1 By application lodged at the Court Registry on 17 April 1998, the Commission of the European Communities brought an action under Article 169 of the EC Treaty (now Article 226 EC) for a declaration that, by failing to take adequate steps to transpose Article 7(1), (2) and (3) 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), the Kingdom of the Netherlands has failed to fulfil its obligations under that directive and Article 189 of the EC Treaty (now Article 249 EC). Relevant provisions
2 As stated in the first recital in its preamble, Directive 76/464 is intended to protect the aquatic environment of the Community from pollution, particularly that caused by certain persistent, toxic and bioaccumulable substances.
3 Directive 76/464 distinguishes for that purpose between two categories of dangerous substances, which its annex classifies respectively in List I and List II of families and groups of substances.
4 List I in the annex to Directive 76/464 (hereinafter List I) contains certain individual substances which belong to the families and groups of substances set out in that list and are selected mainly on the basis of their toxicity, persistence and bioaccumulation.
5 It is apparent from Articles 2 and 3 of Directive 76/464 that the regime governing List I substances is intended to eliminate water pollution caused by those substances, all discharges of which require prior authorisation by the competent authority of the Member State concerned. Authorisations must lay down emission standards where that is necessary for implementation of the directive.
6 Article 6(1) and (2) provides with regard to List I substances that the Council, acting on a proposal from the Commission, is to lay down the limit values which the emission standards must not exceed and quality objectives set principally on the basis of the toxicity, persistence and accumulation of those substances in living organisms and in sediment.
7 The Commission submitted a list of 129 priority substances in its communication to the Council of 22 June 1982 on dangerous substances which might be included in List I (OJ 1982 C 176, p. 3). The Council took note thereof by its resolution of 7 February 1983 concerning the combating of water pollution (OJ 1983 C 46, p. 17). Three priority substances have since been added to that list, bringing to 132 the total number of substances covered. Those individual substances belonging to the families and groups of substances in List I may be the subject of Council measures setting emission limit values and quality objectives, in accordance with Article 6 of Directive 76/464. However, for 114 of those substances limit values have not been determined at Community level.
8 List II in the annex to Directive 76/464 (hereinafter List II) contains substances having a deleterious effect on the aquatic environment which can, however, be confined to a given area and which depends on the characteristics and location of the water into which they are discharged.
9 The first paragraph of List II states: List II contains: - substances belonging to the families and groups of substances in List I for which the limit values referred to in Article 6 of the Directive have not been determined, - certain individual substances and categories of substances belonging to the families and groups of substances listed below, ....
10 The families and groups of substances referred to in the second indent of the first paragraph of List II are eight in number. The first category is composed of metalloids and metals, including titanium, boron, uranium, tellurium and silver and their compounds. The fourth category comprises 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.
11 According to Article 2 of Directive 76/464, the regime governing List II substances is intended to reduce water pollution caused by those substances through the taking of appropriate steps.
12 Article 7 provides in that regard: 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. 3. The programmes referred to in paragraph 1 shall include quality objectives for water; these shall be laid down in accordance with Council directives, where they exist. 4. 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. 5. The programmes shall set deadlines for their implementation. 6. Summaries of the programmes and the results of their implementation shall be communicated to the Commission. 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 Council to this end.
13 Directive 76/464 does not set a time-limit for its transposition. However, under Article 12(2) the Commission was to forward to the Council, where possible within 27 months following notification of the directive, the first proposals drawn up on the basis of comparison of the programmes established by the Member States. Since the Commission considered that the Member States were not in a position to provide it with relevant information within that period, it proposed to them, by letter of 3 November 1976, the adoption of 15 September 1981 as the date for establishing the programmes and 15 September 1986 as the date for their implementation.
14 Article 20 of Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control (OJ 1996 L 257, p. 26) lays down transitional provisions concerning the regime established by Article 7(2) of Directive 76/464. For certain existing installations, that regime is to remain in force until the Member States have taken the measures concerning permits and review laid down in Article 5 of Directive 96/61. They have eight years to do so from the date for implementation of that directive, namely 30 October 1999.
15 At the time material to the present case, the text which was to become 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 policy (OJ 2000 L 327, p. 1, hereinafter the new framework directive) was in the process of being adopted. Under Article 24 of the new framework directive, the Member States are to bring into force the measures necessary to comply with that directive by 22 December 2003 at the latest. Pre-litigation procedure
16 The Commission sent a letter of formal notice to the Kingdom of the Netherlands on 15 February 1994. In that letter the Commission complained that it had failed to fulfil the obligations flowing from Directive 76/464, specifically Article 7(1), (2) and (3), by not setting quality objectives for the Scheldt basin.
17 Since the Commission was not satisfied with the reply of the Kingdom of the Netherlands, it issued a reasoned opinion on 23 December 1996. The time-limit for complying with the reasoned opinion was set by the Commission at two months from notification.
18 As the Netherlands authorities did not act upon that opinion, the Commission brought the present action. Admissibility
19 The Netherlands Government has questioned the appropriateness of the action on the ground that, for major industrial sectors, Directive 96/61 renders inoperative the distinction established by Directive 76/464 between List I and List II substances. Netherlands legislation is already consistent with Directive 96/61. Furthermore, in establishing a list of priority substances, the new framework directive provides for an approach combining the systems of emission limit values, a development which makes the obligations laid down by Directive 76/464 entirely irrelevant.
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).
24 In the present case, the Commission complained in its letter of formal notice of 15 February 1994 that the Kingdom of the Netherlands had failed to fulfil the obligations flowing from Directive 76/464 by not setting binding quality objectives for the Scheldt, as regards the substances in List II of the annex to Directive 76/464. The reasoned opinion is also founded on data relating to the Scheldt basin. By contrast, the Commission in its application asks the Court to declare more generally that the Kingdom of the Netherlands has failed to fulfil its obligations under Article 7 of that directive. The failure thus complained of must accordingly be understood as covering the whole of Netherlands territory.
25 Since the pre-litigation procedure concerned only the Scheldt basin, the Commission's application must be dismissed as inadmissible in so far as it does not relate to a failure by the Kingdom of the Netherlands to fulfil the obligations set out in Article 7 of Directive 76/464 with regard to the Scheldt basin. Substance The obligation to set quality objectives for the substances covered by the first indent of the first paragraph of List II Arguments of the parties
26 The Commission complains that the Kingdom of the Netherlands has failed to set quality objectives relating to the List I substances for which limit values have not yet been laid down at Community level. In its submission, pollution caused by those substances should be combated by the means prescribed in Article 7 of Directive 76/464 and not those prescribed in Articles 3 to 6.
27 The Netherlands Government contends that, in accordance with the wording of the first indent of the first paragraph of List II, List I substances come within the scope of List II only after the Commission or the Council has expressly decided not to set limit values.
28 It submits that Directive 76/464 draws a clear distinction between substances particularly dangerous for the aquatic environment, covered by List I, and substances deleterious to the aquatic environment, falling within List II. Under Article 2 of Directive 76/464, water pollution caused by List I substances is to be eliminated by the steps to be taken pursuant to Articles 3 to 6, whereas pollution caused by List II substances is only to be reduced by applying the regime prescribed in Article 7.
29 To bring under that regime List I substances for which limit values have not yet been laid down at Community level would be a derogation from the directive's objective, which would be warranted only if the Council or the Commission expressly announced that they intended not to lay down those limit values.
30 Furthermore, the interpretation put forward by the Commission in its application would have a consequence contrary to the scheme of Directive 76/464. List I comprises not only the 132 substances adopted by the Commission as priority substances, but also all those which belong to the groups and families of substances referred to in that list. It is impossible for the Member States to set quality objectives relating to tens of thousands of substances.
31 The Kingdom of the Netherlands also maintains that the slowness of the process of achieving the objectives of Directive 76/464 is due to the practice of the institutions. The Member States are not in any way responsible for the fact that the numerous proposals drawn up by the Commission for directives laying down limit values for substances in List I came to nothing. Findings of the Court
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.
34 Doubt cannot be cast on that interpretation by the argument of the Netherlands Government that, if it were accepted, the Kingdom of the Netherlands would have to establish programmes containing quality objectives for an undefined number of substances. As the Advocate General points out at point 36 of his Opinion, that obligation under Directive 76/464 applies only to those of the 114 priority substances for which limit values have not yet been laid down by the Council that are in fact liable to be present in Netherlands waters, in the present case in the waters of the Scheldt basin.
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.
36 It follows from the foregoing that the Kingdom of the Netherlands was obliged, pursuant to Article 7 of Directive 76/464, to establish programmes setting quality objectives relating to the priority substances covered by List I for which limit values had not been laid down at Community level. There is no need to give a decision on whether the national laws and regulations in force on the date when the period laid down by the reasoned opinion expired fulfilled the requirements of Articles 3 to 6 of that directive, as the Netherlands Government maintains, because, in any event, the Netherlands Government does not deny that the Kingdom of the Netherlands had not established such programmes at that date.
37 The line of argument put forward by the Netherlands Government must therefore be rejected. The obligation to set quality objectives for substances covered by the second indent of the first paragraph of List II Arguments of the parties
38 The Commission complains that the Kingdom of the Netherlands has not yet set quality objectives either for certain substances in the first category of substances referred to in the second indent of the first paragraph of List II, namely titanium, boron, uranium, tellurium and silver, or for the substances in the fourth category of substances referred to in that indent.
39 The Netherlands Government contends that the substances falling within that fourth category are not identified clearly. Other Member States have the same identification difficulties. Furthermore, for those substances in the fourth category and for certain substances falling within the first category such as boron, tellurium, silver, uranium and titanium, it was impossible, even in the international literature, to establish scientifically founded values which could serve as a basis for setting quality objectives.
40 At the hearing, the Netherlands Government also contended that Article 7 of Directive 76/464 requires quality objectives to be established for the emission standards laid down in authorisations under Article 7(2) of that directive, but that there is nothing to indicate that such an obligation exists for the programmes which relate only to quality objectives for water. Findings of the Court
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).
42 The alleged scientific difficulties relating to identification of the substances belonging to the fourth category of substances referred to in the second indent of the first paragraph of List II and to the establishment of limit values for those substances and certain of the substances falling within the first category constitute a technical difficulty of that kind which cannot call into question the obligation to transpose Directive 76/464. The Netherlands Government could have contacted the Commission or had scientific studies carried out at the appropriate time.
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.
44 It must accordingly be found that, by failing to adopt for the Scheldt basin all the measures necessary to transpose Article 7 of Directive 76/464, the Kingdom of the Netherlands has failed to fulfil its obligations under that directive.