1 By judgment of 17 June 1997, received at the Court on 25 June 1997, the Nederlandse Raad van State (Council of State) referred to the Court for a preliminary ruling under Article 177 of the EC Treaty (now Article 234 EC) six questions on the interpretation 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), 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), as amended by European Parliament and Council Directive 94/60/EC of 20 December 1994 (OJ 1994 L 365, p. 1), and 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 (OJ 1986 L 181, p. 16).
2 Those questions were raised in proceedings brought by L. Nederhoff & Zn. (hereinafter `Nederhoff') against the decision of the Dijkgraf en Hoogheemraden van het Hoogheemraadschap Rijnland (hereinafter `the competent authority') refusing to grant it authorisation to place posts treated with creosote in surface water. Legal background Community law Directive 76/464
3 The aim of Directive 76/464 is to combat pollution of water. It was adopted on the basis of Articles 100 and 235 of the EC Treaty (now Articles 94 EC and 308 EC).
4 Article 1(2)(d) and (e) of that directive contains the following definitions of `discharge' and `pollution': `"discharge" means the introduction into the waters referred to in paragraph 1 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; "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.'
5 Article 2 of Directive 76/464 obliges Member States to `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 the Annex and to reduce pollution of the said waters by the dangerous substances in the families and groups of substances in List II of the Annex, in accordance with this Directive, the provisions of which represent only a first step towards this goal.'
6 Articles 3 to 6 of that directive contain rules concerning the substances in List I. Those rules make all discharges of such substances subject to prior authorisation laying down emission standards, which may not exceed certain limit values laid down by the Council acting on a proposal from the Commission. According to the first indent of List II of the Annex to the directive, substances belonging to the families and groups of substances in List I for which the limit values referred to in Article 6 have not been determined are contained in List II.
7 Article 7(1) and (2) of the directive provides: `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.'
8 Article 10 of the directive provides: `Where appropriate, one or more Member States may individually or jointly take more stringent measures than those provided for under this Directive.' Directive 86/280
9 Directive 86/280, which implements Article 6 of Directive 76/464 by fixing limit values and quality objectives for discharges of certain dangerous substances in List I of the Annex to Directive 76/464, also contains rules not provided for in that directive.
10 Thus, according to the tenth recital in the preamble to Directive 86/280, `in the case of certain significant sources of pollution ... other than sources subject to Community limit values or national emission standards, specific programmes should be devised to eliminate the pollution; ... the necessary powers to that effect have not been provided by Directive 76/464/EEC'.
11 Article 5(1) of Directive 86/280 provides: `As regards substances to which specific reference is made in Annex II, the Member States shall draw up 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.' Directive 76/769
12 Directive 76/769 contains provisions on the conditions of use of certain substances listed in an annex. Creosote appears in point 32 of Annex I, as amended by Directive 94/60. Point 32 defines the conditions under which the use of creosote and creosote oil is permitted.
13 According to Article 1(1) of Directive 76/769: `Without prejudice to the application of other relevant Community provisions, this Directive is concerned with restricting the marketing and use in the Member States of the Community, of the dangerous substances and preparations listed in the Annex.' Netherlands legislation
14 The Wet verontreiniging oppervlaktewateren (Law on Pollution of Surface Waters, hereinafter `the WVO') entered into force on 1 December 1970. The Law of 24 June 1981 (Stbl. 1981, p. 414) made certain amendments to the WVO which were necessary following the adoption of Directive 76/464. It appears from the documents in the case that the WVO is regarded as the instrument which transposed that directive into Netherlands law.
15 In order to combat pollution of surface water, Article 1 of the WVO prohibits the unauthorised introduction into such water of waste or polluting or harmful substances. The system of authorisation set up distinguishes in this respect between: - mechanical discharges (Article 1(1) of the WVO) and - non-mechanical discharges (Article 1(3) of the WVO).
16 The decree of 28 November 1974 implementing the WVO (Stbl. 1974, p. 709) contains more detailed provisions on non-mechanical discharges.
17 Under Article 3(1) of that decree, it is prohibited to introduce into surface water in any way whatever any waste or polluting or harmful substance listed in the annex to that decree. The main proceedings
18 It appears from the documents in the case that Nederhoff used wooden posts treated with creosote for shoring up banks.
19 That substance contains polycyclic aromatic hydrocarbons (PAHs) and therefore belongs to the families and groups of substances mentioned in List I of the Annex to Directive 76/464. However, since no limit value has yet been fixed pursuant to Article 6 of that directive for those hydrocarbons, creosote comes under the rules for substances in List II of that annex.
20 Nederhoff did not request authorisation to place those posts in surface water. By letter of 5 January 1995, however, in order to regularise the situation, it applied to the competent authority for authorisation.
21 The authority rejected the application for authorisation on the ground that, since it is not possible to avoid PAHs escaping from the creosoted posts and causing pollution of water, it is preferable to use alternative solutions which are less harmful to the environment, the additional costs of which are compensated by the interests of protection of the environment.
22 The refusal to grant the authorisation sought was thus based on the competent authority's policy that the emission of PAHs should be combated above all at the source (the `source approach') by looking for alternative materials which are more ecological. Only if the source approach produces unsatisfactory results does the competent authority carry out a test in accordance with the water quality standards laid down in the water management plan (Waterbeheersplan) of 1992.
23 Nederhoff appealed against the refusal to the Raad van State, submitting primarily that Article 1(3) of the WVO applies to discharges, not to diffuse sources of pollution. It argued that national authorities are entitled 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, namely discharges.
24 Nederhoff also submitted that the policy followed by the competent authority amounted to rendering the grant of authorisation virtually impossible. That policy therefore had the effect of a general prohibition which was incompatible with Article 3 of Directive 76/464.
25 Nederhoff further maintained that, as regards the use of pesticides such as creosote, provisions had been laid down by or pursuant to the Bestrijdingsmiddelenwet (Law on Pesticides), so that there could not be any requirement of authorisation for the use of posts injected with creosote.
26 In the judgment making the reference, the Raad van State observes that it has hitherto applied a comparatively broad interpretation of the term `discharge', without distinguishing between the `significant sources of these substances (including multiple and diffuse sources)' mentioned in Article 5(1) of Directive 86/280 and `sources of discharges'. According to the Raad van State, that interpretation has the consequence that authorisation is required for a large number of diffuse sources of pollution of surface water, although those sources, unlike `sources of discharges', are not subject to the rules on Community limit values or national emission standards.
27 The Raad van State further considers that, by requiring an applicant for authorisation to examine whether there is an alternative solution which causes less pollution, and if so to apply it if that is reasonable, the competent authority is imposing, when assessing applications for authorisation, an additional requirement which is not in Directive 76/464.
28 Having regard to the above considerations, the Nederlandse Raad van State stayed proceedings and 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 of a Member State to give another, more wide-ranging meaning to the term "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 or 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 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
29 By this question the national court essentially asks whether the term `discharge' in Article 1(2)(d) of Directive 76/464 is to be interpreted as including also the pollution from significant sources, including multiple and diffuse sources, referred to in Article 5(1) of Directive 86/280.
30 The Netherlands Government, referring to the wording of the two directives, submits that Community law has established two complementary systems. The system introduced by Directive 76/464 lays down an obligation for authorisation for any discharge attributable to an act, while the system introduced by Directive 86/280 provides for the elimination of pollution by means of programmes in cases where, because of its diffuse nature, it cannot be clearly attributed to an act. Since the two systems are complementary, the concept of `discharge' does not cover that of `multiple and diffuse sources'.
31 According to the Finnish Government, the concept of `discharge' in Directive 76/464 includes also an indirect discharge which causes water pollution.
32 The Commission submits that `discharge' within the meaning of Article 1(2)(d) of Directive 76/464 covers all sources of discharges, including `multiple and diffuse sources', which are merely one form of discharge of substances. However, the obligation of authorisation laid down in Articles 3 and 7 of Directive 76/464 applies only if there is a causal link between the discharge and the pollution which that directive aims to eliminate or reduce.
33 In order to answer the question, the Court must consider first the term `discharge' in Directive 76/464 and then the concept of `pollution' from significant sources, including multiple and diffuse sources, in Article 5(1) of Directive 86/280.
34 With respect, first, to the term `discharge', that term is defined by Article 1(2)(d) of Directive 76/464 as `the introduction into the waters referred to in paragraph 1 of any substances in List I or List II of the Annex ...'.
35 To determine whether that definition covers all sources of pollution, as the Commission claims, or only pollution caused by an act, as the Netherlands Government submits, regard must be had to the concept of `pollution' in Directive 76/464. The term `discharge' within the meaning of that directive cannot, as regards the sources of pollution which are covered by it, differ in scope from the concept of `pollution' within the meaning of the same directive.
36 Article 1(2)(e) of that directive provides in this respect that `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.
37 It follows that the term `discharge' in Article 1(2)(d) of Directive 76/464 must be understood as referring to any act attributable to a person by which one of the dangerous substances listed in List I or List II of the Annex to the directive is directly or indirectly introduced into the waters to which the directive applies.
38 That interpretation is borne out by the system established by Directive 76/464, under Articles 3 and 7(2) of which any discharge into the waters referred to in Article 1 of the directive of substances in List I or List II of the annex thereto is subject to the grant of authorisation ensuring that Community limit values are complied with and laying down national emission standards. Neither the application for nor the grant, if any, of authorisation makes sense unless the discharge can be attributed to a person.
39 With respect, second, to the concept of `pollution' from significant sources, including multiple and diffuse sources, in Article 5(1) of Directive 86/280, it is apparent from the very wording of that provision that the obligation of the Member States to avoid or eliminate, by means of specific programmes, pollution from such sources does not refer to sources of discharges subject to Community limit value rules or national emission standards, that is, cases where the pollution is caused by an act attributable to a person, which are subject to the system established by Directive 76/464.
40 It follows that the significant sources of substances, including multiple and diffuse sources, mentioned in Article 5(1) of Directive 86/280 relate to cases where the pollution, precisely because of its diffuse nature, cannot be attributed to a person and therefore cannot be the subject of prior authorisation.
41 That is why Article 5(1) of Directive 86/280, since no obligation of authorisation is conceivable, requires the Member States to avoid or eliminate pollution of that kind by means of specific programmes and why, as appears from the tenth recital in the preamble to that directive, the necessary powers to take action to that end derive not from Directive 76/464 but from Article 235 of the Treaty.
42 It follows that Community law has established two distinct systems for combating pollution of surface water by dangerous substances: first, a system of authorisation under Articles 3 and 7 of Directive 76/464, applicable where the pollution derives from an act attributable to a person in the form of a discharge, and, second, a system of specific programmes under Article 5 of Directive 86/280, applicable where the pollution cannot be attributed to a person because it derives from multiple and diffuse sources.
43 The answer to Question 1 must therefore be that the term `discharge' in Article 1(2)(d) of Directive 76/464 is to be interpreted as not including the pollution from significant sources, including multiple and diffuse sources, referred to in Article 5(1) of Directive 86/280. Question 2
44 In order to answer this question, which is asked in case the answer to Question 1 is negative, it must be noted that, as appears from the facts of the main proceedings, the escape of creosote and hence the pollution of surface water is the consequence of the introduction into those waters by Nederhoff of wooden posts treated with creosote.
45 Consequently, having regard to the conclusion in paragraph 40 above, the answer to this question must be that the expression `significant sources ... (including multiple and diffuse sources)' in Article 5(1) of Directive 86/280 is to be interpreted as not including the escape of creosote from wooden posts placed in surface water, where the pollution caused by that substance is attributable to a person. Question 3
46 This question, which is asked in particular in case Questions 1 and 2 are answered in the negative, distinguishes two hypotheses which, as the Advocate General points out in point 27 of his Opinion, may 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 by Nederhoff of wooden posts treated with creosote.
47 Having regard to the finding in paragraph 37 above, such a phenomenon constitutes a `discharge' within the meaning of Article 1(2)(d) of Directive 76/464, in that the pollution of surface water derives from an act attributable to a person, namely the placing in those waters of wooden posts treated with creosote, which on contact with the water is released from the wood in the form of pollution-causing particles.
48 The answer to Question 3 must therefore be that the term `discharge' in Article 1(2)(d) of Directive 76/464 is to be interpreted as including the placing by a person in surface water of wooden posts treated with creosote. Question 4
49 As follows from its wording, this question is asked in case the answer to Question 3 is negative.
50 In view of the answer to Question 3, there is no need to answer Question 4. Question 5
51 By this question, which is asked in particular in case the answer to Question 3 is affirmative, the national court asks whether Article 3 of Directive 76/464, taken if appropriate in conjunction with Article 10 thereof, permits Member States to make the authorisation of a discharge 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 if so, whether such a requirement may have the effect of making the grant of authorisation impossible or altogether exceptional.
52 It should be observed that under Article 3 of Directive 76/464 all discharges of substances in List I of the annex to that directive into the waters referred to in Article 1 of the directive are subject to prior authorisation, laying down emission standards, by the competent authority of the Member State concerned.
53 For discharges of such substances, Article 5(2) of that directive provides: `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 laid down by the Council pursuant to Article 6, taking into account in particular the toxicity, persistence, and bioaccumulation of the substance concerned in the environment into which it is discharged.'
54 Finally, more generally, Article 10 of Directive 76/464 authorises Member States to take more stringent measures than those provided for in the directive.
55 It follows that Directive 76/464 permits Member States to make the authorisation of a discharge subject to additional requirements not provided for in that directive in order to protect the aquatic environment of the Community against pollution caused by certain dangerous substances.
56 The obligation to investigate or choose alternative solutions which have less impact on the environment constitutes such a requirement, and Member States may therefore legitimately make the grant of authorisation of a discharge conditional on compliance with that obligation.
57 As to whether such an additional requirement may have the effect of making the grant of authorisation quite exceptional or even impossible, it must be observed that the substance concerned in the main proceedings, creosote, belongs to the families and groups of substances in List I of the Annex to Directive 76/464 in respect of which, under Article 2 of that directive, the Member States are obliged to take the appropriate steps to eliminate pollution.
58 Thus, even if the additional requirement at issue has the effect of making the grant of authorisation altogether exceptional or even impossible, such a consequence is consistent with the objective pursued by the directive for substances of that kind.
59 The circumstance that, since the Council has not fixed the limit values for creosote, it comes provisionally under the rules for the substances in List II of the Annex to Directive 76/464, in respect of which Member States are obliged merely to reduce pollution, not to eliminate it, cannot alter that conclusion.
60 While Member States are in any event, with respect to substances in List II, obliged to reduce pollution, they may also, in accordance with Article 10 of the directive, take more stringent measures with a view to eliminating pollution caused by those substances, all the more so where the substance in question is subject only provisionally to the rules for substances in List II.
61 Consequently, the answer to Question 5 must be that Directive 76/464 permits Member States to make the authorisation for a discharge subject to additional requirements not provided for in that directive, in order to protect the aquatic environment of the Community against pollution caused by certain dangerous substances. The obligation to investigate or choose alternative solutions which have less impact on the environment constitutes such a requirement, even if it may have the effect of making the grant of authorisation impossible or altogether exceptional. Question 6
62 By this question, which is asked in particular in case the answer to Question 3 is affirmative, the national court asks whether the limitative conditions for the use of creosote laid down in point 32 of Annex I to Directive 76/769, as amended by Directive 94/60, preclude an authority of a Member State, when considering applications for authorisation concerning the introduction into surface water by professional users of wood treated with that substance, from establishing criteria of assessment such that its use is impossible or altogether exceptional.
63 That raises the question whether Directive 76/769, as amended, which merely introduces restrictions on the marketing and use of wood treated with creosote, precludes a national water protection measure which has the effect of prohibiting or permitting only in exceptional cases the use of that substance for treating wood to be introduced into surface water.
64 Even if the effects of a national measure such as that at issue in the main proceedings may be regarded as an obstacle to the free movement of products containing creosote, as regulated by Directive 76/769, it is sufficient to note that, in accordance with Article 1 thereof, that directive applies `without prejudice to the application of other relevant Community provisions'.
65 Such are the provisions of Directive 76/464, Article 10 of which, as stated in paragraph 61 above, permits Member States to adopt measures concerning discharges which may go so far as to make the grant of authorisation for a discharge impossible or altogether exceptional, and consequently also to make the actual use of the dangerous substance connected with the discharge impossible or altogether exceptional.
66 Consequently, the answer to Question 6 must be that the limitative conditions for the use of creosote laid down in point 32 of Annex I to Directive 76/769, as amended by Directive 94/60, do not preclude an authority of a Member State, when considering applications for authorisation concerning the introduction into surface water by professional users of wood treated with that substance, from establishing criteria of assessment such that its use is impossible or altogether exceptional.