C-207/97

COMMISSION v BELGIUM

OPINION OF ADVOCATE GENERAL MISCHO delivered on 18 June 1998 *

1. The Commission has brought Treaty protect the aquatic environment from pollu- infringement proceedings regarding the tion, particularly that caused by certain per- Kingdom of Belgium's implementation of sistent, toxic and bioaccumulable substances.' Council Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic envi- ronment of the Community. 1

' 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 6. List II of the Annex to Directive 76/464 they shall apply in particular the methods comprises: 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 '— Substances belonging to the families and the substances within List II shall require groups of substances in List I for which prior authorisation by the competent authority the limit values referred to in Article 6 in the Member State concerned, in which of the Directive have not been deter- emission standards shall be laid down. Such mined, standards shall be based on the quality objec- tives, which shall be fixed as provided for in paragraph 3.

— certain individual substances and catego- ries of substances belonging to the fami- 3. The programmes referred to in paragraph lies and groups of substances listed below, 1 shall include quality objectives for water; these shall be laid down in accordance •with Council Directives, where they exist.

and which have a deleterious effect on the 4. The programmes may also include specific aquatic environment, which can, however, be provisions governing the composition and use confined to a given area and 'which depend of substances or groups of substances and on the characteristics and location of the products and shall take into account the latest water into which they are discharged.' economically feasible technical developments.

11. Before I analyse the substance of the Commission's arguments the admissibility of 2. The Commission shall, where possible, the action must first be considered. within 27 months following notification of this Directive, forward the first proposals made pursuant to Article 7 (7). The Council, acting unanimously, shall take a decision 2 — See Joined Cases C-232/95 and C-233/95 Commission v Greece [1998] ECR I-3343 and Case C-206/96 Commission v within nine months.' Luxembourg [1998] ECR I-3401.

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12. It is clear from the documents before the cedure laid down by Article 169 is capable of Court that the Belgian Government, although making it more difficult for the Member State not formally raising a plea of inadmissibility, concerned to refute the Commission's argu- relies nevertheless on a defence which, if ments and of thus infringing the rights of the proved to be well founded, would result in defence'. It is therefore for the Member State the action being held to be inadmissible. pleading excessive duration to prove that this has violated its rights of defence.

13. The Belgian Government contends that the fact that the Commission took no action 16. The Belgian Government confines itself after the letter of formal notice of 26 Feb- to observing that in this instance the proce- ruary 1991 (and the Government's reply of dure was excessively long and it was evident, 28 February 1991) until 6 August 1996, the therefore, that the Commission's inaction had date of the reasoned opinion, led the Belgian affected the Government's means of defending Government to believe that the procedure itself; however, it advances no argument to initiated had been suspended and that the explain how that was so. Commission had acknowledged that its action was unfounded.

tives, at least regarding the 99 substances these categories must be therefore identified listed in Annex I. before emission limit values and quality objec- tives can be specified for them.

19. In reply to a written question put to it by 23. The work carried out by the Commis- the Court the Commission stated that the sion, in cooperation with Member States, present case relates only to the 99 substances. resulted in the compilation of a list of 129 substances which is appended to its commu- nication to the Council of 22 June 1982 regarding dangerous substances which should be included on List I of Directive 76/464. 5

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attention should be paid where appropriate to substances referred to in daughter directives.' a list of 11 substances appended to the resolu- The Council Resolution of 7 February 1983 7 tion. shows, it submits, to what extent the l i s tof 99 substances is to be regarded as a mere basis for continuing work on a Community defini- tion.

26. In the meantime three other substances were added to the Commission's list, which now comprises 132 substances, but of these 18 were the subject of Council directives set- ting emission limit values and quality objec- 29. The Belgian Government submits that tives and 15 others gave rise to the Proposal 'the Commission makes a wholly incorrect for a Council Directive amending Directive association between a brief and vague annex 76/464/EEC on pollution caused by certain to Directive 76/464, which is a framework dangerous substances discharged into the directive, and a Council policy resolution aquatic environment of the Community, sub- recognising 129 substances as a basis for con- mitted by the Commission on 14 February tinuing Community studies and as a provi- 1990. 6 sional basis for any action at national level.'

27. The present action therefore relates to the 99 remaining substances on the l i s t appended 30. Furthermore the Kingdom of Belgium to the Commission's communication cited again quotes the Commission communication above and officially noted in the Council's of 22 June 1982 8 to demonstrate 'to what resolution of 7 February 1983. extent the identification of a list of substances — via the resolution — was purely tentative and was to be regarded as an intermediate stage which should have led to proposals for specific directives and to daughter directives The status of the list of 99 substances adopted by the Council.'

32. As regards the Belgian authorities' argu- ment to the effect that Directive 76/464 is only a framework directive requiring the Council to adopt daughter directives, the Commission contends that that view of the 35. In my opinion there is a flaw in the Bel- matter conflicts with the system which was gian Government's reasoning. set up by the Directive and which defines two levels of protection. The first level (List II) aims to reduce 9 water pollution through programmes adopted in accord with Article 7. The second (List I) aims to eliminate 10 water pollution by the measures prescribed in Articles 3 to 6. 36. First, it is undoubtedly true, as regards the substances falling within List I, that 'legal decisions'... from the Council are required in order to define what substances are individu- ally concerned. However, the Council's deter- 33. The Commission therefore concludes that mination of the individual substances is 'it cannot be claimed that the absence of required solely with a view to subjecting them daughter directives regarding the determina- to the measures prescribed in Articles 3 to 6 tion of limit values applicable to a substance of Directive 76/464. amounts to the absence of any obligation under Community law.'

37. It is clear from the system established by 34. The Belgian Government remarks in its Directive 76/464 that List I substances are to rejoinder that '[T]he Commission continues be treated as List II substances if the Council to draw erroneous references from a reading has not determined emission limit values for them, with the result that they must be included in a water pollution reduction pro- 9 — Underlined in the original. gramme which every Member State must draw 10 — Underlined in the original. up pursuant to Article 7 of the Directive.

41. In this respect, it is clear from the docu- ments before the Court that the Kingdom of 39. However, while it is not in dispute that Belgium does not contest the obligation to the list of 99 substances cannot be regarded prepare water pollution reduction pro- as legally binding solely because the Council grammes pursuant to Article 7 of Directive has taken official note of it by a resolution, it 76/464. O n the contrary, the Belgian authori- must nevertheless be recognised as having a ties maintain that they have 'acted in the spirit certain relevance. In the context of this case, of Article 7 of the directive' by adopting a the only purpose served by that resolution is body of programmes and measures, both fed- to prove that the 99 substances at issue belong eral and regional, and that 'these efforts should scientifically to the families and groups of be regarded as reduction programmes within substances in List I. Failing scientific proof to the meaning of Article 7.1.'

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42. More specifically, the Kingdom of Bel- other Member States or found in the relevant gium lays particular emphasis on three types literature. of action:

44. The Kingdom of Belgium then points out — the existing legislation that it sent the Commission a file entitled 'Flow to the N o r t h Sea' on the reduction of discharges of 36 substances into the aquatic environment and consequently into the North Sea. The defendant Government claims that the choice of 36 substances was based on — the action taken to protect the North Sea examinations and 'screenings' showing that these were priority substances in terms of quality objectives.

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of the 99 substances which are the subject of 49. As it is clear from what has been said ear- the infringement procedure and yet does not lier that the pollution reduction programmes contend that those substances are not present to be established pursuant to Article 7 of on its territory.' Directive 76/464 must in any case cover the 99 substances cited, with which the present action is concerned, I am obliged to conclude that the Kingdom of Belgium has failed to fulfil its obligations under Article 7 of the Directive.

47. With regard to the Kingdom of Belgium's measures to protect the North Sea, the Com- mission claims, first, that 13 of the 36 substances cited are on List I of the Annex to Directive 76/464, for which emission limit 50. It is common ground that the Kingdom values have been fixed by Council directives, of Belgium has not adopted programmes and that consequently the 23 remaining designed to reduce, throughout its territory, substances, which are covered by List II, water pollution caused by substances in List cannot be regarded as adequate. The Com- II of the Annex to Directive 76/464 and, more mission then points out that, contrary to the especially, by the 99 substances on the Ust requirements of Article 7 of Directive 76/464, appended to the application. the document entitled 'Flow to the N o r t h Sea' does not lay down any quality objective for water.

52. The Kingdom of Belgium contests the 55. It is this idea of planning of the action Commission's interpretation, claiming that taken by the Member States which implies an 'nowhere does the Directive give cause for obligation to adopt programmes. This involves such a restrictive interpretation, which has no drawing u p global policies on the pollution of legal basis and is, furthermore, contrary to the aquatic environment, in which specific the Treaty definition of a directive as an measures already adopted or yet to be taken, instrument which harmonises the results to such as the Belgian sectoral decrees, are be achieved, leaving the choice of form and included. methods to Member States'. In this respect, the documents before the Court show that, according to the Belgian authorities, the sec- toral decrees mentioned earlier do not replace the idea of programming but, on the con- trary, constitute an essential component of it. Furthermore, the discharge authorisation, which is compulsory in all cases, is the spe- 56. Leaving aside the criticisms expressed ear- cific expression of the implied programming lier, the legislation to which the Kingdom of contained in these sectoral decrees. Belgium refers undeniably constitutes a useful instrument for eventually achieving a reduc- tion in pollution. However, on the Belgian authorities' o w n admission, the sectoral decrees reflect an implied programming. H o w - ever, implied programming underlying a series 53. In my opinion, while it is, admittedly, of sectoral decrees can under no circum- true that Directive 76/464 does not define stances be regarded as a programme within what is meant by 'programme', the Commis- the meaning of Article 7 of Directive 76/464. sion's interpretation appears to be a better reflection of what was intended by the Com- munity legislature. In using the term 'pro- gramme', the Community legislature certainly intended to impose on Member States an obligation extending beyond the adoption of specific individual measures to reduce pollu- tion. 57. This conclusion is further strengthened by the fact that paragraphs 6 and 7 of Article 7 establish a scheme of cooperation, and indeed of coordination, between all the Member States and the Commission on the subject of national programmes. The protec- 54. The protection of the environment tion of the environment, and in particular the depends to a large extent on the planning of reduction in pollution of the aquatic environ- the action undertaken by national public insti- ment of the Community, necessarily involves tutions and Community institutions, taken as coordination between Member States, given a whole. 11 the cross-frontier nature of water pollution. A comparison of national programmes, estab- lished for that purpose by Article 7 of Direc- 11 — Sec the Opinion of Advocate General Cosmas of 19 March tive 76/464, would be impossible to under- 1998 in Case C-298/97 Commission v Span [1998] ECR I-3301, point 11. take on the basis of implied programmes.

61. Secondly, the Kingdom of Belgium main- tains that its contentions are confirmed by the Proposal for a Council Directive estab- 59. First, the Kingdom of Belgium cites lishing a framework for Community action in Council Directive 96/61/EC of 24 September the field of water policy, which is under con- 1996 concerning integrated pollution preven- sideration by the Council and which provides tion and control. 12 The adoption of this direc- inter alia the repeal of Directive 76/464. A tive, it submits, confirms 'that the list is not revised version of this proposal, submitted to of a legally binding nature' as it replaces a Member States for consultation, sets out on number of provisions in Directive 76/464, in page 3 'exactly what was the problem with particular Article 7(2) relating to the principle this directive (and hence with bringing the of prior authorisation. In addition, Directive matter before the Council).' The passage reads 96/61 attempts for the first time to impose a as follows: 'One of the problems of Directive Community definition of the substances cov- 76/464 was the lack of any means of identi- ered. However, the Kingdom of Belgium fying priority substances for action among deeply regrets that this text does not provide the 129 substances listed in its Annex I. It is the desired clarity and, owing to its indica- essential for the success and credibility of any tive nature, merely prolongs the legal and programme on dangerous substances that the technical uncertainty which has existed since substances be tackled in manageable tranches, Directive 76/464. that the criteria for prioritisation be open and transparent, and that the substances selected according to those criteria be endorsed by the Community as a whole according to the pro- cedures established in the Treaty. The Com- mission shall therefore come forward within a separate proposal for a first priority list, probably comprising around 30 dangerous substances, which will be adopted according 60. However, it has to be observed that Direc- to the Treaty procedures, and will produce tive 96/61 does not alter the obligation on the that list by December 1998.' part of the Member States to establish pollu- tion reduction programmes, since it amends, for new installations, the system of permits which henceforth are to 'include emission limit values for pollutants, in particular those listen in Annex III' 13 of this new directive. N o r does Directive 96/61 show that the Com- 62. I must admit that this argument does carry some weight with me. Article 13 of the Proposal for a Directive enjoins Member 12 — OJ 1996 L 257, p. 26. States to draft a programme of measures by 13 — Article 9(3). hydrographic district. The date specified for

— o r d e r t h e K i n g d o m of Belgium t o p a y t h e costs.

14 — Judgment in Case C-236/88 Commission v France [1990] ECR I-3163, paragraph 19.

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