C-291/84

2. The Government of the Netherlands does not deny that a number of the provisions of the directive have not yet been 5. As regards the argument that a number implemented or have been implemented of measures have been adopted which, inadequately. Its main counter-argument is although not formal implementing that although there were no formal measures, give effect to the substance of the provisions implementing the directive in directive — in particular the establishment Netherlands law, a number of measures on 15 September 1983 of a multiannual giving effect to it in substance had already guidance programme for soil protection for been adopted. As the Commission stated at the period from 1984 to 1988 (the the hearing, the Wet Bodembescherming 'IMP-Bodem'), which, it is argued, (Law on soil protection) entered into force implements a large part of the directive — it on 1 January 1987, but its implementing should be pointed out that decrees are still in preparation. The defendant government acknowledges this point and hopes that those decrees can be 'each Member State must implement brought into force in the course of this year. directives in a manner which fully meets the requirement of legal certainty and must consequently transpose their terms into 3. The justification put forward by the national law as binding provisions'. 4 Kingdom of the Netherlands concerns, in 3 — See, most recently, the judgment of 12 February 1987 in Case 69/86 Commission v Italian Republic ECR 773. * Translated from the French. 4 — Judgment of 2 December 1986 in Case 239/85 Commission 1 — Official Journal 1980, L 20, p. 43. v Kingdom of Belgium [1986] ECR 3645, at p. 3657, 2 — Article 21 (1) of the directive. paragraph 7.

As the Commission argues, that cannot be orization under those articles may be issued said of a planning document which simply (in the case of Articles 8 to 12 (1)), are not lays down guidelines. yet properly incorporated into Netherlands law, although they are 'largely complied with in substance'. 6. In order to resolve this dispute a distinction must be drawn, amongst the relevant provisions of the directive, between 11. Article 15 requires Member States to those where the failure of implementation is keep an inventory of the authorizations admitted (Section I below) and those where referred to in Articles 4 and 5. The it is wholly or partly denied (Section II). defendant government acknowledges, in the same terms as it did for Article 7 et seq., that the implementation of this article is inadequate. 7. I — The first indent of Article 4 (1) concerns the absolute prohibition of all direct discharge of substances appearing in List I in the annex to the directive. It is 12. Article 16 (3) imposes an obligation of admitted that its implementation is secrecy on Member State civil servants. inadequate. Although 'complied with in substance', that obligation was not given effect within the requisite period. The Netherlands Government admits as much, but states that 8. Article 4 (2) concerns possible dero­ Article 69 of the Wet Bodembescherming gations from the abovementioned pro­ made good that omission. Whilst confirming hibition when the groundwater is perma­ that point, the Commission maintains its nently unsuitable for other uses. The criticism on account of the delay in defendant State does not deny that it has implementation and the absence of any failed to implement it but takes the view official notification of the new provision. that there is no breach of its obligations in this respect inasmuch as 'there is no such groundwater in the Netherlands'. Since that 13. Lastly, with regard to Article 17, it is situation is not immune to change, the acknowledged that Netherlands legislation argument cannot be accepted. contains no provision regarding the obli­ gation on the part of a Member State intending to authorize discharges into 9. With regard to Article 5 (1), read in 'transfrontier' groundwater to inform the conjunction with the second indent of Article other Member States concerned. 4 (1), it is not denied that the qualified prohibition on 'the disposal or tipping for the purpose of disposal of ... substances [in 14. II — The first contentious issue List I]' has not been fully implemented in concerns the failure to implement Article Netherlands law. 4 (3), which allows Member States, after prior investigation, to authorize discharges due to reinjection into the same aquifer of 10. As far as Articles 7 to 12 (1) are water used for geothermal purposes, water concerned, the Netherlands Government pumped out of mines and quarries or water concedes that those provisions, which relate pumped out for civil engineering works. to the prior investigations required by The Netherlands Government contends that Articles 4 and 5 (in the case of Article 7) the mining legislation already in force and to the conditions subject to which auth­ affords adequate implementation of that

provision. The explanations given at the transposed into national law in mandatory Court's request, following the hearing, terms. 5 Since that is not the case, the contain no firm evidence that Article 4 (3) Commission's criticism in this respect is also has been formally implemented. In well founded. particular, it is not specified whether the obligations associated with the system of mining concessions — the texts of which 17. The same does not appear to be true in were not produced — entail the prior inves respect of Articles 12 (2) and 13.

16. Article 6 applies to artificial recharges of groundwater and provides for special auth orization, to be issued by the Member 18. Article 18 remains to be considered. It is States on a case-by-case basis, provided that worded as follows: there is no risk of pollution. The defendant government takes the view that Article 14 of the Grondwaterwet (Law on groundwater), which entered into force on 1 March 1984 'The application of the measures taken and prohibits any infiltration of extraneous pursuant to this directive may on no water into groundwater without the express account lead, either directly or indirectly, to authorization of the provincial councils, is pollution of the water referred to in an adequate implementation of Article 6 of Article 1.' the directive, since the competent authorities are properly informed of their obligations under that article. I agree with the Both parties agree that Article 18 serves to Commission that Article 14 of the Grond preserve the status quo, but they interpret it waterwet gives those authorities greater differently. According to the Netherlands latitude than is envisaged by the directive, Government, the pollution which Article 18 and hence that Article 6 is inadequately seeks to prevent can only be that which transposed. Whilst it is probable that, in might arise from the misapplication of practice, checks will be carried out to ensure measures adopted pursuant to the directive. that there is no risk of pollution, the measure required by Article 6 must be 5 — See judgment in Case 239/85, cited above, at paragraph 5.

21. Consequently, I conclude that the Court should:

Declare that the Kingdom of the Netherlands has failed to fulfil its obligations under the EEC Treaty by failing to implement within the prescribed period Articles 4 to 12 (1), 15, 16 (3), 17 and 18 of the Council Directive of 17 December 1979;

Order the defendant State to pay the costs.