Luxembourg, 20/07/2004 (Agence Europe) - Electricité de France (EDF) must stop discharging fresh water into the "étang de Berre". The Court of Justice has ruled that, contrary to EDF's claims, an association could invoke the protocol on protection of the Mediterranean Sea against pollution from land-based sources, signed in Athens in 1980. In application of Article 6 of the protocol, all discharges into the saltwater marsh are prohibited as, although they are not necessarily toxic, they have an adverse effect on the oxygen content of the marine environment, the Court states.
Such is the response by European judges to the French "Cour de Cassation" which is to rule in a case between the "Syndicat professional de la coordination des pêcheurs de l'étang de Berre et de la region" and Electricité de France. The association of fishermen challenged the fact that EDF had discharged fresh water into the lagoon without prior authorisation from competent public authorities.
Firstly, the Court considers that Article 6 of the protocol has a direct effect: individuals or associations may request application directly before a national tribunal. It refers to its jurisdiction that stipulates an article of the protocol contains a "clear, precise and unconditional obligation", has a direct effect and may be directly invoked by individuals or legal persons. Article 6 states that the parties to the protocol undertake to stringently reduce land-based sources of pollution and that discharge of substances should be strictly subject to the prior issue of an authorisation by the competent national authorities.
EDF said that the protocol could only apply if the State party to the protocol had implemented norms or criteria needed for obtaining the authorisation and that only these norms or criteria could have been challenged by the association.
The "étang de Berre", of a surface area of 15,000 hectares, is a saltwater marsh that communicates directly with the Mediterranean Sea. The fishermen's association had complained on several occasions to EDF about the harm caused to the marine environment due to fresh water from the Durance rejected artificially into the marsh every time EDF set its turbines of the hydroelectric power plant in Saint-Chamas in motion.
In 1999, the association of fisheries had brought interlocutory proceedings against EDF alleging "unlawful conduct" and seeking an order that the hydroelectric power station at Saint-Chamas be shut down. The court hearing the application for interim measures ruled that it could not intervene as, after thirty years of operation of the power plant, the decision to stop its operation was too serious as it involved extremely serious consequences mainly at the level of production and the safety of the region's electricity supply. It recognised, however, that this discharge of fresh water was manifestly unlawful.
The fishing association had appealed and, in a ruling of September 2000, the Court of Appeal in Aix-en-Provence had dismissed the case as a non-suit ruling that EDF was unable to request authorisation as France had not defined criteria to back the authorisation.
Before ruling, the French "Cour de Cassation", referred to in turn, asked the European Court of Justice whether any interested person could invoke Article 6 of the protocol before a national tribunal in order to stop unauthorised discharges of water. The European court of Justice replied in the affirmative.
It should be noted that the Court of Justice had decided to do without the conclusions of an advocate-general.