Commission of the European Communities v Kingdom of Belgium.
Date: 1999-01-21
24 In so far as the defending Government's purpose in making that assertion may be to raise doubts as to the admissibility of the action, it should first be recalled that the Court has consistently held that, given the Commission's role as guardian of the treaties, that institution alone is competent to decide whether it is appropriate to initiate the procedure under Article 169 (Case C-431/92 Commission v Germany [1995] ECR I-2189, paragraph 22).  The Commission also enjoys sole competence to decide whether the pre-litigation procedure should be taken further by delivering a reasoned opinion and, on completion of that procedure, it has the right, but not the duty, to commence proceedings before the Court for a declaration that the Member State concerned is in breach of its obligations as alleged (see, to that effect, Case 247/87 Star Fruit v Commission [1989] ECR 291, paragraph 12, and Case C-191/95 Commission v Germany [1998] ECR I-5449, paragraph 46).
25 Secondly, as has been held in the case-law of the Court, the rules of Article 169 of the Treaty must be applied with no attendant obligation on the Commission to act within a specific period, save where the excessive duration of the pre-litigation procedure laid down by Article 169 is capable of making it more difficult for the Member State concerned to refute the Commission's arguments and of thus infringing the rights of defence (Case C-96/89 Commission v Netherlands [1991] ECR I-2461, paragraphs 15 and 16). Consequently, it is for the Member State concerned to provide evidence that it has been so affected.
34 Consequently, the substances in question belong to List I but they stand in need of more specific legislative provision, such as specific directives adopted by the Council, with a view to fixing their emission limit values and eliminating the pollution which they cause.
35 However, it is clear from the system set up by the Directive and from the wording of the first indent of List II of the Annex thereto that, so long as the Council has not determined emission limit values, there is absolutely no need for more specific legislative provision before the substances in question, which have been identified, are to be treated as List II substances by the Member States.  The latter are under an obligation to establish the programmes referred to in Article 7 of the Directive in order to reduce pollution, at least in the case of pollution caused by any of the substances at issue which is likely to be present in waste discharged in their territory (see Case C-206/96 Commission v Luxembourg [1998] ECR I-3401).  Thus the Directive cannot be regarded as a framework-directive so far as that obligation is concerned.
39 On that point it should be noted that, according to established case-law, the programmes to be established under Article 7 of the Directive must be specific.  Thus, the objective of reducing pollution pursued by general purification programmes does not necessarily correspond to the more specific objective of the Directive (Joined Cases C-232/95 and C-233/95 Commission v Greece [1998] ECR I-3343, paragraph 35).
40 What is specific to the programmes in question is the fact that they must embody a comprehensive and coherent approach, covering the entire national territory of each Member State and providing practical and coordinated arrangements for the reduction of pollution caused by any of the substances in List II which is relevant in the particular context of the Member State concerned, in accordance with the quality objectives fixed by those programmes for the waters affected.  They differ, therefore, both from general purification programmes and from bundles of ad hoc measures designed to reduce water pollution.
41 It should be added that the quality objectives fixed by those programmes on the basis of analyses of the waters affected serve as the point of reference for calculating the emission standards specified in the prior authorisations.  Moreover, those programmes must be communicated to the Commission in a form which facilitates comparative appraisal and their harmonised implementation in all the Member States.
42 However, the national measures at issue do not meet those criteria.
43 In the first place, they do not cover all the substances to which the Commission's application relates.   In any event, the Belgian Government has not specified which substances are relevant in the national context.
45 Similarly, although the various sectoral decrees and the codes of good agricultural practice may assist in reducing water pollution, they are merely ad hoc measures, not comprehensive and coherent programmes for pollution reduction, based on studies of the waters affected and setting quality objectives.  Although it might be possible to take the view that those measures reflect implied programming, as the Belgian Government maintains, that is not sufficient to characterise them as programmes for the purposes of Article 7 of the Directive.