Important legal notice

61988C0361

JOINED OPINIONS OF MR ADVOCATE GENERAL MISCHO DELIVERED ON 6 FEBRUARY 1991. - COMMISSION OF THE EUROPEAN COMMUNITIES V FEDERAL REPUBLIC OF GERMANY. - CASE C-361/88. - COMMISSION OF THE EUROPEAN COMMUNITIES V FEDERAL REPUBLIC OF GERMANY. - CASE C-59/89.

European Court reports 1991 Page I-02567

Opinion of the Advocate-General

Mr President, Members of the Court,

2. Case C-361/88 concerns Council Directive 80/779/EEC of 15 July 1980 on air quality limit values and guide values for sulphur dioxide and suspended particulates (Official Journal 1980 L 229, p. 30), while Case C-59/89 concerns Council Directive 82/884/EEC on a limit value for lead in the air (Official Journal 1982 L 378, p. 15). The Commission asks the Court to declare that the Federal Republic of Germany has failed to fulfil its obligations by not taking all the necessary measures to transpose them into national law, even though the time-limits prescribed for doing so, namely 18 July 1982 for the first and 9 December 1984 for the second, had long expired. It may be seen from the Commission' s replies to the questions put to it by the Court, which are reproduced at the end of the Report for the Hearing, that other complaints which the Commission had put forward in the course of the pre-litigation procedure, concerning the installation and operation of the measuring stations which the directives required to be established, as well as the communication of the plan for the improvement of the quality of the air in the Land of Berlin, no longer form part of the subject-matter of the actions.

4. According to the Commission, the two directives require the adoption of mandatory rules ensuring, throughout the national territory, the observance of the limit values which they fix. In more concrete terms, they require the Member States, on the one hand, to prohibit, by means of a mandatory rule of general application, the exceeding of the said limit values and, on the other hand, to adopt the measures necessary to guarantee that they are actually observed. None of the measures referred to by the Federal Republic of Germany in that respect satisfies those requirements.

7. In the present context, it should first of all be pointed out that it is not sufficient, for the correct transposition of a directive, that that directive should be observed in fact: it is necessary that the full application of the directive should be equally ensured in law in all circumstances. (1) In its judgment of 15 March 1990 in Case C-339/87 Commission v Netherlands [1990] ECR I-851, paragraph 25, the Court also held that

"the fact that a certain number of activities incompatible with the prohibitions contained in the directive are unknown in a particular Member State cannot justify the absence of appropriate legal provisions",

given that

"in order to secure the full implementation of directives, in law and not only in fact, the Member States must establish a specific legal framework in the area in question".

"the transposition of a directive into internal law does not necessarily require that its provisions be incorporated formally and verbatim in express, specific legislation; a general legal context may, depending on the content of the directive, be adequate for the purpose provided that it does indeed guarantee the full application of the directive in a sufficiently clear and precise manner so that, where the directive is intended to create rights for individuals, the persons concerned can ascertain the full extent of their rights and, where appropriate, rely on them before the national courts." (2)

10. It follows from the foregoing that the concrete scope of the obligation to transpose a directive depends very widely on its content and, in particular, on the question whether it is likely to establish rights on which individuals may possibly rely. What is the position regarding the two directives at issue in the present case?

11. By virtue of Article 1, their purpose is to fix limit values for the concentrations contained in the atmosphere of the harmful substances to which they refer. It is clearly shown by Article 2 that the fixing of those limit values involves prohibitions: the "limit values" are concentrations, respectively, of sulphur dioxide and/or suspended particulates and of lead which must not be exceeded during periods specified, and in the conditions laid down, by the directives.

12. The prohibitions are admittedly addressed in the first place to the Member States. Article 3 of the two directives provides that the Member States are to take the measures appropriate or necessary in order that, from the dates laid down, the concentrations of the harmful substances in question are not higher than the limit values fixed. In order to verify that that is so, they must establish a network of measuring stations and proceed according to the methods of sampling and analysis indicated.

13. It is also true that the limit values fixed by the directives are annual or seasonal averages, and that it would not amount to an infringement of the directive if, during some days, those values were exceeded.

14. Finally, it should be pointed out that the provisions concerning the implementation of the two directives are particularly complicated. On the one hand, the directives provide in fact that the Member States must comply with them within a period of two years, that is to say before 18 July 1982 in the case of Directive 80/779/EEC and before 9 December 1984 in that of Directive 82/884/EEC. On the other hand, Article 3 of Directive 80/779/EEC only requires the Member States to observe the limit values fixed by Article 2 as from 1 April 1983 (paragraph 1) and even allows them, subject to certain conditions, to postpone that deadline until 1 April 1993 for those zones of their national territory in respect of which they consider that, in spite of the measures taken, the limit values are likely to be exceeded beyond 1 April 1983 (paragraph 2). The documents before the Court reveal that the Federal Republic of Germany wished to take advantage of that possibility with regard to the Land of Berlin, even though it did not inform the Commission to that effect until 8 October 1982, that is to say one week after the date laid down for that purpose, and even though it failed to communicate to the Commission at the same time the plans for the improvement of the quality of the air in that Land which it was required to draw up and implement. As to Directive 82/884/EEC, the period which Article 3 fixes for the Member States to guarantee that the limit value for lead is not exceeded is as much as five years after the notification of the directive (paragraph 1), and it may possibly be extended to seven years for certain places in their territory (paragraphs 2 and 3). It is clear, therefore, that the transposition of those limit values and their actual observance did not necessarily have to go hand in hand.

15. Consequently, it is very doubtful that the Commission could have brought a complaint against a Member State for not transcribing the limit values into a mandatory national legal rule before the expiry of the period allowed to it for ensuring that those limit values were not exceeded. Moreover, it seems to me to be out of the question for the Commission to be able to require that such a transcription should be valid for the whole territory of a Member State which, in respect of certain parts of its territory, had taken advantage of the possibility to postpone the time-limit in question by several years and, in the case of Directive 80/779/EEC, possibly until 1 April 1993.

16. The fact remains, none the less, that the Commission does not complain that the Federal Republic of Germany did not transpose the contested directives within a specified period; it is asking the Court to declare that, at least at the time when the actions were brought, the transposition of those directives was still incomplete and incorrect. Besides, it does not appear from the documents before the Court that the Federal Republic of Germany made use of the possibility reserved to it by Article 3(2) and (3) of Directive 82/884/EEC to extend, possibly for up to seven years, the period within which the effective observance of the limit value for lead was to be ensured, and the Commission did not open the pre-litigation procedure until 1 April 1988, in other words after the expiry of the five-year period laid down in Article 3(1). In addition, even assuming that the Federal Republic of Germany did benefit, in respect of the Land of Berlin, from an extension of the period prescribed for ensuring the actual observance of the limit values fixed by Directive 80/779/EEC, the question of the correct method of its transposition into national law remains to be resolved for the remainder of the territory of the Federal Republic of Germany.

17. As I pointed out earlier, it follows from the case-law of the Court that the absence of a de facto infringement of the requirements laid down in a directive does not suffice to absolve a Member State from creating a legal framework capable of ensuring that the directive is complied with also in law. The mere fact that the rules laid down by a directive are observed at a given time does not constitute sufficient guarantee that the same will apply at a different time.

18. Then again, it is not the public authorities and bodies that are emanations of those authorities that are the (principal) producers of the harmful substances in question. Even though it is the Member States that must see to it that the limit values, as fixed in the two directives, are not exceeded, and it is therefore to them that the prohibition on exceeding those values is addressed, they are, however, concerned (principally) only in their capacity as public authorities responsible for ensuring that pollutions and nuisances as a whole, as generated by activities of any kind, public but especially private, remain within the prescribed limits. The directives in question therefore require the State/public authority responsible for coordinating the various forms of action taken or requiring to be undertaken in order to combat air pollution, to provide itself with the necessary means of action to enable it to ensure that the sum total of nuisances arising from all the sources of pollution over which it can exercise control is not higher than the values prescribed. Those means of action should certainly include the power to prohibit activities which give rise to such nuisances and which are thus likely to contribute to the exceeding of the aforesaid values, as well as, normally, that of making the exercise of those activities subject to obtaining a prior authorization prescribing the observance of certain limits. For that purpose, it is important that the administrative authorities which must take such individual decisions of prohibition or authorization can base themselves on national legal rules which lay down with mandatory force limit values to be observed. Indirectly, in any case, the fixing of limit values by the directives is therefore likely to impose constraints on individuals, be they natural or legal persons. It goes without saying that, by way of compensation for those constraints, individuals would also benefit from being able to rely on mandatory rules in order to oppose any arbitrary decision in this field.

21. Directive 80/779/EEC itself, moreover, provides an indication that its provisions are necessarily of such a nature as to affect the rights and obligations of individuals. It follows from the second recital in its preamble that the approximation of national laws which it seeks to bring about was undertaken because

"any discrepancy between the provisions already applicable or being prepared in the various Member States with regard to sulphur dioxide and suspended particulates could give rise to unequal conditions of competition and could consequently directly affect the functioning of the common market."

That directive is intended, therefore, to create equal conditions of competition between the undertakings which, in the various Member States, embark on activities which produce the two polluting substances in question.

22. It is true that Directive 82/884/EEC does not contain a similar recital. Moreover, it is not based on Article 100 of the Treaty, but on Article 235 alone. However, that does not prevent its provisions from also affecting undertakings. That is what the German Government implicitly admits when it states, in the context of the controversy concerning the scope of the first general administrative provision implementing the Law on protection against pollution, of 27 February 1986 (GMBl., p. 95, hereinafter referred to as the "technical circular 'air' "), to which I shall also return later, that

"Industrial plant from which there are significant lead emissions is generally required to have an authorization" (see the middle of page 25 of the roneotyped version of the Report for the Hearing in Case C-59/89).

Similarly, in its reply to the fourth question which the Court put to it in that case, the German Government argues that, in order to combat effectively the exceeding of the limit value for lead,

"it is necessary to apply the measures relating to plant"

constituted in particular by Paragraphs 17 and 25 of the Law on protection against pollution (see the last paragraph of page 33 of the roneotyped version of the Report for the Hearing). In addition, there is no doubt that by obliging the Member States, under Article 4, to install sampling stations

"at places where individuals may be exposed continually for a long period and where they consider that Articles 1 and 2 (which fix the limit value for lead) are likely not to be observed",

the directive refers not only to places where road traffic is particularly dense and, consequently, the likelihood of a concentration of lead in the air due to the consumption of petrol is particularly high, but also to the areas surrounding industrial plant which regularly gives out lead emissions of a certain magnitude.

23. Finally, it is certain that alongside natural or legal persons who, by virtue of their activities, constitute potential sources of pollution, on whom the two directives above all especially impose constraints, there are the individuals, ordinary citizens, who are thereby given the right that the air which they breathe should comply with the quality standards which have been laid down. It may be seen from the preambles to the contested directives that, in addition to protecting the environment, they are intended to protect human health and to improve the quality of life. The obligation of the Member States to ensure that the concentrations in the air of the substances in question do not exceed the levels deemed permissible has, as its corollary, the right of individuals to rely on those quality standards when they are infringed, either in fact or by the measures adopted by the public authorities.

24. I conclude from the above considerations that it is not sufficient that the limit values fixed by Directives 80/779/EEC and 82/884/EEC are not exceeded in fact, but that their correct transposition requires the adoption of a general and binding legal rule which also prohibits, in law, the exceeding of those values and thus serves as a clear and precise legal basis for, on the one hand, the actions of the administrative authorities responsible for applying them and, on the other hand, the individuals who consider that they are not being observed.

25. It is necessary, therefore, to examine whether the provisions of national law referred to by the Federal Republic of Germany are capable of ensuring a transposition of the two directives which complies with those requirements.

26. In that respect the Federal Republic of Germany submits, in turn, that the limit values are part of the German legal system, that they have binding force in German law and that they have the scope of their application, in general, covering the whole of the national territory. What is the true position?

27. It should be pointed out first of all, and this is not disputed by the Commission, that the values fixed in paragraph 2.5.1 of the technical circular "air" comply with those prescribed by the two directives. That circular was adopted on the basis of Paragraph 48 of the Law on protection against pollution which, I recall, makes the Federal Government responsible for adopting the "general administrative provisions (...) relating, in particular, to the thresholds of nuisances which must not be exceeded in order to achieve the objective mentioned in Paragraph 1", namely to combat all kinds of "effects harmful to the environment".

28. The two parties are, however, diametrically opposed in their assessments of the legal nature, and in particular of the binding nature, as well as the exact scope, of the technical circular "air". According to the Federal Government it derives its binding force from the fact that it was adopted on the basis of the express enabling power contained in Paragraph 48 of the Law on protection against pollution and, as it were, merely gives concrete form to the provisions of that law. It was adopted, moreover, only after the sectors concerned had been heard, in accordance with Paragraph 51 of the Law, and with the approval of the Bundesrat. In addition, the binding nature of general administrative provisions on technical matters is recognized in the decisions of the courts, so that any citizen may rely on the limit values fixed by the technical circular "air" before the administrative courts and require that they be observed in the place where he resides and in his working environment. Finally, according to the Federal Republic of Germany, in spite of the fact that the technical circular "air" only applies, by virtue of paragraph 1 thereof, to plant for which a licence is required, and in respect of certain administrative measures concerning such plant, the limit values which it fixes are general in scope, since the concept "effects harmful to the environment" which it seeks to put into concrete form must necessarily be given the same interpretation in the whole sphere of application of the Law on protection against pollution. Furthermore, to the extent to which human health is at risk, Article 2(2) of the Basic Law, which provides that "everyone has the right to life and to physical integrity", does not allow the administration to tolerate the slightest exceeding of the limit values thus fixed, whether or not there is authorization, or whether other measures are concerned.

29. The Commission disputes those various assertions of the Federal Republic of Germany. It quotes several judgments of the Bundesverfassungsgericht and of the Bundesverwaltungsgericht from which it emerges that general administrative provisions are not in the nature of mandatory rules in the same way as laws and regulations. As to the judgment of the Bundesverwaltungsgericht of 19 December 1985, concerning the nuclear power station at Wyhl, (6) in which that court expressly recognized the existence of administrative provisions "giving concrete effect to a legal rule" which are binding on the administrative courts within the limits fixed by the rule to which concrete effect has to be given, it is peculiar to the nuclear field and does not resolve the question of "the specific extent of the binding nature" of the circular in question in that case (which, moreover, was not adopted on the basis of Paragraph 48 of the Law on protection against pollution); although the Bundesverfassungsgericht referred, in an order of 31 May 1988, (7) to that judgment and to the "special case of the authorization prescribed in nuclear law", it none the less expressly stated, however, that

"general administrative circulars (...) are not laws within the meaning of Article 20(3) and of Article 97(1) of the Basic Law (in the sense that laws are binding on judges)."

The Commission states, on the other hand, that the interpretation of the Federal Republic of Germany, according to which the scope of application of the technical circular "air" is not confined solely to plant subject to authorization, but extends to all possible sources of atmospheric pollution, is contrary to the very letter of that circular.

30. In the light of the Court' s case-law on the scope of the obligation to transpose directives, and of the content of the two directives at issue, as I have just described them, it seems to me that, in order to be able to rule on the validity of the Commission' s first complaint, it is not necessary to examine which of those two assessments is correct. The least that can be said is that the situation in German law is far from being clear and precise.

31. The German Government has not been able to point to any line of authority in the decisions of the Constitutional Court or of the administrative courts which is applicable without distinction to general administrative provisions and from which it follows conclusively that the technical circular "air" is binding in nature. The Commission, for its part, puts forward a series of arguments which give rise to quite serious doubt as to the validity of the legal construction put forward by the German Government regarding the mandatory nature of the limit values and the scope of application of the technical circular.

32. In those circumstances, it is not possible to regard the measures adopted as constituting an implementation of the two directives "with sufficient precision or clarity to satisfy fully the demands of legal certainty" (8) or as apt to create "a situation which is sufficiently precise, clear and transparent as to enable [individuals] to ascertain their rights and to rely on them." (9)

33. Accordingly, it should be declared that the Federal Republic of Germany has not correctly transposed into national law the limit values fixed by Council Directives 80/779/EEC and 82/884/EEC.

34. With regard to the obligations arising from Article 3 of the two directives, which require the Member States to take the appropriate measures to ensure that the prescribed limit values are actually observed, the argument of the two parties has essentially turned on Paragraphs 44 to 47 of the Law on protection against pollution, which require the authorities of the Laender, in certain circumstances, to define "exposed zones" (Belastungsgebiete) or, since the amendment adopted by the Bundestag on 11 May 1990 (BGBl. of 22.5.1990, I, p. 870), "zones of control" (Untersuchungsgebiete) and to draw up plans for air purity in respect of them.

35. In that respect, it must be pointed out that Article 3 of the two directives provides only for the drawing-up of "plans" or of "projects" aimed at the progressive improvement of the quality of the air in certain "zones" (the sulphur dioxide directive) or certain "places" (the lead directive) in cases where a Member State considers that in those "zones" or "places" the concentrations of the substances concerned are likely, notwithstanding the measures taken, to exceed the limit values fixed by the directives beyond the date prescribed for the observance of those values, provided that the Member State informs the Commission to that effect before the date in question. In the context of Directive 80/779/EEC the Federal Republic of Germany gave such notification in respect of the Land of Berlin but the Commission has not pursued the complaint which it had originally formulated with regard to that question.

37. We have already seen that the result aimed at by both directives can be achieved only if the limit values which they fix are transposed as such into a provision of national law having binding force and applicable, in principle, to the entire national territory. The Member States must, furthermore, establish measuring stations, which was done in the Federal Republic of Germany (Article 6 of Directive 80/779/EEC and Article 4 of Directive 82/884/EEC).

38. On the other hand, the choice of the methods by which the Member States ensure the observance of the limit values is left to their discretion.

39. It is for them, in particular, to assess the acuteness with which a pollution problem arises in the different regions of the country, and also the question whether or not it is necessary to extend certain measures to the whole of the territory.

40. If they are not to deprive that competence of the Member States of its substance, the institutions of the Community may criticize the way in which the Member State proceed only if it appears from the facts that the methods employed are not sufficiently effective to achieve the objective pursued. Here, it is common ground that the limit values have not been exceeded in the Federal Republic of Germany since the time when they had to be observed.

41. In those circumstances the complaint that Article 3 of the two directives has been infringed cannot be upheld.

42. In conclusion I propose that the Court uphold only the complaint that the limit values were not transposed by a national provision which is binding and applicable, in theory, to the whole of the national territory and declare that, by not adopting all the laws, regulations and administrative provisions necessary in order to ensure the complete transposition into national law of Council Directive 80/779/EEC of 15 July 1980 on air quality limit values and guide values for sulphur dioxide and suspended particulates (Case C-361/88) and of Council Directive 82/884/EEC of 3 December 1982 on a limit value for lead in the air (Case C-59/89), the Federal Republic of Germany has failed to fulfil its obligations under the EEC Treaty.

43. As, in my opinion, only one of the Commission' s two complaints can be upheld, I consider that the parties should bear their own costs.

(*) Original language: French.

(1) See paragraph 8 of the Opinion of Mr Van Gerven as well as the reference made to the judgment of the Court in Case 363/85 Commission v Italy [1987] ECR 1733, paragraph 12, from which it envisages that "in the absence of a finding that there have been any practical consequences, it must be considered whether any adverse consequences are, theoretically at least, possible."

(2) See paragraph 7 of the Opinion of Mr Van Gerven. The quotation is taken from the judgment of the Court in Case 363/85 Commission v Italy [1987] ECR 1733, paragraph 7.

(3) See also paragraph 8 of the Opinion of Mr Van Gerven as well as the reference to the judgment of the Court in Case 29/84 Commission v Germany [1985] ECR 1661, paragraphs 28 and 31. See also the judgment of the Court in Case 118/86 Commission v Italy [1988] ECR 1323, paragraph 21.

(4) See the reference made by Mr Van Gerven to the judgment of the Court in Case 252/85 Commission v France [1988] ECR 2243, paragraph 19, as well as to the judgment, referred to above, in Case C-131/88 Commission v Netherlands, paragraphs 35 and 36.

(5) Except where the contrary is indicated, I shall refer to the version of that law which was in force before the amendments made thereto by the third Law amending the Law on protection against pollution, which was adopted on 11 May 1990 and which entered into force on 1 September 1990 (BGBl, I, p. 870).

(6) BVerwG 72, 300, at pp. 316 et seq.

(7) BVerfG 78, pp. 214, 227.

(8) See judgment in Case 291/85 Commission v Netherlands [1987] ECR 3483, paragraph 15.

(9) See judgment in Case 29/84, reference given in footnote 3, paragraph 28.