Opinion of Mr Advocate General Saggio delivered on 25 February 1999. - A.M.L. van Rooij v Dagelijks bestuur van het waterschap de Dommel. - Reference for a preliminary ruling: Raad van State - Netherlands. - Environment - Directive 76/464/EEC - "Discharge" - Possibility for a Member State to adopt a wider definition of "discharge" than that in the directive. - Case C-231/97.



European Court reports 1999 Page I-06355



Opinion of the Advocate-General

1 This case gives the Court occasion to determine the scope 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 (hereinafter `the Directive'). (1) The Court is called upon to decide whether the term `discharge' in Article 1(2)(d) of the Directive also covers the emission from industrial plant of steam containing dangerous substances which is precipitated on to surface water or which is first precipitated on to land and roofs and then reaches the surface water by way of storm drains. If that question is answered in the negative, the Court must also establish whether a Member State may assign a different, more wide-ranging meaning to the term `discharge' than that given in the Directive.

The relevant Community legislation

2 The Directive aims to ensure effective protection of the aquatic environment. For this purpose, it identifies two categories of dangerous substances. The first category comprises the substances specified in List I of the Annex, which are particularly harmful by reason of their toxicity, persistence and bioaccumulation. Pursuant to Article 2 of the Directive, Member States are required to take appropriate steps to eliminate pollution of the waters by such substances. To that end, all discharges of the substances in question are subject to prior authorisation by the competent authority of the Member State concerned. In respect of each substance, the authorisation sets the emission standard, that is to say, it specifies the maximum concentration permissible in a discharge. (2) In accordance with Article 6 of the Directive, the Council has laid down for certain of those substances the limit values which the emission standards adopted by the national authorities must not exceed, as well as quality objectives. (3) Council Directive 86/280/EEC of 12 June 1986 (4) lays down the limit values for emission standards, the quality objectives and the methods of measurement for certain dangerous substances included in List I which, at the date of its adoption, had not yet been covered by a specific directive (implementing the Directive). Those values and objectives were subsequently determined for certain substances in List I; in the case of three such substances, they were laid down in Directive 86/280 itself. (5) Directive 86/280 also introduces rules which had not been provided for under the Directive, such as the requirement for Member States to draw up, in respect of those substances, `specific programmes to avoid or eliminate pollution from significant sources of these substances (including multiple and diffuse sources) other than sources of discharges subject to Community limit value rules or national emission standards' (Article 5). (6)

3 The second category includes the substances specified in List II of the Directive. These are substances whose harmful effects on the aquatic environment can be confined to a given area and depend on the characteristics and location of the waters into which they are discharged. The second category also covers substances in List I for which the limit values have not been determined.

Pursuant to Article 2 of the Directive, Member States are required to reduce (not, therefore, to eliminate) pollution by the substances in the second category and, to that end, they must establish `programmes'. These are to include `quality objectives' for water which must comply with any existing detailed or sectoral Council directives. Member States are also required to set up a system of prior authorisations, including the setting of emission standards on the basis of the quality objectives, for the discharge of substances in the second category.

4 Article 1(2)(d) of the Directive defines `discharge' as the introduction into the waters of any substances `in List I or List II of the Annex, with the exception of discharges of dredgings, operational discharges from ships in territorial waters, dumping from ships in territorial waters'. Article 1(2)(e) defines `pollution' as `the discharge by man, directly or indirectly, of substances or energy into the aquatic environment, the results of which are such as to cause hazards to human health, harm to living resources and to aquatic ecosystems, damage to amenities or interference with other legitimate uses of water'.

5 Article 10 of the Directive provides that the Member States may, where appropriate, `individually or jointly take more stringent measures than those provided for under this Directive'.

The relevant national legislation

6 In the Netherlands, the rules concerning surface water pollution are set out in a specific statute (Wet Verontreiniging Oppervlakewateren; hereinafter `the WVO') which entered into force on 1 December 1970. In order to combat pollution of surface waters, the WVO prohibits the introduction into those waters of waste products, pollutants or harmful substances without prior authorisation. In that regard, the prior authorisations system provided for in the WVO distinguishes between discharges from industrial plant and discharges from other sources. A specific administrative body is responsible for issuing the authorisations and also has the power to adopt protective measures designed to ensure compliance with the rules on the introduction of substances into surface water. The WVO largely matches the requirements of the Directive. In order to bring the WVO into line with the Directive, the law of 24 June 1981 (Stbl. 414) was subsequently adopted.

The facts and the questions referred for a preliminary ruling

7 Van Aarle BV, a company located in the Netherlands, operates in the wood impregnation industry. It applies a steam fixation method involving the use of a creosote solution called `superwolman'. Van Aarle BV holds an authorisation under the Dutch environmental protection law.

8 Mr A.J.M. van Rooij, who lives next to the Van Aarle premises, lodged a complaint with the Dommel Water Board (hereinafter `the competent authority'), objecting that during the wood-impregnation process on those premises contaminated steam is released which is subsequently precipitated, directly or indirectly, on to the nearby surface water and, in particular, on to the water which collects for part of the year in a two-metre wide ditch. According to Mr van Rooij, this steam is polluted by some of the noxious substances (arsenic, copper and chromium) in List II of the Annex to Directive 76/464. He therefore asked the competent authority to take protective measures with respect to Van Aarle.

9 By decision of 29 December 1994, the competent authority dismissed Mr van Rooij's request and, by decision of 21 April 1995, also dismissed his objection to its first decision. Mr van Rooij appealed the second decision before the Raad van State.

10 By order of 17 June 1997, the Raad van State stayed proceedings and referred a number of questions to the Court for a preliminary ruling on the ground that, in its judgment of 28 October 1994 in an earlier dispute between the same parties, it had held that the release into the atmosphere of contaminated steam constitutes an `introduction into surface waters' requiring prior authorisation under Dutch law and that, in particular, the release into the air of contaminated steam which is then immediately precipitated into surface water must be regarded as a `discharge' under the relevant national rules, even where the steam is precipitated on land or roofs and then reaches the surface water by way of storm drains. It went on to observe that the interpretation given to the Directive by the Dutch authorities was consistent with the relevant national legislation but possibly at odds with the purpose of the Directive as set out in the third recital, which states that `any disparity between the provisions on the discharge of certain dangerous substances into the aquatic environment already applicable or in preparation in the various Member States may create unequal conditions of competition and thus directly affect the functioning of the common market' and that `it is therefore necessary to approximate laws in this field, as provided for in Article 100 of the Treaty'. The national court then referred the following questions to the Court for a preliminary ruling:

`1. Must the term "discharge" in Article 1(2)(d) 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 be interpreted as covering precipitation of contaminated steam on to surface water? Is the distance from which the steam in question is precipitated on to the surface water relevant in that respect?

2. Does the term "discharge" cover steam which is first precipitated on to land and roofs and then reaches the surface water, via a storm water drain, whether belonging to the establishment concerned or to residential or other buildings? Is it material to the reply to be given to this question whether the contaminated steam reaches the surface water via the storm water drain of the establishment concerned or via that of a third party?

3. If Questions 1 and/or 2 are answered in the negative, is it permissible for national legislation to assign a different, more wide-ranging meaning to the term "discharge" than that in the directive?'

Question 1

11 By the first question, the national court asks the Court to define the scope of the Directive and, more precisely, to establish whether it also covers the release into the atmosphere of contaminated steam which is precipitated on to surface water. The Court is also called upon to determine whether the distance between the source of the contaminated steam and the water on to which that steam is precipitated is to be taken into account in defining the scope of the Directive.

12 In my view, the reply to be given on the first point, which goes to the heart of the question, can only be affirmative. The relevant provision of the Directive in this context is Article 1(2)(d) which defines the term `discharge'. Pursuant to that provision, a discharge is the introduction into waters (inland surface water, territorial waters, internal coastal waters, ground water) of certain substances appearing in List I or List II of the Annex to the Directive. To my mind, Article 1(2)(d) must be interpreted broadly so as to cover also the introduction of steam precipitated from the air on to the water surface. That conclusion is based on several considerations relating essentially to the wording and the purpose of the Directive.

13 The national court's doubts with regard to the interpretation of the Directive stem from the fact that the Directive defines the term `discharge' merely as the introduction into waters of the substances in List I and II of the Annex, and does not expressly state that that concept embraces the situation where contaminated steam is precipitated and falls on to surface water. Accordingly, in order to determine whether or not the term `discharge' covers such a situation, the wording and the purpose of the definition must be examined in the light of the principles of Community law in the context of environmental protection.

14 The wording of Article 1(2)(d) does not rule out forms of discharge other than the flowing of one liquid into another. Supporting the strict interpretation, the French government argues that in French, the title of the Directive contains the term `reversées' which, from the lexical point of view, renders the idea of one liquid flowing into another. That is a very weak argument given that, even in the French-language version, that term is not used in the body of the Directive; that practically none of the other language versions use a comparable term in either the text or the title; and, lastly, that the French term, taken figuratively, can also be understood as covering the passage into water of substances which are not in the liquid state. More generally, the terms used in the various language versions (with the exception of the French term which, taken alone, could seem ambiguous) can also be understood as covering the passage into water of substances which are not in liquid state when they are released into the air but which are subsequently precipitated and fall on to the water surface.

What is more, Article 1(2)(e) defines the term `pollution' in relatively general terms as `the discharge by man, directly or indirectly, of substances or energy into the aquatic environment, the results of which are such as to cause hazards to human health, harm to living resources and to aquatic ecosystems, damage to amenities or interference with other legitimate uses of water'. That provision specifically refers to indirect discharges, a concept which in any event covers the transition of harmful substances from the gaseous to the liquid state and their fall on to water.

15 Council Directive 84/360/EEC of 28 June 1984 on the combating of air pollution from industrial plants (7) is invoked in support of the argument for a strict interpretation of the term `discharge'. It is maintained that the situation in question falls within the scope of that Directive in so far as it occurs, at least in part, in the atmosphere; consequently, the environmental protection and supervisory mechanisms provided for in that Directive would have to apply in cases such as that pending before the national court. Thus, if a strict interpretation of the term `discharge' were to be adopted, the situation in question would not thereby be deprived of an appropriate legal framework. However, that argument is not persuasive. While it is true that in such a situation, the contaminated steam is first released into the atmosphere and is only then precipitated on to the water surface, the fact remains that, regardless of the transition of the contaminated substance from the gaseous to the liquid state, the pollution in question occurs in the waters. The applicable rules, therefore, are those specifically designed for the effective protection of the aquatic environment of the Community; that is to say, they are to be found in Directive 76/464. Moreover, as the Commission stated in the oral proceedings, wood-preserving plants such as the one at issue in the main proceedings are not among the installations at which Directive 84/360 is directed and which are listed in Annex I thereto. If they were also to be excluded from the scope of Directive 76/464, the water pollution occasioned by such installations would remain outside the purview of any specific system of Community protection. It is clear from these considerations that the directive on air pollution from industrial plants does not offer any support for the restrictive interpretation of the term `discharge'.

16 Consideration of the purpose of the Directive leads to the same conclusion, namely that the term `discharge' must be interpreted in the broad sense. The Directive seeks to protect the aquatic environment of the Community from pollution and particularly from pollution caused by certain persistent, toxic and bioaccumulable substances. It is clear that the release into the atmosphere of harmful steam which is precipitated on to the water surface has the effect of polluting those waters. It follows that, in order to ensure the necessary protection of the environment from this form of pollution, the term `discharge' must be assigned a broad meaning, encompassing not merely water discharges, but all other discharges introduced in liquid form into the aquatic environment. All forms of water pollution would thus be subject to the system of limits and checks provided for under the Directive. That system relies on authorisations issued by the competent authorities of the Member States to persons intending to release contaminated substances into the environment. The question is whether the persons concerned are required to apply for such authorisations only where they are aware that the substance which they intend to release into the environment has the polluting effects specified in the Directive or whether, even in absence of such awareness, an authorisation is mandatory in all cases including, therefore, where the person concerned is unaware that a substance is dangerous. The Directive does not impose an obligation framed in such general terms. However, in my view, where there is general awareness that the use of certain substances involves a risk to the environment, a person intending to use those substances is obliged to request the competent national authorities for authorisation. Accordingly, even if the fact that the person concerned is unaware of the risk is attributable to his own negligence, that does not release him from the obligation to apply for authorisation.

17 As regards the second aspect of the first question, namely whether the distance between the source of the contaminated steam and the water on to which it is precipitated is relevant for the purpose of determining the scope of the Directive, I take the view that that distance is relevant in so far as it affects the awareness of the risk of pollution on the part of the person introducing the harmful substance into the environment. That is to say, if the distance is great, the person will probably find it difficult, in the light of general experience, to perceive the risk to the environment. In certain cases, therefore, a person cannot be deemed obliged to apply for authorisation. However, this is essentially a question of fact which cannot be reduced to an abstract, general rule, but must be appraised by the national courts on a case-by case basis.

Question 2

18 The second question brings into clearer focus the aspect of the Directive to be clarified. The national court asks, first, whether the term `discharge' applies to contaminated steam which is first precipitated on to land and roofs and only then reaches the surface water via storm drains belonging to industrial plant or to residential or other buildings.

19 The concept of `discharge' outlined in the reply to the first question already contains the elements of a reply to the second question. Suffice it to say that steam which is precipitated on to surface water indeed qualifies as a discharge and the fact that it reaches the water surface via storm drains clearly cannot alter that conclusion. The wording of Article 1 of the Directive is not inconsistent with such an interpretation of the term `discharge' and, what is more, that is the only interpretation possible in view of the purpose of the Directive, namely to ensure protection of the environment. A restrictive interpretation would jeopardise the attainment of that objective and, in any event, there is no ground for treating steam which is precipitated on to surface water differently from steam which is first precipitated on land and roofs and then reaches the surface water: the need to protect the environment is the same in both cases.

20 Secondly, by the same question, the national court also asks whether it is material in this context whether the storm drains via which the contaminated steam reaches the surface water belong to the establishment which released the steam or to third parties. That question must be answered in the negative. Once it is established that the purpose of the Directive is to protect the environment, the notion of `discharge' must be defined primarily by reference to that priority. It is clear that the environmental pollution caused by the emission of steam containing harmful substances must be adequately regulated. The route taken by the steam to reach the surface water is therefore immaterial, as is the question whether the steam is precipitated and flows through storm drains belonging to the establishment releasing the steam or through drains belonging to third parties. All that matters is the protection of those waters and, of course, the possibility of attributing the polluting effect to specific human conduct which, as explained above, can be made subject to prior authorisation.

Question 3

21 In the event that the Court answers the first question or both questions in the negative, in other words, if it finds that the term `discharge' does not apply to emissions of contaminated steam which are precipitated on to surface waters, the national court asks whether the Member States are free to adopt a different, more wide-ranging meaning for `discharge' than that in the Directive.

22 In that regard it must first be observed that the Directive ensures only a minimum degree of harmonisation of national legislation on discharges into the waters, (8) giving Member States the option of introducing even more stringent rules. Article 5(2) and Article 10, as well as the eleventh recital in the preamble to the Directive, simply confirm that power on the part of the Member States and make it clear that the provisions of the Directive aim only to ensure a minimum level of protection of the aquatic environment, beyond which the Member States are free to adopt more stringent rules, including the introduction of a system of authorisations.

23 It should be noted that this interpretation of the Directive is consistent with the powers conferred on the Community in the environmental sphere by the Single European Act and the Treaty of Maastricht. (9) Those powers, which are concurrent with the powers of the Member States, must be exercised in compliance with the principle of subsidiarity so that Member States are not prevented from `maintaining or introducing more stringent protective measures' (Article 130t of the Treaty) provided that such measures are compatible with the Treaty. (10)

24 That said, it must be acknowledged that the Member States have the power to apply a system of prior authorisations to discharges which fall outside the scope of the Directive. That power finds its legal basis in the independent competence reserved to the Member States in environmental matters and the Directive merely confirms that competence. The only limitation on that power is the requirement of compliance with the Treaty and in particular with the provisions on the free movement of goods (Article 30 et seq.) and on competition policy (Articles 85 and 86). (11) However, even if national legislation is not consistent with those requirements of Community law, it is nonetheless legitimate where it meets an imperative requirement, provided that it is not discriminatory and that it complies with the principle of proportionality. (12)

25 In conclusion, I propose that the Court reply to the third question that a Member State is entitled, for the purposes of domestic law, to assign a different, more wide-ranging meaning to the term `discharge' than that in the Directive, where that more stringent meaning meets an imperative requirement and provided that it is not discriminatory and that it complies with the principle of proportionality.

26 In view of the foregoing, I propose that the Court reply as follows to the questions referred for a preliminary ruling by the Nederlandse Raad van State:

(1) The term `discharge' in Article 1(2)(d) 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 covers emissions of contaminated steam which are precipitated on to surface waters. The distance between the place where the steam is produced and the place where the steam is precipitated on to the surface water is relevant to the preceding question only in so far as fact and experience show that it is helpful in appraising whether the person responsible for the steam emissions was aware of the risk to the waters posed by that stem and was required therefore, to apply for a prior authorisation for the discharge; that appraisal is a matter for the national court.

(2) The term `discharge' referred to in Directive 76/464/EEC covers emissions of steam which are first precipitated on to land and roofs and then reach the surface water via storm drains from an industrial plant, residential or other buildings. The question whether the contaminated steam flows through storm drains belonging to the establishment releasing the steam or through drains belonging to third parties is immaterial in that regard.

(3) The Member States are free to assign, for the purposes of domestic law, a different, more wide-ranging meaning to the term `discharge' than that in Directive 76/464/EEC, provided that it is compatible with the Treaty.

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

(2) - See Articles 3 and 5 of the Directive.

(3) - The Council laid down limit values and quality objectives for certain of the substances in List I, such as cadmium, in Directive 83/513/EEC of 26 September 1983 (OJ 1983 L 291, p. 1), and mercury, in Directive 84/156/EEC of 17 March 1984 (OJ 1984 L 74, p. 49.).

(4) - OJ 1986 L 181, p. 16.

(5) - Namely, carbon tetrachloride, DDT and pentachlorophenol.

(6) - The tenth recital in the preamble to Directive 86/280 states that `in the case of certain significant sources of pollution by these substances other than sources subject to Community limit values or national emission standards, specific programmes should be devised to eliminate the pollution; whereas the necessary powers to that effect have not been provided by Directive 76/464/EEC; [and], ... since the specific powers have not been provided for in the EEC Treaty, recourse should be had to Article 235 thereof'.

(7) - OJ 1984 L 188, p. 20.

(8) - That is also recognised in Article 2 of the Directive which states that the provisions of the Directive `represent only a first step towards this goal', namely the elimination or reduction of pollution of the waters.

(9) - The Single European Act, which came into force on 1 July 1987, introduced into the Treaty several rules relating specifically to the protection of the environment (Articles 130r, 130s and 130t) and regulating the Community's legislative powers in that area. The Treaty of Maastricht, which came into force on 1 November 1993, added protection of the environment to the objectives of the European Community (Articles 2 and 3).

(10) - See also Case C-284/95 Safety Hi-Tech [1998] ECR I-4301, paragraph 43.

(11) - See Case 302/86 Commission v Denmark [1988] ECR 4607; Case C-203/96 Dusseldorp and Others [1998] ECR I-4075, paragraphs 49 and 50; Case C-2/90 Commission v Belgium [1992] ECR I-4431, paragraph 34, and Case 240/83 Procureur de la République v Adbhu [1985] ECR 531.

(12) - In Commission v Denmark, cited above, the Court, referring to the Adbhu judgment, stated that: `the protection of the environment is "one of the Community's essential objectives", which may as such justify certain limitations of the principle of the free movement of goods' (paragraph 8; see also paragraph 9). That position was recently confirmed in Safety (paragraph 64), cited above, in which the Court repeated with reference to the principle of free movement of goods, that `protection of the environment is an imperative requirement which may limit the application of Article 30 of the Treaty'. In Commission v Belgium, cited above, the Court stated, however, that `imperative requirements can indeed be taken into account only in the case of measures which apply without distinction to both domestic and imported products' (paragraph 34).