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Judgment of the Court of 5 May 1993.

Commission of the European Communities v Kingdom of Belgium.

Failure by a Member State to fulfil its obligations - Non-compliance with a judgment of the Court - Protection of groundwater.

Case C-174/91.

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Judgment of 5 May 1993, Commission / Belgium (C-174/91, ECR 1993 p. I-2275) ECLI:EU:C:1993:173

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Commission of the European Communities v Kingdom of Belgium.

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Keywords

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Actions against Member States for failure to fulfil obligations ° Judgment of the Court declaring failure ° Non-compliance ° Failure to fulfil obligations not contested

(EEC Treaty, Art. 171)

Parties

In Case C-174/91,

Commission of the European Communities, represented by Rolf Waegenbaur, Principal Legal Adviser, and Xavier Lewis, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Nicola Annecchino, of its Legal Service, Wagner Centre, Kirchberg,

applicant,

v

Kingdom of Belgium, represented by Jan Devadder, Adviser at the Ministry for Foreign Affairs, Foreign Trade and Development Cooperation, acting as Agent, with an address for service in Luxembourg at the Belgian Embassy, 4, Rue des Girondins,

defendant,

APPLICATION for a declaration that, by persisting, in spite of the judgment of 17 June 1987 in Case 1/86 Commission v Belgium [1987] ECR 2797, in its failure to adopt the measures necessary to comply with Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances (OJ 1980 L 20, p. 43) in the Walloon and Flemish Regions, the Kingdom of Belgium has failed to fulfil its obligations under Article 171 of the EEC Treaty,

THE COURT,

composed of: C.N. Kakouris, President of the Fourth and Sixth Chambers, acting for the President, G.C. Rodríguez Iglesias and J.L. Murray, Presidents of Chambers, G.F. Mancini, R. Joliet, F.A. Schockweiler, M. Diez de Velasco, P.J.G. Kapteyn and D.A.O. Edward, Judges,

Advocate General: C. Gulmann,

Acting Registrar: D. Louterman-Hubeau, Principal Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 2 February 1993,

after hearing the Opinion of the Advocate General at the sitting on 16 February 1993,

gives the following

Judgment

Grounds

1 By application lodged at the Court Registry on 3 July 1991, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that, by persisting, in spite of the judgment of 17 June 1987 in Case 1/86 Commission v Belgium [1987] ECR 2797, in its failure to adopt the measures necessary to comply with Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances (OJ 1980 L 20, p. 43) in the Walloon and Flemish Regions, the Kingdom of Belgium has failed to fulfil its obligations under Article 171 of the EEC Treaty.

2 The Directive seeks to protect underground water against pollution caused by certain dangerous substances. These are set out in lists I and II in the single Annex to the Directive. List I specifies the substances which must be prevented by the Member States from penetrating groundwater, while list II shows those in respect of which the Member States must limit penetration into groundwater (Article 3 of the Directive).

3 Article 4 of the Directive sets out the measures which the Member States must take in order to prevent all direct or indirect discharge of the substances in list I into groundwater. Article 5 lays down the measures which Member States must take in order to limit the direct or indirect discharge of substances in list II into groundwater.

4 In its judgment in Case 1/86, cited above, the Court declared that, by failing to adopt within the prescribed period all the measures necessary to comply with Council Directive 80/68, the Kingdom of Belgium had failed to fulfil its obligations under the EEC Treaty.

5 As the Kingdom of Belgium did not notify the Commission of the measures which it should have taken under Article 171 of the Treaty in order to transpose the Directive correctly into national law and thereby comply with the Court' s judgment, the Commission initiated the procedure laid down in Article 169 of the Treaty.

6 In its reply to the reasoned opinion, the Belgian Government informed the Commission of the adoption of the Walloon Regional Executive Decree of 30 April 1990 on the protection and utilization of drinking water (Moniteur Belge, 1990, p. 13183, "the Decree"). Article 8 of the Decree prohibits in principle "the direct and indirect discharge of the substances referred to in Annex 1 to Directive 80/68/EEC ... " and refers to the orders adopted by the Walloon Executive for the protection of drinking water against pollution.

7 As the Commission took the view that the Decree was not sufficient to implement the Directive in the Walloon Region and as it received no information concerning the implementation of the Directive in the Flemish Region, it brought the present action for failure to fulfil Treaty obligations.

8 In its application the Commission has made the following complaints against Belgium: (a) the scope of the Walloon Regional Executive Decree is too narrow because it does not cover all groundwater; (b) the Decree constitutes framework legislation which requires implementing measures; (c) the prohibition laid down in Article 8 of the Decree is not sufficient to implement the prohibitions contained in Articles 3, 4, and 5 of the Directive; (d) the Flemish Region has not adopted the requisite measures to implement the Directive in a satisfactory manner.

9 As Belgium adopted a number of measures, after the application was lodged, to implement the Directive in the Walloon and Flemish Regions, the Commission withdrew complaints (a), (b) and (d) above by letter of 15 December 1992. With regard to complaint (c), the Commission stated at the hearing that it maintained the complaint only as to the part in which it is charged that Article 8 of the Walloon Decree, which by mistake refers to Annex 1 instead to list I of the Directive, does not mention the substances in list II referred to by Article 5 of the Directive, and that it withdrew the remainder of the complaint.

10 Reference is made to the Report for the Hearing for a fuller account of the facts, the procedure and the pleas in law and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

11 The Belgian Government does not deny the failure to fulfil obligations with which it is charged, namely the one which is the subject of the continuing complaint, but points out that an amendment to the Decree, to the effect indicated by the Commission, is in progress.

12 It must therefore be declared that, by failing to mention in Article 8 of the Walloon Regional Decree of 30 April 1990 on the protection and utilization of drinking water the substances in list II which are referred to by Article 5 of Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances, the Kingdom of Belgium has failed to comply with the judgment of 17 June 1987 in Case 1/86 and has therefore failed to fulfil its obligations under Article 171 of the EEC Treaty.

Decision on costs

Costs

13 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. As the Kingdom of Belgium has been unsuccessful as regards the complaint maintained by the Commission, it must be ordered to pay the costs.

14 With regard to the complaints withdrawn by the Commission, it must be observed that under Article 69(5) of the Rules of Procedure, a party who discontinues or withdraws from proceedings is to be ordered to pay the costs if they have been applied for in the other party' s pleadings. In this case the Kingdom of Belgium has made no application concerning the costs. Consequently the Kingdom of Belgium must pay the whole of the costs.

Operative part

On those grounds,

THE COURT

hereby:

1. Declares that, by failing to mention in Article 8 of the Walloon Regional Decree of 30 April 1990 on the protection and utilization of drinking water the substances in list II which are referred to by Article 5 of Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances, the Kingdom of Belgium has failed to comply with the judgment of 17 June 1987 in Case 1/86 and has therefore failed to fulfil its obligations under Article 171 of the EEC Treaty;

2. Orders the Kingdom of Belgium to pay the costs.

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