C-131/88

By way of introduction I shall first give a Article 4 describes in practical and detailed general outline of the provisions of the terms what the duty to prohibit the intro­ duction into groundwater of list I * Original Language: Dutch. 1 — Council Directive of 17 December 1979, OJ 1980 L 20, substances entails; Article 5 is concerned p. 43. with restricting the introduction of list II

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2 — As amended on 23 September 1986, BGBl 1986,I, pp. 1529 A letter from the Commission dated and 1654. 3 — Gesetz über die Vermeidung und Entsorgung von Abfällen of 20 September 1988 indicated inter alia that 27 August 1986, BGB] I, pp. 1401 and 1501. the discussions between the Commission's

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représentames and the Federal Government will be illustrated in more than one respect were fruitless and on 28 October 1988 the in the following discussion of the case. German Government lodged a defence in which it adopted the view that the provisions of the directive had been duly transposed into present German legislation (the delenie was admittedly lodged subject to 'intensive negotiations' between the The scope of the duty to implement the Commission and the German Government directive aimed at achieving an amicable settlement of the dispute) In its rejoinder the German Government argued that the relevant letter was to be considered in the context of the discussions between the Commission and the German Government, which meant that it had been drafted subject to closer investi­ 6. The parties are essentially in gation of the additional implementing disagreement as to the scope of the duty measures requested by the Commission. The imposed by the third paragraph of Article letter did not recognize that the 189 of the Treaty to transpose directives Commission's objections were well founded, into national law. The disagreement it claimed, it merely indicated that the concerns both the measures permissible (and German Government was prepared to adequate) to implement them and the cooperate criteria which those measures must satisfy. I shall endeavour to clarify that fundamental difference with the aid of the case-law which has been developed by the Court of Justice in recent years.

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5 — Judgment, ibid.; see also the judgment in Case 363/85 6 — With reference to the judgment in Case 252/85 Commission v Italy [1987] ECR 1733, paragraph 7, and the Commission v France [1988] ECR 2243, paragraph 5. judgment in Case 116/86 Commission v Italian Republic 7 — See the judgment in Case 363/85 Commission v Italy [1987] [1988] ECR 1323, paragraph 21. ECR 1733, paragraphs 7 to 12.

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law and the application and interpretation rightly emphasized that point: the effective of those rules in accordance with the and full application of a prohibition can directive's provisions by the appropriate only be guaranteed if the authorities authority ensures in practice that there is no charged with applying the directive and with possibility of authorizations being granted adjudicating on applications for authoriz­ for discharges prohibited by the directive. ations to discharge may rely on an express prohibition of national law.

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10. Finally, there is another reason for the directive to prevent the introduction into requiring a precise and detailed transpo­ groundwater, by direct or indirect sition of the rules contained in the directive discharge, of list I substances. The at issue here; the directive seeks to create measures which the Member States must equal conditions of competition as between adopt in that connection are set out in undertakings responsible for discharges by Article 4 of the directive. eliminating disparities between national legislations regarding the discharge of certain dangerous substances into groundwater. 14 In order to achieve that harmonization it was necessary to formulate very precise and detailed rules. 13. I shall first discuss the rules governing direct discharges. The first indent of Article 4(1) of the directive provides that Member States

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consideration of the Commission's other This directive shall not apply to: complaint. I shall therefore cite it in full:

'(1) Authorization to introduce substances into groundwater may be granted only if there is no risk of harmful pollution of the groundwater or of any other (b) discharges which are found by the impairment of its properties. competent authority of the Member State concerned to contain substances in lists I or II in a quantity and concen­ tration so small as to obviate any present or future danger of deterio­ ration in the quality of the receiving (2) Substances may be stored or deposited groundwater.' only in such a way as to avoid pollution of the groundwater or any other impairment of its properties. This provision shall also apply to the trans­ portation of liquids and gases by means In the opinion of the Federal German of pipelines.' Government the combination of those two provisions shows that as regards the introduction of list I substances into groundwater the first indent of Article 4(1) imposes not an absolute prohibition but a prohibition subject to exceptions; in other At first sight the Federal German legislation words, application of the prohibition is clearly in conflict with the directive: depends on the judgment of the competent whereas the first indent of Article 4(1) lays national authority. That being so, it down unequivocally a duty to prohibit any maintains that the conditions laid down in direct discharge of list I substances, what Article 34(1) of the WHG for granting an Paragraph 34(1) of the WHG creates is a authorization are substantially the same as general authorization to discharge the criteria laid down in Article 2(b) of the 'substances', discharge being prohibited only directive for deciding that the directive does if the competent authorities decide that it not apply, so that application of the WHG would pose a risk for the groundwater. leads to precisely the result aimed at by the directive.

leaving no power to the authorities of the discharges absolutely. The distinction is Member States to assess the risk posed for subtle but essential for the correct transpo­ groundwater by such discharges. Anicie sition of the contents and logic of the 2(b) of the directive, which precedes Articles directive : full and effective protection of the 3 and 4, is not intended to convert the resource protected by the directive (in this prohibition into an authorization scheme case, groundwater) can only be guaranteed (were it otherwise, as the Commission by expressly laying down the prohibitions rightly noted, Article 4 could have been contained in the directive in a provision of drafted on the same lines as Article 5 of the national law, so that the competent directive, which does introduce an authori­ authority is allowed no individual discretion zation scheme as regards discharges of as regards the risk of pollution. list II substances). On the contrary, Article 2(b) makes it clear that substances other than those referred to in list I or II (that is to say, those not covered by the directive), which contain very small quantities or very small concentrations of list I or list II substances do not fall within the ambit of the directive. The provision was introduced for practical reasons; it is frequently 16. Article 2(b) of the directive is also not impossible to remove all traces of list I or correctly transposed into the law of the list II substances from discharges of other Federal Republic since the discretion substances. That is why the national auth­ allowed by Paragraph 34(1) of the WHG is orities may decide that the quantity or broader than the precisely defined power concentration of the list I or list II given by Article 2(b) of the directive to the substances in the substance to be discharged competent authorities to find that the is so small 'as to obviate any present or directive does not apply. In fact, neither in future danger of deterioration in the quality Paragraph 34 nor in any other provision of of the receiving groundwater'. Article 2(b) the WHG is it stipulated that the can never serve to make the directive inap­ 'discretion' of the competent authority plicable as regards discharges of relates solely to a finding that list I or list I substances (in pure or diluted form): list II substances are contained in the they remain, without any possibility of material to be discharged in a quantity or exemption, prohibited by the first indent of concentration so small as to obviate any Article 4(1). present or future danger of deterioration in the quality of the receiving groundwater.

19. In the first place, that provision defines Prohibition of indirect discharges of the scope of the obligation to prevent the list I substances introduction into groundwater of list I substances. In order to satisfy that obligation Member States must either prohibit certain activities, or permit them subject to authorization, provided that all 18. We must now see how the obligation the technical precautions necessary to laid down in the second indent of Article prevent a discharge are observed. The 4(1) has been transposed into Federal Federal German Government has adopted a German law. It concerns the measures to be different interpretation: here, again, it adopted by the Member States in order to maintains that the second indent of Article prevent the indirect discharge of 4(1) must be read in conjunction with list I substances. More precisely, it provides Article 2(b) of the directive, with the result that: that the Member States have merely to adopt a conditional prohibition.

Both lead to the result that the Federal 20. In the second place, the second indent German legislation does not satisfy the of Article 4(1) provides that the prohibition prohibition laid down in the second indent or authorization is to apply to 'any disposal of Article 4(1). Paragraphs 19a to 19g of the or tipping for the purpose of disposal [of WHG are too restrictive in scope to satisfy list I substances] which might lead to that provision. indirect discharge'. The Federal German Government is of the opinion that the combined application of the abovemen- tioned paragraphs of the WHG to which I have referred (paragraph 18) ensures the application of that provision: Paragraph 19a of the WHG refers to the conveyance of 'harmful substances' (see paragraph 21, below) in pipelines: Paragraph 19g applies 21. In the third place, the prohibition or to facilities for treating such substances. authorization in the second indent of Article Those provisions by no means cover all acti­ 4(1) must apply to all the substances vities whereby list I substances are disposed mentioned in list 1. The rules contained in of or tipped for the purpose of disposal and the WHG are not very precise: they apply which may lead to indirect discharge. to 'substances which are harmful to water'. That expression is interpreted differently (in Paragraphs 19a(2) and 19g(5) of the WHG ) according to the manner in which the substances are transported. Those defi­ nitions do not refer to the substances appearing in list I, but comprise vague The gap was filled, however, in the opinion descriptions such as 'other substances, in of the Federal German Government, by liquid or gaseous form, which may pollute Paragraph 34 of the WHG (which makes water or otherwise be harmful to its prop­ 1 any 'introduction' of substances into erties' (Paragraph 19a(2) of the WHG ) 6or groundwater and any 'tipping or disposal' 'toxic substances which may lead to subject to an authorization) and by the long-term changes in the physical, chemical Abfallgesetz, which concerns the disposal of or biological properties of the water' substances kept in waste dumps. The (Paragraph 19g(5) of the WHG ). If Commission has not denied that the scope substances are disposed of or tipped without of Paragraph 34(2) of the WHG is suffi­ ciently wide to embrace the activities 16 — Paragraph 19a(2) provides that those substances are to be prohibited by the second indent of Article defined in a regulation. The regulation is the Verordnung über wassergefährdende Stoffe bei der Beförderung in Rohrlei- 4(1) of the directive. Nevertheless, as I said, tungsanlagen of 19 December 1973, BGBl 1973, I, p. 1946. As the Commission states, that regulation also does not neither that paragraph nor the other cover all the substances referred to in list I.

the use of special facilities or eliminated national law by means of provisions having there is no definition at all, and one must the same force of law as the provisions fall back on the general rule laid down in which must be amended. 1 Paragraph 3(1 )(5) and 3(2) of the WHG , which mentions as 'use' of water (for which an authorization or permit is required) also 'measures which may lead to a permanent or not negligible alteration in the physical, 23. In the fourth place, the second indent chemical or biological properties of the of Article 4(1) requires that authorizations water'. be granted for the activities referred to in the provision only after prior investigation, and that the authorization be granted only in the light of the results of the investigation and provided that all the technical precautions necessary to prevent an indirect discharge are observed. What that investi­ Leaving aside the question whether the gation entails is described more fully in combined application of those provisions Article 7 of the directive: the conditions does in fact cover all the substances and restrictions which may be attached to mentioned in list I, it should be pointed out the authorization are listed in detail in that they do not implement with sufficient Articles 10 and 11. None of those provisions clarity and precision the second indent of is expressly stated in a rule of German law. Article 4(1). It is also necessary to make it clear to persons who wish to engage in the activities covered by that provision (or to prevent them) that the provision applies to the substances referred to in list I. The Federal German Government considers that it is unnecessary to incorporate the wording of Article 7 because 'it goes without saying' that any administrative decision must be preceded by an investi­ 18 gation; it also refers to the Verwaltungs- verfahrensgesetz (Law on administrative 22. The Federal German Government has procedure), which provides that the auth­ stated that a Verwaltungsvorschrifi (adminis­ orities must initiate an investigation of the trative provision) (to be adopted by the facts of their own motion and make use of various Länder) is being prepared, in which such proofs as they deem necessary. the applicable rules are to be defined by Whether such general provisions ensure that reference to lists I and II of the directive. the detailed investigation prescribed in As I said (paragraph 3) it has been adopted Article 7 will always be carried out seems to so far in seven Länder, the others, who have be highly questionable. It is particularly already adopted their own rules, do not see important to incorporate precisely the any need to adopt it. There is also the requirements laid down in Article 7 because question whether a Verwaltungsvorschrifi for individuals who apply for an authori­ takes precedence over the legislative zation under the second indent of Article provisions of the WHG already discussed; 4(1) it may be vital to know the detailed in that respect, I would refer to the case-law 17 — See for instance the judgment in Case 116/86 Commwwn of this Court in which it has been stated v Italy [1988] ECR 1323, in particular paragraph 17 ci seq that directives must be transposed into 18 — Defence p. 2G, paragraph 30.

24. It should also be noted that the absence ' ... take all appropriate measures they deem of clear and precise provisions regarding the necessary to prevent any indirect discharge prior investigation has direct repercussions of substances in list I due to activities on or on authorizations which may be granted on in the ground other than those mentioned in the basis of the second indent of Article the second indent ... '. 4(1): the directive makes it quite clear that such authorizations may only be granted on the basis of the results of such an investi­ gation. In other words, the conditions under which an authorization may be granted must flow directly from the results of the 26. With regard to the implementation of investigation. The failure to incorporate the that provision the Federal German relevant provisions thus also has practical Government refers to the same provisions as consequences for groundwater management. those which in its opinion suffice to implement the second indent of Article 4(1), that is to say Paragraphs 19a et seq., 19g et seq., 3(2) and 34 of the WHG .

As I have said, Article 4 of the directive is The Federal German Government also intended to give effect to the duty imposed considers it unnecessary to incorporate the on Member States by Article 3(a) to prevent provisions of Anieles 10 and 11 of the the introduction into the groundwater of directive: the conditions and restrictions list I substances. The third indent of Article that they contain flow already from the duty 4(1) is a residual provision: any activities imposed on the competent authorities to other than those referred to in the second refuse an authorization if there is a risk of indent on or in the ground must be subject by the Member States to all appropriate 19 — See the judgment in Case 291/84, referred to in footnote 15, paragraphs 16 to 18 (re. Article 6 of the directive). measures to prevent any indirect discharge

28. Lastly, the Commission has argued convincingly, and without having been contradicted by the Federal German Government on this point, that the implementing provisions of the Lander are 27. Again, I need only repeat my earlier not sufficient to fill the gaps left by the conclusion, that a provision such as that Federal legislation. Some of the provisions contained in the WHG , which seeks to 20 adopted by the Länder refer only to acti­ prevent not all direct or indirect discharges vities covered by Paragraph 19g of the of list I substances but merely the pollution WHG and not to all activities other than of the water (and to that end allows the those referred to in the second indent of competent authorities to grant authori­ Article 4(1), as required by the directive. zations to discharge), does not suffice to List I has also not been incorporated into implement the directive. 21 the laws of all the Länder, nor have they converted the provisions of the WHG on the prevention of pollution into rules on the 22 prevention of indirect discharges.

of this water by these substances' (Articie German Government refers to the para­ 3(b)). graphs of the WHG which in its view already ensure the correct implementation of the second and third indents of Article 4(1). It points out that Federal German law, What that obligation entails is set out in which makes no distinction between Article 5 of the directive, which reads as discharges of list I substances and dischar­ follows: ges of list II substances, is even stricter than the directive, at least if Article 5 of the directive is read in conjunction with Article 2(b). As regards that last point, I refer once again to my earlier discussion regarding the '1 . To comply with the obligation referred precise scope of Article 2 of the directive. As to in Article 3(b), Member States shall I said, Article 2 provides for a number of make subject to prior investigation: cases in which the directive does not apply, whereas Article 5 defines the scope of the obligation in Article 3(b). Article 2 does not reduce the obligations in Article 5, any — all direct discharge of substances in more than it does those in Article 4. list II, so as to limit such discharges,

— the disposal or tipping for the purpose of disposal of these substances which might lead to 30. The first obligation in Article 5 of the indirect discharge. directive concerns direct discharges of list II substances. The obligation is twofold: in the first place, Member States must make all such discharges (or activities which may In the light of that investigation, lead to discharges) subject to prior investi­ Member States may grant an authori­ gation with a view to limiting them; in the zation, provided that all the technical second place, an authorization based on the precautions for preventing groundwater results of that investigation may be granted pollution by these substances are only if all the technical precautions for observed. preventing groundwater pollution by such substances are observed. The question is whether Paragraph 34(1) of the WHG imposes requirements at least as strict.

31. Although those considerations suffice already to establish the failure to implement the directive, in order to eliminate all doubt it is necessary to consider the Federal 33. Finally, Article 5(2) requires the German Government's contention that Member States to take the appropriate compliance with the obligations to which measures to limit indirect discharges of Article 5 makes the grant of an authoriz­ list II substances due to activities on or in ation subject has already been ensured by the ground other than those mentioned in the application of Paragraph 34 of the Article 5(1). WHG . The Commission doubts that: it points out that the 'Besorgnisgrundsatz' (principle of risk) laid down in Paragraph 34 of the WHG has always been interpreted by the courts as meaning that there must be At the hearing the Commission gave a no likelihood of pollution in the light of number of examples of activities which may human experience, but that pure chance require such measures: it referred to indirect 23 cannot be fully ruled out. Article 5 of the discharges of list II substances connected directive is strict: it requires that all the with the activities of agricultural concerns, requisite technical precautions for petrol stations and garages; it also referred preventing groundwater pollution be to storage of list II substances prior to observed. recycling. In view of the fact that the Federal German Government has taken the view that specific measures are not necessary in order to transpose that provision and has therefore not mentioned the existence of any such measures, I must There does in fact appear to be a (slight) regard the failure to implement the directive difference in the degree of emphasis as established in this respect. expressed by those provisions, and one writer has remarked that it has not yet been expressly confirmed by the courts that Paragraph 34(2) of the WHG imposes an absolute prohibition on the discharge of The procedural rules laid down by the pollutants. 24 It would therefore be directive preferable to incorporate into national law a provision which is as clear and precise as Article 5(1) of the directive.

Likewise, the argument that various aspects of the procedural provisions lie within the competence not of the federal authorities That argument fails for a reason already but of the authorities of the Lander cannot given more than once in this Opinion: the alter the conclusion that Community law need for precise and clear implementation has been infringed. The Member States are requires that the detailed provisions of the always free to distribute the powers directive be expressly incorporated into conferred on them among the internal auth­ national law. I would like to point out that orities as they choose and to implement that is not a purely formal requirement: Community law by means of measures inadequate implementation of the directive adopted by the regional or local authorities. has practical consequences, too, as I That does not release them, however, from emphasized in connection with the the duty to ensure that the provisions of requirement that the grant of an authoriz­ Community law are faithfully transposed 26 ation be preceded by an investigation. That into national law. applies generally: if, as the Federal German Government maintains, most of those procedural rules fall to be applied by the Lander, then it is necessary for the competent authorities there to be thoroughly acquainted with the provisions governing those procedures. Article 8 of the directive, for instance, provides that the 35. I now come to consider the way in authorizations referred to in Articles 4 and which individual procedural provisions of 5 of the directive may not be issued by the the directive have been transposed into competent authorities of the Member States national law. As regards Article 7, which unless it has been ascertained that the contains detailed rules regarding the groundwater, and in particular its quality, subject-matter and purpose of the prior will undergo the requisite surveillance. The investigation required by Articles 4 and 5 of same applies in relation to individuals whose the directive, I may be brief. I have already legal position is affected by the provisions of said (paragraph 23) that the criteria laid the directive. For instance, it may be very down in Paragraphs 24 and 26 of the important for those wishing to make (or prevent) discharges to know exactly what 25 — See the judgment in Case 291/84, referred to in footnote the prior investigation will entail and what 15, paragraphs 16 to 18. conditions and restrictions may be attached 26 — See the judgment in Joined Cases 227/85 to 230/85 Commission v Belgium [1988] ECR 1, paragraphs 9 and 10.

36. The same considerations apply with regard to Article 8, which provides that the authorizations to discharge granted pursuant to the directive may not be issued by the competent authorities until they have ascertained that the quality of the groundwater will be under the requisite surveillance. Clear and detailed implemen­ In answer to those arguments, it is only tation of that provision in national law is necessary, in view of my earlier observations important for two reasons. In the first place, (paragraph 34), to state that it is possible to since the purpose of the directive is to create ensure the harmonization of conditions equal conditions of competition as regards governing discharges and the protection of discharges of certain dangerous substances, the rights of individuals only if the incor­ poration into national law of the provisions the competent authorities in the various contained in Articles 9 and 10 of the Member States must abide by identical directive is not optional but obligatory. I criteria when granting authorizations. In the have already discussed (paragraph 8) the second place, third parties must be able to inadequacy of interpreting or applying rely on those criteria when they seek to national law in a manner in conformity with challenge the lawfulness of an authoriz­ the directive. ation. This is again borne out by the judgment in which it was held that the conditions laid down by the directive governing the grant of authorizations to discharge must be expressly incorporated 28 into national law.

39. In its reasoned opinion the Commission publicized provision. Since monitoring of also alleged that the Federal Republic had compliance with the authorizations in the failed to implement properly Articles 12 and Federal Republic is a matter for the Lander, 13 of the directive. The Commission's the Commission has rightly pointed out that application refers solely to Article 13. At the responsibility for actually complying with hearing the Commission's representative those provisions must be conferred on them. stated that there had been an error. It In order to transpose that provision appears that the Commission does not rely correctly, therefore, it is necessary to adopt on Article 12; therefore I need not discuss an express legislative provision; internal it. instructions which may be amended from day to day are not sufficient. It is true that Member States enjoy a certain amount of Article 13 requires the competent authorities discretion since unlike Articles 7, 8, 9, 10 of the Member States to monitor and 11 of the directive Article 13 is not compliance with the conditions laid down in capable of creating rights for individuals; the authorizations and the effects of accordingly, it is only necessary for it to be discharges on groundwater. The apparent from the general legislative context Commission has alleged that that provision at federal level and at the level of the has not been transposed into national law by Lander that the authorities responsible for 29 means of a specific, binding and adequately monitoring have a duty to monitor.