Opinion of Mr Advocate General Saggio delivered on 25 February 1999. - L. Nederhoff & Zn. v Dijkgraaf en hoogheemraden van het Hoogheemraadschap Rijnland. - Reference for a preliminary ruling: Raad van State - Netherlands. - Environment - Directives 76/464/EEC, 76/769/EEC and 86/280/EEC - "Discharge" - Possibility for a Member State to adopt more stringent measures than those provided for in Directive 76/464/EEC - Effect of Directive 76/769/EEC on such a measure. - Case C-232/97.



European Court reports 1999 Page I-06385



Opinion of the Advocate-General

1 In the present case, the Court once again has occasion to rule on 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 (hereafter referred to as `the Directive'). (1) The Court is called upon to clarify whether the concept of `discharge' referred to in Article 1(2)(d) of the Directive also covers significant sources of pollution, including multiple and diffuse sources of certain substances referred to in Article 5(1) of Council Directive 86/280/EEC of 12 June 1986 on limit values and quality objectives for discharges of certain dangerous substances included in List I of the Annex to Directive 76/464/EEC. (2) The Court is also called upon to decide whether it is permissible for Member States to give another, more wide-ranging meaning to the term `discharge' than that in the Directive and to make the grant of the authorisation for a discharge subject to requirements which are not contained in the Directive and are such as to preclude all use of the dangerous substance (in this case, creosote oil), thus creating the conditions for a possible breach of Council Directive 76/769/EEC of 27 July 1976 on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations, (3) which restricts but does not prohibit the use of those substances.

The relevant Community legislation

2 The Directive seeks to ensure effective protection of the aquatic environment and identifies two categories of dangerous substances in that connection. The first category comprises the substances 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 the appropriate steps to eliminate pollution of certain waters by such substances. To that end, all discharges of such substances are subject to prior authorisation by the competent authority of the Member State concerned. The authorisation sets emission standards, namely the maximum concentration of a harmful substance permissible in a discharge. (4) In accordance with Article 6 of the Directive, the Council has laid down for certain of those substances limit values, which the emission standards adopted by the national authorities must not exceed, and quality objectives. (5) Council Directive 86/280/EEC of 12 June 1986 lays down limit values for emission standards, quality objectives and 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 of them in Directive 86/280 itself. (6) That directive also introduces rules which had not been provided for under Directive 76/464, including the requirement for Member States to draw up, for 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). (7)

3 The second category includes the substances in List II of the Directive. These are substances whose deleterious effects on the aquatic environment can be confined to a given area and depend on the characteristics and location of the water into which they are discharged. That second category also includes substances belonging to the first category for which the limit values have not been determined (that is the case for creosote oil, the substance at issue in the main proceedings).

Pursuant to Article 2 of the Directive, Member States are required to reduce (not eliminate) pollution by the substances in the second category. To that end, Member States are required to establish `programmes' which incorporate `quality objectives' for water; such objectives must comply with any existing detailed or specific Council directives. Member States are also required to set up a system of prior authorisations, including the setting of emission standards calculated in terms of the quality objectives, for the discharge of the substances in the second category.

4 Article 1(2)(d) of the Directive defines the term `discharge' as the introduction into certain 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 `where appropriate, one or more Member States may individually or jointly take more stringent measures than those provided for under this Directive'.

6 Council Directive 76/769/EEC of 27 July 1976, as amended by Directive 94/60/EC, (8) provides for uniform restrictions on the marketing and use of certain dangerous substances and preparations included in the annex to that directive. Creosote oil appears in point 32 of that annex, which also specifies the conditions under which its use is permitted.

The relevant national legislation

7 In the Netherlands, the rules on pollution of surface waters are set out in a specific law (Wet Verontreiniging oppervlakewaterne, hereafter referred to as the `WVO') which entered into force on 1 December 1970. That law largely corresponds with the provisions of the Directive. The law of 24 June 1981 (Stbl. 414) subsequently brought the WVO into line with the Directive. In order to combat pollution of surface waters, the WVO prohibits the unauthorised introduction into those waters of waste products, pollutants or harmful substances.

8 The decree of 28 November 1974 implementing the WVO (Stbl. 1974, p. 709) contains more detailed provisions on discharges from sources other than industrial plants. Article 3 provides that it is prohibited to introduce into any surface water in any way whatever any waste or polluting or harmful substance listed in the annex to that decree.

The facts and the questions referred for a preliminary ruling

9 L. Nederhoff & Zn. (hereafter referred to as `Nederhoff') use wooden posts treated with creosote oil for shoring up banks. Creosote oil contains polycyclic aromatic hydrocarbons (PAHs) and therefore belongs to the harmful substances mentioned in List I of the Annex to the Directive. However, since no limit value has yet been fixed for those hydrocarbons pursuant to Article 6 of that directive, creosote comes under the rules for substances in List II of the annex to the Directive.

10 Nederhoff did not apply to the competent Netherlands authority for authorisation to use creosote until after it had placed the posts treated with that substance in the surface water.

11 The competent authority rejected the application on the ground that it is not possible to avoid PAHs escaping from the creosoted posts and causing pollution of water. It also pointed out that there are alternative solutions for shoring up banks which are less harmful to the environment and the additional costs of which are compensated by their reduced impact on the environment.

12 Nederhoff subsequently brought an action before the Nederlandse Raad van State (Netherlands Council of State) challenging the decision refusing its application, on the ground that Article 1(3) of the WVO applies to discharges, not to diffuse sources of pollution, as in the case at issue, and that the Directive authorises national authorities to adopt more stringent measures for discharges than those laid down by the directive, but not to subject to the requirement of authorisation sources of water pollution other than those mentioned in the directive.

13 In the judgment making the reference, the Raad van State observes that it has hitherto applied a broad interpretation of the term `discharge', without distinguishing between the other multiple and diffuse sources of such substances mentioned in Directive 86/280 and the concept of discharge referred to in Directive 76/464. Thus, according to the national court, the requirement for a prior authorisation applies also to multiple and diffuse sources, although those sources are not subject to the rules on Community limit values or national emission standards. (9)

14 The Nederlandse Raad van State therefore 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 (OJ 1976 L 129, p. 23) be interpreted as including the term "significant sources ... (including multiple and diffuse sources)" in Article 5 of Council Directive 86/280/EEC of 12 June 1986 on limit values and quality objectives for discharges of certain dangerous substances included in List I of the Annex to Directive 76/464/EEC (OJ 1986 L 181, p. 16)?

2. If the reply to Question 1 is in the negative, must the expression "significant sources ... (including multiple and diffuse sources)" in Article 5 of Directive 86/280/EEC be interpreted, as including the escape of creosote from wood placed in surface water?

3. If the reply to Question 1 is in the affirmative, or the replies to Questions 1 and 2 are both in the negative, must the term "discharge" in Article 1(2)(d) of Directive 76/464/EEC be interpreted as including:

(a) the introduction into surface water of wood impregnated with creosote oil, even though it is established in advance that the creosote oil will escape into the surface water; or

(b) the escape of creosote oil from wood placed in surface water?

4. If Questions 3(a) and/or 3(b) are answered in the negative, is it permissible, in the light particularly of Article 5(2) and Article 10 of Directive 76/464/EEC, for national legislation or the competent authority to give another, more wide-ranging meaning to the notion of "discharge" than that in that directive?

5. (a) If Questions 3(a) and/or 3(b) or Question 4 are answered in the affirmative, does Article 3 of Directive 76/464/EEC, whether or not in conjunction with Article 10 of that Directive, permit, in connection with the assessment of applications for authorisation, requirements to be imposed which are not contained in the directive, such as the obligation to investigate whether to choose less environmentally harmful alternatives?

(b) If so, may those additional requirements lead to a situation in which the grant of authorisation is impossible or possible only in quite exceptional cases?

6. If Questions 3(a) and/or 3(b) or Question 4 are answered in the affirmative, do the limitative conditions contained in category 32 of Annex I to Council Directive 76/769/EEC of 27 July 1976 on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations (OJ 1976 L 262, p. 201) preclude a competent authority of a Member State, when assessing applications for authorisation concerning the introduction into surface water by professional users of wood treated with creosote oil, from applying assessment criteria such as to make that use impossible or possible only in quite exceptional cases?'

Question 1

15 By the first question, the national court asks whether the term `discharge' in Article 1(2)(d) of the Directive also applies to the pollution from significant sources, including multiple and diffuse sources, referred to in Article 5 of Directive 86/280.

16 It appears from the wording of Article 1(2)(d), in conjunction with (e), that that article of the Directive applies to discharges containing harmful substances introduced by man `directly or indirectly' into the aquatic environment, `the results of which are such as to cause hazards to ... aquatic ecosystems'. That definition therefore covers all discharges from an identifiable source which are attributable to a given human act. It also covers discharges of pollution-causing substances which are not introduced directly into the surface water but reach the water via other channels (such as sewage pipes and drains), as well as discharges containing harmful substances where it is nevertheless reasonably foreseeable that they will reach the aquatic environment.

17 The term `multiple and diffuse sources' in Article 5 of Directive 86/280 is not explicitly defined in that directive. However, a definition can be inferred from the meaning of the term `discharge' outlined above, since the directive in question applies to discharges of substances in List I of Directive 76/464. In that regard, Article 5(1) of Directive 86/280 explicitly distinguishes between `significant sources', including `multiple and diffuse sources' and `sources subject to Community limit value rules or national emission standards', namely the sources of pollution referred to in Article 1(2)(d) of Directive 76/464. Those sources of pollution are the discharges covered by Directive 76/464 and concern the emission of substances in List I or List II of the Annex to the Directive. The term `multiple and diffuse sources' accordingly applies to all pollution which is not attributable to an identifiable source or, therefore, to any given or specific human act (for example, water pollution caused by nitrates from agricultural sources). Since the link to the originator is either missing or cannot be identified, it is not feasible to lay down limit value rules or impose the obligation of authorisation. It follows that the term `discharge' in Directive 76/464 does not apply to the introduction into the environment of dangerous substances from the `significant sources ... (including multiple and diffuse sources)' referred to in Article 5 of Directive 86/280.

18 It follows from the distinction made between the two aforesaid concepts that the term `discharge' in Directive 76/464 does not include the introduction into the environment of dangerous substances from significant sources, including multiple and diffuse sources. That interpretation is borne out by the wording of Article 5 which requires the Member States to draw up specific programmes to avoid or eliminate pollution from significant sources only as regards those `substances to which specific reference is made in Annex II' of Directive 86/280. (10) Therefore, even if a broad interpretation of the term discharge, to include multiple and diffuse sources, were consistent with the aim of the Directive, namely to ensure protection of the aquatic environment, such an interpretation would, be contrary to the purpose of the Community legislature which was to impose on the Member States the obligation to draw up specific programmes to reduce pollution from diffuse sources only in respect of certain specific substances. To assimilate the concepts of diffuse pollution and discharge would deny all meaning to the distinction made between the two sources in Article 5(1). That interpretation is also borne out by the fact that, as explicitly stated in the 10th recital to the Directive, the power of the Member States to adopt specific programmes to avoid or eliminate pollution of the aquatic environment is not derived from Directive 76/464. That clearly shows that, despite the proximity of the subject-matter, the system of diffuse sources is alien to the Directive.

19 In short, there are two distinct but complementary systems for two distinct forms of water pollution: first, a system of prior authorisations, applicable to the discharges mentioned in Directive 73/464, which - precisely because they are discharges - are attributable to a human act and, second, a system of specific programmes which the Member States are required to draw up or implement in order to avoid or eliminate pollution from multiple and diffuse sources which, precisely because it is diffuse, is not as a rule attributable to a human act.

20 In the light of the foregoing considerations, I suggest that the Court reply to the first question referred by the national court to the effect that the term `discharge' in Article 1(2)(d) of the Directive does not apply to the pollution from significant sources of certain substances (including multiple and diffuse sources) referred to in Article 5 of Directive 86/280.

Question 2

21 Since the first question was answered in the negative, it is necessary to examine the second question which the referring court asks in that eventuality. By the second question, the national court asks whether the expression `significant sources ... (including multiple and diffuse sources)' in Article 5 of Directive 86/280 is to be interpreted as including the escape of creosote oil particles from wood placed in surface water.

22 The answer can be inferred from the distinction, which I have already explained, between the concept of `discharge' and that of `other significant, multiple and diffuse, sources'. On that basis, the escape of creosote oil particles from wood placed in surface water must be regarded as a discharge where it is attributable to an identifiable human act and, conversely, where it is not attributable to an agent, it must be regarded as pollution from diffuse sources and therefore outside the scope of the Directive.

23 It appears from the facts in the main proceedings that contaminated particles escape from the wood treated with creosote oil on contact with water. It is therefore clear that the posts treated with that substance can cause pollution on contact with water. (11) It is equally clear that that pollution is the consequence of an identifiable human act, namely the act of those who placed the posts treated with creosote oil in the water. Moreover, in view of the nature of the operation, it is in general not particularly difficult to identify those in question. It follows that the water pollution is not the consequence of a non-identifiable source of pollution, but of a human act. In that case it is therefore feasible to impose an obligation to apply for authorisation.

24 In this case, therefore, the condition for a discharge within the meaning of Article 1(2)(d), namely that the introduction into the surface water of substances classified as dangerous under the Directive must be attributable to a human act, is satisfied. Where, as in this instance, the case concerns the concept of a discharge, Article 5 of Directive 86/280 may apply for the reasons indicated in the solution to the first question.

25 Accordingly, I suggest that the Court also reply to the second question in the negative, namely to the effect that the expression `significant sources ... (including multiple and diffuse sources)' in Article 5 of Directive 86/280 does not apply to the escape of creosote oil particles from wood placed in the surface water.

Question 3

26 By the third question, the national court asks whether the term `discharge' includes the introduction into surface water of wood treated with creosote oil or the escape of creosote oil particles from wood placed in that surface water.

27 That question distinguishes two hypotheses which can in fact be reduced to a single phenomenon, namely the release into surface water of pollution-causing particles as a result of the placing in those waters of wooden posts treated with such substances. The reply to be given to the national court is, therefore, that the placing in those waters of posts treated with creosote oil is to be regarded as a discharge because creosote oil is released, on contact with water, in the form of pollution causing particles.

Question 4

28 In case the Court decides that the term `discharge' is to be interpreted as not including the introduction into surface water of wood treated with creosote oil, it is also necessary to examine the fourth question, which is asked in the alternative, in other words to consider whether it is permissible for a Member State to give a different, more wide-ranging meaning to the term `discharge' than that in the Directive.

29 In that regard it must first be observed that the Directive only ensures a minimum degree of harmonisation of national legislation on discharges into certain waters, (12) leaving the Member States the option of taking even more stringent measures. Articles 5(2) and 10, as well as the 11th recital of the Directive, merely confirm that power of the Member States, thereby making 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 measures, including the introduction of a system of authorisation.

30 It must be observed that that interpretation of the Directive is consistent with the powers conferred on the Community in the environmental sphere by the Single European Act and the Maastricht Treaty. (13) Those powers, which are concurrent with the powers of the Member States, are to 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. (14)

31 That being said, the Member States must be accorded the power to make such discharges as are not covered by the Directive subject to the requirement of prior authorisation. That power derives its legal basis from 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). (15) However, even if they are inconsistent with the aforesaid Community sources, national provisions are none the less legitimate where they meet an imperative requirement, provided that they are not discriminatory and satisfy the principle of proportionality. (16)

32 In conclusion, I propose that the Court reply to the fourth question to the effect that a Member State is entitled in its own legislation to assign a different, more wide-ranging meaning to the term `discharge' than that contained in the Directive where that more stringent meaning meets an imperative requirement and provided that it is not discriminatory and satisfies the principle of proportionality.

Question 5

33 Having answered the third and fourth questions in the affirmative, a reply must also be given to Question 5, which the national court has submitted in a graduated manner: it must therefore be determined, with regard to Articles 3 and 10 of the Directive, whether Member States are entitled to make the grant of authorisation subject to additional requirements not provided for in that directive, such as the obligation to investigate or choose alternative solutions which have less impact on the environment and whether those additional requirements can be so stringent as to make the grant of authorisation impossible or altogether exceptional.

34 For the reasons developed in connection with the preceding question, this question too can only be answered in the affirmative. The Member States must be accorded the power not only to give a more wide-ranging meaning to the term `discharge' in their national legal systems than that provided for in the Directive, but also to impose additional or more stringent requirements for the grant of authorisation, in particular for the substances in List I. As a result, I consider that Member States are also free in their respective legal systems to make the grant of authorisation conditional on the absence of alternative solutions having less impact on the environment. That reply is consistent, in particular, with the power conferred on the Member States by Article 5(2) of the Directive to impose more stringent emission standards for the substances in List I than those laid down by the Council, as well as with the rule, set out in Article 130r(2) of the Treaty, that `environmental damage should as a priority be rectified at source'.

35 The line of reasoning pursued hitherto also applies to the substances in List II, including creosote, since the Council has not yet laid down emission standards for that substance. (17) Therefore, as the emission standards for those substances are for the time being laid down by the Member States alone, the Member States must be regarded as being entitled to make the grant of authorisation subject to the conditions they deem most appropriate for reducing the pollution of waters. (18) I would add that the power of the Member States - a power recognised in the Treaty - to make the grant of authorisation conditional on additional, even more stringent, requirements is further, if needlessly, confirmed in Article 10 of the Directive.

36 Moreover, the fact that those additional requirements may have the effect of making the grant of authorisation exceptional or even impossible is not incompatible with the objective which the Member States are obliged to pursue in accordance with the aforesaid directive, namely to `eliminate pollution of the waters ... by the dangerous substances in the families and groups of substances in List I'. The pursuit of that objective may well have the effect, in particular, of prohibiting discharges altogether; in that extreme hypothesis, in order to be lawful, the prohibition must nevertheless always satisfy the principles of non-discrimination and of proportionality.

37 That conclusion must apply equally to creosote which provisionally comes under the rules for the substances in List II, although it is included in the substances in List I, inasmuch as the Directive clearly requires Member States to eliminate the pollution caused by the substances in List I, including, therefore, those coming provisionally under the rules for the substances in List II.

38 As a result, I suggest replying to the fifth question to the effect that the Member States are entitled to make authorisation subject to additional requirements not provided for in the Directive, such as the obligation to investigate or choose alternative solutions which have less impact on the environment, provided that those additional requirements meet an imperative requirement, are not discriminatory and satisfy the principle of proportionality. Within those limits, the Member States are allowed to lay down, in particular for the substances in List I, conditions that are so stringent as to make the grant of authorisation generally impossible or altogether exceptional.

Question 6

39 By the last question, the national court asks whether the limitative conditions laid down in Directive 76/769 and, more particularly, the conditions for the use of creosote laid down in point 32 of the annex to the directive, preclude the competent authority of a Member State, when considering applications for authorisation concerning the introduction into surface water of that substance, from establishing criteria of assessment such as to make its use impossible or altogether exceptional.

40 That question of interpretation arose from the possible incompatibility between the aforementioned Directive 76/769, which merely introduces restrictions on the marketing of wood treated with creosote oil, and national rules on the protection of waters which instead simply prohibit the use of that substance.

41 As the two regulatory systems produce their effects at different levels, this question may be answered in the negative. Directive 76/769 regulates the movement of products and, in particular, the placing on the market of substances and preparations which are a danger to human health and consumer safety, (19) whereas the national rules referred to above essentially concern the protection of waters against pollution and attain that objective by regulating discharges (in the same way as Directive 76/464). Such national rules are most unlikely to be inconsistent with Directive 76/769 in so far as they do not affect the free movement of products containing creosote, or if so only indirectly and quite marginally: they merely restrict or prohibit the introduction into water of wood treated with that substance and have no effect on any other possible use of that substance. However, even assuming such an inconsistency existed, where a national rule is designed to meet an imperative requirement such as the protection of waters, that national rule takes precedence over Directive 76/769 provided, clearly, that it is not discriminatory and satisfies the principle of proportionality.

42 Considering that the national and the Community rules have two distinct fields of application (protection of the environment, free movement of goods), the line of reasoning pursued hitherto also applies to the possible incompatibility between the interests safeguarded by Directive 76/769 (free movement of goods) and those safeguarded by Directive 76/464 (protection of the aquatic environment). In the event of inconsistencies between the two directives, Directive 76/464 takes precedence for the pure and simple reason that it is specific, namely, that it is designed exclusively for the protection of the aquatic environment. (20)

43 Therefore, the reply to the last question must be that Directive 76/769 does not preclude national rules from making the grant of authorisation concerning the introduction into surface waters of wood treated with creosote oil conditional on requirements which are such as to make the use of that substance impossible or altogether exceptional. In the event of inconsistencies between the two regulatory systems, the national rules prevail in so far as they meet an imperative requirement such as the protection of the environment, provided that they are not discriminatory and satisfy the principle of proportionality.

Conclusion

44 In the light of the foregoing considerations, I propose that the Court should 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 must be interpreted as not including the term `significant sources, (including multiple and diffuse sources)' in Article 5(1) of Council Directive 86/280/EEC of 12 June 1986 on limit values and quality objectives for discharges of certain dangerous substances included in List I of the Annex to Directive 76/464/EEC.

(2) The expression `significant sources ... (including multiple and diffuse sources)' in Article 5(1) of Directive 86/280 cannot be interpreted as including the escape of creosote particles from wooden posts placed in surface water.

(3) The term `discharge' in Article 1(2)(d) of Directive 76/464 must be interpreted as including the placing in surface water of wooden posts treated with creosote because, on contact with water, that substance escapes in the form of particles which cause pollution of the surface water.

(4) The Member States are free in their own legal systems to assign a different, more wide-ranging meaning to the term `discharge' than that in Directive 76/464, provided that that meaning meets an imperative requirement, is not discriminatory and satisfies the principle of proportionality.

(5) Directive 76/464 permits Member States to make authorisation subject to additional requirements not provided for in that directive, such as the obligation to investigate or choose alternative solutions which have less impact on the environment, provided those more stringent requirements meet an imperative requirement, are not discriminatory and satisfy the principle of proportionality. Within those limits, the Member States are free to adopt measures, in particular with regard to the substances in List I, which go so far as to make the grant of authorisation for a discharge generally impossible or altogether exceptional.

6. Council Directive 76/769/EEC of 27 July 1976 on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations, as amended by European Parliament and Council Directive 94/60/EC of 20 December 1994, does not preclude national rules making the grant of authorisation conditional on requirements which are such as to make the use of those substances impossible or altogether exceptional. In the event of inconsistencies between the two regulatory systems, the national rules take precedence in so far as they meet an imperative requirement such as the protection of the environment, provided that they are not discriminatory and satisfy the principle of proportionality.

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

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

(3) - OJ 1996 L 262, p. 201.

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

(5) - The Council laid down value limits 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), mercury, in Directive 84/156/EEC of 8 March 1984 (OJ 1984 L 74, p. 49.) and hexachlorocyclohexane in Directive 84/491/EEC of 9 October 1984 (OJ 1984 L 274, p. 11.).

(6) - Namely, carbon tetrachloride, DDT and pentachlorophenol. Annex II to Directive 86/280 was subsequently extended to other substances such as aldrine, dildrine, endrine, isodrine, chloroform, hexachlorobenzene, hexachlorobutadene, dichloroethane, trichloroethylene, perchloroethylene and trichlorobenzene.

(7) - The tenth recital in the preamble to the Directive states that `whereas, 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; whereas, since the specific powers have not been provided for in the EEC Treaty, recourse should be had to Article 235 thereof'.

(8) - European Parliament and Council Directive 94/60/EC of 20 December 1994 amending for the 14 th time Directive 76/769/EEC (OJ 1994 L 365, p.1).

(9) - In a decision of 20 April 1994, the Raad van State applied that interpretation in a case concerning posts treated with creosote and placed in surface water. That decision stated that the term `discharge' in Article 1(2)(d) of the Directive must be interpreted broadly and that it therefore applies also to creosoted posts which pollute the surface water.

(10) - Those substances do not include PAHs and, therefore, creosote oil. As regards the substances in Annex II of Directive 86/280, see footnote 6.

(11) - At the hearing, the representative of the Hoogheemraadschap Rijnland pointed out that investigations had found that 15 km of banks shored up by means of creosoted wood posts are sufficient to exceed standard pollution limits.

(12) - 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 certain waters.

(13) - 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 Maastricht Treaty, which came into force on 1 November 1993, enshrines protection of the environment as a fundamental Community principle (Article 2). The new Article 3(k), which provides that the activities of the Community are to include `a policy in the sphere of the environment', added protection of the environment to the objectives of the European Community.

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

(15) - 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.

(16) - In Commission v Denmark, cited in footnote 15, the Court, recalling 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 most recently confirmed at paragraph 64 in Safety Hi-Tech, cited in footnote 14, where the Court recalled 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 in footnote 15, 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).

(17) - It should be noted that List II of the Annex to the Directive covers 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 laid down.

(18) - Provided those conditions do not have the effect of circumventing the provisions of the Directive or of increasing the pollution of waters (Articles 8 and 9 of the Directive).

(19) - See the first recital of the preamble to Directive 76/769 and the second recital of the preamble to Directive 94/60, cited above. Directive 76/769 also acknowledges protection of the environment as an objective to be pursued.

(20) - Article 1 of Directive 76/769 specifies `without prejudice to the application of other relevant Community provisions'.