Opinion of Mr Advocate General Mischo delivered on 18 June 1998. - Commission of the European Communities v Kingdom of Belgium. - Failure of a Member State to fulfil its obligations - Council Directive 76/464/EEC - Water pollution - Failure to transpose. - Case C-207/97.



European Court reports 1999 Page I-00275



Opinion of the Advocate-General

1 The Commission has brought Treaty infringement proceedings regarding the Kingdom of Belgium's implementation of Council Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community. (1)

2 More specifically, the Commission charges the Kingdom of Belgium with failing to establish pollution reduction programmes including quality objectives covering the 99 substances set out in Annex I to the application, or of not having provided the Commission with a 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 Directive 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 pollution, particularly that caused by certain persistent, 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 provisions 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 toxicity, their persistence and their bioaccumulation. In Article 6 of Directive 76/464 the 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 determined,

- certain individual substances and categories of substances belonging to the families 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 objectives, 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.

5. The programmes shall set deadlines for their implementation.

6. Summaries of the programmes and the results of their implementation shall be communicated to the Commission.

7. The Commission, together with the Member States, shall arrange for regular comparisons of the programmes in order to ensure sufficient co-ordination in their implementation. If it sees fit, it shall submit relevant proposals 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 deadline for implementation as a ground for disputing 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 Directive 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.

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 February 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 procedure laid down by Article 169 is capable of making it more difficult for the Member State concerned to refute the Commission's arguments 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 procedure 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 Belgian 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 arguments on this point.

The substance of the case

18 In its originating application the Commission charges the Kingdom of Belgium with failing to adopt programmes for the reduction of pollution incorporating quality objectives, 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 objectives can be specified for them.

23 The work carried out by the Commission, in cooperation with Member States, resulted in the compilation of a list of 129 substances which is appended to its communication 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 pollution 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 directives 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 preparation for the further implementation of the said Directive.

25 The Council's Resolution states inter alia that the list of 129 substances in the Commission's communication will serve as a basis for further work on the implementation of the Directive and that in the initial stage particular attention should be paid where appropriate to a list of 11 substances appended to the resolution.

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 setting emission limit values and quality objectives 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, submitted by the Commission on 14 February 1990. (6)

27 The present action therefore relates to the 99 remaining substances on the list 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 list of 99 substances is to be regarded as a mere basis for continuing work on a Community definition.

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 continuing Community studies and as a provisional 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 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 resolution but from Article 7 of the Directive and from List II to which that article refers.'

32 As regards the Belgian authorities' argument 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 determination 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 recognising 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 Belgian 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 individually concerned. However, the Council's determination 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 programme which every Member State must draw up pursuant to Article 7 of the Directive.

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 actually set out in List II. As regards the determination 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 context. However, this power cannot be interpreted 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, provided that it falls under the first indent of List II and is relevant in the national context, must be included in the national programme established 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 resolution.

The obligation to prepare programmes

40 The 99 substances mentioned in the annex to the Commission's application must therefore be regarded as substances referred to in the first indent of List II and must consequently be included in a water pollution reduction programme.

41 In this respect, it is clear from the documents before the Court that the Kingdom of Belgium does not contest the obligation to prepare water pollution reduction programmes pursuant to Article 7 of Directive 76/464. On the contrary, the Belgian authorities maintain that they have `acted in the spirit of Article 7 of the directive' by adopting a body of programmes and measures, both federal and regional, and that `these efforts should be regarded as reduction programmes within the meaning of Article 7.1.'

42 More specifically, the Kingdom of Belgium 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 surface 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) (Scientific 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 phytopharmaceutical substances. These codes, it states, also cover many substances in List II, including organic chlorate and organic phosphate compounds on the list of 99 substances which is attached to the Commission's application.

46 The Commission replies that according to the information supplied with respect to the Belgian legislation `the Flemish Region monitors 62 substances through the concurrent application of emission limit values and environmental quality objectives'. The Commission 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 measures for reducing the pollution caused by 63 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 Commission 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 Commission then points out that, contrary to the requirements of Article 7 of Directive 76/464, the document entitled `Flow to the North 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, rightly, 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, exactly which substances are covered, etc.'

49 As it is clear from what has been said earlier 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 list 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 formally 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 Commission says, it would have difficulty in determining whether a programme is in fact being implemented and, if it is, in evaluating its content and effectiveness.

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 sectoral decrees mentioned earlier do not replace the idea of programming but, on the contrary, constitute an essential component of it. Furthermore, the discharge authorisation, which is compulsory in all cases, is the specific 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 Commission's interpretation appears to be a better reflection of what was intended by the Community legislature. In using the term `programme', the Community legislature certainly intended to impose on Member States an obligation extending beyond the adoption of specific individual measures to reduce pollution.

54 The protection of the environment depends to a large extent on the planning of the action undertaken by national public institutions 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 earlier, the legislation to which the Kingdom of Belgium refers undeniably constitutes a useful instrument for eventually achieving a reduction in pollution. However, on the Belgian authorities' own admission, the sectoral decrees reflect an implied programming. However, implied programming underlying a series of sectoral decrees can under no circumstances 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 protection of the environment, and in particular the reduction in pollution of the aquatic environment of the Community, necessarily involves coordination between Member States, given the cross-frontier nature of water pollution. A comparison of national programmes, established for that purpose by Article 7 of Directive 76/464, would be impossible to undertake on the basis of implied programmes.

58 However, before concluding, two further arguments put forward by the defendant Government should be examined.

59 First, the Kingdom of Belgium cites Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control. (12) The adoption of this directive, 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 covered. However, the Kingdom of Belgium deeply regrets that this text does not provide the desired clarity and, owing to its indicative nature, merely prolongs the legal and technical uncertainty which has existed since Directive 76/464.

60 However, it has to be observed that Directive 96/61 does not alter the obligation on the part of the Member States to establish pollution 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 Community legislature intended to amend the Annex to Directive 76/464.

61 Secondly, the Kingdom of Belgium maintains that its contentions are confirmed by the Proposal for a Council Directive establishing a framework for Community action in the field of water policy, which is under consideration 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 identifying 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 procedures established in the Treaty. The Commission 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 the presentation of these programmes is 31 December 2004. Furthermore, the latest version 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)

Conclusion

64 In the light of all the foregoing considerations, I propose that the Court should:

- declare that, by not adopting pollution reduction programmes including quality objectives for the 99 substances appended to the application to the Court, and by not communicating the said programmes and the results of their application to the Commission in the form of summaries, in breach of Article 7 of Council Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community, the Kingdom of Belgium has failed to fulfil its obligations under the EC Treaty;

- order the Kingdom of Belgium to pay the costs.

(1) - OJ 1976 L 129, p. 23.

(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.

(3) - See judgment in Case C-96/89 Commission v Netherlands [1991] ECR I-2461, paragraph 15.

(4) - Paragraph 16.

(5) - OJ 1982 C 176, p. 4.

(6) - OJ 1990 C 55, p. 7.

(7) - Cited above.

(8) - Cited above.

(9) - Underlined in the original.

(10) - Underlined in the original.

(11) - See the Opinion of Advocate General Cosmas of 19 March 1998 in Case C-298/97 Commission v Spain [1998] ECR I-3301, point 11.

(12) - OJ 1996 L 257, p. 26.

(13) - Article 9(3).

(14) - Judgment in Case C-236/88 Commission v France [1990] ECR I-3163, paragraph 19.