Important legal notice

61987C0360

European Court reports 1991 Page I-00791

Opinion of the Advocate-General

Mr President, Members of the Court, 1. In this case the Commission seeks a declaration that by failing to take the necessary measures to implement Directive 80/68/EEC on the protection of groundwater against pollution caused by certain dangerous substances (1) (hereinafter referred to as "the Directive") in national law within the prescribed period, the Italian Republic has failed to fulfil its obligations under the EEC Treaty. The period for implementation of the Directive expired on 19 December 1981. In another case now pending before the Court, Case C-131/88, the Commission has brought identical proceedings against the Federal Republic of Germany. In my Opinion in that case I discussed the parties' arguments concerning the scope of the Member State' s duty to implement the Directive. In this case the parties have not raised that issue as such. I think it may be helpful, however, to give a brief summary of my conclusions in that regard in this Opinion (see below, point 3). They are relevant to the assessment of the more concrete dispute as to whether any given provision of the Directive is transposed into Italian law in a technically correct manner. First of all, however, I must review the provisions of the Directive which are relevant to this case.

Article 4 defines more specifically the obligation of the Member States to prevent the introduction into groundwater of substances in list I; Article 5 concerns the restriction on the introduction of substances in list II. Articles 7 to 16 of the Directive contain a number of detailed procedural rules. Articles 7 and 8 concern the prior investigation which must be carried out in a number of cases by the competent authorities in the Member States before an authorization can be issued. Articles 9 and 10 concern the provisions that must be included in authorizations which may in certain cases be issued by the Member States. Articles 11 to 13 deal with the grant, refusal and withdrawal of authorizations and monitoring of the conditions laid down in authorizations. Article 14 allows the Member States to stipulate a transitional period for discharges of substances which were already taking place at the time of publication of the Directive. Article 15 requires the Member States to keep an inventory of authorizations granted in accordance with the Directive. Finally, Article 16 concerns the obligation of the Member States to provide information to the Commission on the results of the prior investigations carried out pursuant to the Directive, the authorizations granted, the results of monitoring and inspection and details of the inventory referred to above.

More specifically, the Italian Government has referred for the transposition of the Directive almost exclusively to provisions of national law which were adopted during the period 1976 to 1977. Having regard to the precise and detailed rules of the Directive it seems obvious that such provisions which are not derived from the Directive will leave gaps and give rise to problems of interpretation and legal uncertainty.

4. Let me now turn to the complaints put forward by the Commission. First of all we must examine how Article 4 of the Directive has been transposed into Italian law. As I have already said, that Article gives substance to the basic rule laid down in Article 3(a), that is to say the obligation to prevent the introduction into groundwater of substances in list I. For that purpose the Member States must take two kinds of measures: the direct discharge of substances in list I must be prohibited; authorization may be granted for activities which may result in indirect discharge, but only on condition that all precautions are taken in order to prevent such indirect discharge.

Secondly, reference is made to the Decision of the Interministerial Committee of 4 February 1977 adopted in implementation of Articles 2 and 3 of Law No 319 of 1976 which provides that where sewage is not discharged into surface water its discharge is only permitted on the ground or in the upper layers of the soil, or in the subsoil, but only if the effluent is discharged into deep geological strata (that expression is defined as porous structures of sufficient capacity which are isolated from groundwater by impermeable geological barriers). (7) This provision, too, is far from being a prohibition of direct discharges; it concerns activities which may lead to an indirect discharge into groundwater, and fails to make such activities subject to authorization. Furthermore, it is not made clear that such authorization can only be granted when all precautions are taken to prevent any indirect discharge into groundwater.

Thirdly, the Italian Government refers to another provision of the abovementioned Decision of 4 February 1977, which provides that discharge into the subsoil may be used as a means of disposing of industrial effluent only when it is established that there is no technically or economically feasible alternative and where all the required geological conditions are met. (8) This provision too appears to contain only a conditional prohibition, and one which in comparison with Article 4 of the Directive is subject to very unclear conditions.

Finally, I find it striking that in connection with some provisions of the Directive the Italian Government submits to the Court that the Directive is not intended to achieve complete harmonization and thus leaves the Member States a certain degree of discretion, (11) while in connection with other provisions it wishes to be provided with a detailed and comprehensive set of Community rules.

10. Let us first (this is the fourth complaint of the Commission) examine the transposition of Articles 7 and 8 of the Directive. Under Articles 4 and 5 of the Directive, in a number of cases authorization can be granted only after a prior investigation. Article 7 lays down a number of detailed rules with regard to that investigation; it must include examination of the hydrogeological conditions of the area concerned, the possible purifying powers of the soil and subsoil and the risk of pollution and alteration of the quality of the groundwater from the discharge and shall establish whether the discharge of substances into groundwater is a satisfactory solution from the point of view of the environment.

Article 8 of the Directive goes on to provide that authorizations may be issued only if the competent authorities of the Member States have checked that the groundwater, and in particular its quality, will undergo the requisite surveillance.

11. Under Law No 319 of 10 May 1976 (12) an authorization must be obtained for all discharges (see Article 9). That authorization is granted when the intended discharges remain below the "limits of acceptability" established by the law (see Article 15 in conjunction with Article 9). In certain cases provisional authorization can be issued beforehand, even where the intended discharge exceeds the limits of acceptability (Article 15). The Commission points out in that regard that Article 15 of Law No 319 makes it possible to grant authorization on simple demand. Furthermore, under the same article provisional authorization is deemed to be granted where the application for the grant of authorization has not been refused within six months from its submission.

12. Those provisions manifestly make no mention of the prior investigations required by Article 7 of the Directive. In answer to a written question from the Court the Italian Government did refer to "very detailed rules" which it said were contained in Annex 5 to the abovementioned Decision of 4 February 1977. (13) That Decision, which is based on Articles 2 and 3 of Law No 319 of 1976, (14) mainly contains a number of general criteria and technical standards which must be taken into account in the use of water for industrial purposes. Both the law and the decision were adopted well before the Directive, and it is therefore hardly surprising that the Italian Government was not able to point to any specific provision of that Annex which implemented the clear and precise requirements in Article 7 of the Directive concerning the subject-matter and purpose of the prior investigation.

For the implementation of Article 8 of the Directive the Italian Government refers to paragraph 2.8 of part I of Annex 5 to the Decision of 4 February 1977. It provides that a number of checks must be carried out concerning the impact of discharges on the environment. However, the Italian Government was not able to show that the results of those checks were decisive for the issue of a discharge authorization or an authorization for activities which might lead to indirect discharge. Indeed, on the basis of the material before the Court that is improbable. Article 9 of Law No 319 of 1976 appears to make the permissibility of discharges subject only to compliance with limits of acceptability (see above, section 7). Consequently, neither Article 7 nor Article 8 of the Directive are correctly transposed in Italian law.

13. Finally, I must also deal with the argument of the Italian Government that the system of "tacit provisional authorizations" is in conformity with the Directive. The Italian Government takes the view that such a rule is not expressly prohibited by the Directive and is therefore permitted. It is sufficient once again to refer to Articles 4, 5 and 7 of the Directive (which require a detailed prior investigation for certain authorizations) and to Article 8 of the Directive (which provides that authorization may be granted only where the competent authorities have checked that the quality of the groundwater will undergo surveillance). A rule that provides that where the administration takes no action provisional authorization is deemed automatically to be granted is clearly incompatible with those provisions.

14. Fifthly, the Commission argues that Articles 9 and 10 of the Directive, which contain a number of specific matters and conditions which must be included in an authorization, have not been properly transposed into Italian law. In its defence the Italian Government referred in this regard to Law No 62 of 5 March 1982. (15) The Italian Government states that Article 2 of that law provides that regional authorities must designate appropriate zones for discharges of waste water, and in so doing must apply the criteria laid down in the Decision of the Interministerial Committee of 4 February 1977. The Italian Government has not, however, shown that the very precise and detailed provisions and conditions contained in Articles 9 and 10 must be included in an authorization. I think this failure to fulfil obligations is therefore established.

15. The Commission' s sixth complaint is that Italy has not transposed Article 11 of the Directive into national law. That article provides that authorizations may be granted only for a limited period and must be reviewed at least every four years. It must in addition be possible for them to be renewed, amended or withdrawn. The Italian Government did not take a position on this point in its defence or in its rejoinder. In answer to a question from the Court it did not deny that there are no provisions regarding the duration of the authorization (there is nothing in the Italian Government' s reply concerning the other rules contained in Article 11). The Italian Government considers, however, that the transposition of this article is not at issue because it is not mentioned in the Commission' s application. It is mistaken; on 9 December 1987 the Commission submitted an addendum to its application in which it raises this issue. Accordingly, it can only be concluded that Article 11 of the Directive has not been transposed properly into Italian law.

16. The Commission' s seventh complaint is that Italy has not transposed Article 12 of the Directive into national law. That article provides that if it appears that the applicant for authorization will be unable to comply with the conditions to be laid down, the authorization must be refused. If the conditions contained in an authorization are not complied with, the competent authority in the Member State concerned must take all appropriate steps to ensure that those conditions are fulfilled, and if necessary withdraw the authorization. Article 15 of Law No 319 of 1976 (16) does require the competent authorities to withdraw an authorization where the "limits of acceptability" are not complied with. However, that provision bears no relation to the conditions and requirements referred to in Articles 4 to 10 of the Directive, and is therefore not sufficient. Neither in its defence nor in its rejoinder did the Italian Government refer to any other provision which might be regarded as implementing Article 12. On this point too, therefore, the Commission' s application is well founded.

17. The Commission' s eighth complaint is that Italy has not transposed Article 13 into national law. That article provides as follows: "The competent authorities of the Member States shall monitor compliance with the conditions laid down in the authorizations and the effects of discharges on groundwater." There are two provisions of Italian law which might be considered to transpose that article. First of all, Article 15 of Law No 319 of 10 May 1976 (17) provides that the technical functions of surveillance and control of all discharges are to be carried out by provincial laboratories. Secondly, Article 9 of that law defines how that supervision is to be carried out. In answer to a written question from the Court the Italian Government also referred to a number of provisions which require local and regional authorities to monitor discharges, to the establishment of a special force of environmental police, and to the fact that failure to comply with a discharge authorization gives rise to criminal penalties. The Commission is correct to argue that those provisions do not transpose Article 13 of the Directive in a sufficiently precise and detailed manner. The abovementioned Italian law requires only spot checks of discharged substances and does not provide that compliance with the conditions which are included in authorizations in accordance with the Directive must be monitored; nor does it make clear that the monitoring must also relate to the impact of the discharge on the groundwater. Here too, therefore, the failure to fulfil obligations is established.

18. The Commission' s ninth complaint is that Italy has failed to comply properly with Article 15 of the Directive. That article requires an inventory to be kept of the discharge authorizations issued under Articles 4, 5 and 6 of the Directive. In the Commission' s view, which has not been contradicted by Italy, the only rule of Italian law which is of such a nature as to implement that obligation is contained in the fifteenth subparagraph of paragraph 2.1 of part 1 of Annex 5 to the Decision of 4 February 1977. (18) It provides that a register must be kept of all discharges which are permitted, indicating the place and the type of discharge. The Commission makes no submission as to the formal compatibility of such a provision with Article 15 of the Directive. It simply points out that, having regard to the fact that the abovementioned procedural rules of the Directive with regard to the issue, monitoring and withdrawal of discharge authorizations have not properly been transposed in Italy, the keeping of an inventory of the authorizations referred to in Articles 4, 5 and 6 of the Directive is impossible. The Italian Government argues that the applicable provisions of Italian law ensure that the inventory required by Article 15 of the Directive is kept, but it does not dispute the Commission' s argument that in practice no register of the authorizations referred to in the Directive is kept. On this point too the failure to fulfil obligations must be regarded as established.

Conclusion 19. My examination of the matter brings me to the conclusion that the Commission' s application must be upheld in its entirety with the exception of its complaint concerning Article 4 of the Directive. I therefore propose that the Court hold that by failing to implement Directive 80/68/EEC properly in national law the Italian Republic has failed to fulfil its obligations under the EEC Treaty, and order the Italian Republic to pay the costs.

(*) Original language: Dutch.

(1) Council Directive of 17 December 1979 (OJ 1980 L 20, p. 43).

(2) See point 7 of my Opinion in Case C-131/88.

(3) See point 8 of the abovementioned Opinion.

(4) See point 9 of the abovementioned Opinion.

(5) See point 10 of the abovementioned Opinion.

(6) Official Gazette of the Italian Republic No 141 of 29 May 1976, p. 4125.

(7) See the first paragraph of part I of Annex 5 to the decision, published in the Official Gazette of the Italian Republic, Ordinary Supplement No 48, 28 February 1977, p. 1. The Commission has not questioned the normative character of that decision, and I do not think it necessary to consider that issue.

(8) Paragraph 3.1 of part I of Annex 5 to the decision.

(9) The Commission' s attitude on this point is all the more surprising inasmuch as in support of another complaint it correctly pointed out that the Italian Law No 319 (cited above, note 6) permits all discharges under certain conditions (see section 7, below).

(10) Cited above, note 6.

(11) See, for example, paragraphs 28 and 33 of the Report for the Hearing and section 13 of this Opinion.

(12) Cited above, note 6.

(13) Cited above, note 7.

(14) Cited above, note 6.

(15) That law is entitled "Conversione in legge, con modificazioni, del decreto legge 30 dicembre 1981, No 801, concernente provvedimenti urgenti in materia di tutela delle acque dall' inquinamento" (Official Gazette of the Italian Republic No 63 of 5 March 1982, p. 1713).

(16) Cited above, note 6.

(17) Cited above, note 6.

(18) Cited above, note 7.

Translation