C-384/97
ECLI:EU:C:1999:529
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COMMISSION V GREECE
OPINION OF ADVOCATE GENERAL LEGER delivered on 28 October 1999*
1. The Commission of the European Com- I — Directive 76/464 munities has brought before this Court an action for failure to fulfil obligations under Article 169 of the EC Treaty (now Arti- cle 226 EC) against the Hellenic Republic 3. The Directive states, in its first recital, which, the Commission contends, has that '... there is an urgent need for general failed to transpose into national law Coun- and simultaneous action by the Member cil Directive 76/464/EEC of 4 May 1976 States to protect the aquatic environment of on pollution caused by certain dangerous the Community from pollution, particu- substances discharged into the aquatic larly that caused by certain persistent, toxic environment of the Community. 1 and bioaccumulable substances'.
4. The Directive aims to eliminate pollu- tion of the aquatic environment by a number of particularly dangerous sub- stances, set out in a list, known as 'List I , and to reduce such pollution by certain other dangerous substances set out in another list, known as 'List II', which two 2. In particular, the Commission charges lists comprise an Annex to the Directive. 2 the Greek Government with failing to The Directive provides that Member States establish programmes including quality are to take the appropriate steps to achieve objectives and setting deadlines for their those objectives. 3 implementation in order to reduce the pollution of waters by certain substances designated in the Annex to the Directive. The Commission also criticises it for failing to subject discharges made into waters and liable to contain those substances to prior 5. List I 'contains certain individual sub- authorisation granted by the competent- stances which belong to the ... families and authority, setting emission standards based groups of substances [referred to in the on the quality objectives established in the Annex], selected mainly on the basis of reduction programmes. their toxicity, persistence and bioaccumula-
* Original language: French. 2 — Article 2. 1 — OJ 1976 I. 129, p. 23 (hereinafter 'the Directive'). 3 — Ihul.
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tion, with the exception of those which are paragraph 3 of that article. Paragraph 5 biologically harmless or which are rapidly provides that '[t]he programmes shall set converted into substances which are biolo- deadlines for their implementation'. gically harmless'. 4
6. Member States must, under Article 3 and Article 5 of the Directive, make any 9. Under Article 7(6) of the Directive, discharge into the aquatic environment of '[slummaries of the programmes and the substances within List I subject to prior results of their implementation shall be authorisation by the competent authorities communicated to the Commission'. and set emission standards which must not exceed certain limit values. Under Arti- cle 6, those limit values are to be laid down by the Council.
10. The Directive does not set any time- limit for transposition. Article 12(2), how- ever, provides that '[t]he Commission shall, 7. List II contains in particular substances where possible within 27 months following belonging to List I for which the Council [its] notification ... forward the first pro- has not yet set limit values. 5 posals made pursuant to Article 7(7)'. 6 Under the latter provision, '[t]he Commis- sion, together with the Member States, shall arrange for regular comparisons of the programmes in order to ensure sufficient 8. Article 7(1) and Article 7(3) of the coordination in their implementation. If it Directive require Member States to estab- sees fit, it shall submit relevant proposals to lish programmes aimed at reducing pollu- the Council to this end'. tion of the aquatic environment (herein- after 'programmes'), including quality objectives for their waters. The same arti- cle provides, in paragraph 2, that all dis- charges into the aquatic environment liable to contain any of the substances within List II must be subject to prior authorisa- 11. A reading of List I reveals that it tion, granted by the competent authority of mainly comprises families and groups of the Member State concerned and laying substances, and the Commission accord- down emission standards. The latter are to ingly considered it necessary, before setting be calculated on the basis of quality emission limit values or quality objectives, objectives prescribed in accordance with to identify the individual substances of which those categories are composed.
4 — Annex to the Directive. 5 — List II, first indent, of the Annex to the Directive. 6 — The Directive was notified on 5 May 1976.
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12. In cooperation with the Member States, II — Infringement procedure the Commission drew up a list of 129 individual substances annexed to the Com- munication from the Commission to the Council of 22 June 1982, on dangerous substances which might be included in List I of Directive 76/464. 7 16. By letter of formal notice of 27 Decem- ber 1990, the Commission drew the atten- tion of the Greek authorities to the issue of implementation in Greece of Article 7 of the Directive. It pointed out that the Community had established a list of 132 13. In its Resolution of 7 February 1983 substances to be included in List 1 of the concerning the combating of water pollu- Annex, 33 of which were already the tion, 8 the Council stated that the list of 129 subject of specific directives or proposals substances contained in the Commission's for directives. The Commission drew to the Communication would serve the Commu- notice of the Greek Government the fact nity as a basis for further work on imple- that a list of 99 substances remained, mentation of the Directive. covered by the obligations laid down in Article 7, which were not the subject of regulatory measures, nor would be in the near future.
14. Three other substances were later added to that list. Of that total of 132 substances, the Commission set emission limit values and quality objectives for 18, whilst 15 others were the subject of a 17. The Commission also referred to the Proposal for a Council Directive amending request, made in its previous letters, to Directive 76/464, submitted by the Com- forward an up-to-date list indicating which mission on 14 February 1990. 9 of the 99 substances were discharged into the Greek aquatic environment, the quality objectives in force at the time when dis- charge authorisations were granted in the various regions affected by such discharges, the reasons, where no objectives had been 15. The remaining 99 substances should set, for which this was so, and a timetable properly appear in List I, but so long as the showing by what date those quality objec- Council has not set limit values for emis- tives would be established. sions of those substances, they are subject to the provisions applicable to List II substances, as provided in the first indent- to that list.
7 —OJ 1982 C 176, p. 3. 8 — OJ 1983 C 46, p. 17. 18. In the same letter, the Commission, 9 — OJ 1990 C 55, p. 7, Article 2. having put the Greek Government on
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notice that it considered that it had failed to was that it had signed an agreement with comply with the provisions of Article 7 of the University of the Aegean to carry out a the Directive and had failed to fulfil the specific study. The Greek authorities, in obligations incumbent on it under the addition, gave a certain amount of infor- Directive and the Treaty, invited the Helle- mation on the presence in Greece of nic Republic to submit its comments to the substances covered by the Directive. Commission within two months, in accor- dance with Article 169 of the Treaty.
19. The Commission did not annex the list 22. In particular, they stated that 32 sub- of 99 substances to its letter. To avoid any stances belonging to the one list or the misunderstanding, it made it clear in a other were broken down by photochemical further letter of 5 October 1993 that the or microbial action and were not dis- list of 132 substances appeared in its charged directly into the aquatic environ- Communication to the Council of 22 June ment. They indicated that the Ministry of 1982, cited above, 10 that the Council had Agriculture granted no authorisations for confirmed that Communication in its Reso- the discharge of pesticides into the aquatic lution of 7 February 1983, cited above, and environment, with the exception of one that three further substances had been such substance, used in the form of a added. The Commission enclosed the full preparation in rice fields, and that the list of 99 substances. industrial plant which packaged those pre- parations did not discharge any waste water.
20. The Commission, on that occasion, again invited the Greek Government to communicate to it, within two months, its observations regarding the drawing up and 23. The Greek Government added that implementation of programmes. nine substances were not marketed in Greece. It acknowledged, furthermore, that 17 substances could potentially be present in waste water. One of those was not discharged into surface water. As regards 10 other substances and those on which it 21. The Hellenic Republic replied by letter provided no information, the Greek Gov- of 12 August 1994, stating that the only ernment indicated that a study would be new factor since one of its previous letters commissioned in relation to those sub- stances to obtain data on the concentra- tions in which they are present in the waste 10 — This figure, to which the Commission's letter refers, is from industrial plant and on the possible incorrect, since the list in question comprises only the first presence in the aquatic environment of 129 substances listed. By adding the three additional substances one does, however, obtain that figure. other substances covered by List II.
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24. As regards authorisation for discharge in 1996, and on the actions undertaken by into catchment water of waste water liable the competent authorities in relation to to contain certain of the 99 substances in substances covered by List I I and, more List II, it stated that the environmental specifically, on the fact that the University health department granted such authorisa- of the Aegean had been commissioned to tions, conditional upon compliance with carry out a study on the situation in Greece the quality objectives set for each of the regarding the substances in List II. The catchment waters whose use was decided Hellenic Republic indicated that, pursuant by prefectorial decree. to that study, should it be necessary, a permanent network would be set up to monitor those substances and programmes to reduce them would be initiated.
25. The Commission drew the conclusion from the foregoing considerations that, for 72 of the 99 substances covered by List II, the Greek authorities had failed to take the necessary steps to reduce water pollution Ill — The action for failure to fulfil obliga- by those substances, either because they tions had provided no information, or because they acknowledged the potential presence in the aquatic environment of certain substances, or, lastly, because it transpired that the information communicated was insufficiently precise. Pleas raised by the parties
28. The Commission criticises the Hellenic Republic, on the one hand, for failing to 26. Taking the view, in the light of these establish programmes to reduce the pollu- considerations, that there was a failure to tion of its waters by the discharge of certain fulfil the obligations laid down by the substances and, on the other, for not Directive, the Commission delivered a making such discharges subject to prior reasoned opinion setting out the complaints authorisation granted by the competent raised against the Hellenic Republic, which authority setting emission standards based was c o m m u n i c a t e d to the latter on on the quality objectives established in 23 December 1996. those programmes.
27. By letter of 20 March 1997, the Greek 29. In support of its action, the Commis- Government sent the Commission informa- sion maintains that, although no time-limit tion on the permanent monitoring network was set for transposition of the Directive, for substances on List I of the Directive, Member States should have communicated which, it stated, had commenced operation to it no later than 5 August 1978 the
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programmes for reducing pollution by the List II subject to prior a u t h o r i s a t i o n substances contained in List II, in accor- granted by the competent authority setting dance with Article 12(2) of the Directive. emission standards based on the quality The Commission states that, no such pro- objectives established in those programmes, grammes having been communicated, it the Hellenic Republic has failed to fulfil its proposed to the Member States, by letter of obligations under the Treaty and Article 7 3 November 1976, the transmission of the of the Directive. programmes to it before 15 September 1981, and that the Member States did not challenge this time-limit.
30. The Commission adds that, under Arti- cle 7 of the Directive, the Hellenic Republic 32. The Hellenic Republic defends the should have adopted programmes for the action. It states that, since its reply of 99 substances and for the families and 20 March 1997, new factors have arisen in groups of substances set out in the second that the study referred to was indeed indent of List II. 1 1It states, however, that commissioned from the University of the its action is confined to the 99 substances Aegean. According to the Hellenic Repub- belonging to the first indent of List II, since lic, it emerges from a report by the its letters of formal notice and reasoned University that the Greek authorities have opinion make reference only to those laid down legislative provisions and taken substances. specific administrative measures to protect catchment waters and have set quality objectives to protect those waters against any potential discharge arising from use of the dangerous substances in issue.
3 1 . It asks this Court, therefore, to declare that, by failing to establish programmes including quality objectives and setting deadlines for their implementation, in order to reduce pollution of its waters caused by the 99 dangerous substances covered by the first indent of List II of the Annex to the Directive and, consequently, by not making discharges made into its waters which are 33. In its defence, the Hellenic Republic liable to contain any of the substances in cites various domestic enactments (intermi- nisterial, interdepartmental, departmental and prefectorial decrees, together with an 11 — That latter provision identifies '[c]ertain individual sub- interministerial decision and the decision of stances and categories of substances belonging to the families and groups of substances listed [in this indent] a regional director), which lay down a which have a deleterious effect on the aquatic environ- ment, which can, however, be confined to a given area and number of prohibitions and restrictions as which depend on the characteristics and location of the water into which they are discharged.' regards the waste which can be discharged into the aquatic environment.
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34. It also quotes the available data on ceilings for discharge into water or depart- imports into Greece, between 1983 and ments with no industrial activities produ- 1989, of 17 agrochemical products of the cing waste liable to contain any of the 99 25 belonging to List II. The Greek Govern- substances belonging to List II. ment points out that, although a number of agrochemical products were imported in significant quantities, surface-water ana- lyses carried out at the request of the Ministry of the Environment did not reveal the presence of agrochemical products in quantities liable to give rise to a risk of contamination. 37. In its reply, the Commission observes that, in its view, the study entrusted to the University of the Aegean forms part of the preventive measures which have to be taken in order to be able to finalise the programmes referred to in Article 7 of the Directive; this shows that those pro- grammes are not yet in existence. 3 5 . The Hellenic Republic adds that, according to the study being carried out, 24 autonomous departmental authorities out of 52 are unaware of any activities, on their territories, which involve the produc- tion of waste containing the substances referred to in the Commission's reasoned 38. It disputes that the national provisions opinion. In the other autonomous admin- on which the Hellenic Republic relies can istrative departments, the study is not yet be classified as programmes within the complete so that it is not possible to give meaning of Article 7 of the Directive, since complete data on the matter. those enactments are designed, according to the Commission, to transpose other Community directives. It confirms that the programmes have not yet been notified to it.
36. The Hellenic Republic states that it has fulfilled the obligations laid down by the Directive. In its view, quality objectives were in fact set for the catchment waters 39. It contends that the Hellenic Republic for which this was necessary and ceilings cannot set quality objectives without waste prescribed for effluent discharged into sur- emission standards. Conversely, imposing face water. Further, every part of the emission thresholds for the various sub- national territory falls within at least one stances involved cannot, it maintains, serve of the following three categories: depart- to satisfy the obligation to set quality ments which have established quality objectives for reducing pollution, in imple- objectives, departments which have set mentation of the Directive. The fact that
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there is no industrial plant does not exempt 42. The Hellenic Republic adds that an the Hellenic Republic from the requirement inventory of sources of pollution has been to establish programmes for those regions. drawn up for the whole territory and that the monitoring network covers almost all surface water on Greek territory as well as the industries which give rise to the dis- charge of waste water containing certain of the substances in List II. Measures have been taken setting quality objectives for 40. The Commission adds that the defend- certain waters into which discharges are ing Government has set quality objectives made and for a number of List II sub- for only a limited number of regions and stances. The Greek Government relies on for certain of the substances on List II. the principle, derived from the case-law of According to the Commission, those qual- this Court, that transposition of a directive ity objectives do not derive from a specific into domestic law does not necessarily study identifying existing pollution and require that its provisions be incorporated setting out the method to follow in order formally and verbatim in express, specific to reduce it. It is impossible, therefore, to legislation, and that, depending on the evaluate how significant they are in terms content of the directive, a general legal of the Directive. Nor, furthermore, do those context may fulfil the requirements of quality objectives relate to reducing pollu- transposition. 12 tion which has been detected, as the Directive requires, but to specific goals laid down by other directives.
Assessment of the pleas raised
4 1 . T h e Greek G o v e r n m e n t states in response that the first stage of the study being carried out by the University of the Aegean (inventory of sources of pollution 4 3 . In relation to the first plea, that the and List II toxic substances, evaluation of Hellenic Republic has failed to establish data collected, drawing up a list of sub- any programmes, the Commission notes stances liable to be present in the Greek the obligations on that Member State, aquatic environment, developing a surface- stating that the latter had a duty to draw water monitoring network) has been com- up a statement of the position regarding pleted. The second stage of the study (the pollution of inland and coastal waters by taking of samples and analysis of surface the 99 substances contained in List II and, water into which discharges are made, on the basis of that data, to establish a interim technical reports containing the programme to reduce pollution, setting results of sampling and a full report together with programmes for reducing discharges of the substances in question) 12 —Judgments in Cases C-13/90 Commission v France [1991 ECR 1-4327; C-14/90 Commission v France [1991 was to commence in July 1998 and last 16 ECR 1-4331 and C-64/90 Commission v France [1991 ECR 1-4335. months.
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quality objectives and time-limits for their ment, a phase preliminary to preparation of implementation. 13 the programmes under Article 7(1), was not yet completed in all the autonomous departmental authorities '... making it impossible to provide complete data on the situation regarding surface water in terms of pollution of such water by the substances with which this study is con- 44. Contradicting itself somewhat, the cerned'. 16 defendant Government, whilst claiming that it has complied with the obligations incumbent on it, acknowledges that the study commissioned from the University of the Aegean, which is intended, to a certain extent, to draw up an inventory of pollu- tion of the Greek aquatic environment by the substances on List II before setting out 47. Even if the final report commissioned the content of the programmes in a final by the Greek authorities is completed by report, was not completed in July 1998. It the date announced, there is no doubt that, adds that it should be completed 16 months as at the date on which this action came later, that is to say, in December 1999. 14 before this Court, 17 the programmes required by the Directive were not in place. It suffices to note, on this point, that the Commission delivered its reasoned opinion on 23 December 1996, inviting the Greek Government to comply with it within two months. However, as is discernible from 45. According to the established case-law Annex II to the Hellenic Republic's defence of this Court, failure to comply with and as the Commission has rightly pointed obligations must be determined by refer- out, the research assignment was commis- ence to the situation prevailing at the end of sioned by a decision of 4 June 1997. 18 the period laid down in the reasoned opinion. Subsequent changes cannot, there- fore, be taken into account. 15
48. The fact that the study commissioned from the University of the Aegean was not 46. The defendant Government itself acknowledges that the 'inventory' part of the study, designed to identify the sources 16 — Page 31 of the French translation of the defence. 1 7 — A c t i o n for failure to fulfil obligations of 6 Noventher of pollution in the Greek aquatic environ- 1997, received at the Court Registry on 10 November 1997. 18 — Research project entitled 'Survey of the position regarding pollution of surface water by the toxic substances in 13 — Paragraph 20 of the application. List II, capable of belonging to' List 1 of Directive 76/464/ 14 — Paragraph 2 of the rejoinder. EEC, and organisation/operation of a network to monitor the quality of surface water in relation to substances 15 — Case C-214/96 Commission v Spam [1998] ECR I-7661, revealed by the survey of the pollution situation'. paragraph 25.
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complete by expiry of the time-limit set by stances in List II which is relevant in the the Commission is in my view sufficient to particular context of the Member State substantiate the first plea on which the concerned, in accordance with the quality Commission relies in support of its action, objectives fixed by those programmes for since the programmes were not, by defini- the waters affected. They differ, there- tion, in place. fore ... from bundles of ad hoc measures designed to reduce water pollution'. 19
52. The provisions of Greek law on which 49. For the sake of completeness, however, the defendant Government relies are, how- it is appropriate to examine the other ever, disparate in nature. arguments advanced by the Greek Govern- ment, contending that various enactments did in any event transpose the Directive into domestic law.
53. The Greek authorities, by admitting that certain parts of the national territory are not covered either by measures which include the setting of quality objectives or by provisions laying down emission stan- 50. The programmes to be set up under dards, 20 are acknowledging that the Article 7(1) of the Directive have been alleged transposition of the Directive does clearly defined in proceedings previously not reflect the comprehensive approach brought before this Court against other which it prescribes. Member States.
54. In order to justify those omissions, and also those arising from the fact that the emission standards adopted cover, for each 51. According to the case-law of this location, only some of the substances in Court, they must be specific. The Court List II, 21 the Hellenic Republic points out has held, in this regard, that '[w]hat is that the part of national territory concerned specific to the programmes in question is has no industrial activities producing waste the fact that they must embody a compre- hensive and coherent approach, covering the entire national territory of each Mem- 19 — Judgment in Case C-207/97 Commission v Belgium [1999] ber State and providing practical and ECR I-275, paragraph 40. coordinated arrangements for the reduction 20 — Page 33, second paragraph, of the French translation of the defence. of pollution caused by any of the sub- 21 — Ibid., pages 11, 14 and 30.
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liable, in its view, to contain the substances the national provisions relied on establish in question. ceilings for the discharge of certain sub- stances without previously setting quality objectives. 22 It is only those objectives, then, which the Directive requires must be set, which can ensure proper monitoring of the condition of the aquatic environment and ongoing adjustment of levels under the 55. As the Commission has rightly pointed emission standards previously laid clown, out, that argument cannot be accepted, where those standards arc found to be since polluting activities may come into inadequate. Establishing such standards is being and develop at any time in regions therefore a true obligation of result incum- not subject to the constraints associated bent on Member States, safeguarding effec- with the setting of emission standards. A tive protection of the environment. Member State cannot, therefore, without disregarding the intention of the Directive, exclude particular parts of its territory, a priori and permanently, from the scope of application of the national transposing provision. 58. Furthermore, the Hellenic Republic has not established that it has set time-limits for implementing quality objectives, even where those objectives are laid down in certain of the measures relied on.
56. As regards, in particular, programmes and the quality objectives they must include, one must agree with the Commis- sion's contention that a region which has no industrial activities may be exposed to serious risks of pollution by reason either of 59. I would add that, whilst it states, in its other types of activity, such as agricultural rejoinder, that '... all surface water is activities, or of polluting activities located monitored by a network for the close in other regions, which constitute specific surveillance of its quality in terms of the justification for comprehensive regulatory presence of substances in List II of the cover in accordance with the Directive. D i r e c t i v e . . . ' , 2 3 the Hellenic Republic clearly indicated in its defence, that is, well
22 — See, for example, the prefectorialdecrees cited on paile 18 of the French translation of the defence. The Greek Government stated also that '... quality objectives have already been set for catchment waters particularly prone to discharges of dangerous substances in List II ... for the other environments into which discharges are made and 57. Nor has the Hellenic Republic com- which do not suffer discharges of last II substances ... the plied with the requirement for planning procedure fur setting quality objectives is under way, since there is a global approach to the issue, by virtue of a study covering the entire national territory aimed carried out by ... the University of the Aegean' (para- graph 5 of the rejoinder, my italics). at reducing pollution caused by all the substances in List II, in that a number of 2.1 — Paragraph 5(d).
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after the time-limit set in the reasoned 62. As regards the second plea, it is closely opinion had expired, that this network did bound up with the first in that, since the not exist. It stated, in fact, that the Hellenic Republic has not adopted pro- University of the Aegean '... [had] been grammes within the meaning of Arti- charged with setting up a network for cle 7(1) of the Directive, no authorisations monitoring surface water into which dis- can have been granted in accordance with charges are made throughout the country Article 7(2). ...'.24
60. In short, although it indisputably seeks 63. This Court has held that '[t]he effect of to achieve objectives relating to the protec- the latter provision is, in particular, to tion of the environment, and, in particular, require the authorisations in question to of the aquatic environment, the regulatory contain emission standards which are framework established by the Greek autho- applicable to authorised individual dis- rities does not appear to have been con- charges and which have been calculated in ceived in the spirit of the Directive nor for accordance with the quality objectives the purpose of transposing it into national previously laid down in a programme law. As, moreover, this Court has already established pursuant to Article 7(1) to held in relation to other national measures protect the expanses of water and water- which, it is claimed, were laid down in courses in question. Consequently, whilst it application of that enactment, the legisla- appears that the first plea is well founded, tion of the Hellenic Republic '... constitutes the second is subsumed into it and is thus only a series of ad hoc legislative measures rendered nugatory, so that there is no need which cannot amount to an organised and to examine it further'. 26 coordinated system of quality objectives relating to specific watercourses or bodies of standing water . . . ' . 2 5 It cannot, accord- ingly, be considered to be a programme within the meaning of Article 7 of the Directive.
64. Since there are no programmes within the meaning of Article 7(1) of the Direc- tive, it is impossible to set up a system of prior authorisations in compliance with 61. I must propose, therefore, that this Article 7(2). It seems no longer necessary, Court uphold the first plea raised by the therefore, to examine the second plea. Commission.
26 — Joined Cases C-232/95 and C-233/95 Commission v Greece [1998] ECR I-3343, paragraphs 28 and 29, my 24 — Page 33, fourth paragraph, of the French translation. italics. 25 — Commission v Spain, cited above, paragraph 30.
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Conclusion
65. In the light of the foregoing considerations, I propose that this Court should:
— declare that, by not establishing programmes which incorporate quality objectives and set deadlines for their implementation, in order to reduce water pollution caused by the 99 dangerous substances in the first indent of List II in the Annex to Council Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environ- ment of the Community and, consequently, by not making the discharges which are made into its waters and are liable to contain any of those substances subject to prior authorisation from the competent authority laying down emission standards on the basis of quality objectives set in those programmes, the Hellenic Republic has failed to fulfil its obligations under the Treaty and Article 7 of the aforementioned Directive;
— order the Hellenic Republic to pay the costs.
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