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SECRETARIAT-GENERAL

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Subject: Reasoned Öpinion
Infringement No 1990/5220

Please find enclosed the text ofthe Reasoned Opinion addressed by the Commission
of the European Communities to Ireland, under Article 228 ofthe Treaty establishing
the European Community, on account of the inadequacy and non-conformity of the
measures taken by Ireland to comply with the judgment of the Court of Justice of the
European Communities, dated 2 June 2005, in Case C-282/02, Commission v Ireland
concerning Ireland's implementation of Council Directive 76/464/EEC of 4 May
1976 on pollution caused by certain dangerous substances discharged into the
aquatic environment of the Community, now Directive 2006/11/EC of the
European Parliament and ofthe Council

Irleh PRB
RECEPTION

33 -12- 2007 For the Secretary-General,
/

REGEIVED

Encl. C(2007) 1107

 

Commission europ&enne, B-1049 Bruxelles / Europese Commissie, B-1049 Brussei - Belgium. Telephone: (32-2) 299 11 11.
Office:BERL 05/25. Telephone: direct line (32-2) 296.93.35, Fax: (32- -2) 296.43.35.

hitp://lec.europa.eu/dgs/secretariat general/index_fr.htm

ER COMMISSION OF THE EUROPEAN COMMUNITIES

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Brussels, 21/03/2007

1990/5220
C(2007) 1107

REASONED OPINION

addressed to Ireland under Article 228 ofthe Treaty establishing the European
Community on account ofthe inadequacy and non-conformity ofthe measures taken by
Ireland to comply with the judgment of the Court of Justice ofthe European Communities,
dated 2 June 2005, in Case
C-282/02, Commission v Ireland concerning Ireland’s implementation of Directive
76/464/EEC of4 May 1976 on pollution caused by certain dangerous substances
discharged into the aquatic environment of the Community, now Directive 2006/11 /EC
of the European Parliament and of the Council

REASONED OPINION

addressed to Ireland under Article 228 ofthe Treaty establishing the European

Community on account ofthe inadequacy and non-conformity of the measures taken by
Ireland to comply with the judgment ofthe Court of Justice ofthe European Communities,
dated 2 June 2005, in Case
C-282/02, Commission v Ireland concerning Ireland's implementation of Council

Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous

substances discharged into the aquatic environment ofthe Community, now Directive
2006/11/EC ofthe European Parliament and of the Council

1. The judgment by the Court of Justice of the European Communities of 2 June
2005, in Case C-282/02, Commission v Ireland concerning the discharge of dangerous
substances into water states 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 of the
Community, Ireland has failed to comply with its obligations under Article 7 of that
directive.”

2. Under Article 228 of the 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
ofthe Court of Justice,

In its Order of 28 March 1980 (Joined Cases 24 and 97/80 R, Commission v
France [1980] ECR 1319, at paragraph 16 of the operative part), the Court stated that:
"As the Court held in its judgment of 13 July 1972 in Case 48/71, Commission of the
European Communities v Italian Republic [1972] ECR 527, the finding in a judgment
having the force of res judicata that the Member State concerned has failed to fulfil its
obligations under Community law amounts to "a prohibition having the full force of law
on ihe competent national authorities against applying a national rule recognized as
incompatible with the Treaty and, if the circumstances so require, an obligation on them
to take all appropriate measures to enable Community law to be fully applied". It follows
hat by reason solely of the judgment declaring the Member State to be in default, the
State concerned is required to take the necessary measures to remedy its default and may
not create any impediment whatsoever."

In its judgment of 6 November 1985 (Case 131/84 Commission v Italy [1985] ECR 3531,
at paragraph 7 of the operative part), the Court also held that "Article 171 of the EEC
Treaty (now Article 228 EC) does not lay down a time-limit within which a judgment
must be complied with. However, it is well established that the implementation of a
Judgment must be commenced immediately and must be completed as soon as possible."

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8. Water quality objectives are a central element of pollution reduction programmes and
it is clear that programmes cannot be finalised until objectives are in place. In its above-
mentioned letter of 9 June 2006, Ireland confirmed that existing water quality objectives.
for phosphorous set in S.LNo.258 of 1998 require amendment as a consequence of the
judgment.

9. In the above-mentioned letter of 9 June 2006, Ireland also referred to new water
quality classification schemes to ensure compliance with Directive 2000/60/EC
establishing a framework for Community action in the field of water policy. It referred to
a timetable for adopting measures which extends to 2009 (with water quality objectives
to be adopted at the end of 2007). In an information note supplied at the above-mentioned
meeting on 8 February 2007, Ireland referred to the Article 22(3)(b) of Directive
2000/60/EC. This provides that "for the purposes of Article 7 of Directive 76/464/EEC,
Member States may apply the principles for the identification of pollution problems and
the substances causing them, the establishment of quality standards, and the adoption of
measures, laid down in this Directive."

10. As regards Article 22(3)(b) of Directive 2000/60/EC, the Commission accepts that
Ireland is entitled to draw on the approaches provided for in Directive 2000/60/EC in
order to comply with the judgment. However, it does not accept that Article 22(3)(b)
entitles Ireland to defer implementation of the judgment until steps that are in any case
required under Directive 2000/60/EC are completed in accordance with the timetable of
the later directive. The consequence of such an interpretation would be that Directive
76/464/EEC would be left without a meaning in the period pending de jure
implementation of Directive 2000/60/EC.

ll. It is elear that the work of preparing water quality objectives is ongoing for many
substances in Ireland with objectives not envisaged to be in place until the end of 2007.

12. As regards the information provided by Ireland on water quality objectives now in
preparation, the Commission would express concerns in relation to phosphorous.
Phosphorous is the dangerous substance of greatest significance to Irish surface water
quality. In the 2005 phosphorous report, the EPA comments: "The Agency has identified
eufrophication as the major threat io water quality in Ireland, with the basic cause in
most cases likely to be excess phosphorous inputs."’ Against this background, it is not
evident that Ireland is preparing new phosphorous quality objectives that will be adequate
for Ireland's most sensitive water bodies and it cannot be ruled out that the objectives in
preparation will have the effect of endorsing a recent decline in the quality of these water
bodies. In particular, Ireland does not yet appear to be taking any account of the
requirements of aquatic sites protected under Directive 92/43/EEC on the conservation of
natural habitats and of wild flora and fauna. These represent "protected areas" for the
purposes of Directive 2000/60/EC. Such sites include sites for the conservation of the
freshwater pearl mussel, Margaritifera margaritifera, which requires very strict standards
for phosphorous. This species was amongst a set of biological indicators figuring in
S.1.N0.258 of 1998. It is associated with rivers that have the least phosphorous pollution
and that have or ought to have the highest current Irish phosphorous water quality
objectives (known as Q5 or Q4.5). The species is in serious decline. Coincident with this
decline is a decline in the extent of the most pristine Irish rivers. The 2005 phosphorous

Tp6

report notes that "A worrying trend is the decline in the number and percentage of river
stations of highest biological water quality (05) (down from 4.6 per cent of stations in
the baseline to 2.7 per cent of stations in 2001-2003). Similar analysis also reveals a
decline of 1.4 per cent in stations of Od-5 status between the baseline and current
monitoring periods (from 21.3 per cent to 19.1 per cent)."? However, it is not evident that
Ireland intends to replace the phosphorous quality objectives of S.I.No.258 with quality
objectives that take due account of these sensitive waters and of the protected sites for
Margaritifera margaritifera. The result may be quality objectives that are incompatible
with the long-term protection and conservation requirements of the species. The
Commission would submit that if Ireland is to validiy invoke Article 22@)(b) of
Directive 2000/60/EC in relation to measures to comply with the judgment, it should
ensure that due account is taken of protected areas. In any case, if measures to comply
with the judgment will involve lowering objectives, they will infringe against Article
22(6) of Directive 2000/60/EC as well as Article 8 ofthe Directive.

13. In its above-mentioned letter of 19 December 2006, the Irish authorities refer to
fourteen dangerous substances for which water quality objectives were fixed by means of
the Water Quality (Dangerous Substances) Regulations, 2001 (S.I.No.12 of 2001). These
were not taken into account by the Court since they were adopted after the expiry of the
Commission's Reasoned Opinion?. It is not clear what status these objectives and
associated measures are intended to have in relation to compliance with the judgment. In
particular, it is not clear whether Ireland proposes to continue to rely on these objectives
or whether it instead proposes to rely on objectives established in the context of Directive
2000/60/EC. However, in so far as the water quality objectives fixed by S.LNo.12 of
2001 and associated measures are presented as compliance measures for the judgment,
the Commission accepts the validity of the water quality objectives for purposes of
complying with the judgment.

Pollution reduction programmes

14. The adoption of pollution reduction programmes involves more than the adoption of
water quality objectives. In this context, the Commission would refer to paragraph 38 of
the judgment.

"38 It must be noted at the outset that, according to the Court’s case-law, the
programmes to be established under Article 7 of the Directive must be specific. The
specific nature of the programmes in question lies in the fact that they must embody a
comprehensive and coherent approach, providing practical and coordinated
arrangements covering the entire national territory for the reduction of pollution caused
by any of the substances in List I] which is relevant in the particular context of each
Member State, in accordance with the quality objectives fixed by those programmes for
the waters affected (Case C-207/97 Commission v Belgium [1999] ECR I-275,
paragraphs 39 and 40). The concept of ‘programmes’ thus implies a series of
coordinated, integrated and comprehensive measures."

15. In general, Ireland has not yet presented a series of coordinated, integrated and
comprehensive measures for the substances for which programmes must be established
and for which quality objectives have not yet been adopted.

8
p.l
9 Paragraph 40 of the judgment

16. With regard to paragraph 42 of the judgment in relation to municipal regulations, the
Commission notes Ireland's reference in its letter of 19 December 2006 to new national
regulations, the European Communities (Good Agricultural Practice for Protection of
Waters) Regulations, 2006 (S.I.No.378 of 2006). The Commission accepts that, as
regards phosphorous, S.I.N0.378 of 2006 represents a geographically complete,
coordinated and integrated set of measures in relation to agricultural activities. However,
it is not evident that, even in relation to agricultural activities, S.I.No.378 of 2006 is
comprehensive, given the continued lack of definitive phosphorous quality objectives. In
addition, S.I.N0.378 of 2006 does not establish either an authorisation system for fixed
agricultural installations or more stringent measures (see below). Furthermore,
S.1.N0.378 of 2006 does not address non-agricultural activities. As regards these, given
that Ireland intends amending S.1.No.258 of 1998, it is not evident what Ireland proposes
by way of a programme of measures to comply with the judgment. S.I.No.258 of 1998
leaves it to individual local authorities to adopt implementing measures. While the EPA
has sought to guide local authorities in the formulation and management of these
measures, there does not appear to be an adequate mechanism to ensure that measures to
reduce phosphorous pollution are coordinated, integrated and comprehensive. Table 8 of
the 2005 phosphoröus report shows that there are wide variations across local authorities
in the measures taken. For example, in relation to discharge authorisations (or licensing
to use Ireland's terminology), the 2005 phosphorous report notes that:"EPA audits
indicate that, despite improvements in discharge licensing, in some cases there is an
absence of a scheduled trade effluent monitoring programme, there is an inconsistency
between the limits set in trade effluent discharge licences and the follow-up enforcement
monitoring; and breaches of discharge licences are not pursued by some local
authorities".!? The EPA points out that greater efforts are required in monitoring and
enforcement of local authority discharge licences, and in addressing unlicensed
discharges!!. The 2005 phosphorous report also notes that"While some local authorities
stated that the process of Better Local Government has improved the resources available
to them to implement the Regulations, many local authorities report that lack of staff
resources is hampering their ability to implement measures under the Regulations."!?,
The 2005 phosphorous report observes: "Staff in environment sections of many local
authorities have had to focus their efforts on dealing with waste issues, sometimes to Ihe
detriment of resources available to tackle water quality issues. Similarly, the primary
focus of Environmental Awareness Officers and Enforcement Teams set up in most local
authorities has been waste, not water quality." The Commission acknowledges that
Ireland has increased enforcement efforts in the field of waste in the context of Case C-
494/01, Commission v Ireland. However, it does not consider it satisfactory that this has
been at the expense of measures required pursuant to the Directive and pursuant to the
judgment. Against this background, the Commission considers that, as regards
phosphorous, Ireland has still not put in place measures that adequately address the
deficiencies referred to in Article 42 of the judgment. Moreöver, it is not evident that
S.INo.258 of 1998 represents an adequate framework for phosphorous reduction
programmes, given that it envisages responsibilities Iying with local authorities when
responsibilities also clearly lie with other authorities, for example in relation to aerial

spraying.

10 P34
11P.79
12 p,76
3P.72

17. As regards the fourteen dangerous substances covered by S.LNo.12 of 2001, a
similar system operates to that for phosphorous, i.e. individual local authorities are
responsible for measures with the EPA producing periodic reports, the first of which is
the 2005 dangerous substances report. S.LNo.12 of 2001 suffers from analogous
shortcomings to S.I.No.258 of 1998 in terms of responsibilities. Furthermore, it is not
evident that the measures taken under S.I.No.12 of 2001 meet the criteria for pollution
reduction programmes set out in paragraph 38 of the judgment. Commenting on recorded
values in excess of the quality objectives of S.LNo.12 of 2001, the 2005 dangerous
substances report notes that "these data do not necessarily give an accurate national
picture of the level of dangerous substances in surface waters due to the limited extent of
monitoring data available, both in terms of monitoring frequency and coverage. In
addition, due to the risk assessment approach taken by many local authorities,
monitoring was generally concentrated in areas where exceedances were most likely to
occur. In addition, the data is heavily influenced by large amounts of reporting by a
small number of local authorities."!?

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

18. This head of complaint in the court proceedings was divided into two limbs. By the
first limb, the Commission submitted that Ireland had failed to establish quality
objectives for substances other than phosphorous and fourteen 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.

19. The Court ruled that the first imb was well founded, noting that no objective had
been established by Ireland for a number of substances derived from the industrial
sector!6,

20. 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!?.

21. In general, the Commission would again refer to its above observations on water
quality objectives in relation to Article 7(1) ofthe Directive.

22. With regard to the first limb of the ground of complaint concerning Article 7(3), 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

14p]

15 Article 6(3) of Directive 2006/1 VYEC
16 See paragraphs 49 and 50

17 See paragraph 51

18 See paragraphs 52 to 54

19 See paragraph 55

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. Furthermore, it is not evident that.
Ireland is addressing the issue of reliability of lake water analysis. A reliable system is
crucial to determining the actual water quality objectives that will be legally applicable to
specific lakes.

23. 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 a result, in continuing non-compliance with its obligations under that provision as well
as with the Court judgment.

Failure t0 comply with the provisions of Article 7(2) of the Directive??

24. 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 expressiy 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
prohibitory regime established by Ireland’s 1977 Water Pollution Act was a ‘more
stringent measure’ within the terms of Article 10 ofthe Directive?3.

Local authority discharges

25. With regard to local authority discharges, Ireland has confirmed that legislation
providing for authorisation of local authority waste water discharges is in preparation.
Draft texts were discussed at the meetings held between Commission and Irish officials
on 5 December 2006 and 8 February 2007. However, as compliant legislation has yet to
be adopted and communicated, this aspect of the judgment cannot be considered to be
satisfied. The Commission would observe that local authority discharges are a very
significant contributor to water pollution in Ireland. For example, the general water
quality report prepared by the EPA for the period 2001-2003 notes that "Of the 49
sampling locations classified as seriously polluted in the 2001-2003 period, 24 were
suspected to be in this condition as a result of municipal, mostly sewage, discharges: this
is four less than in the previous (1998-2000) survey period."2° This report also attributed
the bulk of moderate and slight pollution in the same period to municipal and agricultural
sources in approximately equal measure.

20 Article 6(2) of Directive 2006/1 1/EC
21 See paragraph 70

22 See paragraph 71

23 See paragraphs 72 to 75

24 See paragraph 76

25 See paragraphs 77-82

26 P.14

Discharges from marine installations

26. With regard to discharges from marine installations, Ireland has indicated that
measures are in preparation. However, as compliant measures have yet to be adopted and
communicated, this aspect of the judgment cannot be considered to be satisfied.

Discharges from fixed agricultural installations

27. With regard to discharges from fixed agricultural installations, Ireland has
communicated the legislation that it has used to give effect to Directive 91/676/EEC
concerning the protection of waters against pollution by nitrates from agricultural sources
and to satisfy the judgment of the Court of Justice in Case C-396/96, Commission v
Ireland, viz. the European Communities (Good Agricultural Practice for Protection of
Waters) Regulations, 2006 (S.I.No.378 of 2006).

28. In its letter of 19 December 2006, Ireland has referred to new stricter duties in
relation to the avoidance of pollution and leaks from fixed agricultural installations as
well as to measures aimed at ensuring respect for these duties. These measures include an
information campaign addressed to farmers, the provision of grant-aid for new or
upgraded installations and the exercise of pollution control powers by local authorities,
the designated pollution control authorities. There is also a reference fo inspections
carried out as part of the single farm payment system and general pollution monitoring.

29. The Commission acknowledges that the new regulations impose a stricter pollution-
avoidance duty in relation to fixed agricultural installations than existed heretofore.
However, the Commission does not accept that the new regulations constitute more
stringent measures for purposes of Article 10 ofthe Directive.

30. First of all, S.I.No0.378 of 2006 makes no reference to quality objectives or
programmes for the reduction of water pollution (see paragraph 79 of the Court
judgment) or to the range of List II substances of relevance (see paragraph 80 of the

judgment).

31. Second, S.I.No.378 of 2006 leaves intact the discretionary enforcement system that
the Court found lacking in paragraph 81 of the judgment. There continues to be an
absence of the uniform statutory criteria referred to by the Court.

32. The measures set out by Ireland are of assistance in ensuring compliance with
S.IN0.378 of 2006. However, Ireland has not demonstrated that polluting fixed farm
installations will inevitably be detected and made the subject of enforcement action. The
2005 phosphorous report notes: "...only eleven local authorities reported significant farm
survey work and these concentrated mainly on the farmyard,"?’ Ireland has not indicated
what percentage of farm installations are planned to undergo inspection to ensure
compliance with S.I.No.378 of 2006. Furthermore, there is no requirement on local
authorities to take effective action if polluting installations are found. Local authorities
may in their discretion choose not to act. Taken as a whole, Ireland's system cannot
therefore be considered a more stringent measure than an authorisation system.

33. The system of sanctions to support S.I.N0.378 of 2006 is also unsatisfactory. The
Commission considers that the measures which a Member State adopts to comply with a
judgment of the Court of Justice should comply with wider principles of Community law,

27 P.76