61984CJ0291_EN
Parties
Grounds
Decision on costs
Operative part
Parties
IN CASE 291/84
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY THOMAS VAN RIJN, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MANFRED BESCHEL, JEAN MONNET BUILDING, KIRCHBERG,
APPLICANT,
V
KINGDOM OF THE NETHERLANDS, REPRESENTED FOR THE PURPOSES OF THESE PROCEEDINGS BY D . J . KEUR, DEPUTY LEGAL ADVISER AT THE MINISTRY OF FOREIGN AFFAIRS, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE EMBASSY OF THE NETHERLANDS, 5 RUE C . M . SPOO,
DEFENDANT,
APPLICATION FOR A DECLARATION THAT BY NOT ADOPTING WITHIN THE PRESCRIBED PERIOD ALL THE LAWS, REGULATIONS AND ADMINISTRATIVE PROVISIONS 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, THE KINGDOM OF THE NETHERLANDS HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY,
THE COURT
COMPOSED OF : LORD MACKENZIE STUART, PRESIDENT, C . KAKOURIS AND F . SCHOCKWEILER ( PRESIDENTS OF CHAMBERS ), G . BOSCO, T . KOOPMANS, O . DUE, K . BAHLMANN, R . JOLIET AND G . C . RODRIGUEZ IGLESIAS, JUDGES,
ADVOCATE GENERAL : M . DARMON
REGISTRAR : H . A . RUEHL, PRINCIPAL ADMINISTRATOR
HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 17 FEBRUARY 1987,
AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 7 APRIL 1987,
GIVES THE FOLLOWING
JUDGMENT
Grounds
1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 4 DECEMBER 1984, THE COMMISSION OF THE EUROPEAN COMMUNITIES BROUGHT AN ACTION UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT, BY NOT ADOPTING WITHIN THE PRESCRIBED PERIOD ALL THE LAWS, REGULATIONS AND ADMINISTRATIVE PROVISIONS 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 ( OFFICIAL JOURNAL 1980, L*20, P.*43 ), THE KINGDOM OF THE NETHERLANDS HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY .
2 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR AN ACCOUNT OF THE FACTS OF THE CASE, THE COURSE OF THE PROCEDURE AND THE ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .
3 THE COMMISSION CLAIMS THAT, ALTHOUGH THE PERIOD FOR IMPLEMENTATION LAID DOWN BY DIRECTIVE 80/68/EEC EXPIRED ON 19 DECEMBER 1981, THE NETHERLANDS GOVERNMENT HAS STILL NOT ADOPTED THE MEASURES NEEDED FOR IMPLEMENTING A NUMBER OF PROVISIONS OF THE DIRECTIVE, DESPITE THE FACT THAT DURING THE ADMINISTRATIVE PROCEEDINGS AND THE WRITTEN PROCEDURE - AND IN REPLYING TO A QUESTION BY THE COURT - THE NETHERLANDS GOVERNMENT ON SEVERAL OCCASIONS STATED THAT THOSE PROVISIONS WERE ABOUT TO BE ADOPTED . THE COMMISSION OBSERVES THAT ALTHOUGH A LAW ON SOIL PROTECTION ( THE WET BODEMBESCHERMING ) AT LAST ENTERED INTO FORCE ON 1 FEBRUARY 1987, THE NECESSARY IMPLEMENTING REGULATIONS HAVE NOT YET BEEN ADOPTED, EVEN THOUGH THE NETHERLANDS GOVERNMENT ACKNOWLEDGED THE NEED FOR THOSE REGULATIONS TO ENTER INTO FORCE ALONG WITH THE LEGISLATION IN ORDER TO TRANSPOSE DIRECTIVE 80/68/EEC FULLY INTO NATIONAL LAW .
4 AS A JUSTIFICATION FOR THE DELAY IN TRANSPOSING THE DIRECTIVE THE NETHERLANDS GOVERNMENT RELIES ON THE DIFFICULTIES ARISING FROM THE DISCOVERY OF A NUMBER OF CASES OF SOIL POLLUTION . IT WAS NECESSARY TO DRAFT EMERGENCY INTERIM PROVISIONS AND REMEDIAL MEASURES FOR THE PROTECTION OF PUBLIC HEALTH AND THE ENVIRONMENT . ACCORDING TO THE NETHERLANDS GOVERNMENT THE IMPLEMENTING REGULATIONS FOR THE LAW ON SOIL PROTECTION MAY NONE THE LESS BE ADOPTED IN THE COURSE OF 1987 .
5 IN VIEW OF THE UNCERTAINTY AS TO THE SCOPE OF THE DISPUTE, THE COURT REQUESTED THE COMMISSION TO SPECIFY THOSE PROVISIONS OF DIRECTIVE 80/68/EEC WHICH IT CONSIDERED NOT TO HAVE BEEN SATISFACTORILY TRANSPOSED INTO NETHERLANDS LAW . IN ITS REPLY OF 12 NOVEMBER 1985, THE COMMISSION STATED THAT THE PROVISIONS IN QUESTION WERE ( A ) THE FIRST INDENT OF ARTICLE 4*(1 ) IN CONJUNCTION WITH ARTICLE 4*(2 ) AND ( 3 ), ( B ) THE SECOND INDENT OF ARTICLE 4*(1 ), IN CONJUNCTION WITH ARTICLE 4*(2 ) AND ( 3 ) AND ARTICLE 5*(1 ), ( C ) THE THIRD INDENT OF ARTICLE 4*(1 ), IN CONJUNCTION WITH ARTICLE 4*(2 ) AND ( 3 ) AND ARTICLE 5*(2 ), ( D ) ARTICLES 6 TO 11, ( E ) ARTICLE 12*(1 ), ( F ) ARTICLE 15, ( G ) ARTICLE 16*(3 ), ( H ) ARTICLE 17 AND ( I ) ARTICLE 18 .
6 DURING THE ORAL PROCEDURE THE COMMISSION FURTHER MAINTAINED THAT ARTICLES 12*(2 ) AND 13, WHICH CONCERN THE GRANT AND WITHDRAWAL BY MEMBER STATES OF AUTHORIZATION UNDER ARTICLES 4 AND 5 OF THE DIRECTIVE, HAD NOT BEEN TRANSPOSED INTO NETHERLANDS LAW . THE COMMISSION THEREBY CONTRADICTED THE STATEMENT IN ITS ABOVEMENTIONED REPLY OF 12 NOVEMBER 1985 TO THE EFFECT THAT ARTICLE 35*(4 ) IN CONJUNCTION WITH ARTICLES 12 AND 13 OF THE WET CHEMISCHE AFVALSTOFFEN ( LAW ON CHEMICAL WASTE ) AND ARTICLE 46 ET SEQ . OF THE AFVALSTOFFENWET ( LAW ON WASTE MATERIALS ), IN FORCE IN THE NETHERLANDS, CONTAIN THE REQUISITE PROVISIONS . SUCH AN ALTERATION, DURING THE ORAL PROCEDURE, OF THE COMMISSION' S PREVIOUS STATEMENT CANNOT BE ALLOWED .
7 ON THE OTHER HAND, THE COMMISSION ADMITTED IN THE ORAL PROCEDURE THAT THE NETHERLANDS GOVERNMENT HAD, ALBEIT BELATEDLY, IMPLEMENTED ARTICLE 16*(3 ) OF THE DIRECTIVE, REGARDING THE SECRECY REQUIRED OF THE OFFICIALS OF MEMBER STATES, AND DECLARED THAT THERE WAS NO FURTHER DISPUTE ON THAT POINT . ACCORDINGLY, THE COURT HOLDS THAT THE POINT IS NO LONGER IN DISPUTE .
8 AS REGARDS THE COMPLAINT CONCERNING THE FAILURE TO IMPLEMENT THE FIRST INDENT OF ARTICLE 4*(1 ), WHICH PROHIBITS ALL DIRECT DISCHARGES OF CERTAIN SUBSTANCES, TOGETHER WITH ARTICLE 4*(2 ) AND ( 3 ), WHICH ALLOW DISCHARGES TO BE AUTHORIZED ON CERTAIN CONDITIONS, THE COMMISSION STATED IN THE ORAL PROCEDURE THAT, AS FAR AS ARTICLE 4*(2 ) WAS CONCERNED, IT NOTED THE DECLARATION BY THE NETHERLANDS GOVERNMENT THAT IT DID NOT INTEND TO AVAIL ITSELF OF THE OPTION LEFT OPEN BY THAT PROVISION . CONSEQUENTLY, THIS POINT IS NO LONGER IN DISPUTE EITHER .
9 ACCORDING TO ITS STATEMENTS DURING THE ORAL PROCEDURE, THE NETHERLANDS GOVERNMENT ADMITS THAT IT HAS NOT IMPLEMENTED THE FIRST OR SECOND INDENTS OF ARTICLE 4*(1 ) IN CONJUNCTION WITH ARTICLE 5*(1 ), ARTICLES 7 TO 12*(1 ) AND ARTICLES 15 AND 17 OF DIRECTIVE 80/68/EEC . IT IS THEREFORE NECESSARY ONLY TO CONSIDER THE POINTS WHICH ARE STILL AT ISSUE .
10 THE COMMISSION SUBMITS THAT THE NETHERLANDS GOVERNMENT HAS FAILED TO IMPLEMENT THE THIRD INDENT OF ARTICLE 4*(1 ) OF THE DIRECTIVE, READ IN CONJUNCTION WITH ARTICLE 5*(2 ), UNDER WHICH THE MEMBER STATES ARE REQUIRED TO TAKE MEASURES TO PREVENT THE DISCHARGE INTO GROUNDWATER OF DANGEROUS SUBSTANCES INCLUDED IN LISTS I AND II IN THE ANNEX TO THE DIRECTIVE AS A RESULT OF ACTIVITIES ON OR IN THE GROUND OTHER THAN THOSE MENTIONED IN THE SECOND INDENT OF ARTICLE 4*(1 ) AND IN ARTICLE 5*(1 ) OF THE DIRECTIVE .
11 THE NETHERLANDS GOVERNMENT CLAIMED AT THE HEARING THAT A NUMBER OF PROVISIONS ON THOSE POINTS HAD BEEN ADOPTED, BUT IT ACKNOWLEDGED THAT THEY WERE STILL INADEQUATE TO MEET THE REQUIREMENTS OF THE DIRECTIVE . IT DECLARED ITS INTENTION TO ADOPT PROVISIONS UNDER THE WET BODEMBESCHERMING AND TO INFORM THE COMMISSION ACCORDINGLY .
12 IT APPEARS FROM THE STATEMENTS OF THE NETHERLANDS GOVERNMENT, AND ALSO FROM ITS FAILURE TO SUPPLY ANY SPECIFIC INFORMATION ON THE MEASURES ADOPTED TO COVER THOSE POINTS, THAT THE RELEVANT PROVISIONS OF DIRECTIVE 80/68/EEC HAVE NOT BEEN IMPLEMENTED .
13 THE COMMISSION MAINTAINS THAT THE NETHERLANDS GOVERNMENT HAS NOT IMPLEMENTED ARTICLE 4*(3 ) OF THE DIRECTIVE, WHICH ALLOWS MEMBER STATES, AFTER PRIOR INVESTIGATION, TO AUTHORIZE DISCHARGES DUE TO REINJECTION INTO THE SAME AQUIFER OF WATER USED FOR GEOTHERMAL PURPOSES, WATER PUMPED OUT OF MINES AND QUARRIES OR WATER PUMPED OUT FOR CIVIL ENGINEERING WORKS .
14 THE NETHERLANDS GOVERNMENT TAKES THE VIEW THAT THE PROVISIONS OF ITS MINING LEGISLATION GIVE ADEQUATE EFFECT TO THE OBLIGATION LAID DOWN IN ARTICLE 4*(3 ) OF THE DIRECTIVE . REPLYING IN WRITING TO THE REQUEST MADE BY THE COURT AT THE ORAL PROCEDURE, IT SUPPLIED THE FOLLOWING EXPLANATIONS, ALTHOUGH IT DID NOT PRODUCE THE TEXTS OF THE PROVISIONS REFERRED TO : THE NETHERLANDS MIJNWET ( LAW ON MINING ) OF 1810 ( BULLETIN DES LOIS NO 285 ), AS AMENDED BY THE LAWS OF 15 APRIL 1986 ( STAATSBLAD 64 ), 13 JULY 1985 ( STAATSBLAD 113 ), 27 APRIL 1904 ( STAATSBLAD 73 ) AND 26 MARCH 1920 ( STAATSBLAD 157 ), PROVIDES THAT THE EXPLOITATION OF A MINE REQUIRES THE GRANT OF A CONCESSION, WHICH MAY ONLY BE AWARDED WITH THE APPROVAL OF THE RAAD VAN STATE ( STATE COUNCIL ) AND IS SUBJECT TO BINDING PROVISIONS GOVERNING ALL ASPECTS OF MINING, INCLUDING WATER REMOVAL . FURTHERMORE, THE MIJNREGLEMENT ( MINING REGULATION ) ( STAATSBLAD 1964, 538, AS LAST AMENDED BY THE DECREE OF 27 MAY 1985, STAATSBLAD 154 ) PROHIBITS THE ESTABLISHMENT, EXPLOITATION, EXTENSION OR ALTERATION OF A MINE, OR ANY CHANGE IN THE WORKING METHODS USED, WITHOUT THE AUTHORIZATION OF THE MINISTER FOR ECONOMIC AFFAIRS; ARTICLE 346 OF THE REGULATION PROVIDES THAT SUCH AUTHORIZATION IS SUBJECT TO THE ADOPTION OF THE MEASURES NECESSARY FOR THE PREVENTION OR LIMITATION OF RISKS AND OF DAMAGE OR ANNOYANCE OUTSIDE THE MINE .
15 IT SHOULD FIRST BE OBSERVED THAT THE PROVISIONS OF NETHERLANDS LAW WHICH WERE ADOPTED AFTER THE DATE ON WHICH THE ACTION WAS BROUGHT CANNOT BE TAKEN INTO ACCOUNT . FURTHERMORE, EVEN ON THE ASSUMPTION THAT THE SCOPE OF THE REMAINING PROVISIONS IS AS DESCRIBED BY THE NETHERLANDS GOVERNMENT, NOT ONLY DO THEY RELATE ONLY TO MINING BUT, EVEN IN THAT DOMAIN, THEY ARE SO VAGUE IN DEFINING THE CONDITIONS FOR THE GRANT OF AUTHORIZATION THAT THEY CANNOT BE SAID TO GIVE EFFECT TO ARTICLE 4*(3 ) OF THE DIRECTIVE WITH SUFFICIENT PRECISION OR CLARITY TO SATISFY FULLY THE DEMANDS OF LEGAL CERTAINTY . IT FOLLOWS THAT THIS HEAD OF CLAIM MUST BE UPHELD .
16 THE COMMISSION FURTHER MAINTAINS THAT THE NETHERLANDS GOVERNMENT HAS FAILED TO IMPLEMENT ARTICLE 6 OF THE DIRECTIVE CONCERNING ARTIFICIAL RECHARGES OF GROUNDWATER FOR THE PURPOSE OF GROUNDWATER MANAGEMENT, WHICH ARE SUBJECT TO A SPECIAL AUTHORIZATION ISSUED BY THE MEMBER STATES ON A CASE-BY-CASE BASIS AND ON CONDITION THAT THERE IS NO RISK OF POLLUTING THE GROUNDWATER . ACCORDING TO THE COMMISSION, THAT SECOND CONDITION IS NOT INCLUDED IN NETHERLANDS LEGISLATION, UNLESS IT IS COVERED BY ARTICLE 14*(2 ) OF THE GRONDWATERWET ( LAW ON GROUNDWATER ); ARTICLE 14*(2 ), HOWEVER, MERELY PROVIDES THAT THE AUTHORIZATION MAY BE ISSUED ON TERMS SUCH AS TO ENSURE THE PROPER MANAGEMENT OF GROUNDWATER, AND THUS LEAVES THE NATIONAL AUTHORITIES ISSUING THE AUTHORIZATION GREATER LATITUDE THAN IS PERMITTED BY THE DIRECTIVE .
17 THE NETHERLANDS GOVERNMENT CONTENDS THAT AS A MATTER OF POLICY SUCH AUTHORIZATION IS GRANTED ONLY WHEN THERE IS NO DANGER OF POLLUTION . ACCOUNT IS TAKEN OF THE CIRCUMSTANCES SET OUT IN ARTICLE 6 OF THE DIRECTIVE AND CONSEQUENTLY THE REQUIREMENTS OF THAT ARTICLE ARE SUBSTANTIALLY MET .
18 AS THE COMMISSION MAINTAINS, THE POSSIBILITY UNDER THE NETHERLANDS LEGISLATION OF MAKING AUTHORIZATION CONDITIONAL ON PROPER GROUNDWATER MANAGEMENT CANNOT BE HELD TO SATISFY THE REQUIREMENT THAT THE RISK OF GROUNDWATER POLLUTION MUST BE EXAMINED WHEN AN AUTHORIZATION IS ISSUED UNDER ARTICLE 6 OF THE DIRECTIVE . ARTICLE 6 OF DIRECTIVE 80/68/EEC HAS THEREFORE NOT BEEN TRANSPOSED INTO NATIONAL LAW WITH SUFFICIENT PRECISION .
19 FINALLY, THE COMMISSION MAINTAINS THAT THE NETHERLANDS GOVERNMENT HAS NOT IMPLEMENTED ARTICLE 18 OF DIRECTIVE 80/68/EEC, WHICH PROVIDES THAT THE APPLICATION OF THE MEASURES TAKEN PURSUANT TO THE DIRECTIVE MAY ON NO ACCOUNT LEAD, EITHER DIRECTLY OR INDIRECTLY, TO POLLUTION OF THE WATER REFERRED TO IN ARTICLE 1; ARTICLE 1*(2)*(D ) DEFINES "POLLUTION" AS "THE DISCHARGE BY MAN, DIRECTLY OR INDIRECTLY, OF SUBSTANCES OR ENERGY INTO GROUNDWATER, THE RESULTS OF WHICH ARE SUCH AS TO ENDANGER HUMAN HEALTH OR WATER SUPPLIES, HARM LIVING RESOURCES AND THE AQUATIC ECOSYSTEM OR INTERFERE WITH OTHER LEGITIMATE USES OF WATER ". THE COMMISSION TAKES THE VIEW THAT ARTICLE 18 MEANS THAT WATER QUALITY AS IT STANDS AT THE TIME WHEN THE DIRECTIVE ENTERS INTO FORCE MUST BE PRESERVED WITH REGARD NOT ONLY TO THE DANGEROUS SUBSTANCES SET OUT IN THE ANNEX TO THE DIRECTIVE BUT ALSO TO OTHER DANGEROUS SUBSTANCES . IT THEREFORE ARGUES THAT EXPRESS IMPLEMENTATION OF ARTICLE 18 IS NECESSARY .
20 THE NETHERLANDS GOVERNMENT DOES NOT DISPUTE THE COMMISSION' S DESCRIPTION OF THE PURPOSE OF ARTICLE 18 OF DIRECTIVE 80/68/EEC BUT TAKES THE VIEW THAT IT IS NOT CONCERNED WITH SUBSTANCES OTHER THAN THOSE REFERRED TO IN THE ANNEX TO THE DIRECTIVE AND CONCLUDES THAT IT IS NOT NECESSARY TO IMPLEMENT IT IN THE FORM OF A SEPARATE AND SPECIFIC PROVISION OF NATIONAL LAW . ACCORDING TO THE NETHERLANDS GOVERNMENT, IT IS SUFFICIENT THAT THE MEASURES NEEDED FOR COMPLIANCE WITH THE DIRECTIVE SHOULD BE EXPRESSED IN SUCH A WAY THAT THEIR APPLICATION PREVENTS ANY DETERIORATION OF GROUNDWATER .
21 THE POSITION TAKEN BY THE NETHERLANDS GOVERNMENT IS WELL FOUNDED . AS IS APPARENT FROM THE WORDING OF ARTICLE 18, IT DOES NOT HAVE THE BROAD SCOPE WHICH THE COMMISSION ATTRIBUTES TO IT . IT REFERS ONLY TO THE APPLICATION OF "THE MEASURES TAKEN PURSUANT TO THIS DIRECTIVE", AND THE DIRECTIVE ITSELF, ACCORDING TO ARTICLE 1 THEREOF, IS INTENDED TO PREVENT THE POLLUTION OF GROUNDWATER BY SUBSTANCES BELONGING TO THE FAMILIES AND GROUPS OF SUBSTANCES CONTAINED IN LISTS I OR II IN THE ANNEX . IT FOLLOWS THAT THIS HEAD OF CLAIM PUT FORWARD BY THE COMMISSION MUST BE REJECTED .
22 IN VIEW OF ALL THE FOREGOING CONSIDERATIONS, IT MUST BE CONCLUDED THAT, BY FAILING TO ADOPT WITHIN THE PRESCRIBED PERIOD ALL THE MEASURES NECESSARY TO COMPLY WITH COUNCIL DIRECTIVE 80/68/EEC OF 17 DECEMBER 1979, THE KINGDOM OF THE NETHERLANDS HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY .
Decision on costs
COSTS
23 UNDER ARTICLE 69*(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER, UNDER THE FIRST PARAGRAPH OF ARTICLE 69*(3 ), WHERE EACH PARTY SUCCEEDS ON SOME AND FAILS ON OTHER HEADS, THE COURT MAY ORDER THAT THE PARTIES BEAR THEIR OWN COSTS IN WHOLE OR IN PART . SINCE IN THIS CASE THE NETHERLANDS GOVERNMENT AND THE COMMISSION HAVE SUCCEEDED IN SOME OF THEIR ARGUMENTS AND FAILED IN OTHERS, THE PARTIES MUST BE ORDERED TO BEAR THEIR OWN COSTS .
Operative part
On those grounds,
THE COURT
hereby :
( 1 ) Declares that, 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, the Kingdom of the Netherlands has failed to fulfil its obligations under the EEC Treaty;
( 2 ) Orders the parties to bear their own costs .