L. Nederhoff & Zn. contra Dijkgraaf en hoogheemraden van het Hoogheemraadschap Rijnland.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Hirsch
• ECLI: ECLI:EU:C:1999:459
• Date: 29 September 1999
• Docket Number: C-232/97
• Procedure Type: Reference for a preliminary ruling

Judgment of the Court (Sixth Chamber) of 29 September 1999. - L. Nederhoff & Zn. v Dijkgraaf en hoogheemraden van het Hoogheemraadschap Rijnland. - Reference for a preliminary ruling: Raad van State - Netherlands. - Environment - Directives 76/464/EEC, 76/769/EEC and 86/280/EEC - "Discharge" - Possibility for a Member State to adopt more stringent measures than those provided for in Directive 76/464/EEC - Effect of Directive 76/769/EEC on such a measure. - Case C-232/97.

European Court reports 1999 Page I-06385

Summary Parties Grounds Decision on costs Operative part

Keywords

1 Environment - Water pollution - Directive 76/464 - `Discharge' within the meaning of Article 1(2)(d) of the Directive - Pollution from significant sources, including multiple and diffuse sources, referred to in Article 5(1) of Directive 86/280 - Not covered - Where a person places wooden posts treated with creosote in surface water

(Council Directives 76/464, Art. 1(2)(d), and 86/280, Art. 5(1))

2 Environment - Water pollution - Directive 76/464 - Authorisation for a discharge - Possible for Member States to make discharge authorisation subject to additional requirements not provided for in the Directive - Scope

(Council Directive 76/464)

3 Approximation of laws - Restrictions on the marketing and use of dangerous substances and preparations - Directive 76/769, as amended by Directive 94/60 - Use of creosote - Requests for authorisation - Criteria of assessment - To be fixed by the Member States

(Council Directive 76/769, as amended by Directive 94/60)

Summary

1 The term `discharge' in Article 1(2)(d) of Directive 76/464 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community is to be interpreted as not including the pollution from significant sources, including multiple and diffuse sources, referred to in Article 5(1) of Directive 86/280 on limit values and quality objectives for discharges of certain dangerous substances included in List I of the Annex to Directive 76/464.

The above term must 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. On the other hand, the notion of pollution from significant sources, including multiple and diffuse sources, referred to in Article 5(1) of Directive 86/280, relates to cases where the pollution, precisely because of its diffuse nature, cannot be attributed to a person and therefore cannot be the subject of prior authorisation.

Consequently, the term `discharge' in Article 1(2)(d) of Directive 76/464 covers the placing by a person in surface water of wooden posts treated with creosote and the expression `significant sources ... (including multiple and diffuse sources)' in Article 5(1) of Directive 86/280 does not cover the escape of creosote from wooden posts placed in surface water, where the pollution caused by that substance is attributable to a person.

2 Directive 76/464 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community permits Member States to make the authorisation for a discharge subject to additional requirements not provided for in that Directive, in order to protect the aquatic environment of the Community against pollution caused by certain dangerous substances. The obligation to investigate or choose alternative solutions which have less impact on the environment constitutes such a requirement, even if it may have the effect of making the grant of authorisation impossible or altogether exceptional.

3 The limitative conditions for the use of creosote laid down in point 32 of Annex I to Directive 76/769 on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations, as amended by Directive 94/60, do not preclude an authority of a Member State, when considering applications for authorisation concerning the introduction into surface water by professional users of wood treated with that substance, from establishing criteria of assessment such that its use is impossible or altogether exceptional.

Parties

In Case C-232/97,

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

L. Nederhoff & Zn.

and

Dijkgraaf en hoogheemraden van het Hoogheemraadschap Rijnland

">on the interpretation 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), Council Directive 76/769/EEC of 27 July 1976 on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations (OJ 1976 L 262, p. 201), as amended by European Parliament and Council Directive 94/60/EC of 20 December 1994 (OJ 1994 L 365, p. 1), and Council Directive 86/280/EEC of 12 June 1986 on limit values and quality objectives for discharges of certain dangerous substances included in List I of the Annex to Directive 76/464 (OJ 1986 L 181, p. 16),

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:

- L. Nederhoff & Zn., by J.A. Suyver, of the Utrecht Bar,

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

- 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 L. Nederhoff & Zn., represented by J.A. Suyver; Dijkgraaf en Hoogheemraden van het Hoogheemraadschap Rijnland, represented by R. Lever, of the Leiden Bar; the Netherlands Government, represented by J.S. van den Oosterkamp, Deputy 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

Grounds

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) six questions on the interpretation 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), Council Directive 76/769/EEC of 27 July 1976 on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations (OJ 1976 L 262, p. 201), as amended by European Parliament and Council Directive 94/60/EC of 20 December 1994 (OJ 1994 L 365, p. 1), and Council Directive 86/280/EEC of 12 June 1986 on limit values and quality objectives for discharges of certain dangerous substances included in List I of the Annex to Directive 76/464 (OJ 1986 L 181, p. 16).

2 Those questions were raised in proceedings brought by L. Nederhoff & Zn. (hereinafter `Nederhoff') against the decision of the Dijkgraf en Hoogheemraden van het Hoogheemraadschap Rijnland (hereinafter `the competent authority') refusing to grant it authorisation to place posts treated with creosote in surface water.

Legal background

Community law

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(2)(d) and (e) of that directive contains the following definitions of `discharge' and `pollution':

`"discharge" means the introduction into the waters referred to in paragraph 1...