the definition and implementation of the Community's policies and actions, a prompt reply on the part of the national authorities could have been required for the purpose of remedying the problems of water pollution.
33 In the light of those considerations, the view must be taken that, while it is true that, in contrast to normal practice, the Directive does not set out any period for its transposition, that does not mean that the Member States are free to adopt measures for its implementation within periods which they alone consider to be adequate. In view of the need to guarantee the effectiveness of the Directive and of the fact that the dates proposed by the Commission for the progressive implementation of the Directive were not contested at the time by Ireland, that Member State was under an obligation to transpose the Directive within a reasonable period of time.
34 It must be held that, when the pre-litigation procedure was instituted, a reasonable period of time for transposition of the Directive had already elapsed.
The first head of complaint: failure to comply with the provisions of Article 7(1) of the Directive
Arguments of the parties
35 In its first head of complaint, the Commission criticises Ireland for its failure to establish pollution reduction programmes for all of the substances covered by List II, contrary to the requirements of Article 7(1) of the Directive.
36 Ireland argues that the obligation imposed on it by Article 7(1) of the Directive extends to those substances only when they are detected or liable to be detected in the waters coming under its jurisdiction. It accordingly takes the view that its obligation to establish programmes for all of the substances contained in List II of the Directive has to be construed as being conditioned by the particular context of that Member State.
37 Ireland also states that it has implemented programmes for each of the substances set out in List II in respect of which it was required to do so. In the absence of significant pollution, whether actual or potential, or of discharges containing those substances, it submits that it is not required to establish the programmes contemplated in Article 7 of the Directive in regard to those substances.
Findings of the Court
38 It must be noted at the outset that, according to the Court's case-law, the programmes to be established under Article 7 of the Directive must be specific. The specific nature of the programmes in question lies in the fact that they must embody a comprehensive and coherent approach, providing practical and coordinated arrangements covering the entire national territory for the reduction of pollution caused by any of the substances in List II which is relevant in the particular context of each Member State, in accordance with the quality objectives fixed by those programmes for the waters affected (Case C-207/97 Commission v Belgium  ECR I-275, paragraphs 39 and 40). The concept of ‘programmes' thus implies a series of coordinated, integrated and comprehensive measures.
39 From that perspective, it is appropriate to examine whether the national measures adopted by Ireland satisfy those criteria. Those measures are as follows:
- the Local Government (Water Pollution) Act 1977 (Water Quality Standards for Phosphorous) Regulations of 24 July 1998 (S.I. No 258 of 1998) (‘the 1998 Regulations'), which lay down mandatory objectives for phosphorous;
- the 2001 Regulations fixing quality objectives for 14 other substances;
- a number of municipal regulations designed to give effect to both the Directive and the 1998 Regulations.
Those measures include the establishment, as the basis for a programme, of quality objectives for phosphorous and 14 other substances.
40 First, with regard to the 14 substances covered by the 2001 Regulations, the latter came into force after the period set in the supplementary reasoned opinion had elapsed, a fact acknowledged by the Irish authorities in their statement of defence. The question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation in that Member State as it stood at the end of the period laid down in the reasoned opinion, and the Court cannot take account of any subsequent changes (Case C-289/94 Commission v Italy  ECR I?4405, paragraph 20). It must for that reason be stated that, when the period granted it expired, Ireland had not established pollution reduction programmes for all of the substances in respect of which it was required to do so.
41 Second, with regard to the description of the 1998 Regulations as a measure to establish a pollution reduction programme for phosphorous, it must be noted that that programme does not encompass all surface waters in the country inasmuch as canals are not affected by the quality objectives established by those regulations. Ireland acknowledges in its statement of defence that it did not establish quality objectives for canals in respect of phosphorous and that it thus failed in its obligation to comply with the requirement that it establish such objectives for all surface waters in the country.
42 So far as concerns the municipal regulations designed to give effect to the Directive, suffice it to note that it appears from the case-file that the notification of 30 July 2001 sent by Ireland indicated that it related solely to regulations drawn up by four local authorities and relating to agricultural activities. Ireland also stated in that notification that other regulations were in the process of being drafted by several local authorities.
43 Regard being had to the foregoing, it must be held that, by not establishing pollution reduction programmes for all of the substances in respect of which it was required to do so under the Directive, Ireland has failed to fulfil its obligations under Article 7(1) thereof.
The second head of complaint: failure to comply with the provisions of Article 7(3) of the Directive
Arguments of the parties
44 By its second head of complaint, the Commission submits that Ireland has failed to establish quality objectives, contrary to the requirements of Article 7(3) of the Directive. This head of complaint is in turn divided into two limbs.
45 By the first limb, the Commission submits that that Member State has failed to establish quality objectives for substances other than phosphorous and the 14 substances covered by the 2001 Regulations.
46 By the second limb, the Commission contends that the 1998 Regulations, which seek to establish quality objectives for phosphorous, do not comply with the requirements of the Directive. The Commission invokes several factors, namely the failure to provide a quality rating for all water masses in the country, the fact that the Irish authorities confined themselves to making observations, which is not equivalent to allocating a quality rating, the delay - 20 years after the Directive was adopted - in making such observations, non-compliance with the Directive's definition of the term ‘pollution', and the unreliability of the methods of analysis which Ireland adopted in respect of lakes.
47 The Irish authorities dispute the Commission's allegations, pleading, first, the scope of the surveillance methods adopted, second, the consideration taken of the 1998 Regulations as an interim measure designed to attain the objective of improving the waters specifically covered by those regulations, and, third, the freedom to choose the method of analysis for the water quality of lakes, in view of the fact that the Directive does not require that one or other method of analysis be adopted.
Findings of the Court
48 It is necessary to declare at the outset that, even though Ireland states that it has in fact complied with the requirements of Article 7 of the Directive, that State acknowledges in its statement of defence that, when the period set in the supplementary reasoned opinion expired, it had not adopted all of the measures required by Article 7(3) of the Directive.
49 In particular, with regard to the first limb of this second head of complaint, Ireland takes the view that the obligation to establish quality objectives for the substances on List II of the annex to the Directive is conditioned by the particular context of each State. It does, however, acknowledge in its statement of defence that it adopted quality objectives only for phosphorous and 14 other substances, in the case of the latter four months after the period set in the reasoned opinion had expired. By contrast, no objective was established for a number of substances derived from the industrial sector, as the Commission notes in its application.
50 In those circumstances, it is clear that the first limb of this second head of complaint is well founded.
51 With regard to the second limb of the second head of complaint, in relation first to Ireland's argument concerning the extent of the measures for the surveillance of the quality of water masses in the country, it has already been stated in paragraph 41 of this judgment that the 1998 Regulations do not encompass all surface waters of the country inasmuch as canals are not included within their scope. Moreover, the comments relating to lakes cover only 65% of the total surface of lakes in the country, as Ireland acknowledges in its rejoinder. Further, Ireland limited itself to making mere observations on the quality of water. While it may constitute an important element for the definition of the quality objectives, the making of mere observations is not equivalent to the establishment of such quality objectives. Viewed from that angle, the argument put forward by Ireland cannot be accepted.
52 With regard, next, to the failure to comply with the definition of the term ‘pollution' given by the Directive, Ireland points out that the 1998 Regulations constitute an interim measure designed to bring about improvements in the quality of the waters specifically covered by those Regulations and must for that reason be regarded as a pragmatic effort to deal with the problem of phosphorous pollution in fresh water in Ireland, while at the same time setting standards that are more stringent than those employed in the legislation of other Member States.
53 As the Court has already ruled, the fact that a Member State claims that it has set itself more ambitious objectives than those pursued by a given directive does not relieve that Member State of its obligation to comply, at the very least, with the requirements laid down in that directive (see Case C-292/99 Commission v France  ECR I-4097, paragraph 48).
54 The fact of describing the 1998 Regulations as an interim measure, the results of which relate to 2007, does not make it possible to treat those regulations as being adequate for the purpose of giving effect to the obligations deriving from Article 7(3) of the Directive, even though the Irish authorities are contemplating the adoption of more stringent quality objectives. The argument put forward by Ireland cannot, in those circumstances, be accepted.
55 Finally, as far as the reliability of the system for the analysis of the quality of lake water is concerned, two studies prepared by the Central Fisheries Board and the Environmental Protection Agency and annexed by the Commission to its application place in question the reliability of the system whereby samples are taken from the centre of lakes. As Ireland has not produced any evidence to gainsay the arguments put forward in the light of those documents, its argument on this point must also be treated as being unfounded.
56 In the light of the foregoing, it must be held that, by not establishing quality objectives in accordance with the requirements of Article 7(3) of the Directive, Ireland has failed to fulfil its obligations under that provision.
The third head of complaint: breach of Article 7(2) of the Directive
Arguments of the parties
57 The Commission criticises Ireland on the ground that it has failed to establish an authorisation system in accordance with Article 7(2) of the Directive, invoking, by way of example, certain polluting discharges that are not subject to such authorisation.
58 The Commission submits that Ireland has made no provision for a system of prior authorisation in respect of certain local authority discharges.
59 Likewise, according to the Commission, the discharges of List II substances from Irish marine structures are not subject to prior authorisation.
60 The Commission also submits that Irish legislation does not guarantee that phosphorous discharges from agricultural installations will be subject to authorisation or, in the absence of such authorisation, prohibited, even though these are among the most significant sources of pollution.
61 Finally, the Commission criticises the fact that the phosphorous discharges resulting from aerial spraying in relation to afforestation are not subject to prior authorisation.
62 Ireland disputes those allegations. In particular, with regard to discharges from drainage under local authority responsibility, Ireland avers that these are governed by the Urban Waste Water Treatment Regulations of 14 June 2001, which correctly implement Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment (OJ 1991 L 135, p. 40).
63 With regard to storm water overflows under the responsibility of local health authorities, Ireland acknowledges that it has not established an authorisation system. It does, none the less, take the view that it is not obliged to establish such a system for overflows by reason of the discretion conferred on Member States by Directive 91/271, which, in addition to the system of prior authorisation specific to that directive, also allows the implementation of general regulations. The Regulations of 14 June 2001, cited above, it is argued, fulfil that role of prior general regulations in Ireland. Furthermore, legislation is at present being drafted in order to require prior authorisation for discharges produced by local authorities in cases where these are not yet subject to statutory standards and/or a system of prior authorisation.
64 With regard to marine installations, Ireland invokes the Fisheries (Amendment) Act 1997, although it acknowledges that the provisions of that statute relate only to the regulation of discharges from aquaculture installations. However, according to Ireland, those provisions should be read in conjunction with those of the Foreshore Acts 1933-1998, which require authorisation to be obtained from the Minister for any development of the foreshore.
65 With regard to pollution from agricultural installations, Ireland takes the view that some leaks of contaminated fluids from agricultural installations are unintentional and, in many instances, accidental. While it acknowledges that prior authorisation might be required under the provisions of the Directive for those places in which discharges are foreseeable, the appropriate response, in the case of unintentional or accidental discharges, is, it argues, to request those responsible to rectify the situation as far as possible and, if need be, to impose fines.
66 With regard to aerial spraying of fertilisers on forest sites, Ireland submits that this activity has always been subject to prior authorisation by the national regulatory authority and that, since January 2002, a special authorisation procedure is prescribed for such spraying.
67 Finally, Ireland takes issue with an argument put forward by the Commission in its application to the effect that the prohibitory regime established by section 3(1) of the Local Government (Water Pollution) Act 1977 (‘the 1977 Act') does not constitute a stricter system than that of authorisation. Section 3(1) of that act provides that ‘a person shall not cause or permit any polluting matter to enter waters' and is for that reason, according to Ireland, a more stringent measure within the terms of Article 10 of the Directive.
Findings of the Court
68 As a preliminary point, it should be noted that, as the Court has already ruled on numerous occasions, it follows inter alia from Article 7(2) of the Directive that authorisations must 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 (Joined Cases C-232/95 and C-233/95 Commission v Greece  ECR I-3343, paragraph 28). Because of the absence of a coherent and general system of quality objectives, the other elements of a programme (authorisations and emission standards based on the objectives) cannot be defined in such a way as to comply with the requirements of the Directive.
69 It must be borne in mind that, as has been established in paragraphs 43 and 56 of this judgment, Ireland had not, at the expiry of the period laid down in the reasoned opinion, complied with the requirements imposed by the Directive in regard to the establishment of the quality objectives.
70 Further, in regard to the failure to make certain local authority discharges, such as drainage discharges and storm water overflows, subject to authorisation, it should be noted that the Urban Waste Water Treatment Regulations 2001 were adopted on 14 June 2001, that is to say, almost one year after the date of the supplementary reasoned opinion sent by the Commission. The question whether there has been a failure to fulfil obligations must be determined by reference to the situation in the Member State as it stood at the end of the period laid down in the reasoned opinion, and the Court cannot take account of any subsequent changes (see Commission v Italy, cited above, paragraph 20). It must be declared that Ireland has failed to fulfil its obligations in this regard.
71 So far as concerns the absence of an authorisation system for discharges from marine installations, the head of complaint is well founded. Ireland has acknowledged, in its statement of defence, that the relevant national legislation does not require authorisations for marine installations other than aquaculture installations. It has also failed to demonstrate that the Foreshore Acts 1933 to 1998 contain provisions that expressly require emission standards to be set on the basis of quality objectives. Those two failures amount to a breach of the obligations deriving from Article 7(2) of the Directive.
72 So far as concerns the absence of an authorisation system for discharges from agricultural installations, the Commission's head of complaint must also be upheld. Ireland and the Commission are in agreement in this regard in acknowledging that a significant portion of the pollutants discharged into Irish waters comes from farms (namely, at least 30% of all nutrients and, in particular, as much as 73% with regard to phosphorous in inland waters).
73 Moreover, in response to the Commission's argument that the requisite connection of causality and predictability between the acts attributable to one person and water pollution can be established in the case of such phosphorous pollution when it comes from fixed agricultural installations, Ireland acknowledges that prior authorisation could be required under the provisions of the Directive for places in which those discharges are foreseeable.
74 As both the Commission and Ireland have acknowledged, even if authorisation cannot be required for discharges from agricultural installations, it cannot be disputed that authorisation is necessary, at least in the case where polluting overflows are foreseeable. To the extent to which no discharge from an agricultural installation is subject to authorisation, it follows that fixed installations in respect of which discharges are foreseeable are not subject to such an authorisation system.
75 In those circumstances, it must be concluded that, by not making pollutant discharges from fixed agricultural installations subject to authorisation in those cases where such discharges are foreseeable, Ireland has failed in its obligations.
76 Finally, with regard to the absence of authorisation for aerial spraying activities, Ireland acknowledges that it was only from January 2002, and consequently after the expiry of the period laid down in the reasoned opinion, that a special authorisation procedure has been required for aerial spraying of fertilisers over forest sites. Ireland states that, before January 2002, this type of spraying was subject to prior authorisation by the national regulatory authority. Ireland has, however, failed to demonstrate that such authorisation was in accordance with the requirements of the Directive in regard to compliance with the quality objectives and emission standards. It follows that, on this point also, the Commission's head of complaint is well founded.
77 Finally, it is appropriate, in the context of this third head of complaint, to examine the argument put forward by Ireland that the prohibitory regime established by the 1977 Act is a ‘more stringent measure' within the terms of Article 10 of the Directive.
78 Although, in principle, a prohibitory regime constitutes an alternative to an authorisation system, in accordance with the requirements of the Directive, Ireland has failed to demonstrate that the prohibitory regime established by the 1977 Act can effectively replace the authorisation system as envisaged by the Directive.
79 The prohibitory regime set out in section 3(1) of the 1977 Act is accompanied, in section 3(3), by a clause releasing from liability any person concerned who proves that he took all reasonable care to prevent pollutants from entering water. Effective application of this regime is guaranteed by the powers vested in the judicial authorities (section 11) and local authorities (section 12). The latter section allows local authorities to issue notices to persons responsible for a source of pollution enjoining them to take specific measures to counter pollution. By contrast, that statute makes no mention of quality objectives or programmes for the reduction of water pollution.
80 In the first place, the 1977 Act does not contain precise provisions allowing individuals to refer to a clear, precise and unequivocal legal framework, as required by the Court (see, to this effect, Case C-119/92 Commission v Italy  ECR I-393, paragraph 17). By way of example, it should be pointed out that the 1977 Act does not contain an enumeration of the pollutants within the terms of List II of the annex to the Directive, which prevents those concerned from knowing the true scope of that prohibition.
81 Next, the effectiveness of the system rests in large measure on the notices issued by local authorities on foot of section 12. Those notices are, however, issued in a discretionary manner by each local authority in each specific situation, with no relation to any parameter as to water quality, which is lacking in that statute. This absence of uniform statutory criteria does not guarantee a homogenous, comprehensive and consistent application of the Directive. Ireland itself indicates in this regard, at point 8.3 of its rejoinder, that it is not contending that the system of notices under section 12 is equivalent to an authorisation system.
82 Finally, with regard to the exemption clause in section 3(3) of the 1977 Act, that section does not specify the scope and nature of the measures to be adopted for such an exemption, leaving as it does to each local authority, each time that a case arises, the assessment of whether the measures adopted are reasonable. Considered thus, such a system is not equivalent to a system under which all pollution reduction aspects are defined in advance in a manner which is clear, precise and unequivocal.
83 It follows from all of the foregoing that Ireland has failed to fulfil its obligation to establish an authorisation system, as required by Article 7(2) of the Directive.
The fourth head of complaint: breach of Article 9 of the Directive
Arguments of the parties
84 By this head of complaint, the Commission submits that, contrary to the provisions of Article 9 of the Directive, there has been an increase in the pollution of Irish territorial waters since the Directive was adopted.
85 This breach of Article 9, it argues, results from Ireland's delay in transposing the Directive, a delay which had two consequences at variance with the objectives pursued by that provision. First, the late implementation allowed a statutory tolerance for degradation of water quality that was not provided for by the Directive. Second, the attribution, as a reference base, of the indicia obtained from studies carried out in 1997 could lead to a distortion of the true level of pollution existing in 1976 when the Directive was adopted.
86 Ireland submits, in contrast, that compliance with Article 9 of the Directive is called for only in the case where a Member State has adopted measures pursuant to the Directive and the application of those measures results in a deterioration in water quality. In the case where there has been no implementation of measures in application of the Directive, Article 9 thereof is not applicable. Ireland accordingly takes the view that the question before the Court is that of determining whether application of the 1998 Regulations has, directly or indirectly, led to an increase in water pollution, something which Ireland denies.
87 Ireland also submits that the Court's case-law relied on by the Commission, to the effect that a directive must not be interpreted in such a way as to confer an advantage on Member States which fail to comply with its provisions, is not applicable in the case where the provisions in question do not indicate the date by which they have to be transposed.
Findings of the Court
88 It should be borne in mind at the outset that, under Article 9 of the Directive, application of the measures taken pursuant to the Directive may on no account lead, either directly or indirectly, to increased pollution of the waters referred to in Article 1. It follows clearly from the actual wording of Article 9 - which refers expressly to the ‘measures taken pursuant to [the] Directive' - that the obligation which it sets out relates to the situation in which Member States have in fact adopted measures to transpose the Directive.
89 Contrary to the arguments put forward by Ireland, it does not, however, follow from such a finding that, in the absence of any transposition measures or even in the case of partial transposition of the Directive, a Member State is free to adopt measures liable to lead, directly or indirectly, to an increase in pollution. Although not coming directly within the scope of Article 9 of the Directive, such conduct might indeed be incompatible with the Directive, in particular with Article 2 thereof, which in any event obligates Member States to adopt appropriate measures to eliminate or reduce pollution of water by the substances set out in the two lists in the annex to the Directive.
90 In the present case, the Commission has failed to demonstrate adequately that the adoption of the measures for transposing the Directive resulted in increased pollution of Irish waters. The failure has therefore not been established in regard to a breach of Article 9.
91 Regard being had to all of the foregoing, it must be held that, in failing to take all of the measures necessary to ensure a correct transposition and application of the Directive, Ireland has failed to comply with its obligations under Article 7 thereof. The remainder of the action is dismissed.
92 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. As the Commission has applied for costs to be awarded against Ireland, and as the latter has been unsuccessful in the essential aspects of its submissions, Ireland must be ordered to pay the costs.
On those grounds, the Court (Second Chamber) hereby:
1. Declares that, in failing to take all of the measures necessary to ensure a correct transposition and application 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, Ireland has failed to comply with its obligations under Article 7 of that directive;
2. Dismisses the remainder of the action;
3. Orders Ireland to pay the costs.