Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE COURT (Sixth Chamber)

29 September 1999 (1)

(Environment - Directive 76/464/EEC - 'Discharge' - Possibility for a Member State to adopt a wider definition of 'discharge' than that in the directive)

In Case C-231/97,

REFERENCE to the Court under Article 177 of the EC Treaty (now Article 234 EC) by the Nederlandse Raad van State (Netherlands) for a preliminary ruling in the proceedings pending before that court between

A.M.L. van Rooij

and

Dagelijks bestuur van het waterschap de Dommel ,

third party:

Gebr. Van Aarle BV,

on the interpretation of Article 1(2) 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 (OJ 1976 L 129, p. 23),

THE COURT (Sixth Chamber),

composed of: P.J.G. Kapteyn, President of the Chamber, G. Hirsch (Rapporteur) and R. Schintgen, Judges,

Advocate General: A. Saggio,

Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

- Mr van Rooij, by himself,

- the Netherlands Government, by A. Bos, Legal Adviser in the Ministry of Foreign Affairs, acting as Agent,

- the French Government, by K. Rispal-Bellanger, Head of the Subdirectorate for International Economic Law and Community Law in the Legal Affairs Directorate of the Ministry of Foreign Affairs, and R. Nadal, Assistant Secretary for Foreign Affairs in that directorate, acting as Agents,

- the Finnish Government, by H. Rotkirch, Ambassador, Head of the Legal Department of the Ministry of Foreign Affairs, acting as Agent,

- the Commission of the European Communities, by G. zur Hausen, Legal Adviser, acting as Agent, assisted by J.-J. Evrard, of the Brussels Bar,

having regard to the Report for the Hearing,

after hearing the oral observations of Mr van Rooij, appearing in person; Dagelijks Bestuur van het Waterschap de Dommel, represented by A.P.L. Verkaik, acting as Agent; Gebr. Van Aarle BV, represented by K. Boon, engineer; the Netherlands Government, represented by J.S. van den Oosterkamp, Assistant Legal Adviser in the Ministry of Foreign Affairs, acting as Agent; the Finnish Government, represented by T. Pynnä, Legislative Adviser in the Ministry of Foreign Affairs, acting as Agent; and the Commission, represented by G. zur Hausen, assisted by M. van Der Woude, of the Brussels Bar, at the hearing on 25 November 1998,

after hearing the Opinion of the Advocate General at the sitting on 25 February 1999,

gives the following

Judgment

1. By judgment of 17 June 1997, received at the Court on 25 June 1997, the Nederlandse Raad van State (Council of State) referred to the Court for a preliminary ruling under Article 177 of the EC Treaty (now Article 234 EC) three questions on the interpretation of Article 1(2) 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 (OJ 1976 L 129, p. 23).

2. Those questions were raised in proceedings brought by Mr van Rooij contesting the decision of Dagelijks Bestuur van het Waterschap de Dommel (Dommel Water Authority, hereinafter 'the competent authority') rejecting his complaint against an earlier decision of that authority refusing to adopt conservation measures for the protection of surface water.

   Legal background

   Directive 76/464

3. The aim of Directive 76/464 is to combat pollution of water. It was adopted on the basis of Articles 100 and 235 of the EC Treaty (now Articles 94 EC and 308 EC).

4. Article 1(1) of that directive provides:

   'Subject to Article 8, this Directive shall apply to:

   - inland surface water,

   - territorial waters,

   - internal coastal waters,

   - ground water.'

5. Article 1(2)(d) and (e) of Directive 76/464 contains the following definitions of 'discharge' and 'pollution':

   '"discharge" means the introduction into the waters referred to in paragraph 1 of any substances in List I or List II of the Annex, with the exception of:

   - discharges of dredgings,

   - operational discharges from ships in territorial waters,

   - dumping from ships in territorial waters;

   "pollution" means 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 ecosystems, damage to amenities or interference with other legitimate uses of water.'

6. Article 2 of the directive obliges Member States to 'take the appropriate steps to eliminate pollution of the waters referred to in Article 1 by the dangerous substances in the families and groups of substances in List I of the Annex and to reduce pollution of the said waters by the dangerous substances in the families and groups of substances in List II of the Annex, in accordance with this Directive, the provisions of which represent only a first step towards this goal.'

7. Article 7(1) and (2) of the directive provides:

   '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 implementation of which they shall apply in particular the methods referred to in paragraphs 2 and 3.

   2. All discharges into the waters referred to in Article 1 which are liable to contain any 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 provided for in paragraph 3.'

8. Article 10 of the directive provides:

   'Where appropriate, one or more Member States may individually or jointly take more stringent measures than those provided for under this Directive.'

   The Netherlands legislation

9. The Wet verontreiniging oppervlaktewateren (Law on Pollution of Surface Waters, hereinafter 'the WVO') entered into force on 1 December 1970. The Law of 24 June 1981 (Stbl. 1981, p. 414) made certain amendments to the WVO which were necessary following the adoption of Directive 76/464. It appears from the documents in the case that the WVO is regarded as the instrument which transposed that directive into Netherlands law.

10. In order to combat pollution of surface water, Article 1 of the WVO prohibits the unauthorised introduction into such waters of waste or polluting or harmful substances. The system of authorisation set up distinguishes in this respect between:

    - mechanical discharges (Article 1(1) of the WVO) and

    - non-mechanical discharges (Article 1(3) of the WVO).

11. Under Article 24 of the WVO, the administrative authority with competence under Article 1 to issue an authorisation has the task inter alia of ensuring the 'administrative management of the provisions laid down by or under this law with respect to the relevant introduction of substances into surface water'. Article 25 of the WVO refers in this respect to Articles 18.3 to 18.16 of the Wet milieubeheer (Environment Management Law).

12. The decree of 28 November 1974 implementing the WVO (Stbl. 1974, p. 709) contains more detailed provisions on non-mechanical discharges.

13. Under Article 3(1) of that decree, it is prohibited to introduce into surface water in any way whatever any waste or polluting or harmful substance listed in the annex to that decree.

    The main proceedings

14. It appears from the documents in the case that Gebr. Van Aarle BV (hereinafter 'Van Aarle'), established in Sint-Oedenrode, operates a wood treatment business for improving the preservation of wood. For that purpose it uses a method of steam fixation of a preservative solution called 'superwolman'. It holds an authorisation granted to it under the Environment Management Law. During the wood impregnation process, steam is released which is then precipitated directly or indirectly on to nearby surface water, in particular a ditch one to two metres wide at the back of Van Aarle's premises which is dry for part of the year.

15. Mr van Rooij lives next to Van Aarle's premises. Claiming that the steam is polluted by arsenic, copper and chromium, which are substances mentioned in List II of the Annex to Directive 76/464, he complained of the pollution of the ditch, and requested the competent authority to take conservation measures with respect to Van Aarle on the basis of Article 24 of the WVO.

16. By decision of 29 December 1994 the competent authority rejected that request, and by decision of 21 April 1995 it likewise dismissed Mr van Rooij's objection to that rejection. Mr van Rooij thereupon appealed to the Raad van State against the dismissal of his objection.

17. According to Mr van Rooij, both the direct precipitation of polluted steam and the indirect introduction into surface water, via a storm water drain, of steam which has been precipitated on to land or roofs in the vicinity of Van Aarle must be regarded as discharges subject to the requirement of authorisation under the WVO.

18. The national court states that, in earlier proceedings between the same parties, it held by judgment of 28 October 1994 that the introduction into the atmosphere of polluted steam constitutes 'introduction into surface water' for which the WVO requires authorisation.

19. In those circumstances, since it considered that the dispute raised a question of the interpretation of the term 'discharge' within the meaning of Directive 76/464, the Nederlandse Raad van State stayed proceedings and referred the following questions to the Court for a preliminary ruling:

    '1. Must 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 (OJ 1976 L 129, p. 23) be interpreted as covering precipitation of contaminated steam on to surface water? Is the distance from which the steam in question is precipitated on to the surface water relevant in that respect?

    2. Does the term "discharge" cover steam which is first precipitated on to land and roofs and then reaches the surface water via a storm water drain, whether belonging to the establishment concerned or to residential or other buildings? Is it material to the reply to be given to this question whether the contaminated steam reaches the surface water via the storm water drain of the establishment concerned or via that of a third party?

    3. If Questions 1 and/or 2 are answered in the negative, is it permissible for national legislation to assign a different, more wide-ranging meaning to the term "discharge" than that in the directive?'

    Question 1

20. By its first question, the national court essentially asks whether the term 'discharge' in Article 1(2)(d) of Directive 76/464 is to be interpreted as covering the emission of contaminated steam which is precipitated on to surface water, and whether the distance between the place where the steam is emitted and the waters on to which it is precipitated is relevant in this respect.

21. Under Article 1(2)(d) of Directive 76/464, 'discharge' is defined as 'the introduction into the waters referred to in paragraph 1 of any substances in List I or List II of the Annex ...'.

22. In Case C-232/97 Nederhoff v Dijkgraf en Hoogheemraden van het Hoogheemraadschap Rijnland [1999] ECR I-0000, paragraph 37, judgment in which was given today, the Court held that the term 'discharge' defined in Article 1(2) of Directive 75/464 is to be understood as referring to any act attributable to a person by which one of the dangerous substances listed in List I or List II of the

    Annex to the directive is directly or indirectly introduced into the waters to which the directive applies.

23. As regards the facts of the main proceedings, it is common ground that the emission of steam is caused by an act attributable to a person, namely the process by which Van Aarle's employees impregnate the wood with a preservative by means of a steam fixation method; that the steam emitted contains arsenic, copper and chromium, which are substances mentioned in List II of the Annex to Directive 76/464; and that the steam is precipitated on waters which fall within the scope of the directive when the ditch behind Van Aarle's premises is not dry.

24. The French Government, however, disputes that in a situation such as that at issue in the main proceedings the emission of steam may be regarded as constituting a discharge within the meaning of Directive 76/464. It submits in particular that the directive, as shown by its title which refers to substances 'déversées' ('discharged') into the aquatic environment of the Community, applies only to pollution caused by discharges of liquid substances into another liquid environment. In the present case, however, the pollution is caused by steam, not by liquid substances.

25. It must be observed in this respect that while the term 'déversées' used in the title of the French-language version of Directive 76/464 appears, in its generally accepted meaning, to support the interpretation put forward by the French Government, it is not, however, reserved exclusively to operations with liquids and may also be applied to solids. It is likewise the case that the Dutch, Danish and Greek versions use terms in the title of the directive - 'geloosd', 'udledning' and 'ÊaÃe ÂYÈiÂiÃoÂaÂe' respectively - which imply that the substance concerned is in the liquid state. However, the title of the directive in the other language versions does not support such an interpretation. The terms 'discharged' (English version), 'Ableitung' (German version), 'vertidas' (Spanish version), 'scaricate' (Italian version), 'lançadas' (Portuguese version), 'utsläpp' (Swedish version) and 'päästettyjen' (Finnish version) do not necessarily imply that the substance in question is in the liquid state.

26. In view of those semantic differences, the Court must examine whether the interpretation put forward by the French Government is consistent with the purpose of the directive.

27. An interpretation which restricted the scope of Directive 76/464 to discharges of dangerous substances which are in the liquid state would run counter to the objective of the directive, which, as may be seen from the first recital in its preamble, is to protect the aquatic environment of the Community from pollution, particularly that caused by certain persistent, toxic and bioaccumulable substances.

28. It cannot be accepted that those substances, which are mentioned in the annex to the directive, are dangerous for the aquatic environment of the Community only if they are in the liquid state.

29. It follows that Directive 76/464 applies to discharges of all the dangerous substances mentioned in the annex thereto, whatever their state.

30. The French Government further submits that, in a situation such as that at issue in the main proceedings, pollution by steam first occurs in the atmosphere and only later reaches surface water. In those circumstances, it cannot be argued that there is a discharge within the meaning of Directive 76/464, and such a situation is instead one of those to which Council Directive 84/360/EEC of 28 June 1984 on the combating of air pollution from industrial plants (OJ 1984 L 188, p. 20) should be applied.

31. It is sufficient to observe here that the circumstance relied on by the French Government is not capable of precluding a phenomenon such as that at issue in the main proceedings from being classified as a discharge within the meaning of Directive 76/464, where there is pollution of surface water and that pollution is caused, directly or indirectly, by an act attributable to a person.

32. As regards the second part of Question 1, the distance between the surface water and the place of emission of the contaminated steam is relevant only for the purpose of determining whether the pollution of the waters cannot be regarded as foreseeable according to general experience, so that the pollution is not attributable to the person causing the steam.

33. Accordingly, the answer to Question 1 must be that the term 'discharge' in Article 1(2)(d) of Directive 76/464 is to be interpreted as covering the emission of contaminated steam which is precipitated on to surface water. The distance between those waters and the place of emission of the contaminated steam is relevant only for the purpose of determining whether the pollution of the waters cannot be regarded as foreseeable according to general experience, so that the pollution is not attributable to the person causing the steam.

    Question 2

34. By its second question the national court essentially asks whether the term 'discharge' in Article 1(2)(d) of Directive 76/464 is to be interpreted as covering the emission of contaminated steam which is first precipitated on to land and roofs and then reaches the surface water via a storm water drain, and whether it is material in this respect whether the drain in question belongs to the establishment concerned or to a third party.

35. Having regard to the Court's interpretation of the term 'discharge' in paragraph 22 above and to the facts of the main proceedings, it must be held that the circumstance that the contaminated steam, after being precipitated on to land and roofs, reaches the surface water via a storm water drain, belonging either to the establishment concerned or to a third party, is not capable of precluding the pollution of those surface waters from being the consequence of an act attributable to a person, namely the wood impregnation process carried out by Van Aarle.

36. Consequently, the answer to Question 2 must be that the term 'discharge' in Article 1(2)(d) of Directive 76/464 is to be interpreted as covering the emission of contaminated steam which is first precipitated on to land and roofs and then reaches the surface water via a storm water drain. It is not material in this respect whether the drain in question belongs to the establishment concerned or to a third party.

    Question 3

37. In view of the answers to Questions 1 and 2, there is no need to answer Question 3.

    Costs

38. The costs incurred by the Netherlands, French and Finnish Governments and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Sixth Chamber),

in answer to the questions referred to it by the Nederlandse Raad van State by judgment of 17 June 1997, hereby rules:

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 covering the emission of contaminated steam which is precipitated on to surface water. The distance between those waters and the place of emission of the contaminated steam is relevant only for the purpose of determining whether the pollution of the waters cannot be regarded as foreseeable

according to general experience, so that the pollution is not attributable to the person causing the steam.

2. The term 'discharge' in Article 1(2)(d) of Directive 76/464 must be interpreted as covering the emission of contaminated steam which is first precipitated on to land and roofs and then reaches the surface water via a storm water drain. It is not material in this respect whether the drain in question belongs to the establishment concerned or to a third party.

KapteynHirsch Schintgen

Delivered in open court in Luxembourg on 29 September 1999.

R. Grass P.J.G. Kapteyn

Registrar President of the Sixth Chamber

---

1: Language of the case: Dutch.