Water pollution — Urban waste water — Eutrophication — Identification of sensitive areas — Whether Commission erring in its definition of eutrophication — Whether France in breach of obligations — Declaration granted
The European Commission brought an action for a declaration that France had failed to fulfil its obligations under article 5(2) and (2) of, and Annex II to, Directive 91/271/EEC on urban waste water treatment. It alleged a failure: (i) to identify certain areas as being sensitive to “eutrophication”; and (ii) to subject to more stringent treatment discharges of urban waste water, from agglomerations with a population equivalent (PE) of more than 10,000, into sensitive areas, or areas that should have been identified as sensitive. Article 2(11) of Council Directive (EEC) 91/271 defined eutrophication as “the enrichment of water by nutrients, especially compounds of nitrogen and/or phosphorus, causing an accelerated growth of algae and higher forms of plant life to produce an undesirable disturbance of the balance of organisms present in the water and to the quality of the water concerned”. France disputed the Commission’s view of the scope of that definition. It contended, inter alia, that the mere proliferation of a plant species is not necessarily sufficient to establish an undesirable disturbance, so long as there is no disruption to the balance of other organisms present in the water.
Held: The declaration would be granted.
1. By having failed: (i) to identify certain areas as sensitive areas with respect to eutrophication; (ii) to subject to more stringent treatment discharges of urban waste water from certain agglomerations; and (iii) to subject to more stringent treatment discharges of urban waste water from agglomerations with a PE of more than 10,000 into certain areas, France had failed to fulfil its obligations under the directive.
2. The objective pursued by the directive went beyond the mere protection of aquatic ecosystems and attempted to conserve man, fauna, flora, soil, water, air and landscapes from any significant harmful effects of the accelerated growth of algae and higher forms of plant life resulting from discharges of urban waste water. Interpreting the definition of “eutrophication” in the light of that objective, eutrophication would be characterised by the confluence of four criteria: (i) the enrichment of water by nutrients, especially compounds of nitrogen and/or phosphorus; (ii) the accelerated growth of algae and higher forms of plant life; (iii) an undesirable disturbance of the balance of organisms present in the water; and (iv) deterioration of the quality of the water concerned. A cause and effect relationship would also need to exist between those elements. With regard to the third criterion, the equilibrium of an aquatic ecosystem was the result of complex interactions between different species and with the environment; any proliferation of a particular species of algae or other plant therefore constituted, as such, a disturbance of the balance of the aquatic ecosystem and, accordingly, of the balance of the organisms present in the water, even when other species remained stable.
Sally Dobson, barrister
