Commission's pyrrhic victory over Dutch water

European Court advisor slams EU executive's handling of dangerous substances directive infringement

An advisor to the European Court of Justice has backed European Commission efforts to have the Netherlands condemned for failing to implement a 1976 EU water pollution directive. But he said Dutch controls were actually stronger than those envisaged by the directive and sharply criticised the Commission's handling of the case.

In a non-binding opinion released today, advocate general Jean Mischo says the complaint over the dangerous substances in water directive should be upheld according to the letter of the law. But in a highly unusual move he proposes that the Commission should have to pay one-quarter of the legal costs.

The case turns on a linguistic dispute. The directive names 132 pollutants for which the aim is elimination from the aquatic environment. To this end, the Commission was to gradually propose emission limit values (ELVs) for each substance.

In the meantime, member states were obliged to set water quality objectives (WQOs) where ELVs have not been determined. Twenty four years after the directive's agreement, only 18 substances have been assigned ELVs. The Commission argues that the other 114 should be subject to WQOs and that the Netherlands has failed to do so.

The Netherlands maintains that both the Dutch and German wordings of the law imply that a WQO was only required where it had been positively decided not to define an ELV. In any case, it adds, national ELVs already apply to all but a handful of the relevant substances.

Mr Mischo concludes that previous case law supports the Commission's interpretation, while adding that: "There are no grounds to criticise the Dutch authorities." The government's "perplexity" is "understandable," he writes, and it is "astonishing" that the Commission "expects member states to set WQOs while it has not managed to set any itself." The recent entry-into-force of the water framework directive, which will eventually supersede the 1976 law, makes the case almost meaningless, he concludes.

* Meanwhile, the Commission today announced court proceedings against three EU countries over the 1985 environmental impact assessment directive and its 1997 amendment. Belgium is accused of failing to ensure that building permits are issued in Flanders only after information from all stages of the assessment procedure is taken into account. Spain has allegedly failed to do a proper assessment of the Valencia-Tarragona rail link, while Luxembourg did not assess the impacts of a substantial alteration to the Route de la Sarre road project. The Commission warned all three countries of potential court action last summer (ENDS Daily 27 July 2000).

Follow Up:
European Court of Justice, tel: +352 43031, and the text of the opinion in case C-152/98. European Commission, tel: +32 2 299 1111, a press release, and Commission EIA pages.

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