Opinion of the Advocate General — ECLI:EU:C:2001:21
Date: 2001-01-16
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;Approximation of laws;Pollution
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - inadmissible
Origin: Netherlands

Summary of the Judgment 
1. Actions for failure to fulfil obligations — Commission's right of action — Right 
exercised at the Commission's discretion 
(EC Treaty, Art. 169 (now Art. 226 EC)) 
2. Actions for failure to fulfil obligations — Pre-litigation procedure — Purpose — 
Subject-matter of the action determined by the reasoned opinion 
(EC Treaty, Art. 169 (now Art. 226 EC)) 
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SUMMARY — CASE C-152/98 
3. Environment — Water pollution — Directive 76/464 — Obligation to establish 
specific programmes to reduce pollution caused by certain dangerous substances — 
Scope 
(Council Directive 76/464, Arts 2, 6 and 7 and annex, Lists I and II) 
1. Under the system laid down by Art­
icle 169 of the Treaty (now Article 226 
EC), the Commission has a discretion 
to bring an action for failure to fulfil 
obligations and it is not for the Court 
to assess whether it was appropriate to 
exercise that discretion. 
(see para. 20) 
2. In the context of an action for failure to 
fulfil obligations, the purpose of the 
pre-litigation procedure is to give the 
Member State concerned an opportun­
ity, on the one hand, to comply with its 
obligations under Community law and, 
on the other, to avail itself of its right to 
defend itself against the objections 
formulated by the Commission. The 
subject-matter of an action brought 
under Article 169 of the Treaty (now 
Article 226 EC) is, therefore, delimited 
by the pre-litigation procedure provi­
ded for by that article. Accordingly, the 
action cannot be founded on any 
objections other than those stated in 
the pre-litigation procedure. 
(see para. 23) 
3. It is clear both from the system set up 
by Directive 76/464 on pollution 
caused by certain dangerous substances 
discharged into the aquatic environ­
ment of the Community and from the 
wording of the first indent of the first 
paragraph of List II in the annex 
thereto that, so long as limit values 
for substances covered by List I which 
emission standards are not to exceed 
have not been determined by the 
Council under Article 6 of the direct­
ive, those substances are to be provi­
sionally treated as List II substances 
governed by Article 7 of the directive. 
Even though it is true that the laying 
down of emission limit values by the 
Council is intended to eliminate water 
pollution caused by List I substances, 
while the regime prescribed in Article 7 
of Directive 76/464 is designed only to 
establish programmes including quality 
objectives with a view to reducing 
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COMMISSION V NETHERLANDS 
pollution, the elimination of pollution, 
referred to in Article 2 of the directive, 
is not likely to be brought about merely 
by laying down the limit values 
because, in the end, it is entirely 
dependent on the level at which the 
values are fixed. Therefore, provision­
ally bringing List I substances under the 
regime prescribed for List II substances 
does not derogate from the directive's 
objective. 
In addition, by laying down itself in a 
binding manner the measures to be 
taken by the Member States where the 
Council does not lay down emission 
limit values for List I substances, 
Directive 76/464 does not dispense 
Member States from complying with 
the obligations which it imposes pend­
ing adoption of measures by the Coun­
cil under Article 6. 
(see paras 32-33, 35) 
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