Report for the Hearing delivered in Case 322/86

I — Facts and procedure

1. In accordance with Article 1 (1) thereof, Council Directive 78/659/EEC of 18 July 1978 on the quality of fresh waters needing protection or improvement in order to support fish life (Official Journal 1978, L 222, p. 1) applies to waters designated by the Member States as needing such protection or improvement. Under Article 1 (3), the aim of the directive is to protect or improve the quality of running or standing fresh waters which support or, if pollution were reduced or eliminated, would become capable of supporting fish belonging to certain species. In order to achieve this objective, Article 3 requires Member States to set values for the physical and chemical pollution parameters set out in Annex I no less stringent than those listed in the column I of Annex I. Under Article 5, Member States are required to take measures in order to ensure ‘that designated waters conform within five years following designation in accordance with Article 4 to ... the values set by the Member States in accordance with Article 3 ... ’. Article 17 (1) provides that Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with the directive within two years of its notification and shall forthwith inform the Commission thereof. Since Directive No 78/659/EEC was notified to the Member States on 20 July 1978, the abovementioned period expired on 20 July 1980.

2. Following an official complaint lodged with the Commission by the World Wildlife Fund, Italy, in which it was maintained that the state of pollution of lakes and rivers in Italy was due to a failure to implement Directive 78/659/EEC in the Italian legal system, the Commission, by a letter dated 7 March 1984, asked the Italian Permanent Representation to transmit to it within a period of six weeks appropriate information together with the Italian Government's views on the matter. This request for information was repeated in a letter of 3 October 1984. The Commission received no communication from the Italian authorities disputing the facts set out by the World Wildlife Fund and considered that the obligations imposed by Directive 78/659/EEC had not been fulfilled; by letter of 11 March 1985, pursuant to Article 169 (1) of the EEC Treaty, it therefore invited the Italian Government to submit to it within a period of two months its observations on the alleged failure to fulfil its obligations. By a letter dated 5 November 1985, the Italian Permanent Representation informed the Commission that a group of experts of the interministerial committee for the protection of waters against pollution had been given the task of drawing up a draft law, to be placed before that committee, intended to transpose into the Italian legal system the provisions of Directive 78/659/EEC. The Commission received no further communication relating to the adoption by the Italian authorities of legislative provisions to implement the directive; on 28 February 1986 it therefore issued a reasoned opinion under Article 169 of the Treaty and invited the Republic of Italy to adopt the measures necessary to comply with the opinion within a period of two months from the date of its notification. In response to that reasoned opinion, the Italian Government stated in a letter dated 15 July 1986 from the Italian Permanent Representation that as Directive 78/659/EEC, along with other Community directives relating to the protection of water, had substantially been transposed into national law, it seemed appropriate, in order to eliminate certain disparities which continued to exist between national and Community legislation, to seek a general and uniform solution and to avoid the adoption of specific measures in individual sectors. For that reason, the procedure for the enactment of the draft law for the separate implementation of Directive 78/659/EEC had been suspended and the Government had approved and transmitted to the Italian Parliament on 23 May 1986 a draft law relating not only to the protection of waters capable of supporting fish life but more generally to the protection of all types of water against pollution, the disposal of waste and environmental quality controls. The letter also stated that Article 24 of the draft law delegated to the Government the authority to adopt, by decree, a consolidated text intended to restructure, with due regard to relevant Community directives, the whole of the Italian legislation in force relating to the protection of waters. The Commission, taking the view that there was nothing to indicate that such a consolidated text had been adopted by the Italian Government, brought these proceedings for failure to fulfil obligations. The Commission's application was received at the Court Registry on 19 December 19176. The written procedure followed the normal course. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.

II — Conclusions of the parties

The Commission claims that the Court should:

1) Declare that by failing to adopt within the prescribed period the measures necessary in order to comply with Council Directive 78/659/EEC on the quality of fresh water needing protection or improvement in order to support fish life, the Republic of Italy has failed to fulfil its obligations under the EEC Treaty;

2) Order the Republic of Italy to pay the costs.

The Italian Government denied the alleged infringement.

III — Submissions and arguments of the parties

1. The Italian Government states first that Directive 78/659/EEC is devoid of specific mandatory provisions and that in order to achieve its objectives — the establishment of protected waters suitable, according to fixed values, for ensuring the conservation and development of fish life — the directive relies on the initiative of Member States without predetermining the means or scope of the action to be taken. Thus, as regards the application in the national legal system of the valued laid down by Articles 2 and 3, in Annex 1 to the directive, it considers that these values are not strictly mandatory in nature but represent only objectives to be attained; they are binding only as regards the authorities, which are required to do what is necessary in order to ensure that these values are maintained or reestablished. That is clear from a comparison with analogous values set by Directive 75/440/EEC concerning the quality required of surface water intended for the abstraction of drinking water in the Member States, and Directive 76/160/EEC on bathing water; these constitute maximum values which, if not respected, entail automatic and specific legal consequences, and are even capable of having an effect on the rights and powers of individuals. The Italian Government states that on the basis of the relevant legislation in force the State and the regions, which are responsible for the management and protection of public waters, have all the powers necessary to take appropriate action in order to ensure compliance with the obligations prescribed by Directive 78/659/EEC, in particular those contained in Article 4 relating to the designation of a certain number of fresh waters. It states that on the basis of initial information received in response to a circular letter of 21 April 1980 sent by the Ministry of Agriculture and Forestry to the regions and to the autonomous provinces of Trento and Bolzano for the purpose of drawing up a list of fresh waters suitable for designation pursuant to Directive 78/659/EEC, the Ministry, by a decree of 16 January 1981, designated a certain number of fresh waters in the province of Bolzano deemed capable of supporting fish life. Similar action is to be taken as soon as possible in order to increase the number of designated waters. As regards the action to be taken on waters designated now or in the future, consisting in periodic controls of water quality and the implementation of programmes for reducing pollution, the Italian Government maintains that the legislation in force provides all the powers necessary for the purposes of the Directive and that all that remains is to direct the exercise of existing public powers towards the pursuit of specific objectives within the overall context of the general objectives of water management. It states, furthermore, that the projected adoption of a clear and coherent consolidated text, prompted by the need to reorganize the legislation relating to waters, which has proved to be particularly confused over the last few years following the adoption of various legislative provisions designed to implement other Community directives, does not mean to say that pending the adoption of that text the means of implementing Directive 78/659/EEC are lacking. As to the arguments put forward by the Commission concerning the request for a preliminary ruling referred to the Court by the Pretore di Salo (Case 14/86, judgment of the court of 11 June 1987 [1987] ECR 2545) concerning the pollution of the River Chiese, the Italian Government observes that these considerations bear no relation to the actual subject-matter of this case. It observes further that the Italian authorities have fulfilled their obligation to include the River Chiese in the waters to be designated for the purposes of the directive and that even if, as the Commission claims, that watercourse is polluted, such a state of affairs is not attributable to a lack of legislation.

2. As a preliminary remark, the Commission states that it was only on reading the Italian Government's defence that it learned that the competent Italian authorities have available to them all the powers necessary to take action under the legislation in force in order to attain the objectives set by the directive, and that those powers were in fact used by the authorities to that end. It observes that the fact that it was unaware of this first step in the implementation of the directive is not hard to explain: the first provisions adopted for its transposition into national law were not notified to the Commission during the pre-litigation procedure, and indeed it was the letters from the Italian Permanent Representation that gave the Commission the clear, not say certain, impression that the transposition of the directive required the adoption of a law or a measure having force of law such as the consolidated text alluded to in the letter of 15 July 1986. The Commission relies on the mandatory nature of directives under the third paragraph of Article 189 of the EEC Treaty and stresses that since Member States are their sole recipients, it is for the national authorities to choose, from amongst the means which may be used in order to arrive at the result prescribed by the directives themselves, the most appropriate legislative instrument for achieving a given result in a given sphere, and by implication to choose the national authorities to be entrusted with the adoption of the legislative instrument. If, consequently, the Italian authorities chose to implement Directive 78/659/EEC by means of simple government decrees, the Commission wonders why today, nearly nine years after the adoption of that directive by the Council, these decrees have not been adopted, particularly since, according to the Italian Government, pending adoption of a consolidated text the means of taking action in accordance with the requirements of the directive are not lacking. It maintains that the failure to comply with Article 189 of the Treaty and with the directive itself is demonstrated ‘beyond all reasonable doubt’, since even supposing that the waters of Bolzano province which have been designated under Article 4 of the directive are now protected as regards conservation and the development of fish life, it is nevertheless clear from the information provided by the Italian Government itself that the salmonid and cyprinid waters situated in the 19 other regions and in the autonomous province of Trento, that is to say in the remaining 98% of the territory of the Italian Republic, are not protected against pollution. The Commission goes on to state that the discussion in its application of the reference for a preliminary ruling made by the Pretore di Salo was essentially intended to provide information and simply to confirm, on the basis of the facts set out by the Pretore — and thus by definition correct — the existence of a lacuna in the Italian legal system concerning the protection of waters capable of supporting fish life. It observes that the seriously polluted state of the River Chiese was complained of not by the Commission but by the fishing associations mentioned by the Pretore di Salo in his order making the reference.

J. C. Moitinho de Almeida

Judge-Rapporteur

1 Language of the Case: Italian.