Opinion of the Advocate General — ECLI:EU:C:1998:311
Date: 1998-06-18
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;Approximation of laws;Pollution
Procedure: Action for failure to fulfil obligations - successful
Origin: Belgium

summary of the said programmes and the 
results of their implementation, in breach of 
Article 7 of the said directive, and thereby 
failing to comply with its obligations under 
the EC Treaty. 
The general context of Directive 76/464 
3. The first recital in the preamble to Direc­
tive 76/464, adopted on the basis of Articles 
100 and 235 of the EEC Treaty, states that: 
'... there is an urgent need for general and 
simultaneous action by the Member States to 
protect the aquatic environment from pollu­
tion, particularly that caused by certain per­
sistent, toxic and bioaccumulable substances.' 
4. Article 2 of Directive 76/464 provides: 
'Member States shall take the appropriate 
steps to eliminate pollution of the waters 
referred to in Article 1 by the dangerous 
substances in List I of the Annex and to 
reduce pollution of the said waters by the 
dangerous substances in the families and 
groups of substances in List II of the Annex, 
in accordance with this Directive, the provi­
sions of which represent only a first step 
towards this goal.' 
5. List I comprises certain individual 
substances which form part of families and 
groups of substances which are set out in the 
list, chosen mainly on the basis of their tox­
icity, their persistence and their bioaccumula­
tion. In Article 6 of Directive 76/464 the 
* Original language: French. 
1 — OJ 1976 L 129, p. 23. 
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OPINION OF MR MISCHO — CASE C-207/97 
Council has established limit values which 
must not be exceeded and quality objectives 
which must be met. 
6. List II of the Annex to Directive 76/464 
comprises: 
'— Substances belonging to the families and 
groups of substances in List I for which 
the limit values referred to in Article 6 
of the Directive have not been deter­
mined, 
— certain individual substances and catego­
ries of substances belonging to the fami­
lies and groups of substances listed below, 
and which have a deleterious effect on the 
aquatic environment, which can, however, be 
confined to a given area and 'which depend 
on the characteristics and location of the 
water into which they are discharged.' 
7. Article 7 of Directive 76/464 provides: 
' 1 . In order to reduce pollution of the waters 
referred to in Article 1 by the substances 
within List II, Member States shall establish 
programmes in the implementation of which 
they shall apply in particular the methods 
referred to in paragraphs 2 and 3. 
2. All discharges into the waters referred to 
in Article 1 which are liable to contain any of 
the substances within List II shall require 
prior authorisation by the competent authority 
in the Member State concerned, in which 
emission standards shall be laid down. Such 
standards shall be based on the quality objec­
tives, which shall be fixed as provided for in 
paragraph 3. 
3. The programmes referred to in paragraph 
1 shall include quality objectives for water; 
these shall be laid down in accordance •with 
Council Directives, where they exist. 
4. The programmes may also include specific 
provisions governing the composition and use 
of substances or groups of substances and 
products and shall take into account the latest 
economically feasible technical developments. 
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COMMISSION v BELGIUM 
5. The programmes shall set deadlines for 
their implementation. 
6. Summaries of the programmes and the 
results of their implementation shall be com­
municated to the Commission. 
7. The Commission, together with the 
Member States, shall arrange for regular com­
parisons of the programmes in order to ensure 
sufficient co-ordination in their implementa­
tion. If it sees fit, it shall submit relevant pro­
posals to the Council to this end.' 
8. Article 12 of the Directive provides: 
' 1 . The Council, acting unanimously, shall 
take a decision within nine months on any 
Commission proposal made pursuant to 
Article 6... 
2. The Commission shall, where possible, 
within 27 months following notification of 
this Directive, forward the first proposals 
made pursuant to Article 7 (7). The Council, 
acting unanimously, shall take a decision 
within nine months.' 
9. Finally, Article 13 provides that, for the 
purposes of the directive, Member States are 
to supply the Commission, at its request, inter 
alia additional information on the programmes 
referred to in Article 7. 
10. Directive 76/464, which entered into force 
on its notification, namely 5 May 1976, does 
not expressly lay down any time-limit for the 
practical implementation of the obligations 
which it specifies. However, the Kingdom of 
Belgium has not raised the absence of a dead­
line for implementation as a ground for dis­
puting the obligation which it is charged with 
failing to fulfil. In any event, the absence of a 
time-limit cannot deprive the obligations 
which the directive imposes on the Member 
States of their binding nature. This point of 
view is confirmed by the fact that the Court 
held that the Hellenic Republic and the Grand 
Duchy of Luxembourg had failed to fulfil 
their obligations under Article 7(2) of Direc­
tive 76/464, without even touching upon the 
question of the absence of a time-limit. 2 
Preliminary observations 
11. Before I analyse the substance of the 
Commission's arguments the admissibility of 
the action must first be considered. 
2 — See Joined Cases C-232/95 and C-233/95 Commission v 
Greece [1998] ECR I-3343 and Case C-206/96 Commission v 
Luxembourg [1998] ECR I-3401. 
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OPINION OF MR MISCHO — CASE C-207/97 
12. It is clear from the documents before the 
Court that the Belgian Government, although 
not formally raising a plea of inadmissibility, 
relies nevertheless on a defence which, if 
proved to be well founded, would result in 
the action being held to be inadmissible. 
13. The Belgian Government contends that 
the fact that the Commission took no action 
after the letter of formal notice of 26 Feb­
ruary 1991 (and the Government's reply of 
28 February 1991) until 6 August 1996, the 
date of the reasoned opinion, led the Belgian 
Government to believe that the procedure 
initiated had been suspended and that the 
Commission had acknowledged that its action 
was unfounded. 
14. In answer to the defending Government's 
argument, it is sufficient to point out, as 
moreover the Commission rightly does, that 
the Court has held that 3 '...the rules of Article 
169 of the Treaty, unlike those of Article 93, 
which derogate expressly therefrom, must be 
applied and the Commission is not obliged to 
act within a specific period'. 
15. In the same judgment, 4 however, the 
Court also held that 'in certain cases the 
excessive duration of the pre-litigation pro­
cedure laid down by Article 169 is capable of 
making it more difficult for the Member State 
concerned to refute the Commission's argu­
ments and of thus infringing the rights of the 
defence'. It is therefore for the Member State 
pleading excessive duration to prove that this 
has violated its rights of defence. 
16. The Belgian Government confines itself 
to observing that in this instance the proce­
dure was excessively long and it was evident, 
therefore, that the Commission's inaction had 
affected the Government's means of defending 
itself; however, it advances no argument to 
explain how that was so. 
17. In the absence of evidence from the Bel­
gian authorities that the length of the pre-
litigation procedure had adversely affected 
their defence preparations I have no choice 
but to reject the Kingdom of Belgium's argu­
ments on this point. 
The substance of the case 
18. In its originating application the Com­
mission charges the Kingdom of Belgium with 
failing to adopt programmes for the reduc­
tion of pollution incorporating quality objec-
3 — See judgment in Case C-96/89 Commission v Netherlands 
[1991] ECR I-2461, paragraph 15. 
4 — Paragraph 16. 
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COMMISSION v BELGIUM 
tives, at least regarding the 99 substances 
listed in Annex I. 
19. In reply to a written question put to it by 
the Court the Commission stated that the 
present case relates only to the 99 substances. 
20. The Commission says that it is acting in 
conformity with the fact that it confined the 
discussion to the 99 substances in question 
during the pre-litigation procedure and that it 
directed the exchange of arguments with the 
Kingdom of Belgium towards the failure to 
establish or to communicate programmes for 
the reduction of water pollution by those 
substances. 
21. The Commission claims that it is clear 
from the introduction to List II (cited earlier 
in point 6) that the 99 substances taken from 
List I must follow the regime applying to the 
other substances in List II, as the Council has 
not yet laid down emission limit values and 
quality objectives for them pursuant to Article 
6 of Directive 76/464. 
22. Apart from mercury and cadmium, List I 
comprises mainly families and groups of 
substances and individual substances within 
these categories must be therefore identified 
before emission limit values and quality objec­
tives can be specified for them. 
23. The work carried out by the Commis­
sion, in cooperation with Member States, 
resulted in the compilation of a list of 129 
substances which is appended to its commu­
nication to the Council of 22 June 1982 
regarding dangerous substances which should 
be included on List I of Directive 76/464. 5 
24. The Council's Resolution of 7 February 
1983 concerning the combating of water pol­
lution states, amongst other things, that it is 
desirable to intensify research on a certain 
number of substances so that it can be decided 
whether it is necessary to adopt specific direc­
tives for those substances. It takes note of the 
Commission's Communication to the Council 
of 22 June 1982 concerning dangerous 
substances which might be included in List I 
of Directive 76/464/EEC (5) and welcomes 
the efforts made by the Commission in prepa­
ration for the further implementation of the 
said Directive. 
25. The Council's Resolution states inter alia 
that the list of 129 substances in the Commis­
sion's communication will serve as a basis for 
further work on the implementation of the 
Directive and that in the initial stage particular 
5 — OJ 1982 C 176, p. 4. 
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OPINION OF MR MISCHO — CASE C-207/97 
attention should be paid where appropriate to 
a list of 11 substances appended to the resolu­
tion. 
26. In the meantime three other substances 
were added to the Commission's list, which 
now comprises 132 substances, but of these 
18 were the subject of Council directives set­
ting emission limit values and quality objec­
tives and 15 others gave rise to the Proposal 
for a Council Directive amending Directive 
76/464/EEC on pollution caused by certain 
dangerous substances discharged into the 
aquatic environment of the Community, sub­
mitted by the Commission on 14 February 
1990. 6 
27. The present action therefore relates to the 
99 remaining substances on the l i s t appended 
to the Commission's communication cited 
above and officially noted in the Council's 
resolution of 7 February 1983. 
The status of the list of 99 substances 
28. The Kingdom of Belgium, for its part, 
primarily contests the legally binding nature 
of the list of 99 substances, even for actions 
under Article 7. According to the Belgian 
Government, 'Community law has not 
become specifically applicable beyond the 18 
substances referred to in daughter directives.' 
The Council Resolution of 7 February 1983 7 
shows, it submits, to what extent the l i s t of 
99 substances is to be regarded as a mere basis 
for continuing work on a Community defini­
tion. 
29. The Belgian Government submits that 
'the Commission makes a wholly incorrect 
association between a brief and vague annex 
to Directive 76/464, which is a framework 
directive, and a Council policy resolution 
recognising 129 substances as a basis for con­
tinuing Community studies and as a provi­
sional basis for any action at national level.' 
30. Furthermore the Kingdom of Belgium 
again quotes the Commission communication 
of 22 June 1982 8 to demonstrate 'to what 
extent the identification of a list of substances 
— via the resolution — was purely tentative 
and was to be regarded as an intermediate 
stage which should have led to proposals for 
specific directives and to daughter directives 
adopted by the Council.' 
31. In response to the arguments of the 
Kingdom of Belgium, the Commission claims, 
first, that it is clear from the application that 
it has never regarded the Council's resolution 
6 — OJ 1990 C 55, p. 7. 
7 — Cited above. 
8 — Cited above. 
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COMMISSION v BELGIUM 
as being of a legally binding nature and, 
second, that 'the obligation which the 
Kingdom of Belgium is accused of having 
failed to fulfil does not derive from that reso­
lution but from Article 7 of the Directive and 
from List II to which that article refers.' 
32. As regards the Belgian authorities' argu­
ment to the effect that Directive 76/464 is 
only a framework directive requiring the 
Council to adopt daughter directives, the 
Commission contends that that view of the 
matter conflicts with the system which was 
set up by the Directive and which defines 
two levels of protection. The first level (List 
II) aims to reduce 9 water pollution through 
programmes adopted in accord with Article 
7. The second (List I) aims to eliminate 10 
water pollution by the measures prescribed in 
Articles 3 to 6. 
33. The Commission therefore concludes that 
'it cannot be claimed that the absence of 
daughter directives regarding the determina­
tion of limit values applicable to a substance 
amounts to the absence of any obligation 
under Community law.' 
34. The Belgian Government remarks in its 
rejoinder that '[T]he Commission continues 
to draw erroneous references from a reading 
of the Directive and the Resolution'. In the 
opinion of the Belgian Government, 'first, the 
Directive is a framework directive which 
requires legal decisions to establish which 
substances in the annexes are affected and 
second, there is a policy resolution recog­
nising 129 substances as a basis for further 
discussions in order to arrive at a legal basis 
establishing the list of substances.' 
35. In my opinion there is a flaw in the Bel­
gian Government's reasoning. 
36. First, it is undoubtedly true, as regards 
the substances falling within List I, that 'legal 
decisions'... from the Council are required in 
order to define what substances are individu­
ally concerned. However, the Council's deter­
mination of the individual substances is 
required solely with a view to subjecting them 
to the measures prescribed in Articles 3 to 6 
of Directive 76/464. 
37. It is clear from the system established by 
Directive 76/464 that List I substances are to 
be treated as List II substances if the Council 
has not determined emission limit values for 
them, with the result that they must be 
included in a water pollution reduction pro­
gramme which every Member State must draw 
up pursuant to Article 7 of the Directive. 
9 — Underlined in the original. 
10 — Underlined in the original. 
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OPINION OF MR MISCHO — CASE C-207/97 
38. Under the regime established by Article 
7 of Directive 76/464 each Member State is 
individually responsible for determining the 
substances with which List II is concerned, 
that is to say, both those which fall within 
List II only because the Council has not 
specified emission limit values and those actu­
ally set out in List II. As regards the deter­
mination of the substances falling within List 
II and thus required to be the subject of a 
reduction programme, no specific role is 
assigned to the Council. It is for Member 
States alone to single out, from the families 
and groups of substances of List II, those 
which are relevant in their own national con­
text. However, this power cannot be inter­
preted as allowing Member States to choose 
which of the substances they will finally select 
in the preparation of their national reduction 
programme. Directive 76/464 provides no 
derogation; consequently, any substance, pro­
vided that it falls under the first indent of List 
II and is relevant in the national context, must 
be included in the national programme estab­
lished under Article 7 of Directive 76/464. 
39. However, while it is not in dispute that 
the list of 99 substances cannot be regarded 
as legally binding solely because the Council 
has taken official note of it by a resolution, it 
must nevertheless be recognised as having a 
certain relevance. In the context of this case, 
the only purpose served by that resolution is 
to prove that the 99 substances at issue belong 
scientifically to the families and groups of 
substances in List I. Failing scientific proof to 
the contrary from the Belgian Government, I 
cannot presume that the Council has ratified 
scientific inaccuracies, albeit only in a resolu­
tion. 
The obligation to prepare programmes 
40. The 99 substances mentioned in the annex 
to the Commission's application must there­
fore be regarded as substances referred to in 
the first indent of List II and must conse­
quently be included in a water pollution 
reduction programme. 
41. In this respect, it is clear from the docu­
ments before the Court that the Kingdom of 
Belgium does not contest the obligation to 
prepare water pollution reduction pro­
grammes pursuant to Article 7 of Directive 
76/464. On the contrary, the Belgian authori­
ties maintain that they have 'acted in the spirit 
of Article 7 of the directive' by adopting a 
body of programmes and measures, both fed­
eral and regional, and that 'these efforts should 
be regarded as reduction programmes within 
the meaning of Article 7.1.' 
I - 2 8 4 
COMMISSION v BELGIUM 
42. More specifically, the Kingdom of Bel­
gium lays particular emphasis on three types 
of action: 
— the existing legislation 
— the action taken to protect the North Sea 
— the codes of good agricultural practice. 
43. First, as regards the existing legislation, 
the Kingdom of Belgium points to 50 or more 
sectoral decrees comprising binding discharge 
standards (or emission limit values) according 
to the industrial sectors concerned. It then 
points out that the Royal Decree of 21 
November 1997 on the basic quality of sur­
face waters set quality objectives for certain 
substances from the list of 99. That decree is 
still used in the Walloon Region to lay down 
special conditions, which are more stringent 
than the sectoral standards, where the quality 
objectives are not respected. The Flemish 
Region took the same approach and set its 
own quality objectives. Furthermore, it adopts 
the quality directives proposed by the Comité 
Scientifique pour la Toxicité et l'Écotoxicité 
des Substances Dangereuses (CSTE) (Scien­
tific Committee for Toxicity and Ecotoxicity 
of Dangerous Substances). In the last resort 
the competent regional authorities apply 
quality objectives set in the legislation of 
other Member States or found in the relevant 
literature. 
44. The Kingdom of Belgium then points out 
that it sent the Commission a file entitled 
'Flow to the North Sea' on the reduction of 
discharges of 36 substances into the aquatic 
environment and consequently into the North 
Sea. The defendant Government claims that 
the choice of 36 substances was based on 
examinations and 'screenings' showing that 
these were priority substances in terms of 
quality objectives. 
45. Finally the Kingdom of Belgium refers to 
the codes of good agricultural practice 
designed to reduce the diffuse influx of phy-
topharmaceutical substances. These codes, it 
states, also cover many substances in List II, 
including organic chlorate and organic phos­
phate compounds on the list of 99 substances 
which is attached to the Commission's appli­
cation. 
46. The Commission replies that according 
to the information supplied with respect to 
the Belgian legislation 'the Flemish Region 
monitors 62 substances through the concur­
rent application of emission limit values and 
environmental quality objectives'. The Com­
mission goes on to claim that only 36 
substances are subject to a similar control in 
Brussels and Wallonia. It concludes that 'the 
Kingdom of Belgium has not yet adopted, for 
the entirety of its territory, satisfactory mea­
sures for reducing the pollution caused by 63 
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OPINION OF MR MISCHO — CASE C-207/97 
of the 99 substances which are the subject of 
the infringement procedure and yet does not 
contend that those substances are not present 
on its territory.' 
47. With regard to the Kingdom of Belgium's 
measures to protect the North Sea, the Com­
mission claims, first, that 13 of the 36 
substances cited are on List I of the Annex to 
Directive 76/464, for which emission limit 
values have been fixed by Council directives, 
and that consequently the 23 remaining 
substances, which are covered by List II, 
cannot be regarded as adequate. The Com­
mission then points out that, contrary to the 
requirements of Article 7 of Directive 76/464, 
the document entitled 'Flow to the Nor th 
Sea' does not lay down any quality objective 
for water. 
48. As regards the Belgian arguments relating 
to the codes of good agricultural practice, the 
Commission does not deny that such codes 
assist in reducing water pollution, but it 
observes, righdy, that 'the Belgian authorities 
have provided no information which could 
lead to the conclusion that the inadequacies 
or imperfections of their arrangements ... 
would be corrected or made good by those 
means' and that they have not 'stated whether 
those codes include quality objectives, exacdy 
which substances are covered, etc.' 
49. As it is clear from what has been said ear­
lier that the pollution reduction programmes 
to be established pursuant to Article 7 of 
Directive 76/464 must in any case cover the 
99 substances cited, with which the present 
action is concerned, I am obliged to conclude 
that the Kingdom of Belgium has failed to 
fulfil its obligations under Article 7 of the 
Directive. 
50. It is common ground that the Kingdom 
of Belgium has not adopted programmes 
designed to reduce, throughout its territory, 
water pollution caused by substances in List 
II of the Annex to Directive 76/464 and, more 
especially, by the 99 substances on the Ust 
appended to the application. 
51. However, that observation does not put 
an end to the matter, since, over and above 
the problem of the substances which require 
to be covered, the Commission charges the 
Kingdom of Belgium with not having for­
mally adopted a programme. According to 
the Commission, Directive 76/464 'appears to 
postulate, at the very least, the drafting and 
adoption of a document which is separate 
from the measures adopted to implement it 
and in which a coherent pollution reduction 
policy is described'. In the absence of the 
formal adoption of a programme, the Com­
mission says, it would have difficulty in deter­
mining whether a programme is in fact being 
implemented and, if it is, in evaluating its 
content and effectiveness. 
I - 2 8 6 
COMMISSION v BELGIUM 
52. The Kingdom of Belgium contests the 
Commission's interpretation, claiming that 
'nowhere does the Directive give cause for 
such a restrictive interpretation, which has no 
legal basis and is, furthermore, contrary to 
the Treaty definition of a directive as an 
instrument which harmonises the results to 
be achieved, leaving the choice of form and 
methods to Member States'. In this respect, 
the documents before the Court show that, 
according to the Belgian authorities, the sec­
toral decrees mentioned earlier do not replace 
the idea of programming but, on the con­
trary, constitute an essential component of it. 
Furthermore, the discharge authorisation, 
which is compulsory in all cases, is the spe­
cific expression of the implied programming 
contained in these sectoral decrees. 
53. In my opinion, while it is, admittedly, 
true that Directive 76/464 does not define 
what is meant by 'programme', the Commis­
sion's interpretation appears to be a better 
reflection of what was intended by the Com­
munity legislature. In using the term 'pro­
gramme', the Community legislature certainly 
intended to impose on Member States an 
obligation extending beyond the adoption of 
specific individual measures to reduce pollu­
tion. 
54. The protection of the environment 
depends to a large extent on the planning of 
the action undertaken by national public insti­
tutions and Community institutions, taken as 
a whole. 11 
55. It is this idea of planning of the action 
taken by the Member States which implies an 
obligation to adopt programmes. This involves 
drawing up global policies on the pollution of 
the aquatic environment, in which specific 
measures already adopted or yet to be taken, 
such as the Belgian sectoral decrees, are 
included. 
56. Leaving aside the criticisms expressed ear­
lier, the legislation to which the Kingdom of 
Belgium refers undeniably constitutes a useful 
instrument for eventually achieving a reduc­
tion in pollution. However, on the Belgian 
authorities' own admission, the sectoral 
decrees reflect an implied programming. How­
ever, implied programming underlying a series 
of sectoral decrees can under no circum­
stances be regarded as a programme within 
the meaning of Article 7 of Directive 76/464. 
57. This conclusion is further strengthened 
by the fact that paragraphs 6 and 7 of Article 
7 establish a scheme of cooperation, and 
indeed of coordination, between all the 
Member States and the Commission on the 
subject of national programmes. The protec­
tion of the environment, and in particular the 
reduction in pollution of the aquatic environ­
ment of the Community, necessarily involves 
coordination between Member States, given 
the cross-frontier nature of water pollution. 
A comparison of national programmes, estab­
lished for that purpose by Article 7 of Direc­
tive 76/464, would be impossible to under­
take on the basis of implied programmes. 
11 — Sec the Opinion of Advocate General Cosmas of 19 March 
1998 in Case C-298/97 Commission v Span [1998] ECR 
I-3301, point 11. 
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OPINION OF MR MISCHO — CASE C-207/97 
58. However, before concluding, two further 
arguments put forward by the defendant Gov­
ernment should be examined. 
59. First, the Kingdom of Belgium cites 
Council Directive 96/61/EC of 24 September 
1996 concerning integrated pollution preven­
tion and control. 12 The adoption of this direc­
tive, it submits, confirms 'that the list is not 
of a legally binding nature' as it replaces a 
number of provisions in Directive 76/464, in 
particular Article 7(2) relating to the principle 
of prior authorisation. In addition, Directive 
96/61 attempts for the first time to impose a 
Community definition of the substances cov­
ered. However, the Kingdom of Belgium 
deeply regrets that this text does not provide 
the desired clarity and, owing to its indica­
tive nature, merely prolongs the legal and 
technical uncertainty which has existed since 
Directive 76/464. 
60. However, it has to be observed that Direc­
tive 96/61 does not alter the obligation on the 
part of the Member States to establish pollu­
tion reduction programmes, since it amends, 
for new installations, the system of permits 
which henceforth are to 'include emission 
limit values for pollutants, in particular those 
listen in Annex III' 13 of this new directive. 
Nor does Directive 96/61 show that the Com­
munity legislature intended to amend the 
Annex to Directive 76/464. 
61. Secondly, the Kingdom of Belgium main­
tains that its contentions are confirmed by 
the Proposal for a Council Directive estab­
lishing a framework for Community action in 
the field of water policy, which is under con­
sideration by the Council and which provides 
inter alia the repeal of Directive 76/464. A 
revised version of this proposal, submitted to 
Member States for consultation, sets out on 
page 3 'exactly what was the problem with 
this directive (and hence with bringing the 
matter before the Council).' The passage reads 
as follows: 'One of the problems of Directive 
76/464 was the lack of any means of identi­
fying priority substances for action among 
the 129 substances listed in its Annex I. It is 
essential for the success and credibility of any 
programme on dangerous substances that the 
substances be tackled in manageable tranches, 
that the criteria for prioritisation be open and 
transparent, and that the substances selected 
according to those criteria be endorsed by the 
Community as a whole according to the pro­
cedures established in the Treaty. The Com­
mission shall therefore come forward within 
a separate proposal for a first priority list, 
probably comprising around 30 dangerous 
substances, which will be adopted according 
to the Treaty procedures, and will produce 
that list by December 1998.' 
62. I must admit that this argument does 
carry some weight with me. Article 13 of the 
Proposal for a Directive enjoins Member 
States to draft a programme of measures by 
hydrographic district. The date specified for 
12 — OJ 1996 L 257, p. 26. 
13 — Article 9(3). 
I - 288 
COMMISSION v BELGIUM 
the presentation of these programmes is 31 
December 2004. Furthermore, the latest ver­
sion of the proposal for a directive, produced 
to the Court by the Kingdom of Belgium, in 
fact provides that Directive 76/464 will be 
repealed as soon as the new directive enters 
into force. 
63. It is, nevertheless, clear from the Court's 
case-law that 'the fact that a proposal which 
could terminate an infringement is submitted 
to the Council cannot relieve the Member 
State responsible for that infringement of its 
obligation to comply with the provisions of 
Community law in force'. 14 
Conclus ion 
64. In the light of all the foregoing considerat ions, I p ropose that the C o u r t should: 
— declare that , b y no t adopt ing pol lu t ion reduc t ion p rogrammes including qual i ty 
objectives for the 99 substances appended to the applicat ion to the C o u r t , and 
b y no t communica t ing the said p r o g r a m m e s and the results of their applica­
t ion to the Commiss ion in the form of summar ies , in breach of Article 7 of 
Counc i l Direct ive 7 6 / 4 6 4 / E E C of 4 M a y 1976 o n po l lu t ion caused b y certain 
dangerous substances discharged in to the aquat ic e n v i r o n m e n t of the C o m ­
muni ty , the K ingdom of Belgium has failed t o fulfil its obl igat ions unde r the 
E C Treaty; 
— order the K ingdom of Belgium t o p a y the costs. 
14 — Judgment in Case C-236/88 Commission v France [1990] 
ECR I-3163, paragraph 19. 
I - 289