Commission of the European Communities v Kingdom of the Netherlands.
Date: 2001-05-10
20 That argument cannot be upheld. Under the system laid down by Article 169 of the Treaty, the Commission has a discretion to bring an action for failure to fulfil obligations and it is not for the Court to assess whether it was appropriate to exercise that discretion.
21 Furthermore, it is settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined as at the end of the period laid down in the reasoned opinion (see, inter alia, Case C-384/97 Commission v Greece [2000] ECR I-3823, paragraph 35). Even if Directive 96/61 and the new framework directive have altered the Community's approach to strategies for combating water pollution, that does not affect the obligations of the Kingdom of the Netherlands as at the end of the period laid down by the reasoned opinion.
22 With regard to the subject-matter of the action, it is to be remembered that under Article 92(2) of the Rules of Procedure the Court may at any time of its own motion consider whether there exists any absolute bar to proceeding with a case.
23 It is settled case-law that the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity, on the one hand, to comply with its obligations under Community law and, on the other, to avail itself of its right to defend itself against the objections formulated by the Commission. The subject-matter of an action brought under Article 169 of the Treaty is, therefore, delimited by the pre-litigation procedure provided for by that article. Accordingly, the action cannot be founded on any objections other than those stated in the pre-litigation procedure (see, to that effect, Case 51/83 Commission v Italy [1984] ECR 2793, paragraph 4, Case C-206/96 Commission v Luxembourg [1998] ECR I-3401, paragraph 13, and Case C-392/96 Commission v Ireland [1999] ECR I-5901, paragraph 51).
32 With regard to the interpretation of the first indent of the first paragraph of List II in Directive 76/464, and in particular of the notion of substances for which limit values have not been determined, the Court has already pointed out that it is clear both from the system set up by that directive and from the wording of the first indent that, so long as limit values are not determined for substances covered by List I, those substances are to be provisionally treated as List II substances governed by Article 7 of the directive (see Case C-207/97 Commission v Belgium [1999] ECR I-275, paragraphs 34 and 35, and Case C-184/97 Commission v Germany [1999] ECR I-7837, paragraph 27).
33 As to the directive's objective, even though it is true that the laying down of emission limit values by the Council is intended to eliminate water pollution caused by List I substances, while the regime prescribed in Article 7 of Directive 76/464 is designed only to establish programmes including quality objectives with a view to reducing pollution, the elimination of pollution, referred to in Article 2 of the directive, is not likely to be brought about merely by laying down the limit values because, in the end, it is entirely dependent on the level at which the values are fixed (see, in that regard, Commission v Germany, cited above, paragraph 39). Therefore, provisionally bringing List I substances under the regime prescribed for List II substances does not derogate from the directive's objective.
35 With regard to the alleged failure to act on the part of the institutions, as the Court has already stated in Commission v Germany, cited above, at paragraph 45, Directive 76/464 itself lays down in a binding manner the measures to be taken by the Member States where the Council does not lay down emission limit values for List I substances. Therefore, that directive does not dispense the Member State from complying with the obligations which it imposes pending adoption of measures by the Council under Article 6.
41 The Netherlands Government does not deny that it had not set quality objectives for titanium, boron, uranium, tellurium, silver and the substances falling within the fourth category at the date on which the period laid down in the reasoned opinion expired. As the Court has held, it is irrelevant whether the failure of a Member State to fulfil its obligations is the result of technical difficulties encountered by it (see, in particular, Case C-71/97 Commission v Spain [1998] ECR I-5991, paragraph 15, and Case C-333/99 Commission v France [2001] ECR I-1025, paragraph 36).
43 As regards the argument of the Netherlands Government concerning an obligation to establish quality objectives only for the emission standards laid down in authorisations under Article 7(2) of Directive 76/464, it is to be recalled that the programmes referred to in Article 7(1) of the directive must, in accordance with Article 7(3), include quality objectives for water. Those objectives are intended to reduce pollution. It is clear that the quality of the aquatic environment is closely linked to its level of polluting substances. Accordingly, those programmes must establish quality objectives concerning the presence of polluting substances. The argument of the Netherlands Government therefore cannot be upheld.