Important legal notice

61999C0266

European Court reports 2001 Page I-01981

Opinion of the Advocate-General

I - Subject-matter of the proceedings

1 In this case, the Court is asked to declare that in connection with nitrate levels in surface waters in Brittany the French Republic has failed to fulfil its obligations under the EC Treaty by failing to transpose, or transposing only incompletely, Council Directive 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 (1) (hereinafter `Directive 75/440/EEC').

II - Directive 75/440/EEC

2 The relevant provisions of Directive 75/440/EEC are worded as follows:

Article 3

Member States may refrain from setting the values of parameters in respect of which no value is shown, in the table in Annex II, pursuant to the first subparagraph pending determination of the figures in accordance with the procedure under Article 9.

3. Where values appear in the "G" columns of Annex II, whether or not there is a corresponding value in the "I" columns of that Annex, Member States shall endeavour to respect them as guidelines, subject to Article 6.

Article 4

The timetable referred to in the first subparagraph will be drawn up in the light of the need to improve the quality of the environment, and of water in particular, and the economic and technical constraints which exist or which may arise in the various regions of the Community.

The Commission will carry out a thorough examination of the plans referred to in the first subparagraph, including the timetables, and will, if necessary, submit appropriate proposals to the Council.

3. Surface water having physical, chemical and microbiological characteristics falling short of the mandatory limiting values corresponding to treatment type A3 may not be intended for the abstraction of drinking water. However, such lower quality water may, in exceptional circumstances, be utilised provided suitable processes - including blending - are used to bring the quality characteristics of the water up to the level of the quality standards for drinking water. The Commission must be notified of the grounds for such exceptions, on the basis of a water resources management plan within the area concerned, as soon as possible, in the case of existing installations, and in advance, in the case of new installations. The Commission will examine these grounds in detail and, where necessary, submit appropriate proposals to the Council.'

III - Prelitigation procedure

3 Directive 75/440/EEC was published in the French version of the Official Journal of the European Communities on 25 July 1975. Pursuant to Article 10, it was to be transposed within a period of two years. This period expired at the latest on 25 July 1977 for the French Republic. Article 4(2) envisages a ten-year timetable for the achievement of `considerable improvements' in the quality of surface water.

4 After receiving several complaints concerning nitrate levels in surface water intended for the abstraction of drinking water in Brittany, the Commission sent a request for information to the French Republic on 1 April 1992. The French Republic replied on 11 May 1993. The Commission sent a formal letter of notice on 30 November 1993. The French Republic replied on 1 February 1994, 28 November 1994, and 1 March 1995. The Commission sent a reasoned opinion on 28 October 1997, referring to the French Republic's failure to fulfil its obligations under Article 4(1), (2) and (3) of Directive 75/440, and set a period of two months from the date of notification for reply. The French Republic replied by letter of 2 January 1998, wherein it stated that supplementary information would be sent within a period of six weeks from the date of expiry of the period set for reply to the reasoned opinion. The French Republic submitted this supplementary information on 18 June 1998. On 15 July 1999, the Commission brought an action against the French Republic before the Court.

IV - Arguments of the parties

5 According to the Commission, the French Republic has infringed in Brittany all three provisions of Article 4 of Directive 75/440/EEC concerning the minimum requirements for the quality of surface water intended for the abstraction of drinking water. The Commission has based its action on three grounds:

(1) Breach of the limit values for nitrates (infringement of Article 4(1) of Directive 75/440/EEC);

(2) Failure to establish and notify a systematic plan of action including a timetable for the improvement of surface water (infringement of Article 4(2) of Directive 75/440/EEC);

(3) Use of surface water of insufficient quality for the abstraction of drinking water without notifying the Commission of a water resources management plan in this regard (infringement of Article 4(3) of Directive 75/440/EEC).

The Commission therefore asks the Court to:

- declare that, by failing to take the measures necessary to ensure that surface water intended for the abstraction of drinking water conforms to the limit values laid down pursuant to Article 3, the French Republic has failed to fulfil its obligations under Directive 75/440/EEC, in particular pursuant to Article 4;

- order the French Republic to pay the costs.

France does not contest that the limit values allowed under Directive 75/440/EEC have been exceeded, but rejects the contention that the situation has systematically worsened over the years.

Furthermore, it argues that considerable efforts have been undertaken in the French Republic since the late 1980s to improve the quality of surface water intended for the abstraction of drinking water. Several programmes have been developed to this end and notified to the Commission.

France does not contest that surface water in which nitrate levels exceeded the allowed limits has been used for the abstraction of drinking water, but believes, in any case, that it has notified the Commission of the required management plans in this regard.

France therefore asks the Court:

- to reject entirely the second complaint, and to reject the third complaint to the extent that it concerns the lack of a water resources management plan;

- to declare that measures have been adopted to deal in an appropriate and efficient way with the problem of breaches of the 50 mg/l limit value for nitrates in water intended for the abstraction of drinking water, sometimes observed at a limited number of abstraction and distribution points.

V - Assessment

6 It would be practical to examine each of the three grounds that underlie the Commission's action in turn:

A - Article 4(1) of Directive 75/440/EEC (breach of limit values)

7 France does not contest the Commission's argument that the French Republic has not been able to ensure compliance with the 50 mg/l limit value for nitrates (Article 4(1) read together with Article 3 and Annex II of the Directive) for all surface waters in Brittany that are intended for the abstraction of drinking water.

8 The wording of the first sentence of Article 4(1) of Directive 75/440/EEC is clear and unequivocal on this point; Member States must ensure that nitrate concentrations in all surface water intended for the abstraction of drinking water are below the given limit value by the expiry of the transposition period.

France has therefore infringed this obligation.

B - Article 4(2) of Directive 75/440/EEC (failure to ensure a continuing improvement of the environment, non-definition of a systematic plan of action)

9 This provision in the Directive contains two distinct problem complexes:

10 The Member States are first (generally) required to ensure `continuing improvement' of the environment as regards the quality of surface water intended for the abstraction of drinking water. To carry out these improvements - which are not defined more precisely - a period of ten years is envisaged.

11 In order to achieve this objective, the Member States are also (in particular) required to draw up a `systematic plan of action including a timetable' for these improvements, and to notify them to the Commission for examination. This obligation is covered by Directive 75/440's general two-year transposition period.

(1) Lack of continuous improvement of surface water quality

12 In answering the question whether Article 4(2) contains specific objectives or the Member States are simply required to make an effort at improvement, we need to examine the relationship between (a) Article 4(1) (limit values) and Article 3(3) (guide values) of Directive 75/440, on the one hand, and (b) Article 4(2) (improvement of the environment) of Directive 75/440, on the other hand. Article 4(1) requires the Member States to ensure that the limit values for certain pollutants are not exceeded. Article 3(3) of the Directive requires that the Member States must, in addition, make an effort to achieve even lower values. These are the discretionary guide values given in Annex II, column G.

13 France asserts that, in contrast to Article 4(1), the provision in Article 4(2) does not impose any binding obligation, but only asks the Member States to make an effort to improve the situation and to use appropriate means to do so. In this respect, it cites the judgment in Case C-337/89 Commission v United Kingdom, (2) in which the Court clearly distinguished between mandatory and discretionary values. It also argues that any improvement of the original situation in 1975 would satisfy the requirements of Article 4(2).

14 The argument of the French Republic can be accepted to the extent that Directive 75/440/EEC should not be interpreted in such a way that Article 4(2) is applied to transform the discretionary guide values under Article 3(3) into mandatory values. This conclusion follows from the scheme explained above.

15 As I see it, Article 4(2) of Directive 75/440/EEC has an independent objective in relation to Article 4(1) and Article 3(3). The rationale of Article 4(2) is to ensure that the Member States do not just raise water quality to a defined minimum level and then, in the best case, keep it there, but that they keep on improving it, even after the limit values are reached: Article 4(2) requires the Member States to take `the necessary measures to ensure continuing improvement of the environment' and allows a longer period to achieve this objective than for the transposition of the Directive 75/440/EEC, because the improvements `are to be achieved ... over the next ten years'.

16 So Article 4(2) obviously not only demands that the Member States make an effort, but that they achieve actual reductions in the levels of pollutants, including nitrates. Certainly, this provision contains no precise qualitative or quantitative standards for the improvements. Nevertheless, the much later deadline inevitably leads to the conclusion that the purpose of Article 4(2) is to achieve water quality values lower than the limit values that the Member States were required to meet pursuant to Article 4(1) before the expiry of the two-year transposition period.

17 Nor may we interpret this requirement - as the French Republic apparently intends - in the sense that it would be sufficient simply to carry out improvements on a case by case basis compared with the original situation in 1975, so that any improvement of the original situation would already satisfy the obligations pursuant to Article 4(2). As I see it, the timetable differences in paragraphs 1 and 2 of Article 4 make sense only if the `considerable improvements' sought by Article 4(2) are not already achieved through progress towards achieving the objectives laid down in Article 4(1).

18 Pursuant to Article 4(2) of Directive 75/440/EEC, the Member States were therefore obliged `over the next ten years' to attain limit values, as far as nitrates were concerned, which in all cases had to be below the 50 mg/l limit value. This scheme therefore means that failure to meet the limit values laid down pursuant to paragraph 1 also entails an infringement of paragraph 2.

19 Therefore, in the areas which the Commission has identified in Brittany where even the limit value of 50 mg/l of nitrates in surface water has not been ensured, the French Republic has also failed to fulfil Article 4(2) of Directive 75/440/EEC.

20 Contradicting the French Republic, the Commission argues that the situation in Brittany is deteriorating, and that this deterioration is ongoing and worsening. The French Republic asks the Court to find that it has made an effort, and that conditions have been improved in some places in comparison with the original situation in 1975. In this regard, the French Republic relies on the judgment of the Court in Case C-365/97 Commission v Italy, (3) cited in Case C-387/97 Commission v Greece. (4)

21 The case-law referred to does not support the French Republic's contention in so far as it states that, in the matter of improving the environment in the context of transposing a directive, the Member States retain a margin of discretion. (5) Whilst Article 4(2) of Directive 75/440/EEC does not contradict this discretion, it is still necessary to `ensure' that the improvements in question are achieved, something which the French Republic - as described above - has not accomplished as far as the surface water intended for the abstraction of drinking water throughout Brittany is concerned.

22 In any case, it suffices to note that the purpose of proceedings under Article 226 EC is to determine whether or not a Member State has failed to fulfil its Treaty obligations. So, it is not the function of the Court, in the framework of these proceedings, to determine to what extent a Member State has made an effort to satisfy its obligations.

23 It is therefore sufficient to find that within the period allowed by Article 4(2) of Directive 75/440/EEC (`over the next ten years') the French Republic has not achieved considerable improvements by reducing the level of pollutants below the maximum allowable limit value for nitrates of 50 mg/l in surface water intended for the abstraction of drinking water throughout Brittany.

(2) Lack of a systematic plan of action and timetable

24 France believes that particular documents and all the information provided to the Commission in its entirety satisfy the requirements of Directive 75/440/EEC with respect to the `systematic plan ... and timetable' referred to in Article 4(2). The Commission argues that none of the submitted documents satisfy the requirements of Article 4(2). Even when the documents are read as a whole, they cannot be viewed as a `systematic plan' in the sense of this provision of the directive. All the measures described in the documents - as shown by the still non-compliant nitrate levels - are `clearly inefficient and not appropriate for the situation'. Since the French Republic began to implement such measures only towards the end of the 1980s, the Commission believes that, in any case, there has been a clear delay in the implementation of the Directive.

25 France argues further, that the Commission implicitly has a duty under Article 4(2) of Directive 75/440/EEC to carry out a thorough examination of the documents notified by the Member States to check their status as `plans' in the sense of this provision. Should this examination give rise to criticism of the measures, the Commission should consult the Member State concerned and if necessary submit appropriate proposals to the Council.

(a) Need for a systematic plan

26 In the present case, the French Republic has presented different examples supporting its view that it has adequately fulfilled its obligation to establish a systematic plan. From the documents presented to the Court, however, it is difficult to discern if and when which approach to the reduction of pollutants in surface waters intended for the abstraction of drinking water has been followed in the French Republic and, in particular, in Brittany. As far as can be seen, it seems that there are essentially four programmes which might be considered to meet the requirements of Article 4(2) of Directive 75/440/EEC: `BEP I' and `BEP II', `PMPOA' and the re-absorption programmes in the so-called `ZES' and `SDAGE'. According to the settled case-law of this Court, the question whether a Member State has failed to fulfil its obligations under the Treaty 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. (6) This position, as far as can be determined, can be summarised as follows:

27 The main objective of the `Bretagne Eau Pure' (BEP) I Programme, the predecessor of the BEP II (see below), was the improvement of Breton coastal water quality. The BEP was reoriented after 1994 due to the deterioration of surface water in Brittany: `BEP II' is thus the first programme aimed at improving surface waters intended for the abstraction of drinking water. However, BEP II applies only in a limited way in Brittany, because it covers only 20 of the most problematic catchment areas. The programme relies mainly on public information measures and applied studies. It is implemented through subprogrammes which were themselves to be set up on the basis of agreements between local authorities, the Water Authority and the so-called Syndicat mixte. At the relevant point in time, only two such agreements had been concluded (1996 and 1997).

28 Since about 1994, there has been in existence a programme for the reduction of pollution from agricultural sources (Programme de Maîtrise des Pollutions d'Origine Agricole, `PMPOA'), negotiated between the Ministries of Agriculture and Environment and agricultural organisations. It is intended to promote structural measures to reduce the spreading of organic nitrogen and to give farmers incentives to change fertiliser application practices in order to reduce nitrate levels in surface water. The PMPOA, in principle, covers the entire country but applies only to agricultural enterprises above a certain minimum size, which means that at most one third of enterprises producing altogether two thirds of nitrates from agricultural operations are covered by the programme. As can be seen from the French Government's authorised report on the PMPOA, the programme is being implemented rather slowly.

29 Law No 92-3 of 3 January 1992 provides for the establishment, for each of the large water catchment areas, of a water management guidance plan (Schéma Directeur d'Aménagement et de Gestion des Eaux, `SDAGE') by catchment committees, after consultation with local authorities. On this basis, local water management plans (Schémas d'Aménagement et de Gestion des Eaux, `SAGE') are to be laid down at the local catchment area level (in Brittany, the SDAGE has defined 16 such areas) which must reflect the objectives and requirements of the SDAGE and which are to control the decisions of local authorities. The French Republic does not dispute that at the relevant point in time no SAGE was yet operational.

30 The nationwide application of the concept of the ZES (Zones en Excédent Structurel, `ZES') has the aim of promoting the resorption of nitrogen in the most heavily affected regions of the French Republic. In the designated ZES, the nitrogen content of the soil is to be reduced in order to improve nitrate levels in surface water. The resorption programme lays down a master plan at the level of the affected canton. According to the French Republic, the affected zones in Brittany certainly have been designated, but the resorption programmes to be applied were, at the relevant point in time, still in `embryonic' form.

31 On close inspection, the Commission raises two different points against the documents submitted by the French Republic:

-first, they do not represent several plans or one master plan, and especially not systematic plans in the sense of the objectives of Article 4(2) of Directive 75/440/EEC;

-second, the measures are demonstrably inefficient and inappropriate to the situation.

32 Let's begin by considering the characterisation of the documents presented by the French Republic as systematic plans of action and a timetable. The Court has repeatedly stated the requirements that `systematic plans' must meet: in Case C-58/89 Commission v Germany, (7) the Court ruled that, although in principle several limited regional redevelopment plans can together constitute a `plan' in the sense of Article 4(2) of Directive 75/440/EEC, the totality of the documents presented must have the recognisable quality of a `master plan'. In the same judgment, it explained that a systematic plan in the sense of Article 4(2) must `comprise stages, taking account of certain priorities and ... constraints'. (8) In Case C-207/97 Commission v Belgium, (9) the Court further stated: `What is specific to the programmes in question is the fact that they must embody a comprehensive and coherent approach, covering the entire national territory of each Member State ... They differ, therefore, both from general purification programmes and from bundles of ad hoc measures designed to reduce water pollution.' In Case C-298/97 Commission v Spain, (10) the Court ruled that: `incomplete practical measures and fragmentary legislation cannot discharge the obligation of a Member State to draw up a comprehensive programme with a view to attaining certain objectives ... .' In Case C-58/89 Commission v Germany, (11) the Court put decisive weight on the purpose of the plans in order to assess the quality of the `plan', which, under Article 4(2) of Directive 75/440/EEC, means putting the Commission in a position to ascertain the reduction of pollution levels in water falling within the scope of the Directive's requirements, to compare the measures concerned across the Community and to present the results in a summary report to the Council. In Case C-214/97 Commission v Portugal, (12) the Court emphasised that all documents purporting to be `plans' must in any case contain measures and a timetable.

33 BEP I focused on the improvement of coastal waters. These are not covered by Directive 75/440/EEC, as Article 1(1) of that directive defines `surface water' as `surface fresh water'. The PMPOA, which is in principle countrywide, covers only a relatively small part of Breton agricultural undertakings because it is restricted to undertakings of a certain size. The resorption programmes for the ZES and BEP II apply only to particularly affected areas in Brittany, but not to all surface water with critical nitrate levels. Furthermore, the ZES concept was still at an early stage in Brittany at the relevant point in time, according to the French Republic's testimony. Similarly, under BEP II, only two agreements for Brittany were made which could have provided the basis for measures yet to be determined. Nor were the SAGEs that were to be established for individual catchment areas in Brittany in the framework of the SDAGEs operational at the relevant point in time.

34 So far as can be determined, therefore, the measures presented by the French Republic have, even as far as Brittany is concerned, a limited scope of application in subject or territory, or are only applied to a precise group of addressees for ad hoc actions. In addition, there is no overarching concept. Timetables are as little in evidence as the coherence required by the rulings of the Court.

35 As far as can be seen, it was only by letter of 18 June 1998 that the French Republic first notified a summary, broken down by abstraction point and region, of all surface water in Brittany intended for the abstraction of drinking water, which systematically allocated each problematic geographical area to the abovementioned programmes. But here, too, objectives and schedules are lacking. According to the settled case-law of the Court, 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. (13) This period had expired for the French Republic by the time it sent the abovementioned letter.

36 So, it must therefore be concluded that the French Republic has failed to fulfil its obligation to present a `systematic plan of action including a timetable' pursuant to Article 4(2) of Directive 75/440/EEC.

37 The Commission argues, second, that the programmes and sets of measures presented by the French Republic not only lack a systematic plan but are clearly ineffective and not appropriate for the situation.

38 It should be noted in this regard that the effectiveness and appropriateness of measures to reduce pollution levels in surface water can only be determined after the fact. The plans required by Article 4(2) of Directive 75/440/EEC were to have been presented within the two-year transposition period for the Directive; ten years were allowed for the achievement of `improvements' (that is, proof of their effectiveness). It has already been found that the French Republic has failed to achieve any improvements within the meaning of Article 4(2), so that effectiveness can hardly be brought forward again as a test for the existence of a `systematic plan of action'.

(b) Duty of the Commission to carry out a thorough examination

39 The French Republic argues that the Commission failed to discuss the documents notified by it with reference to its compliance with the obligations resulting from Article 4(2) of Directive 75/440/EEC and to notify the French Republic of any deficiencies. It bases its argument on the fifth sentence in Article 4(2) of Directive 75/440/EEC, which states that the Commission `will carry out a thorough examination of the plans ... , including the timetables, and will, if necessary, submit appropriate proposals to the Council.'

40 This argument cannot be upheld. Directive 75/440/EEC does not impose any general obligation on the Commission, going beyond the Commission's obligations under Article 226 EC to examine Member States' implementation, to engage in discussions with the Member States about the merits of notified documents. Besides, it is not quite clear which legal consequences the Commission's alleged infringement should have for these proceedings. The French Republic itself admitted at the hearing that it could not affect the rights and duties of the Commission pursuant to Article 226 EC.

C - Article 4(3) (Abstraction of drinking water, failure to present a management plan)

41 As noted above, the French Republic has not succeeded in ensuring that the maximum allowable level of nitrates (50 mg/l) under Article 4(1) read in connection with Article 3 and Annexe II of Directive 75/440/EEC is not exceeded in all areas of Brittany where surface water intended for drinking water is abstracted. The French Republic also admits that, at least in part, it has used surface water in Brittany not meeting the standards of the Directive for the abstraction of drinking water.

42 The first sentence of Article 4(3) of Directive 75/440/EEC basically forbids this practice, although allowing it if certain conditions are met. The second sentence allows water to be abstracted for drinking water in exceptional circumstances `on the basis of a water resources management plan' within the area concerned, if this management plan is notified to the Commission `as soon as possible.' The plan must be notified `in advance' in the case of `new installations'. Notification of a `management plan' is therefore one of several conditions imposed on the exceptional use of surface water having pollution levels above the limit values for the abstraction of drinking water.

43 The parties disagree on the issue whether the French Republic has notified one or several `management plans' within the meaning of the second sentence of Article 4(3) of Directive 75/440/EEC.

44 The Commission considers that the French Republic has failed to fulfil its obligations under Article 4(3) of Directive 75/440/EEC, in particular because none of the documents forwarded by the French Republic contains objectives for the improvement of water quality and because they are obviously ineffective.

45 In order to assess whether the measures presented by the French Republic are `management plans' pursuant to those provisions, it must first be explained that the `management plans' referred to in Article 4(3) of Directive 75/440/EEC have, as I see it, a purpose different to that of the `systematic plans of action' referred to in Article 4(2). In my view, the `water resources management plans' referred to in Article 4(3) have different health and environmental policy objectives. In contrast to the plans referred to in Article 4(2), they are not intended to cover the monitoring of surface water critical from the point of view of pollution, but to provide an overview of the use of uncritical surface water. Because it is the blending of polluted and safe surface water expressly mentioned in Article 4(3) which is the most common form of processing drinking water, the water resources management plans should allow the Commission to gain an overview of the use of unpolluted water sources and to submit appropriate proposals to the Council. If the objective of the management plans under Article 4(3) is to monitor unpolluted surface waters, then it must be assumed that these plans do not have as their objective the setting of targets for the improvement of the quality of critically polluted surface waters. The Commission's argument cannot be accepted on this point.

46 As regards the question whether the French Republic has drawn up and presented management plans as provided for by the second sentence of Article 4(3), it must therefore be concluded that only the SAGEs would appear to contain the germ of such management plans. But, according to its own admission, the French Republic did not follow up this initiative. As far as can be seen, it was only on 18 June 1998 that the French Republic first submitted a systematic overview of all surface waters containing nitrates in Brittany, with detailed information about their blending with unpolluted surface water.

47 As already stated, those documents were notified only after the expiry of the deadline for reply to the reasoned opinion.

48 France has therefore failed to submit a management plan justifying application of the exception provided for in the first sentence of Article 4(3) and thereby failed to satisfy the conditions for the use of surface water containing inadmissible levels of nitrates for the abstraction of drinking water.

VI - Conclusion

49 I conclude that, as far as surface water used for the abstraction of drinking water in Brittany is concerned, the French Republic has:

-failed to fulfil its obligations under Article 4(1) of Directive 75/440/EEC by failing to ensure compliance with the mandatory limit values for nitrates;

-failed to fulfil its obligations under Article 4(2) of Directive 75/440/EEC by failing to achieve considerable improvements in the environment, and by failing to notify a systematic plan of action including a timetable;

-failed to fulfil its obligations under Article 4(3) of Directive 75/440/EEC by failing to observe the ban on the use of surface water containing inadmissible levels of nitrates for the abstraction of drinking water.

For the foregoing reasons, I propose that the Court should:

(1) declare that the French Republic has failed to fulfil its obligations under Council Directive 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 by failing to take, or failing to take within the period allowed, the measures required pursuant to Article 4(1), (2) and (3) thereof;

(2) order the French Republic to bear the costs of the proceedings.

(1) - OJ 1975 L 194, p. 34.

(2) - [1992] ECR I-6103, obviously referring to paragraph 31.

(3) - [1999] ECR I-7773.

(4) - [2000] ECR I-5047.

(5) - [1999] ECR I-7773, paragraphs 67 and 68.

(6) - See, in particular, the judgments in Case C-313/96 Commission v Italy [1997] ECR I-7231, paragraph 14, and Case C-261/98 Commission v Portugal [2000] ECR I-5905, paragraph 25.

(7) - [1991] ECR I-4983, paragraph 25.

(8) - Paragraph 25.

(9) - Case C-207/97 Commission v Belgium [1999] ECR I-275, paragraph 40; Joined Cases C-232/95 and C-233/95 Commission v Greece [1998] ECR I-3343, paragraph 35.

(10) - [1998] ECR I-3301, paragraph 16.

(11) - C-58/89 [1991] ECR I-4983, paragraph 36.

(12) - [1998] ECR I-3839, paragraph 11.

(13) - See inter alia Case C-384/99 Commission v Belgium [2000] ECR I-10633, paragraph 16.