Language of document :

Arrêt de la Cour

JUDGMENT OF THE COURT (Fourth Chamber)
24 June 2004 (1)


(Failure of a Member State to fulfil obligations – Second subparagraph of Article 3(1) and Article 5(2) of Directive 91/271/EEC – Discharge of urban waste water into a sensitive area – Lack of a collecting system – Lack of treatment more stringent than the secondary treatment provided for in Article 4 of the Directive)

In Case C-119/02,

Commission of the European Communities, represented by G. Valero Jordana and M. Konstantinidis, acting as Agents, with an address for service in Luxembourg,

applicant,

v

Hellenic Republic, represented by E. Skandalou, acting as Agent, with an address for service in Luxembourg,

defendant,

APPLICATION for a declaration that, by not taking the measures necessary for the installation of a collecting system for urban waste water from the area of Thriasio Pedio and not subjecting urban waste water from that area to treatment more stringent than secondary treatment before its discharge into the sensitive area of the Gulf of Elefsina, the Hellenic Republic has failed to fulfil its obligations under Articles 3(1) and 5(2) of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment (OJ 1991 L 135, p. 40), as amended by Commission Directive 98/15/EC of 27 February 1998 (OJ 1998 L 67, p. 29),



THE COURT (Fourth Chamber),



composed of: J.N. Cunha Rodrigues, President of the Chamber, J.-P. Puissochet and F. Macken (Rapporteur), Judges,

Advocate General: F.G. Jacobs,
Registrar: R. Grass,

after hearing oral argument from the parties at the hearing on 11 December 2003,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following



Judgment



1
By application lodged at the Court Registry on 3 April 2002, the Commission of the European Communities brought an action under Article 226 EC for a declaration that, by not taking the measures necessary for the installation of a collecting system for urban waste water from the area of Thriasio Pedio and not subjecting urban waste water from that area to treatment more stringent than secondary treatment before its discharge into the sensitive area of the Gulf of Elefsina, the Hellenic Republic has failed to fulfil its obligations under Articles 3(1) and 5(2) of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment (OJ 1991 L 135, p. 40), as amended by Commission Directive 98/15/EC of 27 February 1998 (OJ 1998 L 67, p. 29) (hereinafter ‘the Directive’).


Legal context

2
Article 1 of the Directive states that the latter concerns the collection, treatment and discharge of urban waste water and the treatment and discharge of waste water from certain industrial sectors, and that its objective is to protect the environment from the adverse effects of the abovementioned waste water.

3
Article 2(1) of the Directive defines ‘urban waste water’ as ‘domestic waste water or the mixture of domestic waste water with industrial waste water and/or run-off rain water’. Also, in Article 2(6) ‘1 p.e. (population equivalent)’ is defined as ‘the organic biodegradable load having a five-day biochemical oxygen demand (BOD5) of 60 g of oxygen per day’.

4
Article 3(1) of the Directive states:

‘Member States shall ensure that all agglomerations are provided with collecting systems for urban waste water,

at the latest by 31 December 2000 for those with a population equivalent (p.e.) of more than 15 000, and

at the latest by 31 December 2005 for those with a p.e. of between 2 000 and 15 000.

For urban waste water discharging into receiving waters which are considered “sensitive areas” as defined under Article 5, Member States shall ensure that collection systems are provided at the latest by 31 December 1998 for agglomerations of more than 10 000 p.e.

Where the establishment of a collecting system is not justified either because it would produce no environmental benefit or because it would involve excessive cost, individual systems or other appropriate systems which achieve the same level of environmental protection shall be used.’

5
The general rules applicable to urban waste water are set out in Article 4 of the Directive. The first indent of Article 4(1) provides:

‘Member States shall ensure that urban waste water entering collecting systems shall before discharge be subject to secondary treatment or an equivalent treatment as follows:

at the latest by 31 December 2000 for all discharges from agglomerations of more than 15 000 p.e.’

6
‘Secondary treatment’ is defined in Article 2(8) of the Directive as ‘treatment of urban waste water by a process generally involving biological treatment with a secondary settlement or other process in which the requirements established in Table 1 of Annex I are respected’.

7
Article 5(1) and (2) of the Directive provides:

‘1.For the purposes of paragraph 2, Member States shall by 31 December 1993 identify sensitive areas according to the criteria laid down in Annex II.

2.Member States shall ensure that urban waste water entering collecting systems shall before discharge into sensitive areas be subject to more stringent treatment than that described in Article 4, by 31 December 1998 at the latest for all discharges from agglomerations of more than 10 000 p.e.’

8
Initially the Directive was transposed into Greek law by Joint Ministerial Decision 5673/400 of 5 March 1997 (FEK (Official Gazette) B 192/14.3.1997, p. 1969).

9
Since the Commission was not entirely satisfied with that transposition of the Directive, in particular because sensitive areas had not been designated by the Greek authorities, the latter adopted Joint Ministerial Decision 19661/1982 of 2 August 1999 and sent a copy of it to the Commission. This decision included a list of areas which the Greek authorities classified as ‘sensitive’ for the purposes of the Directive. The Gulf of Elefsina, into which urban waste water from the area of Thriasio Pedio is discharged, appeared on the list.


Pre-litigation procedure

10
By letter of 22 March 2000 the Commission, prompted inter alia by the designation of sensitive areas by the Greek authorities, requested the latter to provide it with information concerning the measures adopted by them to implement the Directive.

11
By letters of 8 and 15 June 2000 the Greek authorities sent to the Commission information concerning implementation of the Directive in Greece. In particular, with regard to the area of Thriasio Pedio, the Greek authorities acknowledged the lack of a waste-water treatment system.

12
At a ‘package’ meeting which took place in Athens (Greece) on 13 and 14 December 2000, the Greek authorities again acknowledged the lack of a waste-water treatment system in the area of Thriasio Pedio. They referred, however, to the efforts made to complete a project in this connection, whose installations were to be operational in 2003.

13
Finding that measures had not been taken in relation to the establishment of a system for collecting urban waste water from the area of Thriasio Pedio and subjecting it to treatment more stringent than secondary treatment, the Commission took the view that the Hellenic Republic had failed to fulfil its obligations under Articles 3(1) and 5(2) of the Directive and sent it a letter of formal notice on 10 April 2001 requesting submission of its observations within a period of two months.

14
Since the Greek authorities did not reply to the letter of formal notice within the period laid down, the Commission, by letter of 27 July 2001, sent a reasoned opinion to the Hellenic Republic which repeated the observations contained in the letter of formal notice. As regards, in particular, the lack of a collecting system, the Commission pointed out that the Gulf of Elefsina was designated as a sensitive area in 1999, that the area of Thriasio Pedio has a p.e of more than 10 000 and that that area’s urban waste water is discharged into the receiving waters of the Gulf of Elefsina. Consequently, in accordance with the second subparagraph of Article 3(1) of the Directive, the Greek authorities should have installed a collecting system for urban waste water from the area of Thriasio Pedio by 31 December 1998 at the latest. The Hellenic Republic was asked to comply with the reasoned opinion within a period of two months from its notification.

15
In their response of 8 October 2001 to the reasoned opinion, the Greek authorities stated first, with regard to the installation of a collecting system for urban waste water in accordance with Article 3(1) of the Directive, that the studies relating to the network of main sewers for the waste water of the area concerned had reached the final tendering stage.

16
Second, they maintained, in relation to implementation of Article 5(2) of the Directive, that the environmental conditions of the waste-water treatment centre for the area of Thriasio Pedio had been approved by Joint Ministerial Decision 67414 of 3 June 1999. Construction of the centre, for which a tendering procedure had been conducted, should be completed in the course of 2004.

17
Finally, the Greek authorities indicated that the urban waste-water treatment system proposed would comprise three stages, thereby ensuring the effective removal of nitrogen, phosphorous and the organic load. The receiving body for the waste water after it had been fully treated would be the Gulf of Elefsina. The waste water that was discharged after being treated as mentioned above and decontaminated would then meet the criteria laid down by the Directive for sensitive areas.

18
It was in those circumstances that the Commission, taking the view that the Greek authorities’ response to the reasoned opinion was not such as to put an end to the failure to fulfil obligations, decided to bring the present action.


The action

Arguments of the parties

19
The Commission points out that the area of Thriasio Pedio has a p.e. of more than 10 000 and that the Greek authorities have identified the Gulf of Elefsina as a sensitive area, pursuant to Article 5 of the Directive. It submits that, by not taking the measures necessary to install, by 31 December 1998 at the latest, a collecting system for urban waste water from the area of Thriasio Pedio, the Hellenic Republic has failed to fulfil its obligations under the second subparagraph of Article 3(1) of the Directive.

20
The Commission also maintains that, contrary to Article 5(2) of the Directive, urban waste water from that area is discharged, without treatment, into an area recognised as sensitive. Under that provision, treatment more stringent than the secondary treatment referred to in Article 4 of the Directive should have been introduced by 31 December 1998 at the latest.

21
According to the Commission, the biological treatment of waste water from, for example, Thriasio Hospital or the housing estates of Mandra, which is also discharged into the Gulf of Elefsina, does not constitute treatment of the kind required by Article 5(2) of the Directive, that is to say treatment more stringent than that described in Article 4(1).

22
In addition, according to information gathered by the Commission, two torrents in the area of Thriasio Pedio, which carry mixtures of domestic and industrial waste water together with run-off water, both flow into the Gulf of Elefsina.

23
The Commission concludes that, by not subjecting urban waste water from the area of Thriasio Pedio to treatment more stringent than secondary treatment before its discharge into the Gulf of Elefsina, the Hellenic Republic has failed to fulfil its obligations under Article 5(2) of the Directive.

24
The Greek Government submits, first, that it has taken measures to establish a collecting system for urban waste water from the area of Thriasio Pedio and that it has not infringed Article 3(1) of the Directive.

25
The competent service for the construction and operation of installations for the disposal and treatment of urban waste water from the area of Thriasio Pedio has already drawn up the final plan of the main sewers. It has also ordered the carrying out of proposals for the construction, in the course of urban improvement works, of internal discharge networks for waste water in the urban areas of Elefsina, Mandra, Magoula and Aspropirgos.

26
The Greek Government further states that, in July 2002, a financing application for the construction of the treatment centre for urban waste water from the area of Thriasio Pedio was submitted to the Cohesion Fund and that the stage currently reached in the construction of the centre is that of inviting tenders with a view to awarding the contract.

27
In any event, the Greek Government maintains that the area of Thriasio Pedio was identified as a sensitive area in order to take account of the future discharge of treated water into the Gulf of Elefsina and not because urban waste water from agglomerations was already being discharged into it.

28
In view of those considerations, the Greek Government contends that it has not infringed the second subparagraph of Article 3(1) of the Directive.

29
As for Article 5(2) of the Directive, the Greek Government maintains that while industrial waste from the area of Thriasio Pedio is discharged into the Gulf of Elefsina, urban waste water from that area, on the other hand, is discharged neither into the Gulf nor into other waters whether or not recognised as sensitive. The agglomerations of that area are linked to septic tanks or seepage pits. The urban waste water is transported by tanker to a waste-water treatment centre located in another area of Attica. In this way, according to the Greek Government, the direct discharge of untreated urban waste water into the Gulf of Elefsina is avoided.

30
As regards, second, the two torrents referred to by the Commission, the Greek Government acknowledges that, in the absence of a collecting system for urban waste water, the torrents discharge liquid waste into the Gulf of Elefsina. However, that waste comes from certain industries in the area and is discharged pursuant to appropriate permits after undergoing suitable treatment.

31
Third, the Greek Government states that the biological treatment unit for discharges from the housing estates of Mandra treats only a proportion of those estates’ waste water. The remainder is sent to cesspits. Also, Thriasio Hospital applies a process which corresponds in result to three-stage treatment of the kind required by Article 5(2) of the Directive.

Findings of the Court

The first complaint, concerning Article 5(2) of the Directive

32
Under Article 5(2) of the Directive, all urban waste water from agglomerations having, like the agglomeration of Thriasio Pedio, a p.e. of more than 10 000 that is discharged into a sensitive area had to be subject to more stringent treatment than that provided for in Article 4(1) of the Directive by 31 December 1998 at the latest.

33
In the present case, the Greek Government submits that untreated urban waste water does not discharge directly into the Gulf of Elefsina: the agglomerations of that area are linked to septic tanks or seepage pits and the urban waste water is transported by tanker to a waste-water treatment centre located in another area of Attica. Consequently, the requirement for treatment more stringent than that provided for in Article 4(1) of the Directive, as prescribed by Article 5(2), does not apply given that urban waste water from the area of Thriasio Pedio is not discharged into the Gulf of Elefsina.

34
That line of argument cannot be upheld.

35
First, even if the system of transporting urban waste water from the area of Thriasio Pedio by tanker were to constitute an appropriate alternative in the light of the Directive’s requirements, the Commission has expressed doubts in the present case as to whether it is possible for the Greek authorities to dispose of all of that waste water by means of such a process. According to the Commission, the area in question has a p.e. of 120 000 and produces approximately 25 000 cubic metres of urban waste water per day. The Greek authorities have stated that tankers can drain 2 500 to 3 000 cubic metres of waste water from the tanks per day. Having regard to those figures, the Commission contends that the Greek Government has not explained what happens to the large balance of urban waste water that cannot be transported to the treatment centre.

36
Even assuming that the figures supplied by the Greek Government concerning the p.e. of the area of Thriasio Pedio, indicating that the p.e. is only 80 000, are correct, there nevertheless appears to be a substantial difference between the tankers’ daily capacity to dispose of urban waste water from that area and the quantity of urban waste water produced by the population concerned.

37
Second, as the Commission has correctly pointed out, the use of seepage pits in the area of Thriasio Pedio results in the indirect discharge of urban waste water into the Gulf of Elefsina. The water discharged by such pits ultimately flows, for the most part, through the groundwater into the Gulf.

38
This argument has not been contested by the Greek Government.

39
It is apparent from the Court’s case-law that it makes no difference under Article 5(2) of the Directive whether the urban waste water discharges directly or indirectly into a sensitive area (see, in particular, Case C-396/00 Commission v Italy [2002] ECR I-3949, paragraph 29).

40
The second subparagraph of Article 3(1) of the Directive, which deals with discharges of urban waste water into receiving waters considered sensitive areas, and Article 5(2) of the Directive, which requires urban waste water entering collecting systems to be subjected to more stringent treatment before discharge into sensitive areas, make no distinction between direct and indirect discharges into sensitive areas (Commission v Italy, cited above, paragraph 30).

41
The objective of the Directive, namely to protect the environment, and that of Article 174(2) EC, a provision which seeks to ensure a high level of protection in the environmental field, would be undermined if only waste water discharging directly into a sensitive area were subjected to treatment more stringent than the secondary treatment provided for in Article 4(1) of the Directive.

42
There is no indication whatsoever in the observations submitted to the Court by the Greek Government that the water discharged, even indirectly, into the Gulf of Elefsina has been subjected to treatment more stringent than the secondary treatment provided for in Article 4(1) of the Directive.

43
As to urban waste water from the housing estates of Mandra which, according to the Greek Government, is treated biologically before its discharge into the Gulf, the Greek Government itself acknowledged at the hearing that there were problems in relation to this waste water, and in any event it has not demonstrated that such biological treatment is sufficient in light of the requirements of Article 5(2) of the Directive.

44
The line of argument relating to the use of cesspits for urban waste water from those estates or to the transport of such waste water in tankers to treatment centres located in other areas should be met with reasoning identical to that set out in paragraphs 37 to 42 of this judgment.

45
In those circumstances, the Greek Government’s argument that the area of Thriasio Pedio was identified as a sensitive area solely in order to take account of the future discharge of urban waste water into the Gulf of Elefsina cannot be upheld either.

46
Since that area has been identified as a sensitive area within the meaning of Article 5(1) of the Directive, it follows that the Hellenic Republic must ensure that the Directive’s requirements relating to the appropriate treatment of urban waste water in sensitive areas are observed.

47
Accordingly, by not subjecting urban waste water from the area of Thriasio Pedio to treatment more stringent than the secondary treatment provided for in Article 4(1) of the Directive before discharging it into the sensitive area of the Gulf of Elefsina, the Hellenic Republic has failed to fulfil its obligations flowing from Article 5(2) of the Directive.

The second complaint, concerning the second subparagraph of Article 3(1) of the Directive

48
The second subparagraph of Article 3(1) of the Directive states that, for urban waste water discharging into receiving waters which are considered sensitive areas as defined under Article 5 of the Directive, Member States are to ensure that collecting systems are provided at the latest by 31 December 1998 for agglomerations of more than 10 000 p.e.

49
It is not disputed in the present case, first, that the Gulf of Elefsina has been identified as a sensitive area within the meaning of Article 5 of the Directive and, second, that the area of Thriasio Pedio has a p.e. of more than 10 000.

50
As is clear from the Court’s answer to the Commission’s first complaint, concerning Article 5(2) of the Directive, urban waste water from the area of Thriasio Pedio is discharged, directly or indirectly, into the Gulf of Elefsina.

51
It follows that, by 31 December 1998 at the latest, the Greek authorities should have taken appropriate measures so that a collecting system existed for urban waste water in that area.

52
It is apparent from the observations submitted to the Court that the Greek Government does not deny the absence of such a system. It has indicated, both in the pre-litigation procedure and before the Court, that the stage reached in the construction of the installations of the treatment centre for waste water from the area of Thriasio Pedio is that of inviting tenders with a view to awarding the contract.

53
However, it was incumbent upon the Greek authorities to initiate the procedures necessary for transposing the Directive into national law in good time, in order that they be completed within the time-limit prescribed in the second subparagraph of Article 3(1) of the Directive, namely by 31 December 1998.

54
The absence of a collecting system for urban waste water in the area of Thriasio Pedio has constituted a breach of that provision since this date.

55
In those circumstances, the Commission’s action must be considered well founded.

56
It must accordingly be held that, by not taking the measures necessary for the installation of a collecting system for urban waste water from the area of Thriasio Pedio and not subjecting urban waste water from that area to treatment more stringent than secondary treatment before its discharge into the sensitive area of the Gulf of Elefsina, the Hellenic Republic has failed to fulfil its obligations under the second subparagraph of Article 3(1) and Article 5(2) of the Directive.


Costs

57
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. Since the Commission has applied for costs and the Hellenic Republic has been unsuccessful, the latter must be ordered to pay the costs.


On those grounds,

THE COURT (Fourth Chamber)

hereby:

1.
Declares that, by not taking the measures necessary for the installation of a collecting system for urban waste water from the area of Thriasio Pedio and not subjecting urban waste water from that area to treatment more stringent than secondary treatment before its discharge into the sensitive area of the Gulf of Elefsina, the Hellenic Republic has failed to fulfil its obligations under the second subparagraph of Article 3(1) and Article 5(2) of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment, as amended by Commission Directive 98/15/EC of 27 February 1998;

2.
Orders the Hellenic Republic to pay the costs.

Cunha Rodrigues

Puissochet

Macken

Delivered in open court in Luxembourg on 24 June 2004.

R. Grass

J.N. Cunha Rodrigues

Registrar

President of the Fourth Chamber


1
Language of the case: Greek.