C-231/97

VAN ROOIJ V DAGELIJKS BESTUUR VAN HET WATERSCHAP DE DOMMEL

OPINION OF ADVOCATE GENERAL SAGGIO delivered on 25 February 1999 *

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OPINION OF MR SAGGIO — CASE C-231/97

stances, they were laid down in Directive (not, therefore, to eliminate) pollution by 86/280 itself. 5Directive 86/280 also intro- the substances in the second category and, duces rules which had not been provided to that end, they must establish 'pro- for under the Directive, such as the require- grammes'. These are to include 'quality ment for Member States to draw up, in objectives' for water which must comply respect of those substances, 'specific pro- with any existing detailed or sectoral grammes to avoid or eliminate pollution Council directives. Member States are also from significant sources of these substances required to set up a system of prior (including multiple and diffuse sources) authorisations, including the setting of other than sources of discharges subject to emission standards on the basis of the Community limit value rules or national quality objectives, for the discharge of emission standards' (Article 5). 6 substances in the second category.

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The relevant national legislation 8. Mr A.J.M. van Rooij, who lives next to the Van Aarle premises, lodged a complaint with the Dommel Water Board (hereinafter 'the competent authority'), objecting that during the wood-impregnation process on 6. In the Netherlands, the rules concerning those premises contaminated steam is surface water pollution are set out in a released which is subsequently precipitated, specific statute (Wet Verontreiniging directly or indirectly, on to the nearby Oppervlakewateren; hereinafter 'the surface water and, in particular, on to the WVO') which entered into force on water which collects for part of the year in 1 December 1970. In order to combat a two-metre wide ditch. According to pollution of surface waters, the WVO Mr van Rooij, this steam is polluted by prohibits the introduction into those waters some of the noxious substances (arsenic, of waste products, pollutants or harmful copper and chromium) in List II of the substances without prior authorisation. In Annex to Directive 76/464. He therefore that regard, the prior authorisations system asked the competent authority to take provided for in the WVO distinguishes protective measures with respect to Van between discharges from industrial plant Aarle. and discharges from other sources. A specific administrative body is responsible for issuing the authorisations and also has the power to adopt protective measures designed to ensure compliance with the rules on the introduction of substances into surface water. The WVO largely matches the requirements of the Directive. In order 9. By decision of 29 December 1994, the to bring the WVO into line with the competent authority dismissed Mr van Directive, the law of 24 June 1981 Rooij's request and, by decision of 21 April (Stbl. 414) was subsequently adopted. 1995, also dismissed his objection to its first decision. Mr van Rooij appealed the second decision before the Raad van State.

taminated steam which is then immediately interpreted as covering precipitation of precipitated into surface water must be contaminated steam on to surface regarded as a 'discharge' under the relevant water? Is the distance from which the national rules, even where the steam is steam in question is precipitated on to precipitated on land or roofs and then the surface water relevant in that reaches the surface water by way of storm respect? drains. It went on to observe that the interpretation given to the Directive by the Dutch authorities was consistent with the relevant national legislation but possibly at odds with the purpose of the Directive as set out in the third recital, which states that 2. Does the term "discharge" cover steam 'any disparity between the provisions on which is first precipitated on to land the discharge of certain dangerous sub- and roofs and then reaches the surface stances into the aquatic environment water, via a storm water drain, whether already applicable or in preparation in the belonging to the establishment con- various Member States may create unequal cerned or to residential or other build- conditions of competition and thus directly ings? Is it material to the reply to be affect the functioning of the common given to this question whether the market' and that 'it is therefore necessary contaminated steam reaches the surface to approximate laws in this field, as water via the storm water drain of the provided for in Article 100 of the Treaty'. establishment concerned or via that of The national court then referred the fol- a third party? lowing questions to the Court for a pre- liminary ruling:

12. In my view, the reply to be given on the first point, which goes to the heart of the question, can only be affirmative. The relevant provision of the Directive in this context is Article 1(2)(d) which defines the term 'discharge'. Pursuant to that provi- 14. The wording of Article 1(2)(d) does not sion, a discharge is the introduction into rule out forms of discharge other than the waters (inland surface water, territorial flowing of one liquid into another. Sup- waters, internal coastal waters, ground porting the strict interpretation, the French water) of certain substances appearing in government argues that in French, the title List I or List II of the Annex to the of the Directive contains the term 'rever- Directive. To my mind, Article 1(2)(d) must sées' which, from the lexical point of view, be interpreted broadly so as to cover also renders the idea of one liquid flowing into the introduction of steam precipitated from another. That is a very weak argument the air on to the water surface. That given that, even in the French-language conclusion is based on several considera- version, that term is not used in the body of tions relating essentially to the wording and the Directive; that practically none of the the purpose of the Directive. other language versions use a comparable term in either the text or the title; and, lastly, that the French term, taken figura- tively, can also be understood as covering the passage into water of substances which are not in the liquid state. More generally, the terms used in the various language versions (with the exception of the French 13. The national court's doubts with regard term which, taken alone, could seem to the interpretation of the Directive stem ambiguous) can also be understood as from the fact that the Directive defines the covering the passage into water of sub- term 'discharge' merely as the introduction stances which are not in liquid state when into waters of the substances in List I and II they are released into the air but which are of the Annex, and does not expressly state subsequently precipitated and fall on to the that that concept embraces the situation water surface.

What is more, Article 1(2)(e) defines the regardless of the transition of the contami- term 'pollution' in relatively general terms nated substance from the gaseous to the as 'the discharge by man, directly or liquid state, the pollution in question indirectly, of substances or energy into the occurs in the waters. The applicable rules, aquatic environment, the results of which therefore, are those specifically designed are such as to cause hazards to human for the effective protection of the aquatic health, harm to living resources and to environment of the Community; that is to aquatic ecosystems, damage to amenities or say, they are to be found in Directive interference with other legitimate uses of 76/464. Moreover, as the Commission water'. That provision specifically refers to stated in the oral proceedings, wood-pre- indirect discharges, a concept which in any serving plants such as the one at issue in the event covers the transition of harmful main proceedings are not among the instal- substances from the gaseous to the liquid lations at which Directive 84/360 is direc- state and their fall on to water. ted and which are listed in Annex I thereto. If they were also to be excluded from the scope of Directive 76/464, the water pollu- tion occasioned by such installations would remain outside the purview of any specific system of Community protection. It is clear from these considerations that the directive on air pollution from industrial plants does not offer any support for the restrictive interpretation of the term 'discharge'. 15. Council Directive 84/360/EEC of 28 June 1984 on the combating of air pollution from industrial plants 7 is invoked in support of the argument for a strict interpretation of the term 'discharge'. It is maintained that the situation in question falls within the scope of that Directive in so far as it occurs, at least in part, in the atmosphere; consequently, the environmen- tal protection and supervisory mechanisms provided for in that Directive would have to apply in cases such as that pending before the national court. Thus, if a strict interpretation of the term 'discharge' were to be adopted, the situation in question 16. Consideration of the purpose of the would not thereby be deprived of an Directive leads to the same conclusion, appropriate legal framework. However, namely that the term 'discharge' must be that argument is not persuasive. While it interpreted in the broad sense. The Direc- is true that in such a situation, the con- tive seeks to protect the aquatic environ- taminated steam is first released into the ment of the Community from pollution and atmosphere and is only then precipitated on particularly from pollution caused by cer- to the water surface, the fact remains that, tain persistent, toxic and bioaccumulable substances. It is clear that the release into the atmosphere of harmful steam which is 7 —OJ 1984 L 188, p. 20. precipitated on to the water surface has the

effect of polluting those waters. It follows 17. As regards the second aspect of the first that, in order to ensure the necessary question, namely whether the distance protection of the environment from this between the source of the contaminated form of pollution, the term 'discharge' must steam and the water on to which it is be assigned a broad meaning, encompass- precipitated is relevant for the purpose of ing not merely water discharges, but all determining the scope of the Directive, I other discharges introduced in liquid form take the view that that distance is relevant into the aquatic environment. All forms of in so far as it affects the awareness of the water pollution would thus be subject to risk of pollution on the part of the person the system of limits and checks provided introducing the harmful substance into the for under the Directive. That system relies environment. That is to say, if the distance on authorisations issued by the competent is great, the person will probably find it authorities of the Member States to persons difficult, in the light of general experience, intending to release contaminated sub- to perceive the risk to the environment. In stances into the environment. The question certain cases, therefore, a person cannot be is whether the persons concerned are deemed obliged to apply for authorisation. required to apply for such authorisations However, this is essentially a question of only where they are aware that the sub- fact which cannot be reduced to an stance which they intend to release into the abstract, general rule, but must be environment has the polluting effects spe- appraised by the national courts on a cified in the Directive or whether, even in case-by case basis. absence of such awareness, an authorisa- tion is mandatory in all cases including, therefore, where the person concerned is unaware that a substance is dangerous. The Directive does not impose an obligation framed in such general terms. However, in my view, where there is general awareness that the use of certain substances involves a risk to the environment, a person intending to use those substances is obliged to request the competent national authorities for Question 2 authorisation. Accordingly, even if the fact that the person concerned is unaware of the risk is attributable to his own negligence, that does not release him from the obliga- tion to apply for authorisation.

Question 3

20. Secondly, by the same question, the national court also asks whether it is 21. In the event that the Court answers the material in this context whether the storm first question or both questions in the drains via which the contaminated steam negative, in other words, if it finds that reaches the surface water belong to the the term 'discharge' does not apply to establishment which released the steam or emissions of contaminated steam which to third parties. That question must be are precipitated on to surface waters, the answered in the negative. Once it is esta- national court asks whether the Member blished that the purpose of the Directive is States are free to adopt a different, more to protect the environment, the notion of wide-ranging meaning for 'discharge' than 'discharge' must be defined primarily by that in the Directive.

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23. It should be noted that this interpreta- munity law, it is nonetheless legitimate tion of the Directive is consistent with the where it meets an imperative requirement, powers conferred on the Community in the provided that it is not discriminatory and environmental sphere by the Single Eur- that it complies with the principle of opean Act and the Treaty of Maastricht. 9 proportionality. 12 Those powers, which are concurrent with the powers of the Member States, must be exercised in compliance with the principle 10 — See also Case C-284/95 Safety Hi-Tech [19981 ECR I-4301, paragraph 43. of subsidiarity so that Member States are 11 — See Case 302/86 Commission v Denmark [1988] not prevented from 'maintaining or intro- ECR 4607; Case C-203/96 Dusseldorp and Others [1998] ECR I-4075, paragraphs 49 and 50; Case C-2/90 ducing more stringent protective measures' Commission v Belgium [1992] ECR I-4431, paragraph 34, and Case 240/83 Procureur de la République v Adbhu (Article 130t of the Treaty) provided that [1985] ECR 531. 12 — In Commission v Denmark, cited above, the Court, referring to the Adbhu judgment, stated that: 'the protec- tion of the environment is "one of the Community's essential objectives", which may as such justify certain 8 — That is also recognised in Article 2 of the Directive which limitations of the principle of the free movement of goods' states that the provisions of the Directive 'represent only a (paragraph 8; see also paragraph 9).

In cles 130r, 130s and 130t) and regulating the Community's Commission v Belgium, cited above, the Court stated, legislative powers in that area. The Treaty of Maastricht, however, that 'imperative requirements can indeed be which came into force on 1 November 1993, added taken into account only in the case of measures which protection of the environment to the objectives of the apply without distinction to both domestic and imported European Community (Articles 2 and 3). products' (paragraph 34).

(2) The term 'discharge' referred to in Directive 76/464/EEC covers emissions of steam which are first precipitated o n to land and roofs and then reach the surface water via storm drains from an industrial plant, residential or other buildings. The question whether the contaminated steam flows through storm drains belonging to the establishment releasing the steam or through drains belonging to third parties is immaterial in that regard.

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(3) The Member States are free to assign, for the purposes of domestic law, a different, more wide-ranging meaning to the term 'discharge' than that in Directive 76/464/EEC, provided that it is compatible with the Treaty.

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