Pretura unificata di Torino v X (228/87)

Contents

Judgment of the Court (Third Chamber)22 September 1988^noteIn Case 228/87REFERENCE to the Court under Article 177 of the EEC Treaty by the Pretura unificata di Torino in criminal proceedings pending before that court betweenPretura unificata di TorinoandXTHE COURT (Third Chamber)composed of: J. C. Moitinho de Almeida, President of Chamber, U. Everling and Y. Galmot, Judges,Advocate General: C. O. LenzRegistrar: H. A. Rühi, Principal Administratorafter considering the observations submitted on behalf ofthe Italian Government, by Pier Giorgio Ferri, avvocato dello Stato,the Commission of the European Communities, by Guido Berardis, acting as Agent,having regard to the Report for the Hearing and further to the hearing on 20 April 1988,after hearing the Opinion of the Advocate General delivered at the sitting on 31 May 1988,gives the following

Judgment

1By an order of 22 July 1987, which was received at the Court on 27 July 1987, the Pretura unificata di Torino (‘The Turin Magistrates' Court’) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question concerning the interpretation of Article 10 (1) of Council Directive 80/778/EEC of 15 July 1980 relating to the quality of water intended for human consumption (Official Journal 1980, L 229, p. 11).

2This question arose in criminal proceedings instituted against persons unknown by the Pretore di Torino (Turin magistrate) after the latter had been informed of the analysis of certain samples taken by a local health inspection unit from water intended for human consumption. These samples revealed the presence in a number of wells of atrazine in a quantity in excess of the maximum value (per individual component) of 0.1 micrograms per litre laid down for pesticides in the Decree of the President of the Council of Ministers of 8 February 1985, which was adopted to implement the abovementioned directive.

3It is apparent from the documents before the Court that, by various orders derogating from the terms of the Decree of 8 February 1985, the Minister for Health and the competent authorities of the Piedmont Regional Authority increased, for a total period running from 25 June 1986 to 31 December 1987, the maximum permitted concentration of atrazine to 1.0 microgram per litre of water intended for human consumption. By new orders, which were intended to cover the period from 3 April 1987 to 31 March 1988, the Minister for Health and the Piedmont Regional Authority repeated the provisions previously adopted for atrazine and fixed the permitted maximum concentration of molinate respectively at 6.0 micrograms and 3.5 micrograms per litre of water intended for human consumption.

4The criminal proceedings in question concern the offence of failing to fulfil official duties provided for in Article 328 of the Italian Criminal Code inasmuch as the authorities in question had not prohibited the consumption by humans of water which did not satisfy the conditions laid down in the Decree of 8 February 1985. According to the Pretore, the public authorities would not be criminally liable if the derogations from the Decree of 8 February 1985, which were contained in the abovementioned orders, were in conformity with the derogations permitted under Directive 80/778/EEC. In order to resolve this question, the Pretore considered it necessary to refer to the Court on the question ‘whether Directive 80/778/EEC, and in particular Article 10 (1), must be understood as authorizing the Member States to introduce derogations in the ways and in the circumstances in which the aforementioned order of the Ministry of Health and the Piedmont Regional Authority were introduced’.

5Reference is made to the Report for the Hearing for a fuller account of the facts of the main proceedings, the provisions of the Community law in question, the course of the procedure and the observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

6With regard to the wording of the question submitted by the Pretore, it should be observed that, as it has consistently held, the Court does not have jurisdiction under Article 177 of the EEC Treaty to rule on the compatibility of a national provision with Community law (see, amongst others, the judgment of 11 June 1987 in Case 14/86 Pretore di Salò [1987] ECR 2545).

7The Court may however extract from the wording of the questions formulated by the national court, in the light of the information provided by that court, the aspects relating to the interpretation of Community law in order to enable it to resolve the legal problem with which it is confronted.

8Having regard to the terms of the order making the reference, it appears that the national court's question concerns in substance the interpretation of Article 10 (1) of the directive and, in particular, the conditions to which that provision makes subject the authorization of concentrations in excess of the maximum permitted values set out in Annex I.

9It should be noted, in the first place, that Directive 80/778/EEC imposes precise obligations on the Member States as regards the quality of water intended for human consumption. Such water must at least conform to the values indicated for the parameters contained in Annex I (Article 7 (6)) within a period of five years from the notification of the directive (Article 19). With a view to ensuring compliance with this obligation, Member States must carry out regular monitoring in accordance with the requirements of Annex II, using the methods of analysis set out in Annex III (Article 12).

10Derogations from the directive are permitted only under the conditions provided for in Articles 9, 10 and 20 thereof. These provisions must be interpreted strictly.

11The derogations provided for in Articles 9 and 20 do not concern the facts at issue in the main proceedings. On the one hand, the orders are not based on the nature and structure of the ground in the area from which the supply in question emanates, they were not adopted as the result of exceptional meteorological conditions and the derogations concern toxic substances (Annex I D) and are therefore excluded by Article 9 (3). On the other hand, the Italian Republic did not have recourse to the procedure provided for in Article 20 according to which Member States may, subject to the supervision of the Commission and the Council, take steps to deal with difficulties arising from the transposition of the directive into national law within the period prescribed in Article 18.

12Article 10 (1) of Directive 80/778/EEC is worded as follows:‘In the event of emergencies, the competent national authorities may, for a limited period of time and up to a maximum value to be determined by them, allow the maximum admissible concentration shown in Annex I to be exceeded, provided that this does not constitute an unacceptable risk to public health and provided that the supply of water for human consumption cannot be maintained in any other way.’

13It should be observed that this provision is more flexible than that contained in Article 5 (2) of the Commission's Proposal for a Directive (Official Journal C 214, p. 2), which permitted no derogations as regards certain toxic factors, and in particular pesticides and related products. Although the directive allows for derogations in respect of factors constituting a danger for human health, it makes them subject to strict conditions.

14In the first place, it appears from the different language versions of Article 10 (1) that the term ‘emergencies’ must be construed as meaning urgent situations in which the competent authorities are required to cope suddenly with difficulties in the supply of water intended for human consumption.

15Secondly, the exceeding of the maximum permitted concentration may be allowed only for a limited period of time, corresponding to the time normally necessary in order to restore the quality of the waters affected.

16Thirdly, the excess concentration may not under any circumstances constitute an unacceptable risk to public health. It is for the Member States to determine, on the basis of the available scientific data, whether such a risk exists.

17Finally, there must be no possibility of maintaining the supply of water for human consumption in any other way. This impossibility must be assessed in the light of the means at the disposal of the public authorities.

18It should further be pointed out that, under Article 16 of the directive, Member States may lay down more stringent provisions than those provided for in the directive for water intended for human consumption, except where such measures constitute a barrier to the free movement of foodstuffs in which the water used complies with the directive. Article 10 (1) does not therefore preclude the national legislature from making the authorization to exceed maximum concentrations subject to more stringent conditions or even from prohibiting such excess concentrations.

19It is for the national court to determine whether or not the domestic legislation contains provisions restricting the possibilities laid down in the directive of derogating from its provisions.

20The answer to the question submitted by the Pretore di Torino should therefore be as follows:(1) The authorization to exceed the maximum permitted concentrations set out in Annex I to Directive 80/778/EEC relating to the quality of water intended for human consumption, as provided for in Article 10 (1) thereof, must be granted only in an urgent situation in which the national authorities are required to cope suddenly with difficulties in the supply of water for human consumption.(2) Such an authorization must be limited to the time normally necessary to restore the quality of the water affected, must not pose any unacceptable risk to public health and may be given only if the supply of water for human consumption cannot be maintained in any other way.

Costs

21The cost incurred by the Commission of the European Communities and the Italian Government, which have submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, a step in the proceedings before the national court, the decision on costs is a matter for that court.

Operative part

On those grounds,THE COURT (Third Chamber),in answer to the question referred to it by the Pretore di Torino, by order of 22 July 1987, hereby rules:

(1).The authorization to exceed the maximum permitted concentration set out in Annex I to Directive 80/778/EEC relating to the quality of water intended for human consumption, as provided for in Article 10 (1) thereof, must be granted only in an urgent situation in which the national authorities are required to cope suddenly with difficulties in the supply of water for human consumption;

(2).Such an authorization must be limited to the time normally necessary to restore the quality of the water affected, must not pose any unacceptable risk to human health and may be given only if the supply of water for human consumption cannot be maintained in any other way.

Delivered in open court in Luxembourg on 22 September 1988.