Opinion of Mr 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 (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.
2. The purpose of the Directive is to prevent the pollution of groundwater by preventing or restricting the discharge of certain substances. The rules in the Directive concern two kinds of substances, each of which is set out in a list in the Annex to the Directive. With regard to substances in list I the Member States must take the necessary measures to prevent their introduction into groundwater; with regard to substances in list II the Member States must take the necessary measures to restrict their introduction into groundwater, in order to prevent pollution of groundwater by those substances (see Article 3 of the Directive). For that purpose the Directive contains a number of detailed provisions for the implementation of the basic principles set out in Article 3.
3. In my investigation in Case C-131/88 of the scope of the duty to transpose this Directive, I mentioned four points from which it appeared that the Member States retained only a restricted discretion in the transposition of the rules in the Directive:
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.
5. In its reply to the Commission's reasoned opinion the Italian Government took the position that the Italian legislation contains rules which are even stricter than those of the Directive: it argues that all direct discharges into groundwater are prohibited.
6. I am therefore surprised that in its application the Commission states that it takes note of the Italian Government's statement that any direct discharge of waste water into groundwater is forbidden, and asks the Italian Government to confirm that interpretation before the Court of Justice. In my view it can in no way be said that there is a prohibition such as is required by the Directive. Since the Commission's representative confirmed at the hearing that it did not wish to maintain its complaint with regard to this point, I have no alternative but to take note of that statement in my turn.
7. Secondly, the Commission maintains that the Italian legislation makes no distinction between discharges of substances in list I and of those in list II. That distinction is important, since the Directive requires the Member States to prevent the introduction into groundwater of substances in list I, while the introduction into groundwater of substances in list II must only be restricted in order to prevent its pollution by those substances (Article 5). Referring to Article 9 of Law No 319 of 1976, the Commission argues that as a rule all discharges are permitted in Italy when they do not exceed certain limits of acceptability. In its defence and its rejoinder the Italian Government took no position on this point and for that reason the Court asked the Italian Government to reply to a written question.
8. Thirdly, the Commission submits that the Italian legislation contains no provisions concerning a number of substances in list I and list II. In its defence and its rejoinder the Italian Government did not deny this deficiency. It simply pointed out that with regard to point 4 in list I (substances which possess carcinogenic, mutagenic or teratogenic properties in or via the aquatic environment) the Commission has failed to state which specific substances are meant.
9. The Commission further complains that in the Italian legislation there are no provisions on the issue of discharge authorizations which correspond to the rules contained in the Directive. We are concerned here with Article 7 to 13 of the Directive, and I shall deal with the Commission's complaints article by article.
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
11. Under Law No 319 of 10 May 1976 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. That Decision, which is based on Articles 2 and 3 of Law No 319 of 1976, 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.
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. 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 Anieles 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.
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.
17. The Commission's eighth complaint is that Italy has not transposed Article 13 into national law. That article provides as follows :
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.
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.
1 Original language. Dutch.
2 Council Directive of 17 December 1979 (OJ 1980 L 20, p. 43).
3 See point 7 of my Opinion in Case C-131/88.
4 See point 8 of the abovementioned Opinion.
5 See point 9 of the abovementioned Opinion
6 See point 10 of the abovementioned Opinion
7 Official Gazette of the Iulian Republic No 141 of 29 May 1976, p. 4125.
8 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.
9 Paragraph 3.1 of part I of Annex 5 to the decision.
10 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).
11 Cited above, note 6
12 See, for example, paragraphs 28 and 33 of the Report for lhe Hearing and section 13 of this Opinion
13 Cited above, note 6.
14 Cited above, note 7.
15 Cited above, note 6.
16 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 lhe Italian Republic No 63 of 5 March 1982. p 1713)
17 Cited above, note 6.
18 Cited above, note 6.
19 Cited above, note 7,