Proposal for a Directive of the European Parliament and of the Council on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community (Codified version)
Date: 2004-01-07
Institutions: European Commission
Subjects: EU Member State, EU environmental policy, codification of EU law, dangerous substance, water pollution

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 07.01.2004
COM(2003) 847 final

2003/0333 (COD)

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on pollution caused by certain dangerous substances discharged into the aquatic
environment of the Community

(Codified version)

(presented by the Commission)

EN

  EN

1.

2.

3.

4.

5.

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EXPLANATORY MEMORANDUM

In  the  context  of  a  people’s  Europe,  the  Commission  attaches  great  importance  to
simplifying  and  clarifying  Community  law  so  as  to  make  it  clearer  and  more
accessible to the ordinary citizen, thus giving him new opportunities and the chance
to make use of the specific rights it gives him.

This aim cannot be achieved so long as numerous provisions that have been amended
several times, often quite substantially, remain scattered, so that they must be sought
partly  in  the  original  instrument  and  partly  in  later  amending  ones.  Considerable
research work, comparing many different instruments, is thus needed to identify the
current rules.

For  this  reason  a  codification  of  rules  that  have  frequently  been  amended  is  also
essential if Community law is to be clear and transparent.
On  1  April  1987  the  Commission  therefore  decided1  to  instruct  its  staff  that  all
legislative acts should be codified after no more than ten amendments, stressing that
this  is  a minimum requirement and that  departments  should  endeavour  to  codify  at
even  shorter  intervals  the  texts  for  which  they  are  responsible,  to  ensure  that  the
Community rules are clear and readily understandable.

The  Conclusions  of 
the  Edinburgh  European  Council
(December 1992) confirmed this2, stressing the importance of codification as it offers
certainty as to the law applicable to a given matter at a given time.

the  Presidency  of 

Codification  must  be  undertaken  in  full  compliance  with  the  normal  Community
legislative procedure.

Given  that  no  changes  of  substance  may  be  made  to  the  instruments  affected  by
codification, the European Parliament, the Council and the Commission have agreed,
by  an  interinstitutional  agreement  dated  20  December  1994,  that  an  accelerated
procedure may be used for the fast-track adoption of codification instruments.

is 

this  proposal 

to  undertake  a  codification  of  Council
The  purpose  of 
Directive 76/464/EEC  of  4  May  1976  on  pollution  caused  by  certain  dangerous
substances  discharged  into  the  aquatic  environment  of  the  Community3.  The  new
Directive  will  supersede  the  various  acts  incorporated  in  it4;  this  proposal  fully
preserves the content of the acts being codified and hence does no more than bring
them together with only such formal amendments as are required by the codification
exercise itself.

The codification proposal was drawn up on the basis of a preliminary consolidation,
in all official languages, of Directive 76/464/EEC and the instruments amending it,

COM(87) 868 PV.
See Annex 3 to Part A of the Conclusions.
Carried out pursuant to the Communication from the Commission to the European Parliament and the
Council – Codification of the Acquis communautaire, COM(2001) 645 final.
See Annex II, Part A of this proposal.

2

 
                                                
carried out by the Office for Official Publications of the European Communities, by
means  of  a  data-processing  system.  Where  the  Articles  have  been  given  new
numbers, the correlation  between the old and the new  numbers  is  shown  in  a  table
contained in Annex III to the codified Directive.

3

 
(cid:1) 76/464/EEC

2003/0333 (COD)

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on pollution caused by certain dangerous substances discharged into the aquatic
environment of the Community

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having  regard  to  the  Treaty  establishing  the  European  Community,  and  in  particular
Article (cid:2) 175(1) (cid:3) thereof,

(cid:1) 76/464/EEC (adapted)

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and Social Committee1,

Having regard to the opinion of the Committee of the Regions2,

Acting in accordance with the procedure laid down in Article 251 of the Treaty3,

Whereas:

(1)

Council  Directive  76/464/EEC  of  4  May  1976  on  pollution  caused  by  certain
dangerous substances discharged into the aquatic environment of the Community4 has
been substantially amended several times5. In the interests of clarity and rationality the
said Directive should be codified.

(cid:1) 

1

2

3

4

5

OJ C
OJ C
OJ C
OJ  L  129,  18.5.1976,  p.  23.  Directive  as  last  amended  by  Directive  2000/60/EC  of  the  European
Parliament and of the Council (OJ L 327, 22.12.2000, p. 1).
See Annex II, Part A.

4

 
                                                
(2)

(3)

There is an urgent need for general and simultaneous action by the Member States to
protect  the  aquatic  environment  of  the  Community  from  pollution,  particularly  that
caused by certain persistent, toxic and bioaccumulable substances.

(cid:1) 76/464/EEC Recital 1 (adapted)

Several conventions are designed to protect international watercourses and the marine
environment from pollution. It is important to ensure the coordinated implementation
of these conventions.

(cid:1) 76/464/EEC Recital 2 (adapted)

(cid:1) 76/464/EEC Recital 5 (adapted)
(4) (cid:2) Decision  No  1600/2002/EC  of  the  European  Parliament  and  of  the  Council  of
22 July 2002 laying down the Sixth Community Environment Action Programme (cid:3)6
, provides for a number of measures to protect fresh water and sea water from certain
pollutants.

(5)

(6)

(cid:1) 76/464/EEC Recital 6

In order to ensure effective protection of the aquatic environment of the Community, it
is  necessary  to  establish  a  first  list,  called  List  I,  of  certain  individual  substances
selected mainly on the  basis  of their toxicity, persistence,  and  bioaccumulation, with
the exception of those which are biologically harmless or which are rapidly converted
into  substances  which  are  biologically  harmless,  and  a  second  list,  called  List  II,
containing  substances  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. Any discharge
of these substances should be subject to  prior  authorisation which  specifies emission
standards.

(cid:1) 76/464/EEC Recital 7 (adapted)

Pollution through the discharge of the various dangerous substances within List I must
be  eliminated.  (cid:2) Limit  values  were  fixed  by  the  Council  Directives  referred  to  in
Annex IX to Directive 2000/60/EC of the European Parliament and of the Council of
23 October 2000 establishing a framework for Community action in the field of water
policy7. Article 16 of Directive 2000/60/EC provides for the procedures for developing
the control measures and quality standards applicable to priority substances. (cid:3)

6

7

(cid:1) OJ L 242, 10.9.2002, p. 1 (cid:2).
OJ L 327, 22.12.2000, p. 1.

5

 
                                                
(cid:1) 76/464/EEC Recital 9 (adapted)

(7)

It  is  necessary  to  reduce  water  pollution  caused  by  the  substances  within  List  II.  To
this  end  the  Member  States  should  establish  programmes  which  incorporate  quality
objectives  for  water  drawn  up  in  compliance  with  (cid:2) the (cid:3)  Council  Directives
(cid:2) referred  to  in  Annex  IX  to  Directive  2000/60/EC (cid:3)  .  The  emission  standards
applicable to such substances should be calculated in terms of these quality objectives.

(8)

One  or  more  Member  States  may  be  able,  individually  or  jointly,  to  take  more
stringent measures than those provided for under this Directive.

(cid:1) 76/464/EEC Recital 11

(9)

An  inventory  of  discharges  of  certain  particularly  dangerous  substances  into  the
aquatic  environment  of the Community should  be  drawn  up  in  order  to  know  where
they originated.

(cid:1) 76/464/EEC Recital 12

(10)

This  Directive  should  be  without  prejudice  to  the  obligations  of  the  Member  States
relating to the time-limits for transposition into national law of the Directives set out in
Annex II, Part B,

(cid:1) 

(cid:1) 76/464/EEC

(cid:1) 76/464/EEC (adapted)

HAVE ADOPTED THIS DIRECTIVE:

Subject to Article (cid:2) 7 (cid:3) , this Directive shall apply to:

Article 1

(cid:2) (a) (cid:3) inland surface water (cid:2) ; (cid:3)

(cid:2) (b) (cid:3) territorial waters (cid:2) ; (cid:3)

(cid:2) (c) (cid:3) internal coastal waters (cid:2) . (cid:3)

6

 
(cid:1) 76/464/EEC, Art. 1(2)
(adapted)

For the purposes of this Directive:

(cid:1) Article 2 (cid:2)

(a)

(b)

(c)

(d)

(e)

“inland surface water” means all static or flowing fresh surface water situated in the
territory of one or more Member States;

“internal  coastal  waters”  means  waters  on  the  landward  side  of  the  base  line  from
which  the  breadth  of  territorial  waters  is  measured,  extending,  in  the  case  of
watercourses, up to the fresh-water limit;

“fresh-water  limit”  means  the  place  in  the  watercourse  where,  at  low  tide  and  in  a
period of low fresh-water flow, there is an appreciable increase in salinity due to the
presence of sea-water;

“discharge” means the introduction into the waters referred to (cid:2) in Article 1 (cid:3) of
any substances in List I or List II of Annex (cid:2) I (cid:3) , with the exception of:

(cid:2) (i) (cid:3) discharges of dredgings,

(cid:2) (ii) (cid:3) operational discharges from ships in territorial waters,

(cid:2) (iii) (cid:3) dumping from ships in territorial waters;

“pollution”  means  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.

(cid:1) 76/464/EEC Art. 2 (adapted)

Article 3

Member States shall take the appropriate steps to eliminate pollution of the waters referred to
in Article 1 by the dangerous substances in the families and groups of substances in List I of
Annex (cid:2) I (cid:3) and to reduce pollution of the said waters by the dangerous substances in the
families  and  groups  of  substances  in  List  II  of  Annex  (cid:2) I (cid:3)  ,  in  accordance  with  this
Directive, the provisions of which represent only a first step towards this goal.

7

 
(cid:1) 76/464/EEC Art. 3 (adapted)

Article 4

With  regard  to  the  substances  belonging  to  the  families  and  groups  of  substances  in  List  I
(cid:2) of Annex I (cid:3), hereinafter called “substances within List I”:

(cid:2) (a) (cid:3) all discharges into the waters referred to in Article 1 which are liable to contain
any such substance shall require prior authorisation by the competent authority of the
Member State concerned;

(cid:2) (b) (cid:3) the authorisation shall lay down emission standards with regard to discharges
of  any  such  substance  into  the  waters  referred  to  in  Article  1  and,  where  this  is
necessary  for  the  implementation  of  this  Directive,  to  discharges  of  any  such
substance into sewers;

(cid:2) (c) (cid:3) in the case of existing discharges of any such substance into the waters referred
to  in  Article  1,  the  dischargers  must  comply  with  the  conditions  laid  down  in  the
authorisation within the period stipulated therein;

(cid:2) (d) (cid:3) authorisations may be granted for a limited period only. They may be renewed,
taking  into  account  any  changes  in  the  limit  values  (cid:2) contained  in  the
Directives (cid:3) referred to in (cid:2) Annex IX to Directive 2000/60/EC (cid:3) .

(cid:1) 76/464/EEC Art. 4 (adapted)

Article 5

1.

The  emission  standards  laid  down  in  the  authorisations  granted  pursuant  to
Article (cid:2) 4 (cid:3) shall determine:

(a)

(b)

the  maximum  concentration  of  a  substance  permissible  in  a  discharge.  In  the
case  of  dilution  the  limit  value  (cid:2) contained  in  the  Directives  referred  to  in
Annex IX to Directive 2000/60/EC (cid:3) shall be divided by the dilution factor;

the maximum quantity of a substance permissible in a discharge during one or
more  specified  periods  of  time,  expressed  (cid:2) ,  if  necessary, (cid:3)  as  a  unit  of
weight  of  the  pollutant  per  unit  of  the  characteristic  element  of  the  polluting
activity (e.g. unit of weight per unit of raw material or per product unit).

2.

For each authorisation, the competent authority of the Member State concerned may,
if necessary, impose more stringent emission standards than those resulting from the
application of the limit values (cid:2) contained in the Directives referred to in Annex IX
to  Directive  2000/60/EC (cid:3),  taking  into  account  in  particular  the  toxicity,
persistence, and bioaccumulation of the substance concerned in the environment into
which it is discharged.

8

 
3.

4.

1.

2.

3.

4.

5.

6.

(cid:1) 76/464/EEC

If  the  discharger  states  that  he  is  unable  to  comply  with  the  required  emission
standards,  or  if  this  situation  is  evident  to  the  competent  authority  in  the  Member
State concerned, authorisation shall be refused.

Should the emission standards not be complied with, the competent authority in the
Member State concerned shall take all appropriate steps to ensure that the conditions
of authorisation are fulfilled and, if necessary, that the discharge is prohibited.

(cid:1) 76/464/EEC Art. 7 (adapted)

Article 6

In  order  to  reduce  pollution  of  the  waters  referred  to  in  Article  1  by  (cid:2) the
substances  belonging  to  the  families  and  groups  set  out  in  List  II  of  Annex  I,
hereinafter  known  as  “ (cid:3)substances  within  List  II  (cid:2) ” (cid:3) ,  Member  States  shall
establish programmes in the implementation of which they shall apply  in particular
the methods referred to in paragraphs 2 and 3.

(cid:1) 76/464/EEC

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.

The programmes referred to in paragraph 1 shall include quality objectives for water;
these shall be laid down in accordance with the Directives referred to in Annex IX to
Directive 2000/60/EC.

(cid:1) 76/464/EEC (adapted)

(cid:1) 76/464/EEC

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.

The programmes shall set deadlines for their implementation.

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

9

 
7.

The  Commission,  together  with  the  Member  States,  shall  arrange  for  regular
comparisons  of  the  programmes  in  order  to  ensure  sufficient  coordination  in  their
implementation.  If it sees fit, it shall submit relevant  proposals to the (cid:2) European
Parliament and to the (cid:3) Council to this end.

(cid:1) 76/464/EEC (adapted)

(cid:1) 76/464/EEC Art. 8

Article 7

Member  States  shall  take  all  appropriate  steps  to  implement  measures  adopted  by  them
pursuant to this  Directive in  such a way  as  not  to  increase  the  pollution  of  waters  to  which
Article  1  does  not  apply.  They  shall  in  addition  prohibit  all  acts  which  intentionally  or
unintentionally circumvent the provisions of this Directive.

(cid:1) 76/464/EEC Art. 9

Article 8

The  application  of  the  measures  taken  pursuant  to  this  Directive  may  on  no  account  lead,
either directly or indirectly, to increased pollution of the waters referred to in Article 1.

(cid:1) 76/464/EEC Art. 10

Article 9

Where  appropriate,  one  or  more  Member  States  may  individually  or  jointly  take  more
stringent measures than those provided for under this Directive.

(cid:1) 76/464/EEC Art. 11

Article 10

The competent authority shall draw up an inventory of the discharges into the waters referred
to in Article 1  which  may  contain  substances  within  List  I  to  which  emission  standards  are
applicable.

10

 
(cid:1) 76/464/EEC Art. 13

Article 11

(cid:1) 91/692/EEC Art. 2(1) and
Annex I point (a) (adapted)

1.

2.

3.

4.

At  intervals  of  three  years  the  Member  States  shall  send  information  to  the
Commission on the implementation of this Directive, in the form of a sectoral report
which  shall  also  cover  other  pertinent  Community  Directives.  This  report  shall  be
drawn  up  on  the  basis  of  a  questionnaire  or  outline  drafted  by  the  Commission  in
accordance  with  the  procedure  laid  down  in  Article  6  of  (cid:2) Council (cid:3)
Directive 91/692/EEC8.  The  questionnaire  or  outline  shall  be  sent  to  the  Member
States six months before the start of the period covered by the report. The report shall
be  sent  to  the  Commission  within  nine  months  of  the  end  of  the  three-year  period
covered by it.

The first report shall cover the period from 1993 to 1995 inclusive.

The  Commission  shall  publish  a  Community  report  on  the  implementation  of  the
Directive within nine months of receiving the reports from the Member States.

(cid:1) 76/464/EEC (adapted)

Information  acquired  as  a  result  of  the  application  of  (cid:2) paragraph  1 (cid:3)  shall  be
used only for the purpose for which it was requested.

The Commission and the competent authorities of the Member States, their officials
and other  servants  shall  not disclose information acquired  by  them  pursuant  to  this
Directive and of a kind covered by the obligation of professional secrecy.

The  provisions  of  paragraphs  2  and  3  shall  not  prevent  publication  of  general
information  or  surveys  which  do  not  contain  information  relating  to  particular
undertakings or associations of undertakings.

(cid:1) 76/464/EEC Art. 14 (adapted)

Article 12

The (cid:2) European Parliament and the (cid:3) Council, acting on a proposal from the Commission,
which  shall  act  on  its  own  initiative  or  at  the  request  of  a  Member  State,  shall  revise  and,
where necessary, supplement Lists I and  II (cid:2) of Annex I (cid:3) on the basis of experience, if
appropriate, by transferring certain substances from List II to List I.

8

OJ L 377, 31.12.1991, p. 48.

11

 
                                                
(cid:1) 

Article 13

Directive 76/464/EEC, as amended by the Directives listed in Annex  II, Part A, is repealed,
without  prejudice  to  the  obligations  of  the  Member  States  relating  to  the  time-limits  for
transposition into national law of the Directives set out in Annex II, Part B.

References  to  the  repealed  Directive  shall  be  construed  as  references  to  this  Directive  and
shall be read in accordance with the correlation table in Annex III.

This Directive shall enter into force on the twentieth day following that of its publication in
the Official Journal of the European Union.

Article 14

(cid:1) 76/464/EEC

Article 15

This Directive is addressed to the Member States.

Done at Brussels,

For the European Parliament
The President

For the Council
The President

12

 
(cid:1) 76/464/EEC Annex (adapted)

ANNEX I

List I of families and groups of substances

List  I  contains  certain  individual  substances  which  belong  to  the  following  families  and
groups  of  substances,  selected  mainly  on  the  basis  of  their  toxicity,  persistence  and
bioaccumulation,  with  the  exception  of  those  which  are  biologically  harmless  or  which  are
rapidly converted into substances which are biologically harmless:

1.

2.

3.

4.

5.

6.

7.

organohalogen  compounds and substances which may form such compounds  in  the
aquatic environment;

organophosphorus compounds;

organotin compounds;

substances  in  respect  of  which  it  has  been  proved  that  they  possess  carcinogenic
properties in or via the aquatic environment1;

mercury and its compounds;

cadmium and its compounds;

persistent mineral oils and hydrocarbons of petroleum origin;

and for the purposes of implementing Articles (cid:2) 3, 7, 8 and 12 (cid:3):

8.

persistent  synthetic  substances  which  may  float,  remain  in  suspension  or  sink  and
which may interfere with any use of the waters.

List II of families and groups of substances

List II contains:

(cid:1) 76/464/EEC (adapted)

– 

– 

1

substances belonging to the families and groups of substances in List I for which the
limit  values  Ö contained 
to
Directive 2000/60/EC Õ have not been determined Ö by those DirectivesÕ ,

the  Directives  referred 

in  Annex  IX 

in 

to 

certain individual substances and categories of substances belonging to the families
and groups of substances listed below,

(cid:1) 76/464/EEC

Where certain substances in List II are carcinogenic, they are included in category 4 of this list.

13

 
                                                
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.

Families and groups of substances referred to in the second indent

1.

The following metalloids and metals and their compounds:

1.

2.

3.

4.

5.

zinc

copper

nickel

6.

7.

8.

selenium

arsenic

antimony

11.

12.

13.

tin

barium

beryllium

chromium 9.

molybdenum 14.

boron

lead

10.

titanium

15.

uranium

16.

17.

18.

19.

20.

vanadium

cobalt

thalium

tellurium

silver

Biocides and their derivatives not appearing in List I.

Substances which have a deleterious effect on the taste and/or smell of the products
for human consumption derived from the aquatic environment.

and compounds liable to give rise to such substances in water.

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.

Inorganic compounds of phosphorus and elemental phosphorus.

Non persistent mineral oils and hydrocarbons of petroleum origin.

Cyanides, fluorides.

Substances which have an adverse effect on the oxygen balance, particularly:

ammonia, nitrites.

2.

3.

4.

5.

6.

7.

8.

14

 
Statement on Article (cid:2) 7 (cid:3)

(cid:1) 76/464/EEC (adapted)

With regard to the discharge of waste water into the open sea by means of pipelines, Member
States  undertake  to  lay  down  requirements  which  shall  be  not  less  stringent  than  those
imposed by this Directive.

____________

15

 
(cid:4)

ANNEX II

Part A

Repealed Directive with its successive amendments
(referred to in Article 13)

Council Directive 76/464/EEC (OJ L 129,
18.5.1976, p. 23)

Council Directive 91/692/EEC (OJ L 377,
31.12.1991, p. 48)

Annex I, point (a) only

Directive 2000/60/EC (OJ L 327, 22.12.2000,
p. 1)

only as regards the reference in Article
22(2), fourth indent, to Article 6 of
Directive 76/464/EEC

Part B

List of time-limits for transposition into national law
(referred to in Article 13)

Directive

Time-limit for transposition

76/464/EEC

91/692/EEC

2000/60/EC

_____

1 January 1993

22 December 2003

_____________

16

 
ANNEX III

CORRELATION TABLE

Directive 76/464/EEC

This Directive

Article 1(1), introductory wording

Article 1, introductory wording

Article 1(1), first indent

Article 1(1), second indent

Article 1(1), third indent

Article 1(1), fourth indent

Article 1(a)

Article 1(b)

Article 1(c)

____

Article 1(2), introductory wording

Article 2, introductory wording

Article 1(2)(a),(b) and (c)

Article 2(a), (b) and (c)

Article 1(2)(d), first indent

Article 1(2)(d), second indent

Article 1(2)(d), third indent

Article 1(2)(e)

Article 2

Article 2(d)(i)

Article 2(d)(ii)

Article 2(d)(iii)

Article 2(e)

Article 3

Article 3, introductory wording

Article 4, introductory wording

Article 3, point (1)

Article 3, point (2)

Article 3, point (3)

Article 3, point (4)

Article 4

Article 5

Article 7

Article 8

Article 9

Article 10

Article 11

Article 4(a)

Article 4(b)

Article 4(c)

Article 4(d)

_____

Article 5

Article 6

Article 7

Article 8

Article 9

Article 10

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Article 12

Article 13

Article 14

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Article 15

Annex

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Article 11

Article 12

Article 13

Article 14

Article 15

Annex I

Annex II

Annex III

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