Legal boost for EU water protection law

European Court advisor argues for broader scope for 1976 dangerous substances directive

A legal advisor to the European Court of Justice has recommended widening the scope of the EU's 1976 "dangerous substances" directive, which controls water pollution by particularly toxic substances. The power of the directive will be enhanced if a panel of judges agree with the opinion in a final ruling, an EU source suggested to ENDS Daily today.

In a non-binding opinion on two related cases given last Thursday, advocate general Antonio Saggio argued that the meaning of "discharge" under the directive should not just include industrial discharge pipes. Indirect and delayed routes by which toxic substances might pollute watercourses should also be covered, he said.

The opinion relates to cases forwarded by a Dutch court. One arises from a dispute between a wood treatment firm and a local resident who claimed that toxic vapours from the plant were condensing and polluting nearby watercourses. The second concerns leaching of toxic substances from preserved wooden stakes driven into the bed of a river. If confirmed in a final ruling, then the principle might also apply to contaminated soil leaching toxic substances into water.

Mr Saggio concluded that the concept of discharge should be wide-ranging and not limited to discharges originating as liquids. He added that his interpretation was supported by the definition of pollution in the directive, which takes into account the concept of indirect discharge and thus includes harmful substances originating as vapours and then entering water courses in a liquid state.

He dismissed the argument that pollution by vapours might fall under the EU's 1984 directive on air pollution from industrial plants. "The pollution we are considering is affecting water," he argued, "and consequently the applicable provisions must be those specifically drafted to ensure that water courses in the Union be adequately protected."

Mr Saggio argued similarly that pollution leaching from treated wood fixed into a water course should also be covered by the definition of discharge under the directive. However, he recommended that pollution from diffuse sources should not be counted as a discharge.

Responding to other questions put by the Dutch court, Mr Saggio argued that the Netherlands should be allowed to apply a wider definition of the term discharge than that contained in the directive. EU member states were entitled to adopt stricter rules concerning environmental protection than those contained in EU legislation, he said. Individual states should also retain the right to make the granting of licences for polluting activities subject to efforts to find more environment-friendly alternatives.

Follow Up:
European Court of Justice, tel: +352 43031. References: European Court cases C-231/97 and C-232/97 (the opinions are posted on the court's web site.

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