C-232/97

OPINION OF MR SAGGIO — CASE C-232/97

O P I N I O N O F ADVOCATE GENERAL SAGGIO delivered on 25 February 1999 *

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maximum concentration of a harmful sub- value rules or national emission standards' stance permissible in a discharge. 4 In (Articles). 7 accordance with Article 6 of the Directive, the Council has laid down for certain of those substances limit values, which the emission standards adopted by the national authorities must not exceed, and quality objectives. 5Council Directive 86/280/EEC of 12 June 1986 lays down limit values for emission standards, quality objectives and 3. The second category includes the sub- methods of measurement for certain dan- stances in List II of the Directive. These are gerous substances included in List I which, substances whose deleterious effects on the at the date of its adoption, had not yet been aquatic environment can be confined to a covered by a specific directive (implement- given area and depend on the characteris- ing the Directive). Those values and objec- tics and location of the water into which tives were subsequently determined for they are discharged. That second category certain substances in List I, in the case of also includes substances belonging to the three of them in Directive 86/280 itself. 6 first category for which the limit values That directive also introduces rules which have not been determined (that is the case had not been provided for under Directive for creosote oil, the substance at issue in the 76/464, including the requirement for main proceedings). Member States to draw up, for those substances, 'specific programmes to avoid or eliminate pollution from significant sources of these substances (including mul- tiple and diffuse sources) other than sources of discharges subject to Community limit

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the quality objectives, for the discharge of dangerous substances and preparations the substances in the second category. included in the annex to that directive. Creosote oil appears in point 32 of that annex, which also specifies the conditions under which its use is permitted.

4. Article 1 (2)(d) of the Directive defines the term 'discharge' as the introduction into certain waters of any substances 'in List I or List II of the Annex, with the exception of discharges of dredgings, operational dis- charges from ships in territorial waters, dumping from ships in territorial waters'. The relevant national legislation Article 1 (2)(e) defines 'pollution' as 'the discharge by man, directly or indirectly, of substances or energy into the aquatic environment, the results of which are such as to cause hazards to human health, harm to living resources and to aquatic ecosys- 7. In the Netherlands, the rules on pollu- tems, damage to amenities or interference tion of surface waters are set out in a with other legitimate uses of water'. specific law (Wet Verontreiniging opperv- lakewaterne, hereafter referred to as the 'WVO') which entered into force on 1 December 1970. That law largely corre- sponds with the provisions of the Directive. The law of 24 June 1981 (Stbl. 414) subsequently brought the WVO into line 5. Article 10 of the Directive provides that with the Directive. In order to combat 'where appropriate, one or more Member pollution of surface waters, the WVO States may individually or jointly take more prohibits the unauthorised introduction stringent measures than those provided for into those waters of waste products, pollu- under this Directive'. tants or harmful substances.

12. Nederhoff subsequently brought an 9. L. Nederhoff & Zn. (hereafter referred action before the Nederlandse Raad van to as 'Nederhoff') use wooden posts treated State (Netherlands Council of State) chal- with creosote oil for shoring up banks. lenging the decision refusing its applica- Creosote oil contains polycyclic aromatic tion, on the ground that Article 1(3) of the hydrocarbons (PAHs) and therefore WVO applies to discharges, not to diffuse belongs to the harmful substances men- sources of pollution, as in the case at issue, tioned in List I of the Annex to the and that the Directive authorises national Directive. However, since no limit value authorities to adopt more stringent mea- has yet been fixed for those hydrocarbons sures for discharges than those laid down pursuant to Article 6 of that directive, by the directive, but not to subject to the creosote comes under the rules for sub- requirement of authorisation sources of stances in List II of the annex to the water pollution other than those mentioned Directive. in the directive.

10. Nederhoff did not apply to the compe- tent Netherlands authority for authorisa- tion to use creosote until after it had placed the posts treated with that substance in the surface water. 13. In the judgment making the reference, the Raad van State observes that it has hitherto applied a broad interpretation of the term 'discharge', without distinguishing between the other multiple and diffuse sources of such substances mentioned in 11. The competent authority rejected the Directive 86/280 and the concept of dis- application on the ground that it is not charge referred to in Directive 76/464. possible to avoid PAHs escaping from the Thus, according to the national court, the creosoted posts and causing pollution of requirement for a prior authorisation water. It also pointed out that there are applies also to multiple and diffuse sources,

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to the notion of "discharge" than that Member State, when assessing applica- in that directive? tions for authorisation concerning the introduction into surface water by professional users of wood treated with creosote oil, from applying assessment criteria such as to make that use impossible or possible only in quite exceptional cases?' 5. (a) If Questions 3(a) and/or 3(b) or Question 4 are answered in the affirmative, does Article 3 of Directive 76/464/EEC, whether or not in conjunction with Article 10 of that Directive, permit, in con- nection with the assessment of applications for authorisation, requirements to be imposed which are not contained in the directive, such as the obligation to investi- Question 1 gate whether to choose less envir- onmentally harmful alternatives?

15. By the first question, the national court asks whether the term 'discharge' in Arti- (b) If so, may those additional require- cle 1(2)(d) of the Directive also applies to ments lead to a situation in which the pollution from significant sources, the grant of authorisation is impos- including multiple and diffuse sources, sible or possible only in quite referred to in Article 5 of Directive 86/280. exceptional cases?

6. If Questions 3(a) and/or 3(b) or Ques- tion 4 are answered in the affirmative, 16. It appears from the wording of Arti- do the limitative conditions contained cle 1(2)(d), in conjunction with (e), that in category 32 of Annex I to Council that article of the Directive applies to Directive 76/769/EEC of 27 July 1976 discharges containing harmful substances on the approximation of the laws, introduced by man 'directly or indirectly' regulations and administrative provi- into the aquatic environment, 'the results of sions of the Member States relating to which are such as to cause hazards to... restrictions on the marketing and use of aquatic ecosystems'. That definition there- certain dangerous substances and pre- fore covers all discharges from an identifi- parations (OJ 1976 L 262, p. 201) pre- able source which are attributable to a clude a competent authority of a given human act. It also covers discharges

17. The term 'multiple and diffuse sources' in Article 5 of Directive 86/280 is not 18. It follows from the distinction made explicitly defined in that directive. How- between the two aforesaid concepts that ever, a definition can be inferred from the the term 'discharge' in Directive 76/464 meaning of the term 'discharge' outlined does not include the introduction into the above, since the directive in question environment of dangerous substances from applies to discharges of substances in List significant sources, including multiple and I of Directive 76/464. In that regard, diffuse sources. That interpretation is borne Article 5(1) of Directive 86/280 explicitly out by the wording of Article 5 which distinguishes between 'significant sources', requires the Member States to draw up including 'multiple and diffuse sources' and specific programmes to avoid or eliminate 'sources subject to Community limit value pollution from significant sources only as rules or national emission standards', regards those 'substances to which specific namely the sources of pollution referred reference is made in Annex II' of Directive to in Article 1(2)(d) of Directive 76/464. 86/280. 10Therefore, even if a broad inter- Those sources of pollution are the dis- pretation of the term discharge, to include charges covered by Directive 76/464 and multiple and diffuse sources, were consis- concern the emission of substances in List I tent with the aim of the Directive, namely or List II of the Annex to the Directive. The to ensure protection of the aquatic envir- term 'multiple and diffuse sources' accord- onment, such an interpretation would, be ingly applies to all pollution which is not contrary to the purpose of the Community attributable to an identifiable source or, legislature which was to impose on the therefore, to any given or specific human act (for example, water pollution caused by nitrates from agricultural sources). Since 10 — Those substances do not include PAHs and, therefore, creosote oil. As regards the substances in Annex II of the link to the originator is either missing Directive 86/280, see footnote 6.

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creosote oil particles from wood placed in question. It follows that the water pollution surface water. is not the consequence of a non-identifiable source of pollution, but of a human act. In that case it is therefore feasible to impose an obligation to apply for authorisation.

22. The answer can be inferred from the distinction, which I have already explained, between the concept of 'discharge' and that of 'other significant, multiple and diffuse, sources'. On that basis, the escape of creosote oil particles from wood placed in surface water must be regarded as a discharge where it is attributable to an identifiable human act and, conversely, 24. In this case, therefore, the condition for where it is not attributable to an agent, it a discharge within the meaning of Arti- must be regarded as pollution from diffuse cle 1(2)(d), namely that the introduction sources and therefore outside the scope of into the surface water of substances classi- the Directive. fied as dangerous under the Directive must be attributable to a human act, is satisfied. Where, as in this instance, the case con- cerns the concept of a discharge, Article 5 of Directive 86/280 may apply for the reasons indicated in the solution to the first question.

26. By the third question, the national court asks whether the term 'discharge' includes the introduction into surface water of wood treated with creosote oil or the 29. In that regard it must first be observed escape of creosote oil particles from wood that the Directive only ensures a minimum placed in that surface water. degree of harmonisation of national legis- lation on discharges into certain waters, 12 leaving the Member States the option of taking even more stringent measures. Arti- cles 5(2) and 10, as well as the 11th recital of the Directive, merely confirm that power of the Member States, thereby making it 27. That question distinguishes two clear that the provisions of the Directive hypotheses which can in fact be reduced aim only to ensure a minimum level of to a single phenomenon, namely the release protection of the aquatic environment into surface water of pollution-causing beyond which the Member States are free particles as a result of the placing in those to adopt more stringent measures, includ- waters of wooden posts treated with such ing the introduction of a system of autho- substances. The reply to be given to the risation. national court is, therefore, that the placing in those waters of posts treated with creosote oil is to be regarded as a discharge because creosote oil is released, on contact with water, in the form of pollution causing particles. 30. It must be observed that that interpre- tation of the Directive is consistent with the powers conferred on the Community in the environmental sphere by the Single Euro- pean Act and the Maastricht Treaty. 13 Those powers, which are concurrent with the powers of the Member States, are to be exercised in compliance with the principle Question 4 of subsidiarity so that Member States are

31. That being said, the Member States must be accorded the power to make such discharges as are not covered by the Question 5 Directive subject to the requirement of prior authorisation. That power derives its legal basis from the independent compe- tence reserved to the Member States in 33. Having answered the third and fourth environmental matters and the Directive questions in the affirmative, a reply must merely confirms that competence. The only also be given to Question 5, which the limitation on that power is the requirement national court has submitted in a graduated of compliance with the Treaty and in manner: it must therefore be determined, particular with the provisions on the free with regard to Articles 3 and 10 of the movement of goods (Article 30 et seq.) and Directive, whether Member States are enti- on competition policy (Articles 85 and tled to make the grant of authorisation 86). 15 However, even if they are inconsis- subject to additional requirements not tent with the aforesaid Community sources, national provisions are none the less legit- imate where they meet an imperative 16 — In Commission v Denmark, cited in footnote 15, the Court, recalling the Adbhu judgment, stated that: 'the requirement, provided that they are not protection of the environment is "one of the Community's essential objectives", which may as such justify certain limitations of the principle of the free movement of goods' (paragraph 8; see also paragraph 9). That position was most recently confirmed at paragraph 64 in Safety Hi- 14 — See also Case C-284/95 Safety Hi-Tech [1998] ECR Tech, cited in footnote 14, where the Court recalled that I-4301, paragraph 43. 'protection of the environment is an imperative require- 15 — See Case 302/86 Commission v Denmark [1988] ECR ment which may limit the application of Article 30 of the 4607; Case C-203/96 Dusseldorf and Others [1998] ECR Treaty'. In Commission v Belgium, cited in footnote 15, I-4075, paragraphs 49 and 50; Case C-2/90 Commission v the Court stated, however, that 'imperative requirements Belgium [1992] ECR I-4431, paragraph 34, and Case can indeed be taken into account only in the case of 240/83 Procureur de la République v Adbhu [1985] ECR measures which apply without distinction to both domestic 531. and imported products' (paragraph 34).

34. For the reasons developed in connec- tion with the preceding question, this question too can only be answered in the affirmative. The Member States must be accorded the power not only to give a more wide-ranging meaning to the term 'dis- 36. Moreover, the fact that those additional charge' in their national legal systems than requirements may have the effect of making that provided for in the Directive, but also the grant of authorisation exceptional or to impose additional or more stringent even impossible is not incompatible with requirements for the grant of authorisation, the objective which the Member States are in particular for the substances in List I. As obliged to pursue in accordance with the a result, I consider that Member States are aforesaid directive, namely to 'eliminate also free in their respective legal systems to pollution of the waters... by the dangerous make the grant of authorisation conditional substances in the families and groups of on the absence of alternative solutions substances in List I'. The pursuit of that having less impact on the environment. objective may well have the effect, in That reply is consistent, in particular, with particular, of prohibiting discharges alto- the power conferred on the Member States gether; in that extreme hypothesis, in order by Article 5(2) of the Directive to impose more stringent emission standards for the substances in List I than those laid down by 17 — It should be noted that List II of the Annex to the Directive covers the families and groups of substances in List I for the Council, as well as with the rule, set out which the limit values referred to in Article 6 of the Directive have not been laid down. in Article 130r(2) of the Treaty, that 'envir- 18 — Provided those conditions do not have the effect of onmental damage should as a priority be circumventing the provisions of the Directive or of increasing the pollution of waters (Articles 8 and 9 of the rectified at source'. Directive).

38. As a result, I suggest replying to the fifth question to the effect that the Member States are entitled to make authorisation subject to additional requirements not provided for in the Directive, such as the obligation to investigate or choose alterna- tive solutions which have less impact on the environment, provided that those addi- 40. That question of interpretation arose tional requirements meet an imperative from the possible incompatibility between requirement, are not discriminatory and the aforementioned Directive 76/769, satisfy the principle of proportionality. which merely introduces restrictions on Within those limits, the Member States the marketing of wood treated with creo- are allowed to lay down, in particular for sote oil, and national rules on the protec- the substances in List I, conditions that are tion of waters which instead simply prohi- so stringent as to make the grant of bit the use of that substance.

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19 — See the first recital of the preamble to Directive 76/769 and the second recital of the preamble to Directive 94/60, cited 20 — Article 1 of Directive 76/769 specifies 'without prejudice above. Directive 76/769 also acknowledges protection of to the application of other relevant Community provi- the environment as an objective to be pursued. sions'.

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Conclusion

44. In the light of the foregoing considerations, I propose that the Court should reply as follows to the questions referred for a preliminary ruling by the Nederlandse Raad van State:

(1) The term 'discharge' in Article 1(2)(d) of Council Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community must be interpreted as not including the term 'significant sources (including multiple and diffuse sources)' in Article 5(1) of Council Directive 86/280/EEC of 12 June 1986 on limit values and quality objectives for discharges of certain dangerous substances included in List I of the Annex to Directive 76/464/EEC.

6. Council Directive 76/769/EEC of 27 July 1976 on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations, as amended by European Parliament and Council Directive 94/60/EC of 20 December 1994, does not preclude national rules making the grant of authorisation conditional on requirements which are such as to make the use of those substances impossible or altogether exceptional. In the event of inconsistencies between the two regulatory systems, the national rules take precedence in so far as they meet an imperative requirement such as the protection of the environment, provided that they are not discriminatory and satisfy the principle of proportionality.

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