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Re SECRETARIAT-GENERAL

Brussels, 10 MW 2006

     
   
   

ACCUSE DE RECEPTION 56-Grefe(2009P/ 291687.

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INOM PERMANENT REPRESENTATION
ı (en caract&res d’imprimerie) OF IRELAND TO THE 2

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Subjeet: Letter of formal notice
Infringement No 1990/5220

The Secretariat-General should be obliged if you would forward to the Minister for Foreign
Affairs the enclosed letter from the Commission.

For the Secretary-General

Encl. C(2006) 936

 

Commission europeenne - Office; BERL 08/298, B-1049 Bruxelles — Belgique
Europese Commissle - Office: BERL 08/298, B-1049 Brussel — Belgi&
Telephone: direct line 00-32-(0)2-296.93.35; switchboard: 00-32-(0)2-299.11.11
Fax: 32 (0) 2 296.66.55

http:/leuropa.eu.inl/comm/secrelariat general

COMMISSION OF THE EUROPEAN COMMUNITIES

 

Brussels, 4/4/2006

1990/5220
C(2006)936

Sir,

I would draw your Government's attention to the judgment of the Court of Justice of the
European Communities, dated 2 June 2005, in Case C-282/02, Commission v Ireland to
the effect that:

“in failing to take all.of the measures necessary to ensure a correct transposition
and application of Council Directive 76/464/EEC of 4 May 1976 on pollution
caused by certain dangerous substances discharged into the aquatic environment
ofthe Community, Ireland has failed to comply with its obligations under Article
7 of that directive.”

Under Article 228(1) ofthe Treaty establishing the European Community, if the Court of
Justice finds that a Member State has failed to fulfil an obligation under the Treaty, the
State is required to take the necessary measures to comply with the judgment of the
Court of Justice.

By letter of 15 June 2005, the Commission of the European Communities asked your
Government what measures it had taken to comply with the Court of Justice judgment
referred to above. It requested a response within a period of three months.

A meeting took place between Commission and Irish officials on 15 September 2005 to
discuss the implications of the judgment and, on 24 November 2005, Ireland formally
responded to the Commission’s letter.

Having examined Ireland’s response, the Commission considers that Ireland has not taken
the measures necessary to comply with the above-mentioned judgment in relation to

Mr Dermot AHERN

Ministry of Foreign Affairs

St. Stephen's Green 80

Dublin 2

Ireland

Commission europsenne, B-1049 Bruxelles — Belgique

Europese Commissie, B-1049 Brussel — Belgi&
Telephone: 00-32 (0) 2 299 11.11.

Directive 76/464/EEC on pollution caused by certain dangerous substances discharged into
the aquatic environment of the Community (hereinafter referred to as “the Directive”).

Failure to comply with the provisions of Article 7(1) ofthe Directive

Under this head of complaint in the court proceedings, the Court found that, by not
establishing pollution reduction programmes for all of the substances in respect of which
it was required to do so under the Directive, Ireland had failed to fulfil its obligations
under Article 7(1) thereof. The Court noted that Ireland did not establish quality
objectives for phosphorous in respect of canals and that it thus failed in its obligation to
comply with the requirement that it establish such objectives for all surface waters in the
country. The Court also noted the geographical incompleteness of the municipal
regulations designed to give effect to the Directive”.

In its above-mentioned letter of 24 November 2005, Ireland indicated that it would
establish pollution reduction programmes in respect of all dangerous substances of
relevance in an Irish context (including substances derived from the industrial sector). A
screening monitoring programme to establish the relevance (or irrelevance) of 230
dangerous substances was due to be completed by Augusts 2006.

Ireland also confirmed that, with regard to phosphorous, its current regulations, adopted
in 1998, need to be amended to comply with the judgment. It stated that more complete
details with timetable would be forwarded in January 2006.

Commission therefore concludes that, since the date.of the judgment, Ireland has not
adopted or communicated any new measures to comply with the judgement in respect of
Article 7(1) ofthe Directive. The Commission considers that Ireland has had ample time
to adopt and communicate these measures.

Accordingly, the Commission considers that Ireland has still not established pollution
reduction programmes in accordance with Article 7(1) ofthe Directive and is, as a result,
in continuing non-compliance with its obligations under that provision as well as with the
Court judgment.

Failure to comply with the provisions of Article 7(3) of the Directive

This head of complaint in the court proceedings was divided into two limbs. By the first
limb, the Commission submitted that that Ireland had failed to establish quality
objectives for substances other than phosphorous and 14 substances covered by national
regulations adopted in 2001. By the second limb, the Commission contended that Irish
regulations adopted in 1998 had failed to establish quality objectives for phosphorous —
the substance with the greatest effect in practice on the quality of Irish surface waters — in
accordance with the Directive.

! See paragraph 43
? See paragraph 41

? See paragraph 42

The Court ruled that the first limb was well founded, noting that no objective had been
established by Ireland for a number of substances derived from the industrial sector”.

The Court also ruled that the second limb was well founded, noting several failings of the
Irish legislation. First, the Court noted that quality objectives had not been established for
phosphorous in respect of all surface waters’. Second, it considered it unsatisfactory that
Ireland’s phosphorous objectives were of an interim character‘. Third, the Court accepted
the unreliability of Ireland’s system for analysing the quality of lake water.

With regard to the first limb of this ground of complaint, and as already noted above,
Ireland in its above-mentioned letter of 24 November 2005 set out an intention of
adopting additional measures in respect of all dangerous substances of relevance in an
Irish context, including substances derived from the industrial sector. However, as also
noted above, such measures have not yet been adopted or communicated. Similarly, with
regard to the second limb, Ireland announced an intention of amending its 1998
regulations concerning phosphorous. Again however, such measures have not been
adopted or communicated.

Accordingly, the Commission considers that Ireland has still not established quality
objectives in accordance with the requirements of Article 7(3) of the Directive and it is,
as aresult, in continuing non-compliance with its obligations under that provision as well
as with the Court judgment.

Breach of Article 7(2) ofthe Directive

This ground of complaint in the court proceedings had several aspects. First, the Court
upheld the Commission’s contention that Ireland had failed to make certain local
authority discharges subject to authorisation in accordance with this provision of the
Directive®. Second, the Court confirmed two failures in relation to discharges from
marine installations: the Irish legislation did not require authorisations for marine
installations other than aquaculture installations; and the Irish legislation did not contain
provisions that expressly require emission standards to be set on the basis of quality
objectives”. Third, the Court ruled that, by not making pollutant discharges from fixed
agricultural installations subject to authorisation in those cases where such discharges are
foreseeable, Ireland had failed in its obligations’°. Fourth, the Court found that Ireland
did not have provision for authorising aerial spraying of fertilisers over forest sites in
accordance with the Directive!'. The Court also rejected Ireland’s argument that the

* See paragraphs 49 and 50
° See paragraph 51

© See paragraphs 52 to 54

? See paragraph 55

® See paragraph 70

? See paragraph 71

10 See paragraphs 72 to 75

I! See paragraph 76

prohibitory rogime established by Ireland’s 1977 Water Pollution Act was a ‘more
stringent measure’ within the terms of Article 10 ofthe Directive!?

In its above-mentioned letter of 24 November 2005, Ireland indicated that, with regard to
the different authorisation shortcomings of the Irish legislation, discussions were taking
place between relevant Irish ministries with the objective of arriving at appropriate
solutions. It was indicated that detailed measures would be developed and submitted
informally to the Commission in the first instance in January 2006.

However, with regard to local authority discharges and discharges from marine
installations, no measures have been communicated and, to the Commission’s
knowledge, no measures have been adopted.

With regard to pollutant discharges from fixed agricultural installations, the Irish
authorities referred to new legislation, S.I.No.213 of 2003, primarily adopted to give
effect to Directive 91/676/EEC concerning the protection of waters against pollution by
nitrates from agricultural sources and to comply with a separate judgment ofthe Court of
Justice in Case C-396/01 in relation to Directive 91/676/EEC. They pointed out that this
new legislation addressed phosphorous as well as nitrates and that it was inter alia aimed
at phosphorous leakages from farm installations. However, an examination of this
legislation shows that it does not institute an authorisation system for pollutant discharges
from fixed agricultural installations. Nor, having regard to the position expressed by the
Court in relation to Article 10 of the Directive, is it evident that this new legislation
amounts to a ‘more stringent measure’ for purposes ofthat provision.

With regard to aerial spraying over forests, a draft of legislation was informally
communicated to the Commission and discussed on a “without prejudice” basis at a
meeting between Commission and Irish officials which took place on 7 February 2006.
However, finalised legislation has not been adopted or communicated.

It follows from all of the foregoing that Ireland has not yet fulfilled its obligation to
establish an authorisation system, as required by Article 7(2) of the Directive, and that it
has not complied with the Court judgment in relation to this provision of the Directive.

As it is evident that all the necessary measures have yet to be adopted to comply with the
Court of Justice judgment of 2 June 2005, the Commission takes the view that Ireland has
failed to fulfil its obligations under Article 228(1) of the Treaty establishing the European
Community.

The Commission invites your Government, in accordance with Article 228(2) of the
Treaty, to submit its observations on the foregoing within two months of receipt of this
letter.

1? See paragraphs 77-82

After examining these observations, or if no observations have been submitted within the
prescribed time-limit, the Commission may, if appropriate, issu& a reasoned opinion as
provided for in Article 228(2) ofthe Treaty establishing the European Community.

The Commission would also draw your Government's attention to the financial penalties
that the Court of Justice may impose, under Article 228(2) of the Treaty establishing the
European Community, on a Member State that fails to comply with its judgment.

Under this same ärticle and on the basis of its Communication of 13 December 2005 on
the application of Article 228 of the EC Treaty'?, when the Commission refers a case to
the Court of Justice, it specifies the amount of the lump sum, of the penalty or of both, to:
be paid by the Member State concerned, which it considers suited to the circumstances.

Yours faithfully,

For the Commission

Stavros DIMAS
Member ofthe Commission

IN CONFORMITY WITH COMMISSION
DECISION
For the Secretary - Goperal,

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SEC (2005) 1658 final