Report for the Hearing in Case C-174/91
I — Legal background
A — Council Directive 80/68
1. Council Directive 80/68 of 17 December 1979 (OJ 1979 L 20, p. 43, ‘the Directive’) aims to protect groundwater against pollution caused by certain dangerous substances. These are shown in two lists (I and II) in the Annex to the Directive.
2. According to Article 1(2)(a), ‘“groundwater” means all water which is below the surface of the ground in the saturation zone and in direct contact with the soil or subsoil’.
3. Articles 3, 4 and 5 of the Directive are worded as follows:
‘Article 3
Member States shall take the necessary steps to:
a) prevent the introduction into groundwater of substances in list I; and
b) limit the introduction into groundwater of substances in list II so as to avoid pollution of this water by these substances.
Article 4
1. To comply with the obligation referred to in Article 3(a), Member States:
shall prohibit all direct discharge of substances in list I,
shall subject to prior investigation any disposal or tipping for the purpose of disposal of these substances which might lead to indirect discharge. In the light of that investigation, Member States shall prohibit such activity or shall grant authorization provided that all the technical precautions necessary to prevent such discharge are observed,
shall take all appropriate measures they deem necessary to prevent any indirect discharge of substances in list I due to activities on or in the ground other than those mentioned in the second indent. They shall notify such measures to the Commission, which, in the light of this information, may submit proposals to the Council for revision of this Directive.
2. However, should prior investigation reveal that the groundwater into which the discharge of substances in list I is envisaged is permanently unsuitable for other uses, especially domestic or agricultural, the Member States may authorize the discharge of these substances provided that their presence does not impede exploitation of ground resources.
These authorizations may be granted only if all technical precautions have been taken to ensure that these substances cannot reach other aquatic systems or harm other ecosystems.
3. Member states may, after prior investigation, authorize discharges due to re-injection into the same aquifer of water used for geothermal purposes, water pumped out of mines and quarries or water pumped out for civil engineering works.’
Article 5
‘1. To comply with the obligation referred to in Article 3(b), Member States shall make subject to prior investigation:
all direct discharges of substances in hst II, so as to Umit such discharges,
the disposal or tipping for the purpose of disposal of these substances which might lead to indirect discharge.
In the light of that investigation, Member States may grant an authorization, provided that all technical precautions for preventing groundwater pollution by these substances are observed.
2. Furthermore, Member States shall take the appropriate measures they deem necessary to Umit all indirect discharge of substances in Ust II, due to activities on or in the ground other than those mentioned in the first paragraph.’
B — National legislation
4. Article 8 of the Walloon Region Ministerial Decree of 30 April 1990 on the protection and utilization of drinking water (Moniteur Belge, 1990, p. 13183, ‘the Decree’) provides as follows:
‘Without prejudice to the provisions relating to the legislation on the protection of surface water against pollution and relating to waste, the Executive shall adopt all the orders necessary for the protection of drinking water against pollution.
It may in particular prohibit or regulate the discharge or tipping of materials which it declares to be liable to pollute drinking water, or make such discharge or tipping subject to authorization.
It shall be prohibited to discharge, directly or indirectly, the substances referred to in Annex 1 to Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances.’
5. ‘Drinking water’ is defined in Article 1(1) of the Decree as:
‘(a) All underground water which, naturally or after appropriate physicochemical or microbiological treatment, produces water which may be drunk without danger to health;
b) all ordinary surface water classified ... under the Decree of 7 October 1985 on the protection of surface water against pollution and the orders implementing it.’
Facts and pre-litigation procedure
6. In its judgment of the Court of 17 June 1987 in Case 1/86 Commission v Belgium [1987] ECR 2797, the Court declared that ‘by failing to adopt within the prescribed period all the measures necessary to comply with Council Directive 80/68 of 17 December 1979 on the protection of underground water against pollution caused by certain dangerous substances, the Kingdom of Belgium has failed to fulfil its obligations under the EEC Treaty.’
7. As the Kingdom of Belgium failed to notify the Commission of the measures which it should have adopted pursuant to Article 171 of the EEC Treaty in order to comply with the judgment of the Court and to give proper effect to the Directive, the Commission, by letter of 11 July 1988, called on the Belgian Government, in accordance with Article 169 of the EEC Treaty, to submit its observations within two months of receipt of the letter.
8. The Belgian Government replied by three consecutive letters: (a) The Letters of 30 November 1988 and 27 July 1989 concerned the implementation of the directive with regard to the Walloon Region. Both letters referred to a draft decree in the process of being adopted on the protection and improvement of underground water in that Region. (b) The letter of 25 July 1989 concerning the implementation of the Directive for the Brussels Metropolitan Region. This letter informed the Commission of the Royal Decree of 19 June 1989 on the protection for the Brussels Metropolitan Region of underground water against pollution caused by dangerous, harmful or toxic substances (Moniteur Belge, 1989, p. 11889).
9. None of the three letters concerned the implementation of the Directive in the third Region of the country, namely the Flemish Region.
10. After considering the letters, the Commission sent the Kingdom of Belgium, by letter of 27 February 1990, a reasoned opinion in which it stated that although the Royal Decree of 19 June 1989 constituted satisfactory implementation of the directive with regard to the Brussels Metropolitan Region, the Directive had not been implemented in the Walloon and Flemish Regions. Regarding the Walloon Region, the Commission noted that a draft decree, which was unaccompanied by any information as to its content and was not yet in force, could not be considered as sufficient for the purpose of transposing the Directive in question into national law. Regarding the Flemish Region, the Commission stated that no measures had been taken to comply with the judgment of 17 May 1987 and that the present situation in that Region dated back to the order of the Flemish Regional Executive of 27 March 1985, of which the Commission was aware before the Court's judgment. As it had no new information on that Region, the Commission repeated its argument that the order in question failed to implement the Directive in full. In view of those findings, the Commission called on the Belgian Government to adopt the measures required to fulfil its obligation to comply with the judgment of the Court within two months of notification of the reasoned opinion.
11. The Kingdom of Belgium, in its reply of 19 July 1990, informed the Commission of the adoption of the Decree of 30 April 1990 concerning the Walloon Region. The Commission points out that the Decree was not notified in the context of the infringement which is the subject of this action, but as a national measure for transposing the Directive.
12. The Commission took the view that the measures adopted by the Kingdom of Belgium were insufficient to transpose the Directive and therefore brought this action for failure to fulfil Treaty obligations.
Written procedure, forms of order sought by the parties and course of the action
13. The Commission's application was lodged at the Court Registry on 3 July 1991.
14. The Commission claims in its application that the Court should: declare that by persisting, in spite of the judgment given by the Court of Justice on 17 June 1987, in its failure to adopt the measures necessary to implement Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances in the Walloon and Flemish Regions, the Kingdom of Belgium has failed to fulfil its obligations under Article 171 of the EEC Treaty; order the Kingdom of Belgium to pay the costs.
15. The Kingdom of Belgium contends in its rejoinder that the Court should: declare that the first complaint of the Commission concerning the Walloon Region is unfounded, that the second complaint concerning the same Region has become devoid of purpose and that the complaints concerning the Flemish Region are unfounded.
16. The written procedure followed the 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.
17. In its application, the Commission put forward the following complaints against Belgium: (a) the scope of the Walloon Regional Executive Decree of 30 April 1990 is too narrow because it only covers underground drinking water, whereas the Directive applies to all underground water; (b) the Decree constitutes framework legislation which requires implementing measures; (c) the prohibition in Article 8 of the Decree is insufficient to transpose into national law the prohibitions contained in Articles 3, 4 and 5 of the Directive; (d) the Flemish Region has not adopted the measures needed to transpose the Directive adequately into national law.
18. Since, during the written procedure the Court, Belgium had taken a number of measures designed to implement the directive in the Walloon and Flemish Regions, the Court requested the Commission to indicate the complaints which it maintained with regard to Belgium.
19. In its reply of 15 December 1992, the Commission stated that it withdrew the complaints set out in paragraph 17(a), (b) and (d) above. It also asked the Court to order Belgium to pay the costs arising from such withdrawal as the action had been commenced before Belgium adopted the measures necessary to rectify the breaches of the Treaty with which it was charged.
20. On the other hand, the Commission maintained the complaint set out in paragraph 17(c) above, as Belgium had still not adopted the proper measures for giving full effect to Articles 3, 4 and 5 of the Directive in the Walloon Region.
Pleas in law and arguments of the parties
21. The Commission considers that the prohibition contained in Article 8 of the Decree is insufficient to transpose into national law the prohibitions laid down in Articles 3, 4, and 5 of the Directive.
22. In that connection it points out that the Directive makes two distinctions between direct and indirect discharges and between substances in list I, the discharge (direct or indirect) of which is prohibited in principle (Articles 3(a) and 4 of the Directive) and substances in list II, the discharge (direct or indirect) of which must be restricted (Articles 3(b) and 5).
23. The Commission claims, firstly, that although the prohibition on the direct discharge of substances in list I is correctly laid down in Article 8 of the Decree (which by mistake refers to Annex 1 and not list I) in accordance with Article 4 of the Directive, the simple prohibition of indirect discharges is not sufficient to give full effect to that article.
24. Indirect discharges may, in fact, occur during or after disposal or tipping for the purpose of disposing of polluting substances. However, Article 4 of the Directive states that this is subject to prior investigation in order to check whether it might lead to indirect discharge. Only after the results of such investigation do the Member States decide whether it is necessary to prohibit disposal or to authorize it; in the latter case, this is subject to the condition that technical precautions necessary to prevent discharge have been taken.
25. Similarly, Article 5 of the Directive requires a prior investigation in order to limit the effects of the direct and indirect disposal of substances in list II.
26. However, that prior investigation is not required by Article 8 of the Decree either for list I substances or list II substances.
27. In particular, the provision in Article 8 that the Executive ‘may in particular prohibit or regulate the discharge or tipping of materials which it declares to be liable to pollute drinking water, or make such discharge or tipping subject to authorization’ gives the Walloon Executive an absolute discretion because it takes no account of the requirement for a prior investigation.
28. The Commission points out, secondly, that no mention is made in the Decree of 30 April 1990 to the substances in list II although Article 5 of the Directive requires active measures by the Member States with regard to their discharge.
29. Finally, the provisions of the Decree do not enable the regional authorities to check, by means of prior investigation, the existence of: (a) indirect discharges of substances in list I, within the meaning of Article 4 of the Directive, and (b) direct and indirect discharges of substances in list II, within the meaning of Article 5 of the Directive.
30. In its defence the Belgian Government points out that, to transpose Articles 3, 4 and 5 of the Directive correctly into national law, the Walloon Regional Executive adopted a draft Decree amending the Decree of 30 April 1990.
31. The Commission points out in its reply that a draft measure for implementation cannot put an end to the failure to fulfil obligations in question.
32. In its rejoinder the Belgian Government states that the proposed amendment has not yet been adopted.
C. N. Kakouris
Judge-Rapporteur
1 Language of the case: French.