Opinion of the Advocate General — ECLI:EU:C:1999:102
Date: 1999-02-25
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;Approximation of laws;Pollution
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment 
1. Environment — Water pollution — Directive 76/464 — 'Discharge' within the 
meaning of Article 1(2)(d) of the Directive— Pollution from significant sources, 
including multiple and diffuse sources, referred to in Article 5(1) of Directive 
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SUMMARY — CASE C-232/97 
86/280 — Not covered — Where a person places wooden posts treated with creosote 
in surface water 
(Council Directives 76/464, Art. 1(2)(d), and 86/280, Art. 5(1)) 
2. Environment — Water pollution — Directive 76/464 — Authorisation for a dis­
charge — Possible for Member States to make discharge authorisation 'subject to 
additional requirements not provided for in the Directive — Scope 
(Council Directive 76/464) 
3. Approximation of laws — Restrictions on the marketing and use of dangerous 
substances and preparations — Directive 76/769, as amended by Directive 94/60 — 
Use of creosote — Requests for authorisation — Criteria of assessment — To be fixed 
by the Member States 
(Council Directive 76/769, as amended by Directive 94/60) 
1. The term 'discharge' in Article 1(2)(d) 
of Directive 76/464 on pollution 
caused by certain dangerous substances 
discharged into the aquatic environ­
ment of the Community is to be 
interpreted as not including the pollu­
tion from significant sources, including 
multiple and diffuse sources, referred 
to in Article 5(1) of Directive 86/280 
on limit values and quality objectives 
for discharges of certain dangerous 
substances included in List I of the 
Annex to Directive 76/464. 
The above term must be understood as 
referring to any act attributable to a 
person by which one of the dangerous 
substances listed in List I or List II of 
the Annex to the Directive is directly or 
indirectly introduced into the waters to 
which the Directive applies. On the 
other hand, the notion of pollution 
from significant sources, including 
multiple and diffuse sources, referred 
to in Article 5(1) of Directive 86/280, 
relates to cases where the pollution, 
precisely because of its diffuse nature, 
cannot be attributed to a person and 
therefore cannot be the subject of prior 
authorisation. 
Consequently, the term 'discharge' in 
Article 1(2)(d) of Directive 76/464 cov­
ers the placing by a person in surface 
water of wooden posts treated with 
creosote and the expression 'significant 
sources... (including multiple and dif­
fuse sources)' in Article 5(1) of Direc­
tive 86/280 does not cover the escape 
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NEDERHOFF V DIJKGRAAF EN HOOGHEEMRADEN VAN HET HOOGHEEMRAADSCHAP RIJNLAND 
of creosote from wooden posts placed 
in surface water, where the pollution 
caused by that substance is attributable 
to a person. 
2. Directive 76/464 on pollution caused 
by certain dangerous substances dis­
charged into the aquatic environment 
of the Community permits Member 
States to make the authorisation for a 
discharge subject to additional require­
ments not provided for in that Direc­
tive, in order to protect the aquatic 
environment of the Community against 
pollution caused by certain dangerous 
substances. The obligation to investi­
gate or choose alternative solutions 
which have less impact on the environ­
ment constitutes such a requirement, 
even if it may have the effect of making 
the grant of authorisation impossible 
or altogether exceptional. 
3. The limitative conditions for the use of 
creosote laid down in point 32 of 
Annex I to Directive 76/769 on the 
approximation of the laws, regulations 
and administrative provisions of the 
Member States relating to restrictions 
on the marketing and use of certain 
dangerous substances and prepara­
tions, as amended by Directive 94/60, 
do not preclude an authority of a 
Member State, when considering appli­
cations for authorisation concerning 
the introduction into surface water by 
professional users of wood treated with 
that substance, from establishing cri­
teria of assessment such that its use is 
impossible or altogether exceptional. 
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