Report for the Hearing in Case C-59/89

I — Facts and legislative background

By Directive 82/884/EEC of 3 December 1982 on a limit value for lead in the air (Official Journal 1982 L 378, p. 15, hereinafter referred to as the directive), the Council fixed a limit value which the concentration of lead in the air may not exceed.

Article 1(1) of the directive defines the objective to be achieved to be achieved in the following terms:

Article 2 of the directive is worded as follows:

Article 4 of the directive imposes on Member States the following obligation:

Finally, Article 3(1) of the directive provides as follows:

Under Article 12(1) of the directive the Member States are required to bring into force the laws, regulations and administrative provisions necessary to comply with the directive within 24 months of its notification. In the instant case, the directive was notified to the Federal Republic of Germany on 9 December 1982 and had, therefore, to be transposed into German law no later than 9 December 1984.

By letter of 1 February 1988, the Commission informed the Federal Republic of Germany that it considered that the latter had not fully complied with its obligations under the directive. The Commission formulated two complaints in that respect.

In the first place, the Federal Republic of Germany had not satisfied the obligation, arising from Articles 1 and 2 of the directive, to fix at 2 micrograms Pb/m3 the concentration of lead in the air which may not be exceeded.

The Federal Republic of Germany could not, according to the Commission, rely, in that respect, on the first general administrative instruction to implement the Law on protection against pollution of 27 February 1986 (GMB1., p. 95, hereinafter referred to as the technical circular air). Admittedly, that circular, in paragraph 2.5.1., fixed a value of 2 micrograms/m3 which the concentration of lead in the air may not exceed. However, that circular, according to the express terms of paragraph 1(1), concerned only plant for which a licence was required within the meaning of Paragraph 4 of the federal Law of 15 March 1974 on protection against the harmful effects of air pollution, noise, vibrations and other types of nuisance (BGBl. I, p. 721, hereinafter referred to as the Law on protection against pollution). Furthermore, the technical circular air applied only in respect of certain acts relating to such plant, listed in paragraph 1(2).

There was, therefore, in German law, no provision of general application prohibiting the exceeding of the maximum value of 2 micrograms Pb/m3 fixed by the directive.

In the second place, the Commission charged the Federal Republic of Germany with not installing sampling stations at places where individuals may be exposed continually for a long period, as required by Article 4 of the directive. The stations which the Federal Republic of Germany had installed measured nuisances coming from various sources of pollution. It was not certain, in addition, that any of those stations were situated in the immediate vicinity of a very busy road. In those circumstances, the Federal Republic of Germany was unable to determine, by measurements carried out in exposed places, whether the limit value fixed for lead was observed.

However, it followed from a previous communication from the Federal Republic of Germany itself that, in the vicinity of the lead and silver smelters at Braubach, the value of 2 micrograms Pb/m3 was exceeded during the period 1985/1986 and that it was foreseeable that it would again be exceeded.

In any event, the Federal Republic of Germany did not forward to the Commission any precise information concerning the places chosen for the installation of the sampling stations, the nature of the sampling operations, the determination of the values, etc., thus making it impossible for the Commission to ascertain whether it has fulfilled its obligations.

By letter of 31 May 1988, the Federal Republic of Germany forwarded to the Commission observations, dated 19 May 1988, in which it disputed the complaints formulated by the Commission.

With regard to the first complaint, concerning the obligation to transpose into national law the limit value indicated in the directive, the Federal Republic of Germany maintained, first of all, that the concrete results which it had achieved in the matter of air pollution by lead fully satisfied the requirements of the directive. Thus, at Frankfurt, for example, the concentration of lead in the air was 2, 6 micrograms Pb/m3 in 1975, and fell to 0, 4 micrograms Pb/m3 in 1986. Generally, the results of the measurements carried out showed that the limit value for lead was never exceeded on its territory after the directive was adopted.

The Federal Republic of Germany maintained that, in any case, it transposed the limit value prescribed by the directive in a provision of national law which had binding force and was applicable throughout the national territory.

On that point, it stated that Paragraph 48 of the Law on protection against pollution authorized the Federal Government to adopt, after hearing the sectors concerned and receiving the approval of the Bundesrat, general administrative provisions on, in particular, the limit values of pollution which may not be exceeded for reasons of health protection.

It was on the basis of that provision that the Federal Government adopted the technical circular air. That circular fixed, in paragraph 2.5.1, a limit value for lead in the air of 2 micrograms Pb/m3, which corresponds to the requirements of the directive.

The limit value thus fixed was binding: given that the technical circular air complemented the Law on protection against pollution, it necessarily had the same binding nature as that law.

That point of view was confirmed by decisions of the courts.

Thus, in a related sphere, the Bundesverwaltungsgericht held, in a judgment of 19 December 1985 concerning the nuclear power station at Wyhl (DÖV, 1986, p. 431), that the general basis for calculation for exposure to radiation on the occasion of radioactive discharges in the air or in surface water (instruction of the Minister for the Interior concerning Paragraph 45 of the regulation on protection against radiation of 15 August 1979, GMB1. p. 371) was intended to give concrete effect to the legal rule and that, unlike administrative provisions which only interpret a legal rule, the general basis for calculation was binding on the administrative courts within the limits laid down by the legal rule.

With regard, more particularly, to the technical circular air, the Federal Republic of Germany cited a judgment of the Oberverwaltungsgericht of the Land of North Rhine-Westphalia of 9 July 1987 (DVB1., 1988, p. 152), in the words of which as an administrative provision which gives concrete effect to the legal rule paragraph 2.5.1 of the technical circular air is binding on the administrative courts within the framework of the limits fixed by the legal rule. That legal construction developed by the Bundesverwaltungsgericht in its judgment concerning the power station at Wyhl is legitimized by the authorization to adopt standardization measures which is contained in Paragraph 48 in conjunction with Paragraph 51 of the Federal Law on protection against pollution, and which confers a limited mandatory value on administrative provisions based on those two Paragraphs.

The limit value of 2 micrograms Pb/m\fixed in the technical circular air, was binding, moreover, in a general way, that is to say, no matter what the source of the pollution. According to the Federal Republic of Germany, the concept of effect harmful to the environment, contained in the Law on protection against pollution, must have the same meaning each time it is used in that law and in the regulations implementing it. The technical circular air puts that concept into concrete form in a general way by fixing at 2 micrograms Pb/m3 the limit value beyond which an effect harmful to the environment is produced. That value was determined on the basis of scientific findings and, accordingly, there was justification for recognizing that it was of general application.

The Federal Republic of Germany maintained, moreover, that it had at its disposal the necessary legal arsenal to ensure the effective observance, throughout the national territory, of the nuisance values fixed by the directive.

In that respect, it observed, first of all, that, owing to the application of the law on lead in petrol of 5 August 1971, as amended in particular on 18 December 1987 (BGBl. I, p. 2810), lead pollution due to vehicular traffic had already fallen by 40% compared with 1985. The ban on the use of regular leaded petrol, applicable as from 1988, should bring about a further, and considerable, reduction in atmospheric pollution caused by lead.

Furthermore, the Federal Republic of Germany maintained that under Paragraphs 44 to 47 of the Law on protection against pollution, the competent authorities of the Länder must, in certain circumstances, define exposed zones and draw up for them plans for the protection of the air.

According to Paragraph 44(2) of the Law on protection against pollution, exposed zones are zones in which pollution of the air occurs or is to be expected which, because of its frequency, duration or high concentration, or of the danger of the combined effect of various pollutions of the air, can have effects which are especially harmful to the environment. Exposed zones are defined by the regulations or administrative provisions of the Federal Government and the Länder.

The Länder Committee for Protection against Nuisances, anxious to harmonize those regulations and administrative provisions, laid down criteria for the interpretation of Paragraph 44(2). Those criteria take account, in particular, of the limit value fixed by the directive.

If it is found that, in an exposed zone, effects harmful to the environment as a result of air pollution have appeared or are likely to appear, the competent authorities of the Länder must draw up a plan for the protection of the air (Paragraph 47 of the Law on protection against pollution). Plans for the protection of the air must include measures aimed at reducing air pollution and at preventing such pollution from arising.

According to the Federal Republic of Germany, Paragraph 47 of the Law on protection against pollution left to the authorities of the Länder only a limited discretion regarding the decision whether or not to implement a plan for the protection of the air. Those authorities were required to draw up and implement a plan for the protection of the air when the circumstances provided for in Paragraph 47 of the law existed, except where there was another means of preventing the nuisance values fixed in the technical circular air from being exceeded.

Plans for the protection of the air had already been finalized for certain areas of the Länder of Hesse, Hamburg, North Rhine-Westphalia, Rhineland-Palatinate and Berlin.

The Federal Republic of Germany pointed, finally, to the existence of a bill intended to amend the law on protection against pollution in such a way that the drawing-up and implementation of plans for the protection of the air would be compulsory when certain nuisance values, in particular those fixed by the directive, were exceeded.

With regard to the second complaint, concerning the location of the sampling stations, the Federal Republic of Germany stated that there was, on its territory, a network of some 160 stations which continually measured lead pollution in the air. That network was especially dense and covered the whole of the national territory. The measurements were carried out in accordance with the method prescribed in the Annex to the directive.

The Commission took the view that the explanations provided by the Federal Republic of Germany were not satisfactory and, accordingly, issued a reasoned opinion on 20 October 1988.

With regard to the first complaint, concerning the transposition into national law of the limit value fixed by the directive, the Commission did not share the opinion of the Federal Republic of Germany, according to which the technical circular air put into concrete form, in a general and imperative way, the concept of effects harmful to the environment where air pollution by lead was concerned. Since the German legislature made use, in the Law on protection against pollution, of the imprecise concept of effects harmful to the environment, it wished to allow the permissible level of nuisance to be determined for each individual situation. In those circumstances, the Federal Government could not fix, in the technical circular air, a limit value applicable generally, with no possibility of derogation.

Besides, it followed from the very words used in paragraph 1(1) of the technical circular air that that circular applied only to plant subject to an authorization within the meaning of Paragraph 4 of the Law on protection against pollution, that is, to plant which were especially likely to produce effects harmful to the environment. Furthermore, the circular applied only on the occasion of certain acts and decisions concerning that specific plant (paragraph 1(2) of the technical circular air).

With regard to plant for which a licence is not required the Law on protection against pollution provided only that effects harmful to the environment must be avoided to the extent permitted by the present state of technology (Paragraph 22(1)(1)), and that unavoidable nuisances must be reduced to a minimum (Paragraph 22(1)(2)).

The applicable texts did not therefore allow the inference to be drawn that the limit value of 2 micrograms Pb/mJ, laid down in paragraph 2.5.1 of the technical circular air, was applicable generally throughout the national territory, as required by Article 2 of the directive.

With regard to the plans for the protection of the air which the Länder were required to draw up and implement in the circumstances envisaged by Paragraphs 44 to 47 of the Law on protection against pollution, the Commission stressed that those provisions left a large margin of discretion to the authorities of the Länder. They were required to draw up plans for the protection of the air only for exposed zones, that is zones in which effects especially harmful had appeared or were likely to appear. There was nothing to indicate that that concept corresponded to a pollution exceeding the limit value fixed in the directive. Moreover, Paragraph 47 of the Law on protection against pollution provided only that the authorities of the Länder were to (sollen) draw up plans for the protection of the air in the circumstances laid down by that provision, but not that they had to (müssen) do so.

The Commission concludes from the foregoing that at present, in the Federal Republic of Germany, there was no mandatory rule clearly prohibiting, throughout the entire territory of that Member State, the exceeding of the limit value prescribed by the directive.

With regard to the second complaint, concerning the installation and the operation of the sampling stations, the Commission pointed out that the 160 sampling stations mentioned by the Federal Republic of Germany were not necessarily installed at places determined in accordance with Article 4 of the directive, that is at places where individuals may be exposed continually for a long period and where the limit value was likely not to be observed. The Commission considered, therefore, that the second complaint must be upheld.

The Commission took the view, accordingly, that the Federal Republic of Germany had failed to fulfil its obligations under the combined provisions of Articles 5 and 189 of the Treaty, as well as of Articles 2 and 4 of the directive.

It invited the Federal Republic of Germany to take the measures necessary to comply with the reasoned opinion within two months.

The Federal Republic of Germany did not reply to the reasoned opinion.

On 28 February 1989 the Commission therefore brought the present action for failure by a Member State to fulfil its obligations.

Upon hearing the Report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without a preparatory inquiry. However, it decided to submit questions to the Federal Republic of Germany and the Commission. Those questions were answered within the period allowed.

II — Conclusions of the parties

The Commission claims that the Court should:

The Federal Republic of Germany contends that the court should:

III — Arguments of the parties

The Commission refers to the arguments which it submitted in Case 361/88, which, essentially, raises the same problems as those in the present case, and also sets out the following observations.

It maintained that the directive obliges the Member States to transpose the limit value of 2 micrograms Pb/m' into a clear and mandatory national rule. That obligation arises in particular from Article 2(3) of the directive, according to which Member States may, at any time, fix a value more stringent than that laid down in this Directive: the Member States are therefore required, at the very least, to fix a limit value equal to that provided by the directive. They cannot escape that obligation by relying on the fact that that limit value is observed in fact on their territory.

It is true that the Court held in its judgment in Case 29/84 (Commission v Federal Republic of Germany [1985] ECR 1661, specifically paragraph 23), that the transposition of a directive does not necessarily require legislative action in each Member State, and that, in particular, the existence of general principles of constitutional or administrative law may render the transposition by specific legislation superfluous. However, the Court made that possibility subject to the double condition that those principles guarantee that the national authorities will in fact apply the directive fully and that, where the directive is intended to create rights for individuals, the legal position arising from those principles is sufficiently precise and clear and the persons concerned are made fully aware of their rights and, where appropriate, afforded the possibility of relying on them before the national courts.

The technical circular air, to which the Federal Republic of Germany referred in its answer to the letter of formal notice, does not satisfy those provisions.

First of all, the scope of application of the technical circular air is confined, according to the very words used in paragraph 1 of that circular, to plant for which a licence is required within the meaning of Paragraph 4 of the Law on protection against pollution. It also emerges from paragraph 1 that the rules laid down by the technical circular air need only be observed on the occasion of certain specific administrative measures concerning that plant: authorization to construct or alter such a plant, obligations imposed a posteriori, inquiries into the nature and magnitude of emissions from that plant as well as the nuisances arising from the zones in which that plant is operated.

The interpretation defended by the Federal Republic of Germany, according to which the scope of application of the technical circular air must be extended to all possible sources of air pollution by lead, is thus contrary to the very letter of that circular. The legal situation does not correspond, therefore, to the conditions of clarity and legal certainty laid down by the Court in the abovementioned judgment, which would enable the technical circular air to be considered as guaranteeing the correct transposition of the directive.

Furthermore, the Commission casts doubt on the binding nature of the technical circular air.

It is admitted, both in case-law and in academic legal writing, that administrative circulars to not have to be observed when an atypical situation arises, that is to say a situation which the author of the administrative provisions could not, or did not wish to, resolve by reason of to the fact that he had to regulate the problem in a general way. The administrative authorities are free, in such a case, to derogate from the requirement laid down in the circular.

In a recent judgment, concerning a circular relating to tax law, the Bundesverfassungsgericht expressly held that general administrative circulars ... are not laws within the meaning of Article 20(3) and Article 97(1) of the Basic Law (in the sense that statutes are binding on judges) (judgment of 31 May 1988, NJW, 1989, p. 666). In the same judgment, the Bundesverfassungsgericht expressly distinguished ordinary general administrative circulars, to which that assessment applies, from the special case of authorization envisaged in nuclear law, which was the case in the judgment of the Bundesverwaltungsgericht of 19 December 1985, above, concerning the nuclear power station at Wyhl, mentioned by the Federal Republic of Germany in its reply to the letter of formal notice.

It can clearly be seen from the judgment of the Bundesverfassungsgericht that administrative circulars are not, in general, recognized as legal rules. Moreover, that construction is necessary in the light of Article 80(1) of the Basic Law. That provision makes the adoption of legal rules by the administration subject to certain conditions which are not satisfied in the present case. The mere fact that the technical circular air was adopted on the basis of Paragraph 48 of the Law on protection against pollution, which envisages the adoption of administrative provisions, does not suffice to confer a binding nature on the technical circular air.

The Commission points out that there is currently a tendency, among certain writers, to recognize as having a binding nature administrative circulars which deal with particularly technical spheres: it is the administration, competent in technical matters, and not the courts, that must determine the content of certain imprecise legal concepts.

According to the Commission, that interpretation must, however, be confined to cases which actually involve the assessment of complex technical facts. That is not the case with regard to the technical circular air. The Commission refers to Beyerlin (EuR, 1987, p. 140), who writes that the limit values contained in the technical circular air only express an act of political will of the executive, taken after consulting experts.

Generally, there exists a lively controversy among writers as to the binding force of administrative circulars on technical matters. In particular, Hill writes (NVvZ, 1989, p. 402) that there is no longer a clear answer to the question whether a legal form such as an administrative provision putting a legal rule into concrete form must be recognized in our system of sources of law, and what their legal effects are.

In those circumstances, the doubts which exist concerning the technical circular air, with regard both to its scope of application and to its binding force, must lead the Court to declare that that circular does not constitute a correct transposition of the directive.

The Commission maintains that the Federal Republic of Germany may no longer rely on Paragraphs 44 to 47 of the Law on protection against pollution, which require the authorities of the Länder, in certain circumstance, to define exposed zones and to draw up, in respect of them, plans for the protection of the air.

First of all, the measures of protection and prevention to be taken in the framework of those plans for the protection of the air do not apply to the whole of the national territory, but only to zones previously described as exposed zones by the regulations of the Länder. It follows from the information supplied by the Federal Republic of Germany that only the authorities of certain Länder have defined exposed zones, but that large parts of the national territory are not covered by plans for the protection of the air.

Then again, the administrative authorities have a discretionary power as to the decision to implement plans for the protection of the air, as a result in particular of Paragraph 44(2) of the Law on protection against pollution. Under that provision, exposed zones are those in which effects especially harmful to the environment occur or are to be expected. Furthermore, Paragraph 47 of the Law does not provide that the competent authorities of the Länder must (müssen) draw up, in certain circumstances, a plan for the protection of the air, but only that they are to (sollen) do so. In its answer to the letter of formal notice, the Federal Republic of Germany contended that the authorities of the Länder could only refrain from drawing up a plan for the protection of the air if there were another means of preventing the nuisance values fixed in the technical circular air from being exceeded. The Commission, however, argues that that claim is not supported by any provision of a law or regulation.

Furthermore, the procedures to be followed in order to implement the measures envisaged in the framework of the plans for the protection of the air are so complicated that they do not permit rapid action to be taken to ensure that the limit values are effectively observed.

Finally, it does not follow from any provision of a law or regulation that a plan for the protection of the air need necessarily be implemented when the limit value of 2 micrograms Pb/m5 is reached. Paragraph 2.5.1 of the technical circular air does reproduce that limit value, but it need only be observed, according to paragraph 2.6.2.2 of the same circular, in the immediate vicinity of the plant which is the cause of the discharges (the evaluation zone for nuisances depends on the height of the chimneys from which the discharges come). With regard to the fourth general administrative circular implementing the Law on protection against pollution, of 8 April 1975 (GMB1. p. 358), put forward by the Federal Republic of Germany in its defence, that only applies, according to its paragraph 6.1.2, to pollution caused by dust, sulphur dioxide, oxides of nitrogen, carbon monoxide and gaseous organic mixtures, but not to pollution caused by lead.

As the Commission notes, the Federal Republic of Germany has pointed out that an amendment to the Law on protection against pollution was in the course of preparation, according to which it becomes compulsory to draw up and implement plans for the protection of the air when the values fixed in the directive are exceeded. The Commission contends that, as long as those amendments have not been inserted in the Law on protection against pollution, it does not satisfy the requirements of the directive.

The Commission therefore asks the Court to declare that the Federal Republic of Germany has not correctly transposed the directive into national law.

The Federal Republic of Germany refers to the arguments which it developed in Case 361/88, in which problems broadly similar to those at issue in the present case arose. In addition, it puts forward the following observations.

It points out, first of all, that according to Article 189(3) of the Treaty, a direttive is to be binding, as to the result to be achieved, upon each Member State to which it is addressed, but is to leave to the national authorities the choice of form and methods.

The objective pursued by the directive in question in the present case was not the adoption, by each Member State, of a rule expressly prohibiting the exceeding of the limit value, but rather the effective observance of that limit value on the territory of the Member States.

The Federal Republic of Germany contends that that result is achieved on its territory: the nuisance values recorded are well below the value of 2 micrograms Pb/m5 fixed by the directive.

Thus, for example, in the South Rhine furrow, which is characterized by heavy industry and extremely dense vehicular traffic, atmospheric pollution by lead did not reach, in 1987, 20% of the limit value fixed by the direttive. Furthermore, in the sampling stations situated on the roads that carry heavy traffic, no case of pollution exceeding 2 micrograms Pb/m3 has been recorded during recent years.

That result was able to be achieved by means of a set of laws, regulations and administrative provisions, among which include in particular the Law on lead contained in petrol, the Law on protection against pollution and the technical circular air. The mere fact that the limit value fixed by the directive is observed itself proves that those provisions guarantee the correct transposition of the directive.

The Law on lead contained in petrol prohibited, as from 1 January 1988, the use of regular leaded petrol. That ban has brought about a spectacular reduction in total lead emissions and has enabled pollution in town centres to be brought down to a level distinctly lower that the limit value fixed by the directive.

Concerning, more particularly, the technical circular air, the Federal Republic of Germany points out that in its legal system it has been traditional, for more than 120 years, to entrust the administration with the task of defining what is meant by effects harmful to the environment. At present, Paragraph 48 of the Law on protection against pollution authorizes the Government of the Federal Republic of Germany to adopt, after hearing the sectors concerned and receiving the consent of the Bundesrat, administrative provisions concerning, in particular, the limit values of pollution which may not be exceeded for reasons of health protection.

It is on the basis of that provision that the Federal Government adopted the technical circular air. That circular fixes, in its paragraph 2.5.1, a limit value of 2 micrograms Pb/m3, which corresponds to the limit value laid down in the directive.

The Federal Republic of Germany contends that that limit value applies in a completely general way, although the terms of paragraph 1 of the technical circular air appear to limit the scope of its application to plant for which a licence is required.

In that respect, the Federal Republic of Germany points out, first of all, that industrial plant which emits lead discharges is generally plant for which a licence is required.

In any event, plant not requiring a licence is in itself also affected by the limit value fixed in the technical circular air.

Paragraph 22 of the Law on protection against pollution provides that plant not requiring a licence must be constructed and operated in such a way as to avoid effects harmful to the environment in so far as the current state of technology permits. Under Paragraph 25(2) of the same Law, plant not requiring a licence whose operation gives rise to effects harmful to the environment which endanger life or human health may be closed down by the authorities.

As the concept of effects harmful to the environment must have the same meaning each time that it used in the Law on protection against pollution and in the regulations implementing it, the technical circular air puts into concrete form, in a wholly general way, the concept of effects harmful to the environment by fixing, in its paragraph 2.5.1, the limit value for lead at 2 micrograms Pb/m\Plant not requiring a licence must, therefore, also observe that limit value.

With regard to the binding force of the technical circular air, the Federal Republic of Germany contends that the Commission has erred in its analysis of the judgment of the Bundesverfassungsgericht of 31 May 1988, above. In that judgment, the Bundesverfassungsgericht did indeed hold that general administrative circulars were not binding upon the courts, but it made it clear that that assessment did not apply in the particular case of the general basis for calculation for exposure to radiation. According to the Federal Republic of Germany, that exception should be extended to all general administrative provisions on environmental law. The technical circular air must therefore be recognized as having a binding effect, a fortiori since it was adopted on the basis of the express enabling provision in Paragraph 48 of the Law on protection against pollution, which was not true of the general basis for calculation for exposure to radiation. That analysis finds support in academic legal writing (Gerhardt, DVB1. 1989, p. 127).

Every citizen can rely on the limit value fixed by the technical circular air before the administrative courts and require that its observance be guaranteed at his place of residence and in his working environment.

The Commission's objection that the administration is not required to observe the limit value fixed by the technical circular air in atypical cases is wholly unfounded. When an atypical case arises, concerning, for example, special topographical conditions or metereological circumstances, the administration may only reinforce the requirements of the technical circular air and may not reduce those requirements by allowing the limit values fixed in that circular to be exceeded. Article 2(2) of the Basic Law, according to which everyone has the right to life and to physical integrity, does not allow the administration to tolerate any exceeding whatsoever of the limit value fixed in the technical circular air, which puts into concrete form the threshold beyond which effects harmful to the environment are produced.

According to the Federal Republic of Germany, it follows from the foregoing that the technical circular air transposes in a general and mandatory way the directive which is here at issue.

It confirms, moreover, that the technical circular air is not a provision which the administration may amend as it pleases: its content is bolted by Community law.

Furthermore, that circular was the subject of a publication in the Gemeinsames Ministerialblatt, which enabled everyone, administrative authorities and individuals, to be informed as to its content.

The technical circular air thus satisfies all the conditions imposed by the Court in its judgment in Commission v Federal Republic of Germany, cited above, to guarantee the valid transposition of the directive.

The Federal Republic of Germany points out, in addition, that it is capable of ensuring the effective observance of the limit value, fixed in the technical circular air, throughout its national territory.

In that respect, it relies in particular on Paragraph 44 to 47 of the Law on protection against pollution, which require the competent authorities of the Länder to define exposed zones and to draw up for them plans for the protection of the air. The criticisms made by the Commission with regard to that system are not justified.

As regards, first of all, the allegation that those plans for the protection of the air have only been drawn up for part of the Federal territory, the Federal Republic of Germany contends that it is quite unnecessary to draw up plans for the protection of the air for regions in which there is no danger that the limit value will be exceeded.

As for the complaint based on the possession by the administration of a discretionary power regarding the implementation of the plans for the protection of the air, that is equally ill-founded. Paragraph 44 of the Law on protection against pollution provides that the regional authorities are to draw up plans for the protection of the air when effects especially harmful appear or are to be expected. Since the technical circular air puts into concrete form, in a general way, the concept of effects harmful to the environment, the authorities of the Länder are required to implement plans for the protection of the air when the limit value fixed in the circular is reached or is likely to be reached. They may refrain from drawing up a plan to protect the environment only if there is another means of preventing the limit value from being exceeded, for example, by adopting individual measures in respect of the undertakings responsible for the pollution (Paragraphs 17 and 24 of the Law on protection against pollution).

Moreover, it follows from Paragraph 45 of the Law on protection against pollution and from the fourth general administrative circular implementing that law, that the limit value of 2 micrograms Pb/m3 must be observed within the exposed zones defined by the authorities of the Länder.

The Federal Republic of Germany observes that the plans for the protection of the air are not called upon to play a great part in the fight against lead pollution. Other laws and regulations exist which enable that pollution to be maintained below the limit value. It refers, in particular, to Paragraph 5(1)(2) of the Law on protection against pollution, the source of the obligation to clean up old plant. It refers also to the thirteenth regulation implementing the Law on protection against pollution, concerning large heating plant. Finally, it recalls that, by virtue of the Law on lead contained in petrol, air pollution due to road traffic has been able to be greatly reduced.

The application of all the laws, regulations and administrative provisions described above has enabled the objective of the directive to be achieved, since air pollution caused by lead, recorded in the Federal territory, is well below the limit value fixed by the directive.

The Federal Republic of Germany contends that in those circumstances it has validly transposed the directive into national law. The action should therefore be dismissed.

IV — Answers to questions put by the Court

A — Questions put to the Federal Republic of Germany

Question 1

The Federal Republic of Germany is requested to forward to the Court the bill amending the law on protection against pollution. It is asked to specify the present stage of preparation of the proposed amendment.

Question 2:

Does the fact that that bill envisages an express obligation to implement plans for the protection of the environment when the limit values fixed, in particular, by Directive No 82/884/EEC are reached not prove that, in the present state of German environmental law, no such obligation exists?

Question 3:

The Federal Republic of Germany is requested to forward to the Court the model bills for antismog regulations drawn up by the Länder Committee for Protection against Pollution.

Joint reply to questions 1, 2 and 3:

The Federal Republic of Germany refers to the position which it has taken on those questions in Case C-361/88.

Question 4:

The Federal Republic of Germany is asked to explain how Paragraph 45 of the Law on protection against pollution and the fourth general administrative provision of 8 April 1975, implementing that law, guarantee the observance of the limit value of 2 micrograms Pb/m3 for lead inside the exposed zones.

Reply:

The Federal Republic of Germany does not intend to go over the reasoning which it has developed throughout the procedure, according to which Article of the Law on protection against pollution and the fourth general administrative provision, of 8 April 1975, implementing that law suffice to guarantee in themselves the observance of the limit value of 2 micrograms Pb/m5 for lead inside exposed zones.

Those provisions constitute an essential complement to the regional rules on protection against pollution. That complement makes it possible to ensure that, in each of the exposed zones defined in application of Paragraph 44(2) of the Law on protection against pollution, the state of air pollutions be permanently recorded my means of accurate sampling programmes and that it is thus possible to determine whether the prescribed limit values, including that of 2 micrograms/mJ for lead, are observed.

The fact that lead is not expressly mentioned as a harmful substance in the fourth general administrative provision implementing the Lw on protection against pollution is due to the fact that the inclusion of supplementary harmful substances is effected by the Länder when they implement their sampling programmes. The German Government refers in that respect to the circular of the Minister for the Environment, Environmental Planning and Agriculture of North Rhine-Westphalia. In other Länder, lead is included in the measures as a constituent of dust.

If it is found that the limit value for lead has been exceeded, even briefly, within the framework of the sampling and monitoring programme prescribed by the combined provisions of Paragraph 45 of the Law on protection against pollution and the fourth general administrative provision, it is then the regional provisions for protection against pollution, and those concerning plant, which enable the limit value to be observed anew.

On the one hand, in such a case a plan is drawn up for the protection of the air pursuant to the second sentence of Paragraph 47(1) of the Law on protection against pollution. The competent authority under the legislation of the Land is required to draw up such a plan, even under the present version of the provision.

On the other hand, it is necessary to apply the measures concerning plant. The latter include, in the first place, concerning plant requiring a licence, in the combined provisions of Paragraph 17 of the Law on protection against pollution and paragraph 2.5 of the technical circular air and, in the second place, concerning plant not requiring a licence, the combined provisions of Paragraph 25(2) of the above Law and paragraph 2.5 of the technical circular air.

Those two types of provisions thus ensure that the limit value of 2 micrograms/m3 for lead is actually observed. To those provisions must be added, moreover, the measures provided for by the Benzin-Blei-Gesetz (Law on lead in petrol) of the Federal Republic of Germany and the ban on regular leaded petrol since 1 January 1988.

The fact that the Law on protection against pollution is sufficient to guarantee fully the observance of the limit value of 2 micrograms Pb/m' for lead in the atmosphere is shown by the fact that since 1989 that value has no longer been exceeded in the municipality of Braubach.

B — Question put to the Commission

Question:

The Commission is asked to state whether the complaint concerning the installation and the operation of sampling stations under Article 4 of Directive 82/884, contained in the letter of formal notice and in the reasoned opinion, was repealed in the application to the Court or in the reply, and, if the answer is in the affirmative, in what precise places in the application or the reply it set out arguments in support of that complaint. Again, if the answer is in the affirmative, the Commission is asked to state according to what criteria the Member States must determine the places where individuals may be continually exposed over a long period.

Reply:

The application concentrates on the complaint concerning the failure to fix a compulsory limit value throughout the territory. At the time the when action was brought, there was no longer anything to justify including in the action the question of the setting-up of sampling stations.

1 Language of the case: German.