Opinion of Mr Advocate General Mischo delivered on 16 January 2001. - Commission of the European Communities v Kingdom of the Netherlands. - Failure of a Member State to fulfil its obligations - Directive 76/464/EEC - Water pollution - Failure to transpose. - Case C-152/98.



European Court reports 2001 Page I-03463



Opinion of the Advocate-General

1. This is the ninth time that the Commission of the European Communities has asked the Court to declare that a Member State, here the Kingdom of the Netherlands, has failed to fulfil its obligations under 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 Directive).

2. The Directive is designed to eliminate water pollution caused by certain particularly dangerous substances, set out in a list called List I, and to reduce water pollution caused by certain other dangerous substances, set out in another list called List II. The two lists constitute an annex to the Directive. In order to achieve those objectives the Member States are required, under Article 2, to take appropriate steps as set out in Article 3 et seq.

3. Under Article 6(1) of the Directive, the Council is to lay down limit values for the emission of List I substances on the basis of their impact on the aquatic environment, taking into account the best technical means available. The Member States are obliged, under Articles 3 and 5, to make all discharges of those substances into the aquatic environment subject to a prior authorisation from the competent national authority, setting emission standards which are not to exceed the limit values laid down by the Council.

4. In order to determine those limit values, the Commission, in cooperation with the Member States, drew up a list of 129 individual substances which was adopted by the Council, in a resolution of 7 February 1983 concerning the combating of water pollution, as a basis for further work on implementation of the Directive. Three further substances were subsequently added to this list. The Council has set limit values and quality objectives for 18 of those 132 substances, whilst a further 15 were the subject of a draft Commission directive which was, however, withdrawn shortly after being submitted. It follows that no limit values have yet been laid down at Community level for 114 of the 132 priority substances.

5. As regards List II substances, Article 7 of the Directive provides as follows:

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.

...

6. List II is defined as follows:

List II contains:

- 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 [depends] on the characteristics and location of the water into which they are discharged.

7. The annex then sets out the families and groups of substances referred to in the second indent. This list comprises eight categories of substances, the first of which is composed of metalloids and metals and their compounds, including titanium, boron, uranium, tellurium and silver. The fourth category comprises toxic or persistent organic compounds of silicon, and substances which may give rise to such compounds in water, excluding those which are biologically harmless or are rapidly converted in water into harmless substances.

8. The Directive does not contain a time-limit for its transposition. However, under Article 12(2) the Commission was to forward to the Council, if possible within 27 months following notification of the Directive, the first proposals made on the basis of comparison of the programmes established by the Member States. Since the Commission took the view that the Member States would not be in a position to provide it with relevant information within this time, it proposed to them, by letter dated 3 November 1976, the adoption of 15 September 1981 as the date for establishing the programmes and 15 September 1986 as the date for their implementation.

9. The Directive was partially replaced by Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control, the aim of which is to prevent or, where that is not practicable, to reduce emissions from installations used for certain industrial activities into the air, water and soil.

10. Article 20(1) of Directive 96/61 provides that Articles 3, 5, 6(3) and 7(2) of Directive 76/464 are to apply to existing installations in respect of activities covered by Directive 96/61 until the measures required pursuant to Article 5 of Directive 96/61 have been taken by the competent authorities. On the other hand, under Article 20(2) the provisions as to authorisation systems in certain directives including Directive 76/464 are not to apply to new installations after the implementation date for Directive 96/61, namely 30 October 1999.

11. In addition, a European Parliament and Council Directive establishing a framework for Community action in the field of water policy (the new framework directive) is in the process of being adopted. This will, it seems, eventually replace the provisions at issue in the present case.

12. It should be noted, first, that the Kingdom of the Netherlands questions the appropriateness of the action brought by the Commission. It states that Articles 3, 5, 6(3) and 7(2) of the Directive will shortly no longer apply to the major industrial sectors. The new framework directive will replace the Directive, partially at first, and eventually entirely.

13. It also argues that the framework directive and Directive 96/61 will render inoperative the distinction between List I and List II substances. Under the regime resulting from those directives, quality objectives will be only a secondary means of combating water pollution. The disagreement concerning the interpretation of the first indent of List II, which constitutes a substantial part of the present dispute, will therefore shortly become obsolete.

14. The perplexity of the Netherlands Government is understandable. I too am surprised that the Commission should require the Member States to be capable of setting quality objectives for their waters when the Commission itself has not managed to propose any for the majority of the substances concerned, as Article 6(2) nevertheless requires it to do (in addition to the limit values provided for by Article 6(1)). Has the Commission encountered scientific and technical difficulties any different from those met by the Member States?

15. That said, according to settled case-law, not disputed by the defendant, the Commission has a discretion when deciding whether it is expedient to bring proceedings for a failure to fulfil obligations. Furthermore, the existence of a failure to fulfil obligations has to be determined by reference to the situation of the Member State prevailing at the end of the period set by the reasoned opinion, in this case, as at 23 February 1997. This last principle was recently restated by the Court, in the context of infringements of the same directive, in Commission v Greece and Commission v Portugal, cited above.

16. The complaints formulated by the Commission must therefore be considered in greater detail.

17. One further preliminary observation concerns the subject-matter of the dispute. The form of order sought by the Commission refers to an infringement, in general terms, of the Directive. However, the complaints set out by it in the course of the pre-litigation procedure concern only the Scheldt basin.

18. It is settled case-law that the subject-matter of infringement proceedings must, if it is not to be inadmissible, remain within the framework defined by the pre-litigation procedure.

19. Therefore, the Commission's action is admissible only to the extent that it concerns the Scheldt basin.

Failure to set quality objectives for the substances in the first indent of List II

20. The Commission complains that the Netherlands authorities have failed to fulfil their obligations by not establishing programmes including quality objectives for the substances within List I for which limit values have not yet been laid down at Community level.

21. The Commission considers that such substances fall within the scope of the first indent of List II and that, consequently, water pollution caused by them must be combated by the means provided for by Article 7 of the Directive, which include programmes comprising quality objectives.

22. The Kingdom of the Netherlands does not dispute that it has not established such programmes or set such objectives. It contends, however, that the Commission's interpretation of the first indent of List II is incorrect and that the substances within List I, but for which limit values have not been laid down at Community level, must nevertheless be treated in accordance with the regime prescribed by Articles 3 to 6 of the Directive.

23. This argument is founded on the wording of the Directive, on its broad logic and its objective, and on the history of its application.

24. As to the wording of the Directive, the Kingdom of the Netherlands points out that, according to the first indent of List II, the substances in question are those 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.

25. Relying in particular on the Dutch and German versions, which use the words niet worden vastgesteld and nicht festgelegt werden for have not been determined, the defendant concludes that the families and groups in List I come within the regime under List II only when it is expressly established that a limit value will not be laid down for those families and groups of substances in the future.

26. As to the broad logic and the objective of the Directive, the Kingdom of the Netherlands states that the substances within List I of the Directive are subject to the regime laid down in Articles 3 to 6, which is stricter than that prescribed by Article 7 for substances within List II. That is explained by the fact that List I contains the most harmful substances, therefore justifying the most restrictive measures, whilst List II substances are less harmful.

27. List I substances should therefore be combated with particular severity in order not to compromise the objective of the Directive, which is to eliminate, so far as possible, those substances recognised as being the most harmful.

28. It is therefore wrong to seek to make such substances subject, as the Commission does, to the more relaxed regime applicable to List II on the sole ground that the Council has not yet laid down limit values for their emission. This fact alone does not in the least diminish the harmfulness of those substances, which must therefore be subject to a restrictive regime, such as that laid down by Articles 3 to 6 of the Directive.

29. It is only in the exceptional case of the Council formally declaring an intention not to adopt Community limits for a substance within List I that it would be appropriate to treat it as if it fell within List II.

30. The defendant also stresses another consequence of the Commission's interpretation which likewise would not conform to the broad logic of the Directive. It states that tens of thousands of substances fall within List I of the Directive and have not yet had Community standards laid down by the Council. If they all had to be regarded as falling within List II, the Member States would be required to set quality objectives for each of them.

31. The Netherlands Government adds that the approach of the institutions since the entry into force of the Directive confirms this reasoning. It shows that the Commission has made numerous proposals to the Council, resulting in the laying down of Community standards. The Commission is also committed to issuing such proposals for the 114 substances in dispute in the present case.

32. The defendant takes this to mean that the Commission itself has acknowledged that limits should be laid down for those substances and that they should be made subject to the strict regime under Articles 3 to 6 of the Directive. The reason why this has not yet been done lies with the Commission, and responsibility for that failure cannot be attributed to the Member States.

33. In support of its interpretation, the Commission points to the English language version, which employs the phrase have not been determined, and to Commission v Luxembourg, cited above, in which the Court found that the first indent of List II contains the substances for which the Council has not yet determined Community limits.

34. The defendant has contended, however, and rightly so in my view, that this citation is taken from the descriptive part of the judgment, in a case in which the interpretation of the wording of that provision was not in issue. It therefore cannot be taken to mean that the Court shares the Commission's view.

35. It must nevertheless be pointed out that, in two more recent judgments, namely Commission v Belgium, cited above, at paragraph 35, and Commission v Germany, cited above, at paragraphs 27, 29 and 30, the Court has expressly stated that, contrary to the defendant's argument, the List I substances for which the Council has not yet determined emission limit values must provisionally be treated as List II substances, governed by Article 7 of the Directive.

36. At paragraphs 35 and 40 of the judgment in Commission v Belgium, the Court stated that this applies to the substances in question which have been identified and which are relevant in the particular context of the Member State concerned. I see no reason why the same should not apply for the Kingdom of the Netherlands. This Member State is not therefore required to establish programmes comprising quality objectives for tens of thousands of substances, but only for those of the 114 substances for which limit values have not yet been laid down by the Council which are, in fact, liable to be present in Netherlands rivers.

37. I note in passing that it is surprising that the Commission has not confined the present action to those 114 substances, when, in the actions against the Grand Duchy of Luxembourg, the Kingdom of Belgium, the Hellenic Republic and the Portuguese Republic, it targeted only 99 substances. (As I have already stated, the Commission withdrew its proposals concerning 15 substances, so that there are 114 substances for which limit values have neither been adopted by the Council nor proposed by the Commission.)

38. Notwithstanding those reservations, it follows from the foregoing considerations that the defendant's interpretation of the first indent of List II should be rejected.

39. The defendant also contends, however, that the regime applied under national law to the substances in question, based on authorisations including emission limit values, is comparable to that provided for by the Directive for List I substances and is, therefore, stricter than the regime which the Commission would wish to see applied. Thus, the Netherlands authorities cannot be said in the present case to have failed to fulfil any obligation.

40. In the defendant's submission, the appropriateness of the Netherlands regime is amply shown by the results achieved in that country in the field of water protection.

41. Furthermore, the regime established by the Netherlands authorities is founded on laws and regulations, and therefore cannot be regarded, as it seems to be by the Commission, as simply an administrative practice which could be altered in the exercise of the authorities' unfettered discretion.

42. It should, however, be noted that, in Commission v Germany, cited above, the Court expressly stated that the implementation by a Member State, through the setting of emission limit values, of a system of protection corresponding to that in Article 6 of the Directive, does not exempt it from establishing programmes including quality objectives for the substances in question; according to the Court, this is an obligation to which the Community legislature has attached particular importance.

43. The Court held unfounded the argument that recourse to emission limit values, in itself, constituted a more stringent instrument than the programmes including quality objectives provided for in Article 7. It held that everything depended entirely on the level at which such values were set.

44. Lastly, the Court has also emphasised that the improvement of water quality in a Member State does not lead to the conclusion that the method chosen by that State is stricter than the programmes envisaged by Article 7 of the Directive, since such an improvement is no more than the result which should have been achieved by the Member State by applying the Directive and is not such as to exempt it from its obligation to adopt the measures prescribed by Article 7.

45. Therefore, the arguments advanced by the defendant should be rejected and the Commission's first complaint should be upheld.

Failure to set quality objectives for the substances in the second indent of List II

46. The Commission contends that the Kingdom of the Netherlands has not yet set quality objectives for the fourth category of substances referred to in the second indent of List II or for certain substances within the first category of that indent, namely titanium, boron, uranium, tellurium and silver.

47. The defendant does not deny this infringement but points out that it was faced with the impossibility of finding, even in the international literature, scientifically founded values which could serve as a basis for setting quality objectives. It was therefore necessary to undertake scientific research for that purpose. The quality objectives required by the Directive will be set as soon as possible.

48. It should once again be pointed out that it is clear from the Court's case-law that the existence of a failure to fulfil obligations is to be determined at the end of the period laid down in the reasoned opinion. It is not in dispute that, at that date, the failure had not gone away.

49. Moreover, it is settled case-law that technical difficulties which a Member State may have encountered in the performance of its obligations do not eradicate a failure to fulfil those obligations. As the Commission points out, it would have been open to the Member State to seek from it an extension of the deadline.

50. The Netherlands Government submitted, furthermore, at the hearing that the wording of Article 7(1), (2) and (3) does not require the Member States to set quality objectives for substances; moreover, that is logical since there are thousands of them.

51. In its submission, the Member States are thus required only to set quality objectives for water, and not for substances.

52. The defendant itself admits, however, that those objectives must necessarily refer to the concentration of substances present in the waters, since it is on the basis of the objectives that the emission limit values which accompany the authorisations to discharge those substances are laid down under Article 7(2).

53. It is the absence of any such reference for the substances in question in certain waters, namely the Scheldt basin, which is criticised by the Commission.

54. Nor does the Netherlands Government deny this absence, as we have seen.

55. The Netherlands Government also adds, rightly, that quality objectives need only relate to those substances liable to be present in the waters in question.

56. The defendant does not contend, however, that this would not be true of those substances which are the subject of the second part of the Commission's action.

57. It follows from the foregoing that the Commission's second complaint should also be upheld.

Conclusion

58. I propose, therefore, that the Court should:

- declare that, by failing to adopt for the Scheldt basin all the measures necessary to transpose Article 7(1), (2) and (3) 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 the Netherlands has failed to fulfil its obligations under that directive;

- dismiss the remainder of the action;

- order the defendant to bear three-quarters of the costs;

- order the Commission to bear a quarter of the costs.