COMMISSION OF THE EUROPEAN COMMUNITIES

 

SECRETARIAT-GENERAL

Brussels, 93 ]1] 2007

SG-Greftet200nD0) 201417

PERMANENT REPRESENTATION
OF IRELAND TO THE
EUROPEAN UNION

Rue Froissart, 89-93

1040 BRUSSELS

Subject: Reasoned Opinion
Infringement No 1994/2238

Please find enclosed the text of the Reasoned Opinion addressed by the Commission of the
European Communities to Ireland, under Article 228 of the Treaty establishing the European
Community, on account of the inadequacy of the measures taken to implement the judgment
of the Court of Justice of the European Communities, dated 11 March 2004, in Case
C-396/01 Commission v Ireland, conceming nitrate pollution

For the Secretary-General,

4

._——

7

Encl. C(2007) 1108

 

Commission europsenne, B-1049 Bruxelles / Europase Commissie, B-1049 Brussel - Belgium. Telephone: (32-2) 299 11 11.
Office: BERL 05/25. Telephone: direct IIne (32-2) 296.93.35. Fax: (32-2) 296.43.35.
.http://ec.europa.eu/dgs/secretariat_general/index_fr.htm

COMMISSION OF THE EUROPEAN COMMUNITIES

 

Brussels, 21/03/2007

1994/2238
C(2007) 1108

REASONED OPINION

addressed to Ireland under Article 228 ofthe Treaty establishing the European
Community on account ofthe inadequacy of the measures taken to implement the
judgment of the Court of Justice ofthe European Communities, dated 11 March 2004, in
Case C-396/01 Commission v Ireland, conceming nitrate pollution

REASONED OPINION

addressed to Ireland under Article 228 of the Treaty establishing the European
Community on account ofthe inadequacy of the measures taken to implement the
Judgment of the Court of Justice ofthe European Communities, dated 11 March 2004, in
Case C-396/01 Commission v Ireland, concerning nitrate pollution

1. The judgment by the Court of Justice of the European Communities of 11 March
2004, in Case C-396/01 Commission v Ireland, conceming nitrate pollution states that: "

"by failing, within the time-limits provided for in Council Directive 91/676/EEC of 12
December 1991 concerning the protection of walers against pollution caused by nitrates
Jrom agricultural sources,

— 10 identify completely waters pursuant to Article 3(l) in accordance with the criteria
set out in Annex I,

-to designate vulnerable zones pursuant to Article 3(2) and/or Article 3(4) thereof,
-10 establish action programmes in accordance with Article 5 of the Directive, and

- io carry out correctly and completely monitoring and review of waters in accordance
with Article 6(l)(a), (b) and (c) ofthe Directive,

Ireland has failed to fulfil its obligations thereunder. "

2. Under Article 228 ofthe Treaty establishing the European Community, ifthe 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.

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 the
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
that by reason solely of the judgment declaring the Member State io 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."

2

3. In view of the fact that the measures taken by Ireland and communicated to the
Commission on 25 June 1994, 16 September 1994 and 22 October 1994 did not.
constitute full and correct compliance with the judgment of the Court referred to at 1, and
in accordance with the procedure provided for in Article 228 of the Treaty establishing
the European Community, the Commission, by letter of 22 December 2004 (ref.
SG(2004)D/206145), gave Ireland the opportunity to submit its observations on the
matter within two months.

4, By letters dated 29 July 2005 (ref.SG(2005)A/7123), 26 January 2006
(ref.SG(2006)A/0987) and 29 August 2006 (ref.SG(2006)A/06486), Ireland responded.
In particular, it adopted and communicated the European Communities (Good
Agricultural Practice for Protection of Waters) Regulations, 2006 (S.I.No.378 of 2006)
(hereinafter "the 2006 Regulations").

5. In the light of the communications received to date from Ireland, the
Commission accepts that Ireland has achieved compliance with the judgment of the Court
in Case C-396/01 with the exteption of the part relating to Article 5 of Directive
91/676/EEC concerning the protection of waters against pollution caused by nitrates from
agricultural sources (hereinafter "the Directive"). For this part, the Commission accepts
that Ireland has, by means of the 2006 Regulations, put in place a territory-wide action
programme comprising mandatory measures. The mandatory measures include an array
of rules that individual farmers must respect as well as complementary powers and duties
for the competent authorities. However, these rules, powers and duties are not as yet
supported by a system of penalties that reflects the requirements of Community law.

5. 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, including those concerning penalties. In Case C-354/99, Commission v
Ireland, the Court set outthe general position:

"„.itshould be noted that where a Community regulation does not specifically provide

Jor any penalty for an infringement or refers for that purpose to national laws,
regulations and administrative provisions, Article 5 of the Treaty! requires the Member
States to take all measures necessary to guarantee the application and effectiveness of
Community law. For that purpose, while the choice of penalties remains within their
discretion, they must ensure in particular that infringements of Community law are
penalised under conditions, both procedural and substantive, which are analogous to
those applicable to infringements of national law of a similar nature and importance and
which, in any event, make the penalty effective, proportionate and dissuasive (Case 68/88
Commission v Greece [1989] ECR 2965, paragraphs 23 and 24; Case C-213/99 de
Andrade [2000] ECR I-11083, paragraph 19). "2

6. The 2006 Regulations were adopted under the European Communities Act, 1972
(hereinafter referred to as "the 1972 Act"). This is a general enabling act allowing
specific regulations to be adopted by Irish ministers in order to give effect to Community
directives. However, the 1972 Act has an important shortcoming: it limits the scope for

1 Now Article 10
2 Paragraph 46

penalties under such specific regulations. More particularly, only summary penalties are
possible. Thus, the maximum penalties for breach of the 2006 Regulations are €3,000
and/or six months imprisonment. These penalties fail to meet the above-mentioned
criteria referred to in Case C-354/99 for the following reasons. First of all, these summary
penalties mean that infringements of rules derived from the Directive are penalised under
procedural and substantive conditions significantly different from those applicable to
infringements of national law of a similar nature and importance. First of all, for
infringements of national law of a similar nature and importance there is provision for
indictable offences, i.e. offences reflecting more serious breaches and involving more
serious penalties than summary offences. Monetary penalties extending to millions of
euros are possible for indictable offences under Irish domestic legislation on waste and
water. Thus, by only creating summary offences for breaches of the Directive, Ireland is
treating the requirements of the Directive as carrying tonsiderably less weight than
equivalent requirements of national law. Furthermore, it is not evident that summary
penalties will always be effective, proportionate and dissuasive in ensuring compliance
with the Directive. For example, for large livestock units the maximum monetary penalty
may be insufficient to ensure that the necessary storage capacity is established and
maintained. Similarly, it may be insufficient to deter a large exceedance on a large farın
ofthe annual manure land-spreading limit.

7. The inadequacy of the penalty provisions of the 2006 Regulations does not
appear to be disputed by Ireland. Ireland's above-mentioned letter of 28 August 2006
states that the 2006 Regulations will be amended to provide for a stricter
offences/penalties regime when the appropriate primary legislation has been enacted,
Enactment was expected by October or November 2006. However, such enactment had
not occurred as of February 2007 and, in any case, no amending regulations have been
adopted or communicated by Ireland. In the above-mentioned letter of 28 August 2006,
the Irish authorities refer to the continued application of requirements under domestic
Irish legislation to agricultural activities, allowing more stringent measures than those
specified in the 2006 Regulations. However, the relevant domestic legislation does not
contain provisions precisely reflecting those of the Directive and it cannot therefore be
considered as a substitute for having adequate penalties under the 2006 Regulations.

8. In the light ofthe foregoing, the Commission concludes that Ireland has still not
taken all of the measures it was required to take to comply with the judgment of the Court
of Justice, dated 11 March 2004, in Case C-396/01 Commission v Ireland, concerning
nitrate pollution.

FOR THESE REASONS
THE COMMISSION OF THE EUROPEAN COMMUNITIES

after giving Ireland the opportunity to submit its observations by letter dated 22
December 2004 (ref. SG(2004)D/206145), and in view of the replies from the
Government of Ireland, dated 29 July 2005 (ref.SG(2005)A/7123), 26 January 2006
(ref.SG(2006)A/0987) and 29 August 2006 (ref:SG(2006)A/06486,

HEREBY DELIVERS THE FOLLOWING REASONED OPINION
under Article 228(2) of the Treaty establishing the European Community that

by failing to take all the necessary measures to comply with the judgment of the Court of
Justice of the European Communities of 11 March 2004, in Case C-396/01 Commission v
Ireland, concerning nitrate pollution,

Ireland has failed to fulfil an obligation under Article 228(1) of the Treaty establishing
the European Community.

Pursuant to Article 228(2) of the Treaty establishing the European Community, the
Commission invites Ireland to take the necessary measures to comply with this Reasoned
Opinion, by adopting, within two months ofrreceipt of this opinion, the measures required
to comply with the judgment of the Court of 11 March 2004, in Case C-396/01
Commission v Ireland, concerning nitrate pollution.

The Commission would also draw the attention of the Government Ireland 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 which fails to comply
with its judgment.

Under this same article 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 Jump sum, of the penalty or of both, to
be paid by the Member State concerned, which it considers suited to the circumstances.

Done at Brussels, 21/03/2007

For the Commission

Stavros DIMAS
Member ofthe Commission

IN CONFORMITY WITH COMMISSION

DECISION
For the Secr General,

I-
Director for the Registry

 

3 SEC (2005) 1658 final .