1 By application lodged at the Court Registry on 18 June 1996, the Commission of the European Communities brought an action under Article 169 of the EC Treaty for a declaration that, by failing to adopt programmes for the reduction of pollution including quality objectives for water, alternatively, by failing to communicate to the Commission summaries of those programmes and the results of their implementation, contrary to Article 7 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, hereinafter `the Directive'), the Grand Duchy of Luxembourg has failed to fulfil its obligations under the EC Treaty.
2 The Directive is intended to secure the elimination of pollution of the aquatic environment by certain particularly dangerous substances and the reduction of pollution of that environment by certain other dangerous substances, respectively enumerated in List I and List II in the annex thereto. In order to attain that objective, the Member States are required by Article 2 of the Directive to take the appropriate measures.
3 List I comprises substances selected mainly on the basis of their toxicity, persistence and bioaccumulation. Under Articles 3 and 6 of the Directive, the Member States are required to make all discharges of those substances into the aquatic environment conditional on the grant of prior authorisation by the competent authorities and to fix emission standards which must not exceed limit values to be laid down by the Council in accordance with the effects of those substances on the aquatic environment.
4 According to the first indent in List II, that list contains substances within List I for which the Council has not yet determined limit values. Accordingly, List II currently includes 99 substances which are contained in List I.
5 Next, according to the second indent in List II, that list contains substances the deleterious effect of which on the aquatic environment can be confined to a given area and which depend on the characteristics and location of the water into which they are discharged. At a meeting of national experts held on 31 January and 1 February 1989, a list of such substances, regarded as `priority' substances, was finalised.
6 In order to reduce water pollution by the substances within List II, Article 7 of the Directive requires the Member States to establish programmes in the implementation of which are they obliged to make all discharges containing, in particular, any of the substances within List II conditional on the grant of prior authorisation and to establish quality objectives for water. Under Article 7(6) of the Directive, summaries of the programmes and the results of their implementation are to be communicated to the Commission.
7 The Directive does not lay down any deadline for its transposition. Nevertheless, Article 12(2) provides that the Commission is to forward to the Council, where possible within 27 months following notification of the Directive, the first proposals made on the basis of the comparative examination of the programmes established by the Member States. The Commission considered that the Member States would not be in a position to provide it with the relevant details within that time, and therefore proposed to them, by letter of 3 November 1976, that the programmes be established by 15 September 1981 and implemented by 15 September 1986.
8 Following the meeting of experts on 31 January and 1 February 1989, the Commission requested the Luxembourg Government, by note of 26 September 1989, to provide it with information on the adoption of programmes in respect of the substances referred to in the second indent in List II which were regarded as `priority' substances. The Luxembourg Government did not reply to that request.
9 By letter of 4 April 1990 the Commission requested the Luxembourg Government to communicate to it (a) an up-to-date list stating which of the 99 substances within List I requiring, according to the first indent in List II, to be treated as substances in the latter list were being discharged into the aquatic environment in Luxembourg, (b) the quality objectives applicable at the time of the grant of authorisations for the discharge of waste liable to contain any of those substances and (c) the reasons for which those objectives had not been fixed, together with a timetable specifying the date on which those objectives would be established. That letter also went unanswered.
10 By letter of 26 February 1991 the Commission gave formal notice to the Luxembourg Government requiring the latter to submit its observations within two months. The Luxembourg Government did not reply to that letter.
11 On 25 May 1993 the Commission sent the Luxembourg Government a reasoned opinion stating its view that, by failing to adopt programmes for the reduction of pollution including quality objectives in respect of the 99 dangerous substances listed in the annex thereto, alternatively, by failing to communicate to the Commission summaries of those programmes and the results of their implementation, contrary to Article 7 of the Directive, and by failing, contrary to Article 5 of the EC Treaty, to provide the Commission with the information requested in that regard, the Grand Duchy of Luxembourg had failed to fulfil its obligations under the EC Treaty. The applicant requested the defendant State to take the necessary steps to comply with the reasoned opinion within two months. That reasoned opinion also elicited no response. Admissibility of the application
12 Article 92(2) of the Rules of Procedure provides that the Court may at any time of its own motion consider whether there exists any absolute bar to proceeding with a case.
13 According to settled case-law (Case C-96/95 Commission v Germany [1997] ECR I-1653, paragraph 22), 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 complaints made 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. Consequently, the action cannot be founded on any complaints other than those formulated in the reasoned opinion (Commission v Germany, cited above, paragraph 23).
14 In the present case, it must be recalled that the Commission complained in the reasoned opinion that the Grand Duchy of Luxembourg had not adopted or communicated programmes to reduce pollution `in respect of the 99 dangerous substances listed in the annex', namely those within List I which, in the absence of any determination of their limit values, are provisionally contained in List II (in accordance with the first indent in the latter list). In its application to the Court, on the other hand, the Commission requests the Court to declare more generally that, by failing to adopt or communicate the programmes for the reduction of pollution, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 7 of the Directive.
15 The failure to fulfil obligations of which the Commission thus complains must be taken, therefore, to relate to all of the substances mentioned in the first and second indents in List II, and not merely to the 99 substances covered by the first indent, which form the subject-matter of the reasoned opinion. In those circumstances, that part of the application which seeks a declaration that the Grand Duchy of Luxembourg has failed to fulfil the obligations laid down in Article 7 of the Directive in respect of substances which are referred to in List II but which are not included amongst the 99 priority substances must be declared inadmissible. Substance
16 The Commission submits that, since it is common ground that the result to be achieved with regard to the substances in List II is the formulation and implementation of the programmes and the analysis and communication to the Commission of the results thereof, the Grand Duchy of Luxembourg, having at no time taken steps to establish and implement those programmes, has failed to fulfil its obligations under the Treaty.
17 It observes that, as regards in particular the substances referred to in the first indent in List II, Articles 2 and 7 of the Directive do not apply solely to discharges from the industrial and commercial sectors. Furthermore, the absence of a programme can be justified not by the non-existence of any such sectors processing the substances in question but by the absence of pollution of the aquatic environment. Even where such a situation exists, the Member State concerned is required to inform the Commission of the absence of pollution, in order to justify the fact that it does not propose to establish any programmes.
18 The Luxembourg Government maintains that it has not established the programmes referred to in Article 7(1) of the Directive since there was no need for them. It states that there are no waste-producing industrial or commercial sectors in Luxembourg which process any of the 99 substances in issue. Consequently, there are no discharges of waste water from those sectors which are liable to contain such substances.
19 However, if an application were to be submitted for the operation of an establishment for the processing of any of the substances in question, the relevant standards applicable to the grant of authorisation for the requisite discharge would be formulated pursuant, in particular, to the Law of 29 July 1993 on the protection and management of water and the Law of 9 May 1990 on establishments which are dangerous or insalubrious or which carry on noisy or noxious trades; those standards would be established on the basis of the best technological methods available.
20 It must be observed, first, that the programmes referred to in Article 7(1) of the Directive are intended to reduce water pollution. Article 1(2)(e) of the Directive defines pollution as `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'. Consequently, the obligation to establish programmes as provided for in Article 7(1) extends to cover waters affected by such waste. The Luxembourg Government and the Commission are agreed on that point.
21 As regards, second, the degree of water pollution in Luxembourg, it should be noted that the Commission requested the Luxembourg Government several times to communicate to it (a) an up-to-date list stating which of the 99 substances within List I requiring, according to the first indent in List II, to be treated as substances in the latter list were being discharged into the aquatic environment in Luxembourg, (b) the quality objectives applicable at the time of the grant of authorisations for the discharge of waste liable to contain any of those substances and (c) the reasons for which those objectives had not been fixed, together with a timetable specifying the date on which those objectives would be established. Those requests elicited no response.
22 At the hearing, the representative of the Luxembourg Government did not contest the Commission's assertion that industries of the type operating in Luxembourg necessarily discharge into water substances covered by the Directive. He even acknowledged that some of those substances are discharged into the aquatic environment in Luxembourg, although he did not specify the substances in question. He also admitted that the Luxembourg legislation does not contain quality objectives of the type referred to in Article 7(3) of the Directive.
23 In those circumstances, it must be held that, by failing to adopt programmes to reduce pollution in respect of 99 substances within List I in the annex to the Directive which require, according to the first indent in List II, to be treated as substances in the latter list, the Grand Duchy of Luxembourg has failed to fulfil its obligations under the said Directive.