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:

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:

5. Drinking water is defined in Article 1(1) of the Decree as:

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:

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:

15. The Kingdom of Belgium contends in its rejoinder that the Court should:

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:

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.

1 Language of the case: French.