C-152/98

OPINION OF MR MISCHO — CASE C-152/98

OPINION OF ADVOCATE GENERAL MISCHO delivered on 16 January 2001 1

1. This is the ninth time 2 that the Commis- Article 2, to take appropriate steps as set sion of the European Communities has out in Article 3 et seq. asked the Court to declare that a Member State, here the Kingdom of the Nether- lands, has failed to fulfil its obligations under Council Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community 3 3. Under Article 6(1) of the Directive, the ('the Directive'). Council is to lay down limit values for the emission of List I substances on the basis of their impact on the aquatic environment, taking into account the best technical means available. The Member States are obliged, under Articles 3 and 5, to make all discharges of those substances into the aquatic environment subject to a prior authorisation from the competent national authority, setting emission standards which are not to exceed the limit values laid down by the Council.

1

5. As regards List II substances, Article 7 of the Directive provides as follows: 6. List II is defined as follows:

'List II contains:

'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 imple- — substances belonging to the families mentation of which they shall apply in and groups of substances in List I for particular the methods referred to in para- which the limit values referred to in graphs 2 and 3. Article 6 of the Directive have not been determined,

— certain individual substances and cat- egories of substances belonging to the 2. All discharges into the waters referred to families and groups of substances listed in Article 1 which are liable to contain any below, of the substances within List II shall require prior authorisation by the competent authority in the Member State concerned, in which emission standards shall be laid down. Such standards shall be based on the quality objectives, which shall be fixed as and which have a deleterious effect on the provided for in paragraph 3. aquatic environment, which can, however,

I - 3467

7. The annex then sets out the 'families and groups of substances referred to in the second indent'. This list comprises eight categories of substances, the first of which is composed of metalloids and metals and 10. Article 20(1) of Directive 96/61 pro- their compounds, including titanium, vides that Articles 3, 5, 6(3) and 7(2) of boron, uranium, tellurium and silver. The Directive 76/464 are to apply to existing fourth category comprises toxic or persist- installations in respect of activities covered ent organic compounds of silicon, and by Directive 96/61 until the measures substances which may give rise to such required pursuant to Article 5 of Directive compounds in water, excluding those which 96/61 have been taken by the competent are biologically harmless or are rapidly authorities. On the other hand, under converted in water into harmless sub- Article 20(2) the provisions as to author- stances. isation systems in certain directives includ- ing Directive 76/464 are not to apply to new installations after the implementation date for Directive 96/61, namely 30 Octo- ber 1999.

12. It should be noted, first, that the King- Has the Commission encountered scientific dom of the Netherlands questions the and technical difficulties any different from appropriateness of the action brought by those met by the Member States? the Commission. It states that Articles 3, 5, 6(3) and 7(2) of the Directive will shortly no longer apply to the major industrial sectors. The new framework directive will replace the Directive, partially at first, and eventually entirely. 15. That said, according to settled case- law, not disputed by the defendant, the Commission has a discretion when deciding whether it is expedient to bring proceedings for a failure to fulfil obligations. 7Further- more, the existence of a failure to fulfil obligations has to be determined by refer- ence to the situation of the Member State prevailing at the end of the period set by the reasoned opinion, in this case, as at 13. It also argues that the framework 23 February 1997. This last principle was directive and Directive 96/61 will render recently restated by the Court, in the inoperative the distinction between List I context of infringements of the same direct- and List II substances. Under the regime ive, in Commission v Greece and Commis- resulting from those directives, quality sion v Portugal, cited above. objectives will be only a secondary means of combating water pollution. The dis- agreement concerning the interpretation of the first indent of List II, which constitutes a substantial part of the present dispute, will therefore shortly become obsolete. 16. The complaints formulated by the Commission must therefore be considered in greater detail.

Failure to set quality objectives for the substances in the first indent of List II 23. This argument is founded on the word- ing of the Directive, on its broad logic and its objective, and on the history of its application. 20. The Commission complains that the Netherlands authorities have failed to fulfil their obligations by not establishing pro- grammes including quality objectives for the substances within List I for which limit values have not yet been laid down at 24. As to the wording of the Directive, the Community level. Kingdom of the Netherlands points out that, according to the first indent of List II, the substances in question are those 'belonging to the families and groups of substances in List I for which the limit values referred to in Article 6 of the Directive have not been determined'. 21. The Commission considers that such substances fall within the scope of the first indent of List II and that, consequently, water pollution caused by them must be combated by the means provided for by 25. Relying in particular on the Dutch and 8 — Case C-392/96 Commission v Ireland [1999] ECR I-5901. German versions, which use the words 'niet

I - 3470

COMMISSION V NETHERLANDS

worden vastgesteld' and 'nicht festgelegt does, to the more relaxed regime applicable werden' for 'have not been determined', the to List II on the sole ground that the defendant concludes that the families and Council has not yet laid down limit values groups in List I come within the regime for their emission. This fact alone does not under List II only when it is expressly in the least diminish the harmfulness of established that a limit value will not be those substances, which must therefore be laid down for those families and groups of subject to a restrictive regime, such as that substances in the future. laid down by Articles 3 to 6 of the Direct- ive.

the entry into force of the Directive con- is taken from the descriptive part of the firms this reasoning. It shows that the judgment, in a case in which the interpreta- Commission has made numerous proposals tion of the wording of that provision was to the Council, resulting in the laying down not in issue. It therefore cannot be taken to of Community standards. The Commission mean that the Court shares the Commis- is also committed to issuing such proposals sion's view. for the 114 substances in dispute in the present case.

32. The defendant takes this to mean that the Commission itself has acknowledged 35. It must nevertheless be pointed out that limits should be laid down for those that, in two more recent judgments, namely substances and that they should be made Commission v Belgium, cited above, at subject to the strict regime under Articles 3 paragraph 35, and Commission v Ger- to 6 of the Directive. The reason why this many, cited above, at paragraphs 27, 29 has not yet been done lies with the Com- and 30, the Court has expressly stated that, mission, and responsibility for that failure contrary to the defendant's argument, the cannot be attributed to the Member States. List I substances for which the Council has not yet determined emission limit values must provisionally be treated as List II substances, governed by Article 7 of the Directive.

42. It should, however, be noted that, in Commission v Germany, cited above, the 38. Notwithstanding those reservations, it Court expressly stated that the implementa- follows from the foregoing considerations tion by a Member State, through the setting that the defendant's interpretation of the of emission limit values, of a system of first indent of List II should be rejected. protection corresponding to that in Arti- cle 6 of the Directive, does not exempt it from establishing programmes including quality objectives for the substances in question; according to the Court, this is an obligation to which the Community legislature has attached particular import- 39. The defendant also contends, however, ance. that the regime applied under national law to the substances in question, based on authorisations including emission limit values, is comparable to that provided for by the Directive for List I substances and is, therefore, stricter than the regime which the Commission would wish to see applied. 43. The Court held unfounded the argu- Thus, the Netherlands authorities cannot ment that recourse to emission limit values, be said in the present case to have failed to in itself, constituted a more stringent fulfil any obligation. instrument than the programmes including

I - 3473

OPINION OF MR MISCHO — CASE C-152/98

quality objectives provided for in Article 7. set quality objectives for the fourth cat- It held that everything depended entirely on egory of substances referred to in the the level at which such values were set. 10 second indent of List II or for certain substances within the first category of that indent, namely titanium, boron, uranium, tellurium and silver.

11 — See, in particular, Case C-384/97 Commission v Greece 10 — Commission v Germany, cited above, paragraph 39. and Commission v Portugal, both cited in footnote 2.

I - 3474

COMMISSION V NETHERLANDS

of its obligations do not eradicate a failure discharge those substances are laid down to fulfil those obligations. 1 2As the Com- under Article 7(2). mission points out, it would have been open to the Member State to seek from it an extension of the deadline.

53. It is the absence of any such reference for the substances in question in certain waters, namely the Scheldt basin, which is criticised by the Commission.

50. The Netherlands Government submit- ted, furthermore, at the hearing that the wording of Article 7(1), (2) and (3) does not require the Member States to set quality objectives for substances; moreover, that is logical since there are thousands of 54. Nor does the Netherlands Government them. deny this absence, as we have seen.

— declare that, by failing to adopt for the Scheldt basin all the measures necessary to transpose Article 7(1), (2) and (3) 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, the Kingdom of the Netherlands has failed to fulfil its obligations under that directive;

— dismiss the remainder of the action;

— order the defendant to bear three quarters of the costs;

— order the Commission to bear a quarter of the costs.

I - 3476