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Brussels, 17 October 2007

Waste water treatment: Commission gives Luxembourg final warning, seeks clarifications from Belgium

The European Commission is sending Luxembourg a final written warning that it will be taken to the European Court of Justice (ECJ) for the second time and possibly face fines unless it quickly brings the country's waste water treatment up to EU standards. Belgium has already received a first written warning of a possible second round of Court action and fines over the same issue, and will now be sent an additional letter requesting certain clarifications. Both member states are still not complying with the 1991 EU Directive on urban waste water treatment, despite having been condemned by the ECJ for this.

Environment Commissioner Stavros Dimas said: "European environmental legislation aims to protect the environment and health of EU citizens. Untreated urban waste water is a major threat to the ecological quality of Europe's rivers, lakes and coastal waters as well as a public health hazard. It is unacceptable that Member States defy European Court of Justice judgments and ignore legislation that they themselves have agreed to. I urge both member states to clean up their act rapidly, otherwise the Commission will consider asking the Court to impose fines."

The Urban Waste Water Treatment Directive

Larger towns and cities across the European Union are required to collect and treat their urban waste water under the EU Urban Wastewater Treatment Directive.[1] Untreated waste water can be contaminated with harmful bacteria and viruses and thus present a risk to public health. It also contains nutrients such as nitrogen and phosphorous which can damage freshwaters and the marine environment by promoting excessive growth of algae that chokes off other life, a process known as eutrophication.

The main type of waste water treatment envisaged by the directive is biological or 'secondary' treatment. The deadline for this infrastructure to be operational was 31 December 2000. If waste water is discharged into ‘sensitive’ water bodies, the Directive requires stricter 'tertiary' treatment, involving removal of phosphorous and/or nitrogen. This should have been in place by 31 December 1998.

Final warning for Luxembourg

In a case[2] brought by the Commission, Luxembourg was condemned by the ECJ in November 2006 for bad application of the UWWTD regarding discharges into sensitive water bodies.

Member states are obliged under the Treaty to start implementing Court judgements immediately and to complete the necessary actions to comply as quickly as possible.

After receiving no answer from the Luxembourg authorities to a request for information about the measures they planned to take to comply with the ruling, the Commission sent Luxembourg a first written warning under Article 228 of the Treaty on 23 March 2007.

Article 228, which applies when a member state has already been condemned by the Court, gives the Commission the powers to go back to the Court and request the imposition of fines on the member state if it has not responded satisfactorily to a first and then a final written warning.

In its reply to the first written warning under Article 228, Luxembourg has stated that six settlements[3] – which it does not name – currently comply with the UWWTD while nine do not. Of these nine, four are expected to become compliant in the short term but five will not do so until 2012-2013. In view of this situation, the Commission has decided to send Luxembourg a final warning letter of further Court action if it does not comply rapidly with the first ECJ judgement.

Additional warning letter for Belgium

In another case[4] brought by the Commission, the ECJ ruled in July 2004 that Belgium had failed to comply with the UWWTD in that 114 settlements in Flanders, 60 in Wallonia and Brussels-Capital had either no waste water collection systems or did not ensure that waste waters were made subject to specific phosphorus and nitrogen treatment before being discharged into the natural environment. The Court also found that Wallonia had not established an appropriate implementation programme.

A first warning letter under Article 228 was addressed to Belgium on 30 January 2006 on the grounds that it had not taken all necessary measures to comply with the Court ruling. The information received in response showed over 40 settlements in Flanders and nearly 50 settlements in Wallonia and the Brussels-Capital region were still not in compliance. It also stated that the boundaries of settlements in Wallonia would be changed. The Commission considers that some of the information provided raises questions which require clarification, and has therefore decided to send Belgium an additional first warning letter.

Legal Process

Article 226 of the Treaty gives the Commission powers to take legal action against a Member State that is not respecting its obligations.

If the Commission considers that there may be an infringement of EU law that warrants the opening of an infringement procedure, it addresses a "Letter of Formal Notice" (first written warning) to the Member State concerned, requesting it to submit its observations by a specified date, usually two months.

In the light of the reply or absence of a reply from the Member State concerned, the Commission may decide to address a "Reasoned Opinion" (second and final written warning) to the Member State. This clearly and definitively sets out the reasons why it considers there to have been an infringement of EU law and calls upon the Member State to comply within a specified period, normally two months.

If the Member State fails to comply with the Reasoned Opinion, the Commission may decide to bring the case before the European Court of Justice. Where the Court of Justice finds that the Treaty has been infringed, the offending Member State is required to take the measures necessary to conform.

Article 228 of the Treaty gives the Commission power to act against a Member State that does not comply with a previous judgement of the European Court of Justice, again by issuing a first written warning (“Letter of Formal Notice”) and then a second and final written warning (“Reasoned Opinion”). The article then allows the Commission to ask the Court to impose a financial penalty on the Member State concerned.
For rulings by the European Court of Justice see:

[1] Directive 91/271/EEC

[2] Case C-452/05

[3] The directive uses the technical term "agglomeration" which means an area where the population and/or economic activities are sufficiently concentrated for urban waste water to be collected and conducted to an urban waste water treatment plant or to a final discharge point.

[4] Case C-27/03

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