C-184/97

'there is an urgent need for general and simultaneous action by the Member States to protect the aquatic environment of the Community from pollution, particularly that caused by certain persistent, toxic 2. The Commission's complaint relates in and bioaccumulable substances.' particular to the German Government's failure to establish programmes, in accor- dance with Article 7 of the Directive, with quality objectives designed to reduce pollu- tion by the substances in List II of the Annex to the Directive. This action is one 4. Article 2 of the Directive provides: of a series of actions for failure to fulfil obligations, brought by the Commission against several other Member States, which have up to the present time resulted in five judgments by the Court. 2 'Member States shall take the appropriate * Original language: French. steps to eliminate pollution of the waters 1 _ o j 1976 L 129, p. 23. referred to in Article 1 by the dangerous 2 — See judgments in Case C-206/96 Commission v Luxem- substances in the families and groups of bourg [1998] ECR I-3401; Joined Cases C-232/95 and C-233/95 Commission v Greece [1998] ECR I-3343; Case substances in List 1 of the Annex and to C-285/96 Commission v Italy [1998] ECR I-5935; Case reduce pollution of the said waters by the C-214/96 Commission v Spain [1998] ECR I-7661, and Case C-207/97 Commission v Belgium [1999] ECR I-275. dangerous substances in the families and

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groups of substances in List II of the be confined to a given area and which Annex, in accordance with this Directive, depend on the characteristics and location the provisions of which represent only a of the water into which they are dis- first step towards this goal.' charged.'

and which have a deleterious effect on the 4. The programmes may also include spe- aquatic environment, which can, however, cific provisions governing the composition

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and use of substances or groups of sub- than those provided for under this Direc- stances and products and shall take into tive.' account the latest economically feasible technical developments.

9. Article 12 provides as follows:

5. The programmes shall set deadlines for their implementation. '1. The Council, acting unanimously, shall take a decision within nine months on any Commission proposal made pursuant to Article 6 ...

practical implementation of the obligations which then contained 132 substances. Of it sets out. these substances, 18 are covered by Council directives which contain the emission stan- dards and quality objectives, and 15 others were the subject of the proposal for a Council directive amending Directive 12. Since List I essentially contains, with 76/464, introduced by the Commission on the exception of mercury and cadmium, 14 February 1990. 5 families and groups of substances, the Commission has always considered it necessary to define the relevant individual substances within these groups and families of substances before setting out emission standards and quality objectives. 16. It is intended to include the 99 remain- ing substances in List I of the Annex to the Directive, but until the Council establishes maximum limits for emissions of these substances, they are to be considered as substances contained in List II 6 13. Work undertaken for this purpose by the Commission in cooperation with the Member States resulted in a list of 129 substances being drawn up and annexed to the Communication from the Commission to the Council of 22 June 1982 on danger- 17. The Commission's claim is confined, ous substances which might be included in moreover, to the absence of programmes to List I of Council Directive 76/464/EEC. 3 reduce pollution caused by these 99 sub- stances and therefore does not concern the other substances which appear in List II.

14. In its Resolution of 7 February 1983 concerning the combating of water pollu- tion, 4 the Council states that the list of 129 substances contained in the Commission communication will serve the Community as a basis for further work on the imple- Admissibility of the action mentation of the Directive.

22. The Commission maintains that mea- sures such as cumulative standards or regulations concerning individual sub- 19. However, in its judgment of 29 Sep- stances, which the German Government tember 1998, 7 the Court dismissed the described in the pre-litigation procedure, same plea of inadmissibility as unfounded. do not constitute programmes within the meaning of Article 7 of the Directive. Furthermore, the existence of general pro- grammes for cleaning up waters such as those relied on by the German Government cannot be considered sufficient to transpose the provision at issue. The objective of 20. The Federal Republic of Germany these programmes to reduce general pollu- therefore withdrew the plea of inadmissi- tion of waters does not necessarily fulfil the bility at the hearing. specific objective of the Directive, which is to reduce water pollution caused by 99 listed substances, categorised as being par- ticularly dangerous.

Substance of the case 23. The Commission adds that even if the fact put forward by the German Govern- ment is taken as proven, namely that before 21. In its application, the Commission reunification there was no water pollution observes that, in accordance with Arti- in Germany, even applying the strictest cle 7(1) and in conjunction with Article 1 criteria, this fact would not release the of the Directive, Member States are German Government from the obligation required to establish programmes including to establish specific programmes in accor- quality objectives to reduce water pollution dance with Article 7 of the Directive. within a set period of time. All discharges into the waters in question require prior authorisation by the competent authority, which is required to set emission standards

26. The German Government relies on the option provided by Article 10 of the Direc- tive for Member States to take more stringent measures than those provided 28. Under German law, then, all discharges for in the Directive. It points out in that into the aquatic environment are subject to connection that the aim of the Directive strict requirements on limit values for itself is the elimination of pollution of the emissions as provided for by the Directive aquatic environment by substances in for substances contained in List I. Further- List I, considered particularly dangerous, more, according to the German Govern- by means of limit values for emissions laid ment, compliance with the limit values for down by the Council, while for less dan- emissions is sufficient to satisfy the require- gerous substances contained in List II its ments of the Directive without having to aim is the reduction of pollution which prove, in each case, compliance with envi- these substances cause by means of the ronmental quality objectives. In any case, programmes referred to in Article 7. In the WHG takes into account pollution of

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the environment into which the waters are there, or because it is not yet possible to discharged (Immission) insofar as Article 6 carry out analytical controls on quality of the WHG states that authorisation for objectives for technical mixtures. the discharge is to be 'refused where the intended action may harm the general good (Wohl der Allgemeinheit) and, in particu- lar, where it may put the public water supply at risk ...'. 30. The Federal Republic of Germany concludes that 'setting limit values for emissions constitutes a more stringent measure than establishing programmes and quality objectives.' It therefore con- siders that Article 7 is not applicable.

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on a proposal from the Commission, to lay — quality objectives for water. down 'limit values which the emission standards must not exceed' for these sub- stances.

36. The Federal Republic of Germany has a system requiring prior authorisation as well 33. As the Council has not yet laid down as emission standards, which consist of these values, the Federal Republic of Ger- limit values. It has, however, established many is enforcing limit values which it has neither programmes nor quality objectives. set independently.

37. In its first plea, Germany claims that it 34. The dispute arises from the fact that, is not obliged to do so since, as it sets limit under the Annex to the Directive, List II values, it has taken 'more stringent mea- includes 'substances belonging to the sures' within the meaning of Article 10 of families and groups of substances in List I the Directive (the text of which appears in for which the limit values referred to in point 7 above). Article 6 of the Directive have not been determined.' In other words, these sub- stances should for the time being be treated as substances in List II.

38. The Commission, is however, right to say that Article 10 does not permit Mem- ber States to distort the scheme of the 35. For those substances, Article 7 pro- Directive by failing to implement certain vides that Member States are to establish provisions on the pretext that they are programmes in the implementation of applying more stringent measures in one which they should apply the following respect (in this case, limit values). methods:

40. It should also be noted that, in its 42. The Commission also rightly states that rejoinder, the Federal Republic of Germany programmes which include quality objec- claims that it uses 'a protection system tives must cover pollution by harmful corresponding to the system described in substances emanating from diffuse sources. Article 6.' If that was the case, however, it A discharge, therefore, caused by an act would none the less be obliged to establish which is liable to be considered in breach quality objectives. Paragraph 2 of this arti- and attributed to an offender constitutes a cle requires the Council to lay down 'discharge' within the meaning of the 'quality objectives for substances within Directive. List I.' If the Federal Republic of Germany is making up for the Council's inaction as regards setting limit values, it must also make up for its own inaction in setting quality objectives. 43. Furthermore, I cannot accept the other arguments advanced by the German Gov- ernment to the effect that, in circumstances such as those in question, Article 7 is not applicable.

depends entirely on the level at which the 49. The terms used by the German Gov- values are set. ernment here regarding the conclusion to be drawn from that observation are reveal- ing. Observance of the relevant quality objectives, it states, proves that laying down emission limit values 'constitutes in reality a proper system of protection at least equivalent to a system based on the 46. Therefore, the German Government's programmes' and therefore 'the existing argument that under the Directive itself, the legislation can be seen to be equally effi- method of setting emission limit values is cient if not more efficient'. In my opinion, considered to constitute on its own a more however, compliance with these quality stringent instrument than the programmes objectives cannot prove that the method mentioned in Article 7 must be dismissed as selected by the German authorities is more unfounded. stringent than the system of programmes provided for in the Directive; at most, it is an equally efficient method for reducing pollution.

47. Secondly, the defendant government relies on the actual situation with regard to pollution in order to prove that the measures it has selected are more stringent; the German Government states that 'the 50. The result which the German autho- very essence of Article 10 and other com- rities claim to have achieved — reduced parable provisions for increased protection pollution — is no different from the result means that it is impossible to ascertain which they would have achieved by the whether the national measure constitutes a programmes provided for in Article 7. more stringent measure except by reference to the level of improvement to the environ- ment actually achieved.'

54. In the second plea the German Govern- ment argues that the failure to implement attributed to it is 'the result of the Com- mission's own failure to act.' It questions 'the legitimacy of an action brought by the Commission against a Member State for inadequate transposition of Article 7... in 57. Even if this were not the case, however, connection with the 99 substances at issue. under long-standing, settled case-law, 9'any These substances are in fact included in wrongful act or default on the part of the List I and only come under the scope of Commission — which would have to be Article 7 because the Commission has not decided upon in an action especially fulfilled its obligation under Article 6 to lay brought on this point — would not in any down uniform limit values for these sub- way affect the proceedings for infringement stances at Community level.' of the Treaty.' The Court has also held 10 that 'the fact that the Council failed to carry out its obligations cannot relieve the defendants from carrying out theirs', since 'the basic concept of the Treaty requires

55. There is, according to the German 9 — See judgment in Joined Cases 2/62 and 3/62 Commission v Luxembourg and Belgium [1962] ECR 425, in particular Government, 'a general principle of law, p. 430. reflected in particular in Article 162 of the 10 — See judgment in Joined Cases 90/63 and 91/63 Commis- sion v Luxembourg and Belgium [1964] ECR 625, in German Civil Code, that anyone who has, particular p. 631.

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are to be assessed according to the extent to level. It adds that the Law on water use, the which the objectives are observed.' WHG, constitutes a programme within the meaning of Article 7(1).

64. A comparison of Article 7(3) with Article 6 of the Directive confirms that the former does not require the quality objectives to be binding in an absolute 67. In accordance with Article 2 of the sense; they serve as a 'safety net', guaran- WHG, any use of water, including dis- teeing a minimum standard of protection of charge, is subject to administrative author- the environment. The question whether this isation which should set out emission minimum standard of protection should be standards; the criteria for granting it refer achieved by defining quality objectives or both to emissions and to pollution of the by other means, principally by laying down environment into which the water is dis- uniform emission limit values, is a question charged. which should be resolved on the basis of the principle of effect utile, that is, the maximum efficiency possible. As uniform emission limit values, even when deter- mined nationally, already ensure a high quality environment, there is no need for compulsory quality objectives. In any case, for the substances in respect of which no pollution has been recorded, quality objec- 68. Under Article 6 of the WHG, objec- tives are defined for the whole of Germany; tives are not required. these objectives include a protection level higher than that required by the Commu- nity's quality objectives without, however, being mandatory. They apply to 64 sub- stances deemed to be priority substances, which include 19 of the 99 substances in 65. As regards the deadline for implement- question. ing the programmes mentioned in Arti- cle 7(5), the German Government observes that this does not apply to the quality objectives mentioned in Article 7(3).

72. The legislative arsenal, in terms of acts and agreements, established by Germany is certainly impressive. However, it cannot be 70. The German Government states that, in considered to properly implement the collaboration with adjacent States, it has Directive, which requires specific pro- adopted various cross-border programmes grammes to be adopted, including quality which include specific objectives for redu- objectives set for each watercourse. cing water pollution. By way of example, it mentions, in this respect, action pro- grammes for the Rhine, the Elbe, the Weser and the Danube, as well as measures taken within the framework of recommendations adopted at various international confer- ences on protection of the North Sea. In 73. The Court has held that: 11 this context the International Commission for the Protection of the Rhine has adopted specific environmental quality objectives in the form of objectives regarding the con- centration of substances. '... the programmes to be established under Article 7 of the Directive must be specific. Thus, the objective of reducing pollution pursued by general purification pro- grammes does not necessarily correspond to the more specific objective of the Direc- tive ... 71. In order to achieve a further reduction in water pollution, the Federal Republic of Germany claims to have also adopted a number of provisions on the composition and use of substances or groups of sub- stances as well as on products, in accor- What is specific to the programmes in dance with Article 7(4) of the Directive. question is the fact that they must embody Thus laws on chemical and plant health a comprehensive and coherent approach, products, as well as regulations on the covering the entire national territory of protection of plants, include programmes each Member State and providing practical with specific provisions for certain sub- and coordinated arrangements for the stances, including 10 of the 99 substances in question. These specific provisions also mean that emissions from diffuse sources 11 — See the judgments cited in footnote 2, in particular can be reduced or avoided altogether. Commission v Belgium (paragraphs 39, 40 and 41).

It should be added that the quality objec- tives fixed by those programmes on the basis of analyses of the waters affected serve as the point of reference for calculat- ing the emission standards specified in the 76. There is no doubt that the programmes prior authorisations. Moreover, those pro- aim to reduce pollution, but Article l(2)(e) grammes must be communicated to the of the Directive defines 'pollution' as 'the Commission in a form which facilitates discharge by man, directly or indirectly, of comparative appraisal and their harmo- substances or energy into the aquatic nised implementation in all the Member environment, the results of which are such States.' as to cause hazards to human health, harm to living resources and to aquatic ecosys- tems, damage to amenities or interference with other legitimate uses of water.' Any discharge of one of the 99 substances means that, sooner or later, the aquatic 74. The German laws, regulations and environment affected becomes polluted agreements, as a whole, do not fulfil these according to this definition. For this reason criteria. it is the mere existence of a discharge containing one of the 99 substances, rather than the existence of 'pollution' by the substance, as the German Government suggests, which makes it necessary for the substance to be included in a programme. 75. On the issue of determining 'the sub- stances contained in List II which are relevant to the national context of each Member State', reference should be made to the judgment in Commission v Luxem- bourg 12 , in which the Court referred to the 77. That view was later confirmed by the Court in the judgment in Commission v 12 — Cited above, point 20 et seq. Spain, cited above, in which the Court

— order the Federal Republic of Germany to pay the costs.

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