Report for the Hearing delivered in Case 291/84

I — Facts and procedure

1. Council Directive No 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances (Official Journal 1980, L 20, p. 43) required Member States to adopt the measures needed to prevent the direct or indirect discharge into groundwater of certain substances (set out in List I of the annex thereto) and to limit the discharge of other substances (set out in List II of the annex). Under Article 21 of the directive, the measures for implementing the directive, of which the Commission was to be informed immediately, were to be adopted within two years of its notification. That two-year period expired on 19 December 1981. The Commission took the view that the Kingdom of the Netherlands had not adopted the measures needed for implementing the directive in its national law; accordingly, by letter No SG (83) D/8450 of 1 July 1983, it commenced the procedure under Article 169 of the EEC Treaty and requested the Netherlands Government to submit its observations within two months. Having received no reply, the Commission sent the Netherlands Government, by letter No SG (84) D/5303 of 16 April 1984, a reasoned opinion requesting it to adopt the necessary implementing measures within two months. By letter No 4208 of 23 July 1984 from the office of the Netherlands Permanent Representative, the Netherlands Government informed the Commission, in reply to the reasoned opinion, that although Council Directive No 80/68/EEC had not been formally enacted, a whole series of measures were in force to ensure its de facto implementation. Formal implementing measures would be enacted subsequently, within the framework of the Wet Bodembescherming (Law on soil protection) which had been laid before Parliament in draft form on 16 December 1980 but had not at that stage been passed. Following that reply, and the expiry of the period granted to the Netherlands Government for the implementation of the directive in national law, the Commission brought the present proceedings.

2. The application was lodged at the Court Registry on 4 December 1984. The written procedure followed its normal course. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any preparatory inquiry. However, the Court requested the Commission to supply it with certain particulars regarding those provisions of Council Directive No 80/68/EEC which were alleged not to have been implemented in Netherlands national law, or not to have been satisfactorily implemented, and it requested the Netherlands Government to comment on the Commission's reply, attaching copies of the legislation on which it relied, and also to specify the territorial extent of the effects of certain provincial decrees to which it had referred. The parties replied within the allotted period.

II — Conclusions of the parties

1. The Commission claims that the Court should: (i) Declare that, by not adopting within the prescribed period all legislative and administrative provisions needed to comply with Council Directive No 80/68/EEC on the protection of groundwater against pollution caused by certain dangerous substances, the Kingdom of the Netherlands has failed to fulfil its obligations under the EEC Treaty; (ii) Order the Kingdom of the Netherlands to pay the costs.

2. The Netherlands Government does not submit any formal conclusions to the Court.

III — Submissions and arguments of the parties

1. In its application the Commission begins by setting out the effects of a directive with regard to Member States according to Article 189 of the EEC Treaty. It emphasizes the duty of the Member States to observe the time-limits laid down for the implementation of directives, and refers to the case-law of the Court, in particular the jugments of 26 February 1976 in Case 52/75 Commission v Italian Republic [1976] ECR 277 and 22 September 1976 in Case 10/76 Commission v Italian Republic [1976] ECR 1359. The Commission also relies on the principle to the effect that a Member State may not plead the provisions, practices or circumstances existing in its internal system in order to justify a failure to comply with obligations and time-limits resulting from Community directives — a principle laid down inter alia in the judgments of the Court of 18 March 1980 (Cases 91 and 92/79, Commission v Italy [1980] ECR 1099 and 1115). Lastly, the Commission stresses that it is only by expressly implementing a directive in national law that a Member State may be considered to have discharged all the obligations laid upon it by the directive in question.

2. In its statement of defence, the Netherlands Government explains that the delay in implementing the directive is due to the fact that, after its adoption, a number of serious cases of soil pollution in the Netherlands necessitated the urgent enactment of remedial measures to protect public health and the environment, the drafting of which demanded time and manpower which delayed the preparation of the legislation needed to give effect to Council Directive 80/68/EEC. The Netherlands Government explains in this connection that it prepared and laid before Parliament on 16 December 1980 a draft of the Wet Bodembescherming which was expected to be enacted in September 1985. At the same time, the Netherlands Government was preparing to adopt a regulation based on the Wet Bodembescherming, which would enable Council Directive 80/68/EEC to be formally implemented in its entirety. A standard regulation on the protection of groundwater was also being drafted for the provinces for the purpose of protecting groundwater in water-abstraction areas. All those provisions were expected to enter into force during the second quarter of 1985. In addition, the Netherlands Government claims that part of the directive has already been put into effect by existing national legislation. That is true of Articles 6 and 15 of the directive, which were put into effect by the chapter on permits in the Grondwaterwet (Law on groundwater), which entered into force on 1 March 1984; that law introduced a permit system for the artificial recharging of groundwater for abstraction purposes, such recharges and abstractions being officially registered with the provincial councils. The same applies to the dumping of waste and chemical waste on or in the soil. The matter is dealt with by the Afvalstoffenwet (Law on waste materials) of 1977 and the Wet Chemische Afvalstoffen (Law on chemical waste) of 1976; furthermore, there are already a number of regulations protecting water-abstraction areas in many provinces. Finally, the Netherlands Government points out that on 15 September 1983 a multi-annual guidance programme for soil protection (Indicatief Meerjarenprogramma Bodem 1984-85) was submitted to the Second Chamber of Parliament; in practice, that programme gives effect to a significant part of Council Directive 80/68/EEC.

3. In its reply the Commission maintains in the first instance that, according to the case-law of the Court, the reasons adduced to justify the failure to implement the directive are unacceptable. Secondly, the Commission maintains that the national legislation alleged by the Netherlands Government to give effect to certain provisions of the directive does not implement them adequately. As regards Articles 6 and 15 of the directive, the Commission takes the view that the Netherlands Government's claim is correct only in respect of Article 15, the implementation of Article 6 being no more than partial. The Commission points out that the second sentence of Article 6 provides that artificial recharges of groundwater are not to be authorized unless there is no risk of polluting such groundwater, and this is a mandatory condition. However, Article 14 (2) of the Grondwaterwet, which provides that the permit may be accompanied by instructions for the proper management of groundwater, leaves the authorities issuing the permits more latitude than is allowed by the directive. The Commission observes that the same opinion was expressed by the Faculty of Law of the Free University of Amsterdam in a report prepared on behalf of the Ministry of Housing, Regional Development and the Environment, entitled ‘A study of the legal provisions for combating soil and groundwater pollution in connection with the implementation of the EEC directive on the protection of groundwater’. As regards the implementation of the directive in respect of the discharge of waste and chemical waste on or in the soil under the Afvalstoffenwet and the Wet Chemische Afvalstoffen, the Commission takes the view that the laws in question are very incomplete in giving effect to the directive. The only provisions of the directive which, according to the Commission, are satisfactorily implemented are (a) the provision which deals with the monitoring of compliance with the conditions laid down in permits (Article 13) and (b), in the Wet Chemische Afvalstoffen, the provision on confidentiality of information (Article 16 (3) and (4)). As an illustration of the shortcomings of both those laws, the Commission observes that the absolute prohibition on the direct discharge of substances in List I (first indent of Article 4 (1) of the directive) is not to be found anywhere in the Wet Chemische Afvalstoffen: whilst it does appear in the Afvalstoffenwet, its enforcement depends on a regulation which has yet to be adopted. As for the prohibition, required by the second indent of Article 4 (1) and by Article 5 (1) of the directive, on any disposal or tipping for the purpose of disposal of the substances shown in Lists I and II which might lead to indirect discharge, the Commission emphasizes that although such a prohibition does appear in both laws an implementing measure still needs to be adopted before it can take effect properly. Lastly, turning to the implementation of the directive by way of the multiannual guidance programme for soil protection, the Commission observes that Article 21 of the directive provides that the directive is to be put into effect by means of laws, regulations and administrative provisions, and argues that a mere planning document such as the guidance programme may not be regarded as such a provision.

4. In its rejoinder the Netherlands Government, states that Article 31 of the Wet Chemische Afvalstoffen contains a prohibition on the disposal of chemical waste or waste oil by dumping it on or in the soil, whilst the Stoffen- en Processenbesluit Wet Chemische Afvalstoffen (Decree on substances and procedures under the law on chemical waste) defines the term ‘chemical waste’ so as to cover virtually all the substances enumerated in Lists I and II of the directive. The Netherlands Government adds that, whilst it is permitted to derogate from the prohibition under Article 31 (Article 35), that derogation is applied very restrictively. That is demonstrated inter alia by the fact that, so far, a total of only 16 exemptions have been allowed. Furthermore, all the exemptions are granted on a temporary basis, and only six of them are still valid. Lastly, they are granted subject to very strict environmental safeguards; the national administration employs what have come to be known as ‘the IBC Rules’ (isoleren, beheersen en controleren — isolate, control and monitor), which require, for example, the taking of precautions to prevent any direct contact between waste material, on the one hand, and soil, groundwater or surface water, on the other. Similarly, the Netherlands Government contends that Articles 31 and 33 of the Afvalstoffenwet prohibit the dumping of waste on or in the soil without a permit. That law is put into effect by the Richtlijn Gecontroleerd Storten (Directive on supervised tipping), which applies the IBC Rules mentioned above. The effect of those two laws is therefore that strict rules apply to the dumping of (chemical) waste on or in the soil, with the result that any direct discharge of the substances enumerated in List I is prevented. The Netherlands Government concludes that the directive is already implemented to a large extent by the Wet Chemische Afvalstoffen and the Afvalstoffenwet. Turning finally to the Commission's argument that planning documents such as the guidance programme mentioned earlier cannot be regarded as laws, regulations or administrative provisions within the meaning of Article 21 of the Council directive, the Netherlands Government observes that it is not the programme itself but the provincial decrees governing the protection of soil and groundwater which actually give effect to the directive. Those decrees, which have come into effect before the enactment of the Wet Bodembescherming, regulate various activities in which the substances enumerated in Lists I and II might be dumped on or in the soil.

IV — Replies to questions put by the Court

1. The Commission claims that the provisions of Directive No 80/68/EEC which are not implemented, or not satisfactorily implemented, in Netherlands law are the following: (i) the combined provisions of the first indent of Article 4 (1) and Article 4 (2) and (3); (ii) the combined provisions of the second indent of Article 4 (1), Article 4 (2) and (3) and Article 5 (1); (iii) the combined provisions of the third indent of Article 4 (1), Article 4 (2) and (3) and Article 5 (2) ; (iv) Article 6; (v) Article 7; (vi) Article 8; (vii) Articles 9, 10 and 11; (viii) Article 12 (1); (ix) Article 15; (x) Article 16 (3); (xi) Article 17; (xii) Article 18.

2. The Netherlands Government states that the Wet Bodembescherming (Law on soil protection) is expected to come into force soon, following its adoption by the First Chamber of Parliament, which is to debate the matter around March 1986. It also informs the Court of the preparation of (a) the necessary regulations regarding the discharge or dumping of substances mentioned in List I or List II, which are due to be published and enter into force during 1986, and (b) measures on groundwater, the preliminary draft of which will be prepared by the end of January 1987. With reference to the provincial regulations which it relies on, the Netherlands Government points out that in a number of provinces there are at present regulations designed to protect groundwater; nine provinces have enacted such a regulation and another is preparing to do so. Lastly, turning to the provisions of the directive cited by the Commission, the Netherlands Government: (a) refers to its submissions contained in its statement of defence or rejoinder (first indent of Article 4 (1) of the directive; second indent of Article 4 (1); Article 5 (1)); (b) submits that, since it did not intend to make use of the options in the directive, the provisions in question could not be regarded as having been incompletely implemented (Article 4 (2)); (c) contends that the national legislative provisions already in force afford a satisfactory implementation of the directive (Article 4 (3) and Article 5); (d) claims that some of the provisions of the directive are, in effect, already applied (Articles 7 to 12 (1) and Articles 15, 16 (3) and 17). Finally, with regard to other provisions of the directive, the Netherlands Government states that the requisite implementing measures are to be adopted soon (third indent of Article 4 (1) and Article 5 (2)); it also interprets differently from the Commission the obligations which the directive imposes on Member States as to the precise content and meaning of national implementing provisions (Article 18 of the directive).

C. Kakouris

Judge-Rapporteur

1 Language of the Case: Dutch.