CELEX: 61988CJ0131
Failure of a Member State to fulfil its obligations
Failure to implement a directive
Groundwater

Grounds
1 By an application lodged at the Court Registry on 6 May 1988, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that, by failing to adopt all the laws, regulations and administrative provisions necessary in order to comply with Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances (Official Journal 1980 L 20, p. 43, hereinafter referred to as "the directive"), the Federal Republic of Germany has failed to fulfil its obligations under the EEC Treaty.
2 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the Community and national legislation relevant to the case, the course of the procedure and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.
A - General arguments
3 The Federal Republic of Germany claims that the directive was correctly implemented in its national legal order by the Law on water (Wasserhaushaltsgesetz) of 1976, as amended on 23 September 1986 (BGBl. 1986, I, pp. 1529 and 1654), by the Law on the reduction and removal of waste (Gesetz ueber die Vermeidung und Entsorgung von Abfaellen, Abfallgesetz, of 27 August 1986, BGBl. I, pp. 1410 and 1501), by the Federal law on administrative procedure (Verwaltungsverfahrensgesetz) and by a number of other laws, decrees and administrative provisions adopted by the Laender.
4 The Federal Republic of Germany points out that even though the abovementioned laws were not adopted specifically in order to implement the directive, they are interpreted and applied in such a way as to achieve that result. According to the Federal Republic of Germany a directive must be considered to have been implemented if it is actually implemented, in a clear and precise manner, by national law. The Commission' s claims are rather hypothetical because in practice there have been no cases in which the directive has been infringed.
5 The Commission claims that the provisions relied on by the Federal Republic of Germany do not show clearly that the directive has been implemented because they do not fulfil the strict and rigorous conditions for implementation.
6 It should be pointed out first of all that according to the case-law of the Court (see, in particular, the judgment in Case 363/85 Commission v Italy [1987] ECR 1733), the transposition of a directive into domestic law does not necessarily require that its provisions be incorporated formally and verbatim in express, specific legislation; a general legal context may, depending on the content of the directive, be adequate for the purpose provided that it does indeed guarantee the full application of the directive in a sufficiently clear and precise manner so that, where the directive is intended to create rights for individuals, the persons concerned can ascertain the full extent of their rights and, where appropriate, rely on them before the national courts.
7 The directive at issue in the present case seeks to protect the Community' s groundwater in an effective manner by laying down specific and detailed provisions requiring the Member States to adopt a series of prohibitions, authorization schemes and monitoring procedures in order to prevent or limit discharges of certain substances. The purpose of those provisions of the directive is thus to create rights and obligations for individuals.
8 It should be pointed out that the fact that a practice is consistent with the protection afforded under a directive does not justify failure to implement that directive in the national legal order by means of provisions which are capable of creating a situation which is sufficiently precise, clear and open to permit individuals to be aware of and enforce their rights. As the Court held in its judgment in Case C-339/87 (Commission v Netherlands [1990] ECR I-851, paragraph 25), in order to secure full implementation of directives in law and not only in fact, Member States must establish a specific legal framework in the area in question.
9 It follows from the foregoing that the argument of the Federal Republic of Germany that there has been no case in practice in which the directive was infringed cannot be accepted.
10 It must therefore be considered whether the provisions relied on by the Federal Republic of Germany implement the directive correctly.
B - Discharges of substances in list I
1. The prohibition of direct discharges
11 The Commission claims first that the Federal Republic of Germany has not implemented the first indent of Article 4(1) of the directive, which, in conjunction with Article 3(a), prohibits all direct discharges of substances in list I.
12 The Federal Republic of Germany contends that that prohibition is not absolute but relative, and must be applied having regard to Article 2(b) of the directive, which provides for exceptions to the prohibitions where the competent authority of the Member State concerned finds that discharges contain substances in lists I or II in a quantity and concentration so small as to obviate any present or future danger of deterioration in the quality of the receiving groundwater. Article 2(b) therefore allows the Member States a discretion in the implementation of the directive.
13 The Federal Republic of Germany contends that Paragraph 1a(1) Paragraph 2(1), Paragraph 3(1)(5) and in particular Paragraph 34(1) of the Wasserhaushaltsgesetz fully implement the prohibition at issue in its national legal order. Under the last-mentioned paragraph, authorization to introduce substances into groundwater may be granted only if there is no reason to fear detrimental effects on groundwater owing to pollution or impairment of the properties of the groundwater. The Federal Republic of Germany contends that those provisions mean that all discharges of substances are prohibited unless the conditions laid down in Paragraph 34(1) of the Wasserhaushaltsgesetz have been met.
14 The prohibition laid down in the first indent of Article 4(1) is general and absolute and applies to discharges of substances in list I without distinguishing between the substances themselves and solutions thereof. That article does not empower the competent authorities of the Member States to determine, on a case-by-case basis and having regard to the circumstances, whether or not discharges have a detrimental effect. That interpretation results, moreover, from a comparison between the wording of the first indent of Article 4(1) and the wording of Article 5 of the directive, which does in fact introduce a system of authorization for discharges of substances in list II. It also results from the ninth recital in the preamble to the directive, according to which, with the exception of direct discharges of substances in list I, which are automatically prohibited, all discharges must be made subject to an authorization scheme.
15 Article 2(b) of the directive must be interpreted having regard to the fact that it is to be found in an article that specifies the cases to which the directive does not apply.
16 Moreover, Article 2(b) of the directive does not refer to discharges of substances in list I or II, whether or not in solution, but to discharges of other substances that contain substances in those two lists.
17 Substances in lists I or II contained in such discharges must be present in quantities sufficiently small as to obviate prima facie, without there even being a need for an evaluation, all risk of pollution of the groundwater. That is why Article 2(b) of the directive refers not to an evaluation by the competent authority of a Member State but to a simple finding.
18 Thus the meaning of that provision is that if the quantity of substances in list I (or II) contained in discharges of other substances is such that the risk of pollution cannot be automatically excluded, the directive is applicable and, in that case, Article 2(b) cannot, contrary to what the Federal Republic of Germany claims, be taken in conjunction with the other provisions of the directive in order to interpret them. Consequently, it is not possible to refer to Article 2(b) of the directive in order to call into question the foregoing interpretation according to which the prohibition laid down by the first indent of Article 4(1) is absolute.
19 In order to guarantee complete and effective protection of groundwater, it is vital that the prohibitions set out in the directive be expressly embodied in national law (see the judgment in Case 252/85 Commission v France [1988] ECR 2243, paragraph 19). Paragraph 34(1) of the Wasserhaushaltsgesetz, which is relied on by the Federal Republic of Germany, does not contain a general prohibition; it permits the competent authority to grant, subject to certain conditions, authorization to introduce substances into groundwater, on the basis, moreover, of rather vague criteria, such as "harmful pollution" and "detrimental effect on the properties" of the water.
20 Consequently, the Commission' s claim that the Federal Republic of Germany has failed to implement the first indent of Article 4(1) of the directive must be upheld.
2. Indirect discharges of substances in list I (second indent of Article 4(1))
21 The Commission claims that the Federal Republic of Germany has not implemented the second indent of Article 4(1) of the directive, which makes disposal or tipping for the purpose of disposal which might lead to indirect discharge of substances in list I subject to a prior investigation in order to determine whether it should be prohibited or authorized.
22 The Federal Republic of Germany cites various provisions of national law which, it claims, implement the second indent of Article 4(1) of the directive.
23 Before those national provisions are considered, it should be stated that the second indent of Article 4(1), which must be read in conjunction with Article 3(a), may be analysed as follows:
(a) it is intended to prevent any indirect discharge of substances in list I;
(b) it applies to any disposal or tipping for the purpose of disposal;
(c) it applies to all substances in list I;
(d) it requires the Member States to make all such activities subject to a mandatory prior investigation;
(e) it provides, finally, that the investigation must in all cases result in either a prohibition or an authorization, which may be granted only on condition that all the technical precautions necessary to prevent such discharge are observed.
The element referred to at (a)
24 The first argument put forward by the Federal Republic of Germany is that having regard to Article 2(b) of the directive, the purpose of the second indent of Article 4(1) is not to prevent any indirect discharge of substances in list I, but only discharges in quantities which do not obviate any present or danger of deterioration in the quality of the receiving groundwater.
25 On the basis of that interpretation, it refers to various provisions which,in its view, fulfil the requirements of the second indent of Article 4(1) of the directive.
26 As has already been stated, the interpretation of Article 2(b) of the directive supported by the Federal Republic of Germany is not correct; consequently all the arguments which it bases on that interpretation cannot be upheld.
27 That is sufficient ground for upholding the Commission's claim that the second indent of Article 4(1) of the directive has not been implemented. However, the following observations should be made concerning the national legislation which according to the Federal Republic of Germany has implemented that provision.
The element referred to at (b)
28 As regards disposal or tipping for the purpose of disposal, the Federal Republic of Germany relies on a number of provisions contained in the Wasserhaushaltsgesetz and the Abfallgesetz. They are Paragraph 3(1)(5) and (2)(2), Paragraph 19a(1), 19b(2), 19g(1) et seq and Paragraph 34(1) and (2) of the former, and Paragraph 4(1) and (5) and Paragraph 7 of the latter. Each of those provisions refers to the disposal or tipping for the purpose of disposal of dangerous substances by a pipeline, by other facilities, without facilities and by final burial.
29 The first remark that that calls for is that the provisions concern only certain types of disposal or tipping for the purpose of disposal and in no way guarantee that every kind of disposal or tipping for the purpose of disposal capable of leading to indirect discharge of list I substances is covered by the German legislation.
30 In that context the Federal Republic of Germany points out that under Paragraph 34 of the Wasserhaushaltsgesetz the introduction into groundwater, the storage and the burial of substances, and the transportation of liquids and gasses by pipeline, may be authorized only if there is no risk of harmful pollution of the groundwater or any other impairment of its properties, and that under Paragraph 3(2)(2) of the same law "introduction" of substances into the groundwater includes measures capable of affecting the physical, chemical, or biological properties of the water permanently or significantly. Consequently, the German legislation covers all possible modes of introduction into the groundwater.
31 It also claims that the legislation does not enable authorization to be granted for activities which entail the risk of harmful pollution or impairment of the properties of the groundwater. Consequently, it is more strict than the directive, since the second indent of Article 4(1) of the directive provides that authorization may be granted provided that technical precautions are taken.
32 Those arguments likewise cannot be upheld because they are based on the interpretation of Article 2(b) of the directive which has just been rejected.
The element referred to at (c)
33 The Federal Republic of Germany claims that all list I substances are covered by the legislation referred to above, because they are mentioned in Paragraph 19a(2) of the Wasserhaushaltsgesetz, which must be read in conjunction with the Regulation of 19 December 1973 on the conveyance by pipeline of substances harmful to water (BGBl. I, p. 1946). It points out that list I substances are in any event covered by Paragraph 34, taken in conjunction with Paragraph 3(1)(5) and (2), which concern not only list I substances, but substances in general. As for the particular case of Paragraph 19g(5) of the Wasserhaushaltsgesetz, which lists only a number of dangerous substances, the Federal Republic of Germany emphasizes that they are merely examples, as is shown by the fact that they are introduced by the words "in particular".
34 That argument cannot be upheld because the provisions relied on by the Federal Republic of Germany do not list the substances referred to in list I of the directive but rely on general and imprecise definitions.
The element referred to at (d)
35 As far as the requisite prior investigation is concerned, the Federal Republic of Germany claims that Paragraphs 24 and 26 of the Federal Law on administrative procedure and the corresponding provisions adopted by the Laender require any authority before adopting any administrative act, as a general rule, to undertake automatically an inquiry as to the facts, collecting the evidence which it considers necessary. That inquiry meets the requirements set out in the second indent of Article 4(1) of the directive.
36 That argument must likewise be rejected because the provisions relied on by the Federal Republic of Germany apply to administrative procedure in general and do not implement the second indent of Article 4(1) of the directive in a manner which is sufficiently specific, precise and clear to satisfy fully the requirement of legal certainty. The second indent of Article 4(1) of the directive requires, in view of the specific purpose of the inquiry (the appraisal of the receiving environment) that the inquiry be conducted with specific reference to the hydrogeological conditions of the area concerned, the possible purifying powers of the soil and subsoil and other elements. That is why, moreover, Article 7 of the directive lays down precisely what elements are to be considered in the prior investigations.
The element referred to at (e)
37 Lastly, as regards the result of the investigations, the Federal Republic of Germany maintains that if no authorization is granted, discharge is prohibited.
38 That argument cannot be accepted because in view of the importance of the purpose of the investigation as regards the protection of the groundwater, the directive requires that after each investigation and in the light of the results thereof an express measure, either prohibition or authorization, must be adopted.
39 As regards more particularly the case of authorization, the Federal Republic of Germany claims that it is self-evident that the administrative authorities would, if necessary, make the authorization subject to conditions.
40 That argument cannot be accepted because the directive requires the authorization to be subject always to conditions regarding the observance of technical precautions in order to guarantee that all indirect discharges will be prevented.
41 Consequently, the complaint regarding the failure to implement the second indent of Article 4(1) of the directive must be upheld.
3. Other indirect discharges of list I substances (third indent of Article 4(1))
42 The Commission claims that the manner in which the third indent of Article 4(1) of the directive has been implemented is also inadequate.
43 The purpose of that provision, which lays down details concerning the obligation provided for in Article 3(a), whereby the Member States are required to prevent indirect discharges of list I substances, is to prevent such discharges resulting from any activity other than those referred to in the second indent, and requires the Member States to take all appropriate measures to that end.
44 The Federal Republic of Germany relies in that respect in the first place on Paragraphs 3(2), 19a, 19b, 19g et seq and Paragraph 34 of the Wasserhaushaltsgesetz, that is to say the same provisions on which it has already relied as implementing the second indent of Article 4(1) of the directive.
45 However, the considerations set out above as regards the failure to implement the latter provision, having regard to its purpose and the activities and substances covered, apply to the implementation of the third indent of Article 4(1) of the directive. It must therefore be held that Paragraphs 3(2), 19a, 19b, 19g, et seq and Paragraph 34 of the Wasserhaushaltsgesetz do not adequately implement the provision in question, interpreted correctly.
46 The Federal Republic of Germany also relied on Paragraph 2 of the Wasserhaushaltsgesetz, which provides that use of water is subject to the authorization or approval of the administrative authorities, except where otherwise provided by that law or by the laws or regulations drawn up by the Laender pursuant thereto.
47 The answer to that must be that although the paragraph it relies on makes all use of water subject to the authorization or approval of the national authorities, it does not provide that such an authorization or approval may be granted only if there is no question of indirect discharges of list I substances. On the contrary, it even permits the Laender to permit exceptions, without stating the restrictions which must apply to such exceptions.
48 As regards Paragraph 3(2)(2) of the Wasserhaushaltsgesetz, which refers to measures capable of impairing the quality of water permanently or significantly, it must be stated that it relates to the introduction of substances into water, and to activities in the ground, but not to activities on the ground.
49 As regards the provisions adopted by the Laender, the description of them in the application, which has not been challenged by the Federal Republic of Germany, shows that they make no provision for measures regarding activities other than those referred to in the second indent in order to prevent indirect discharges, and they do not cover all the substances mentioned in list I.
50 Consideration of the provisions relied on by the Federal Republic of Germany shows, therefore, that the third indent of Article 4(1) of the directive has not been implemented in national law with the precision and clarity necessary in order to satisfy the requirement of legal certainty.
51 Consequently, the Commission's complaint must be upheld.
C - Prevention of discharges of list II substances
52 The Commission claims that the Federal Republic of Germany has not implemented Article 5 of the directive, which requires in the case of direct or indirect discharges of list II substances that the relevant Member State conduct a prior investigation and grant an authorization subject to conditions, and which requires the Member States to take the appropriate measures to limit indirect discharges of substances due to activities on or in the ground other than those mentioned in the first paragraph.
53 It should be noted that that the purpose of Article 5(1) of the directive, in conjunction with Article 3(b), is to restrict the introduction of list II substances into groundwater. That is why it requires the Member States, on the one hand, to make all direct discharges and all activities capable of leading to indirect discharges of list II substances subject to a mandatory prior investigation and, on the other hand, not to grant an authorization for such discharges without requiring that all the technical precautions for preventing groundwater pollution are observed.
54 It should also be noted that Article 5(2) of the directive requires the Member States to take the appropriate measures they deem necessary to limit all indirect discharge of list II substances due to activities on or in the ground other than those mentioned in the first paragraph.
55 The Federal Republic of Germany maintains that the obligations imposed by Article 5 are to be interpreted in the light of Article 2(b) of the directive and that Paragraphs 2, 3(1)(5) and 34 of the Wasserhaushaltsgesetz prohibit all direct and indirect discharges of both list I and list II substances without distinction; the German legislation is thus more rigorous than the directive as regards list II substances.
56 That argument cannot be accepted. It is based on an interpretation of Article 2(b) of the directive which has already been rejected; moreover, the provisions relied on by the Federal Republic of Germany do not provide for a mandatory and specific prior investigation and do not stipulate that the authorization may only be granted on condition that all the technical precautions are observed. Finally, they do not clearly state that any disposal or tipping for the purpose of disposal, and other activities on or in the grounds capable of leading to indirect discharges of list II substances, are covered.
57 It follows that the requirements of Article 5 of the directive are not set out in German legislation with the precision and clarity required in order to satisfy fully the requirement of legal certainty.
58 Consequently, the Commission's claim that Article 5 of the directive has not been implemented must be upheld.
D - The procedural provisions in the directive
General
59 The Commission claims that Articles 7 to 11 and Article 13 of the directive, which concern the procedure for granting authorizations, have not been implemented, or adequately implemented, by the German legislation.
60 The Federal Republic of Germany makes the preliminary point that the directive's provisions are implemented by rules already in force, adopted at both federal and Land level, so that it is not necessary to adopt special legislation. It points out that in any event the framework provisions of the Federal Law on administrative procedure apply. It also claims that, as regards the detailed rules for applying the provisions, there are adequate administrative provisions which do not require publication because they do not impose substantive rules of law. The existence of an administrative practice or interpretation which complies with the directive is sufficient, consequently, to meet its requirements.
61 It must be observed that the procedural provisions of the directive lay down, in order to guarantee effective protection of groundwater, precise and detailed rules which are intended to create rights and obligations for individuals. It follows that they must be incorporated into German law with the precision and clarity necessary in order to satisfy fully the requirement of legal certainty. Moreover, the Court has consistently held that mere administrative practices, which are alterable at the will of the administration and are not given adequate publicity, cannot be regarded as constituting adequate compliance with the obligation imposed on Member States to whom a directive is addressed by Article 189 of the EEC Treaty.
Article 7
62 The Federal Republic of Germany maintains that Article 7 is implemented by Paragraphs 24 and 26 of the Federal Law on administrative procedure and the corresponding provisions of the Laender which require the competent authorities to conduct an investigation as a matter of course.
63 It must be pointed out in that regard that Article 7 of the directive specifies in detail what matters are to covered by the prior investigations referred to in Articles 4 and 5. Consequently, that provision cannot be regarded as having being implemented by the German legislation on general administrative procedure, in view of the fact that, as has been said, the legislation is not sufficiently specific, precise and clear to satisfy fully the requirements of legal certainty.
Article 8
64 As far as the implementation of Article 8 of the directive is concerned, which provides that authorizations to discharge may not be issued by the competent authorities of the Member States until it has been ascertained that the groundwater, and in particular its quality, will undergo the requisite surveillance, the Federal Republic of Germany maintains that the substantive provisions concerning the conditions under which authorizations may be granted in Paragraphs 19a et seq, 19g and 34 of the Wasserhaushaltsgesetz, cited above, satisfy the requirements of Article 8 of the directive.
65 It should be pointed out that Article 8 of the directive, which lays down a procedural rule, requires that it be ascertained beforehand, and specifically, that the groundwater, and in particular its quality, will undergo the requisite surveillance. Such a rule cannot be implemented by substantive provisions of national law of a general nature lacking the clarity and precision required in order to satisfy the requirements of legal certainty.
Articles 9 and 10
66 As regards Articles 9 and 10 of the directive, which list the conditions which must be made in authorizations to discharge, the Federal Republic of Germany claims that under the Wasserhaushaltsgesetz the competent authorities may make those conditions in authorizations which they grant and that in addition Article 37 of the Law on administrative procedure and the analogous provisions applicable in the Laender require generally that administrative acts be specific in content.
67 However, the general obligation to which the competent national authorities are subject and the fact that they "may" stipulate the matters referred to in Articles 9 and 10 of the directive certainly do not satisfy the strict requirements of Articles 9 and 10.
Article 11
68 As to Article 11 of the directive, which provides that authorizations may be granted for a limited period only and must be reviewed at least every four years, the Federal Republic of Germany claims that the administration is free to decide whether or not to limit the period of validity of an administrative act and to monitor compliance therewith.
69 That argument cannot be upheld because Article 11 of the directive expressly requires that authorizations be granted for a limited period only and reviewed at least every four years. Consequently, the fact that the administrative authorities are free to decide whether or not to restrict the period of validity of the authorization cannot be sufficient to comply with Article 11 of the directive.
Article 13
70 As regards Article 13 of the directive, which requires the Member States to monitor compliance with the conditions laid down in the authorizations and the effects of discharges on groundwater, the Federal Republic of Germany claims that Paragraph 21 of the Wasserhaushaltsgesetz requires users and owners of the land to permit monitoring by the authorities and that the way in which such monitoring is conducted need not be governed by primary legislation, but may be covered by internal measures or administrative provisions, such monitoring being the responsibility of the Laender which introduce such rules.
71 The first remark which that calls for is that the Court has held, notably in Joined Cases 227 to 230/85 (Commission v Belgium [1988] ECR 1), that each Member State is free to delegate powers to its domestic authorities as it sees fit and to implement directives by means of measures adopted by regional or local authorities. That division of powers does not, however, release it from the obligation to ensure that the provisions of the directive are properly implemented in national law.
72 Next, it should be noted that in the first place Paragraph 21 of the Wasserhaushaltsgesetz, which requires individuals to permit monitoring, does not itself impose an obligation to monitor compliance with the conditions laid down in the authorizations and that in the second place internal measures or administrative provisions which are by nature alterable and are not adequately publicized cannot satisfy the requirement laid down in Article 13 of the directive.
73 Consequently, it must be held that the provisions contained in Articles 7 to 11 and Article 13 of the directive cannot be regarded as having been implemented in German legislation with the precision and clarity necessary in order to satisfy fully the requirement of legal certainty.
74 In the light of all those considerations it must be held that by failing to adopt within the prescribed period all measures necessary to comply with Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by dangerous substances the Federal Republic of Germany has failed to fulfil its obligations under the EEC Treaty.
Decision on costs
27 Costs
75 Under Article 69(2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. Since the Federal Republic of Germany has been unsuccessful, it must be ordered to pay the costs.
Operative part
On those grounds,
THE COURT
hereby:
(1) Declares that the Federal Republic of Germany has failed to fulfil its obligations under the EEC Treaty by failing to adopt within the prescribed period all the measures necessary to comply with Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances.
(2) Orders the Federal Republic of Germany to pay the costs.