International Environmental Law
Prof. Caron
Fall 1997
Review of
EEC Council Directive
of 17 December 1979
on the protection of groundwater against pollution caused by certain dangerous substances
(80/68/EEC)(1)
by Ulla Glaesser
A. Status of the Directive
The legal status of the groundwater directive as an EEC(2) directive is in many aspects different from the one of international treaties.
1. Unlike treaties, EEC directives have no specific coming into force provisions. EEC directives are one of the two main types of legislative acts of the EEC, as outlined in Art. 189 of the Treaty Establishing the European Economic Community of 1957 (Treaty of Rome). According to Art. 189 (3) of the Treaty of Rome, directives are binding upon each member state to which they are addressed from the very moment they are issued as to the result to be achieved, but leave to the national authorities the choice of form and methods of implementation. The groundwater directive is addressed to all member states (Art. 22).
2. There is no possibility for a state to withdraw from being bound by an individual directive. With the Treaty of Rome the member states have created a constitution-like source of primary" Community law that conveys power to the EEC governmental bodies to create secondary" Community law within the limited scope of the specific (mostly topic-related) authorizations of the treaty. As long as the secondary norms are covered by the rule-making authorization of the Treaty of Rome, the member states are submitted to these rules. In the case of the groundwater directive, the rule-making is covered by Art. 100 and Art. 235 of the Treaty of Rome. Thus, to end the obligation stemming from the groundwater directive, a member state would have to leave the EEC. But Art. 240 of the Treaty of Rome states that [t]his Treaty is concluded for an unlimited period", which is interpreted by most scholars as that it shall not be possible to terminate membership by unilateral action.(3)
B. The Scope and Function of the Directive
B.1. Environmental Problem Addressed by the Directive: The groundwater directive addresses the problem of the pollution of groundwater by certain toxic substances (see paragraph 5 of the preamble and Art. 1). According to Art.1(2)(b), pollution means the discharge by man, directly or indirectly, of substances and energy into groundwater, the results of which are such as to endanger human health or water supplies, harm living resources and the aquatic ecosystem or interfere with other legitimate uses of water.
(The second, non-environmental but economic motivation for the EEC Council to issue this directive was, that "any disparity between the provisions on the discharge of certain dangerous substances into groundwater already applicable or in preparation in the Member States may create unequal conditions of competition and thus directly affect the functioning of the common market" (see preamble, para.8).)
B.2. Nature of the Environmental Problem: In general, groundwater pollution can be both the consequence of chronic direct and indirect discharges of dangerous substances and the result of an accident that lead to the introduction of polluting substances in the groundwater level.
B.3. Aspects of the Problem Addressed by the Treaty: The groundwater directive deals with direct and indirect discharges of polluting substances into the groundwater as chronic consequences of regular human activities. The directive addresses the functional aspects of prevention and response, as its purpose, according to Art. 1 (1), is "to prevent the pollution of groundwater [...] and as far as possible to check or eliminate the consequences of pollution which has already occurred". To these ends, the directive issues obligations to prohibit or limit discharges. Whereas this approach seems appropriate to prevent new pollution, the goal of eliminating preexisting groundwater pollution is not pursued with similar effectiveness. The directive does not take measures to actively clean up already polluted groundwater resources.
The groundwater directive also contains the aspect of cooperation building as it demands for mutual information and consultations between the member states with regards to discharges into transfrontier groundwater (see Art. 17). Though groundwater pollution resulting from the area of one state may cause damage to interests of other states, the directive does not provide for any rules of compensation - it tries to prevent any occurrence of pollution in the first place.
B.4. Geographic Scope of the Problem: The general phenomenon of groundwater pollution caused by human activities is, in scientific terms, a global problem.
B.5. Geographic Coverage of the Directive in Theory: Bound by the obligations of the directive are only the EEC member states. The directive cannot cover the global scope of the problem as it is a specific instrument of EEC legislation only.
B.6. Coverage in Fact: As the groundwater directive is addressed to the Member States" (Art. 22), the countries originally submitted to the directive were all 9 states that were members in 1979(4). As the directive has stayed in force unlimitedly, it also affects all states that were to become members later(5) - possibly with some negotiated modifications as expressly envisioned for Greece in the preamble and Art. 21(1) of the groundwater directive. Thus, the directive covers the geographic region that is submitted to EEC legislative power.
But, as recognized in the directive itself, groundwater pollution can have transboundary character. In this respect, the directive appears incomplete - it does not include provisions for cooperation with neighboring non-EEC states to prevent transfrontier pollution of the EEC territory occurring from the territory of non-EEC states.
C. The Structural Framework of the EEC
The groundwater directive does not create any international bodies, but, as an instrument of legislation of the supranational entity EEC, it is embedded in the general EEC structures.
The EEC bodies involved in the structural setting of the groundwater directive are, in a direct way, the EEC Council, the EEC Commission and the member states, and , indirectly, also the European Parliament and the Economic and Social Committee.
The EEC Council acts as legislative body, it has the power to take binding decisions. It issued the groundwater directive based on the proposal from the Commission and with regard to the opinions of the European Parliament and the Economic and Social Committee. As the designer of the directive, the Council also is responsible for revising and supplementing the lists of dangerous substances in the Annex of the directive (Art. 20 of the groundwater directive). The EEC Council of Ministers consists of one representative of each member state government. As legislative actions based on Art. 100 and Art. 235 of the Treaty of Rome have to be taken unanimously, every member state has the right of veto.
The member states are responsible to bring into force the domestic laws, regulations and administrative provisions necessary to comply with the obligations of the directive.
The EEC Commission has the role of an initiator and a surveyor of the whole process of regulation (see also Art. 155 of the Treaty of Rome). It initiated the process of legislation by drafting the proposal for the groundwater directive. Moreover, the Commission has the power to initiate a revision of the enlisted hazardous substances (see Art. 20 of the groundwater directive). The Commission also surveys the process of implementation by the member states and is for this end to be supplied with certain information by the member states (see Art. 4 (1), Art.16 and Art.21 (1) and (2) of the groundwater directive). The Commission consists of a certain number of Commissioners appointed by the member states with regard to a national quota. Each Commissioner supervises one or more "Directorate-Generals", administrative departments dealing with specific topics. As the role of the Commission is to be an independent organ working in the interest of the EEC as a whole, the Commissioners and their staff are chosen on the basis of competence in the topic they are administrating and expected to take their decisions independently from the interests of the individual member states they came from. In the context of the groundwater directive, the Commission's proposals are binding upon the Council insofar, as they force the Council to take action - however, the Commission cannot determine the outcome of these actions.
D. The Norms/Obligations Contained in the Directive
D.1. Obligations of the Member States Imposed by the Directive: The directive obliges the member states to prevent and, as far as possible, eliminate pollution of the groundwater by certain toxic, persistent and bioaccumulable substances, that are enclosed in two divided lists in the Annex to the directive. The families and groups of substances in list I are regarded to carry a higher risk of toxicity, persistence and bioaccumulation than the ones in list II.
As stated in Art. 3 of the directive, the member states have to take the necessary steps to prevent the introduction into groundwater of substances in list I and limit the introduction of substances of list II. In the further specifications of how to comply with these obligations a distinction is drawn between direct discharges (without percolation through the ground or subsoil) and indirect discharges (after percolation through the ground or subsoil).
The member states have to implement regulation that incorporates the following rules:
As for substances in list I(6), except in the case mentioned in Art.4 (2), all direct discharges shall be prohibited. Any disposal or tipping for the purpose of disposal which might lead to indirect discharge has to be subject to prior investigations on the hydrogeological conditions of the area in question(7). Only if, in the light of this investigations, it can be proven that all technical precautions necessary to prevent such indirect discharge are observed, an authorization to execute the activity shall be granted. Otherwise such activity shall be prohibited. Furthermore, the member states have to take appropriate measures to prevent indirect discharge from any other activities.
As for substances in list II(8),any direct discharge or dangerous disposal/tipping may only be authorized, after prior investigations, if all the precautions for prevention of groundwater pollution are observed. Other activities that lead to indirect discharge shall be limited.
Authorizations have to specify a number of conditions laid down in Art. 9 and 10. They are to be granted for a limited period only and have to be reviewed at least every four years (Art. 11). They can be amended or, if necessary, withdrawn. Both compliance with the conditions of the authorizations and effects of the occurring discharges on the groundwater have to be monitored by the authorities of the member states (Art.13). The member states also have to keep an inventory of all granted authorizations (Art.15).
Before a member state grants authorization for discharges into transfrontier groundwater, the other concerned member states have to be informed and, on request, consultations have to be held.
With the exception of Greece, the member states have two years time from the notification of the directive to bring into force the laws, regulations and administrative provisions necessary for the implementation of these rules in their domestic legal system (Art.21 (1)).To deal with discharges already occurring at the time of notification of the directive, the member states must take appropriate action within a certain additional grace period, on expiry of which the discharges in question must comply with the directive (Art.14).
Certain exceptions of specific types of discharges to which the directive does not apply are listed in Art. 2.
D.2. Contextuality of the Obligations: The groundwater directive contains contextual norms mainly in the field of risk assessment.
Whereas direct and indirect discharges of substances in list I have to be generally prevented by the member states, discharges of substances on list II can be authorized by the member states - provided that "all the technical precautions for preventing groundwater pollution by these substances are observed" (Art.5 (1)). "Pollution" is not any introduction of the mentioned substances into the groundwater, but is defined in Art. 1 (2)(d) as discharges "the results of which are such as to endanger human health or water supplies, harm living resources and the aquatic ecosystem or interfere with other legitimate uses of water." There are no clear threshold levels above which discharges of the individual substances have to be regarded as to result into pollution. So the member states have a range of discretion when deciding which discharges of list II-substances still can be authorized.
According to Art. 2 (b), the directive shall not apply to discharges that contain dangerous substances in a quantity and concentration "so small as to obviate any present or future danger" - the judgement on the question when the quantity and concentration is that small is left to the competent authorities of the member states.
Also, the classification of the dangerous substances in one of the two lists is an act of risk management; the proposals are usually designed by the EEC Commission's scientists but the ultimate decision is taken by the Council which is a political body.
E. The Law-Making Process
In general, the Council as legislative body is free to alter or withdraw an issued directive.
If member states find the obligations of the directive to be not protective enough on behalf of the groundwater, they are free to take more stringent measures by domestic regulation (Art.19).
The groundwater directive expressly provides for a system of institutionalized learning as it instructs the Council to revise and, if necessary, supplement the lists of hazardous substances in the annex "in the light of experience". Impulses for revisions of the directive can come from single member states, lobbyists, but above all from the Commission where a vast amount of feedback information is gathered and can be turned back to the Council as formal proposals.(9)
The institution with ultimate authority to interpret European primary and secondary law and to resolve textual uncertainties is the European Court of Justice (see Art. 177 of the Treaty of Rome).
F. Encouraging Membership in the Regime
Due to the nature of the directive as an instrument of EEC law, it does not contain provisions for encouraging other states outside the EEC's legal regime to join in its system of obligations or for sanctioning them for being outside.
G. Monitoring Compliance with and Enforcement of Obligations
G.1. Monitoring of Compliance: The Commission monitors the compliance of the member states. The member states have to immediately inform the Commission when they brought into force the necessary domestic regulations and shall communicate to the Commission the texts of the main provisions adopted in relation to the groundwater directive (Art.21 (1) and (2)). Thus, the Commission can control if the provisions of national law are sufficient The member states also have to supply the Commission, at its request and on a case-by-case basis, with all the necessary information about the results of prior investigations, monitoring, the authorizations granted etc.(see Art. 16). Thus, the Commission can monitor if the practical implementation of the national groundwater provisions is appropriate.
G.2. Enforcement of Obligations: Enforcement of the obligations imposed by the directive and resolution of disputes take place within the general framework of the EC jurisdiction. If the Commission or another member state considers that a member state has failed to fulfill its obligations under the directive they can take action according to Art.169 or Art. 170 of the Treaty of Rome and, under certain circumstances, bring the matter before the European Court of Justice. The Court of Justice can require the member state to take the measures necessary for compliance (Art.171 of the Treaty of Rome). However, the Court does not have strong instruments like significant fines or penalties to enforce its jurisdiction.
For the special case of a disagreement about the authorization for discharges into transfrontier groundwater, Art. 17 of the directive establishes an informal structure of conflict resolution when it demands for "consultations [...] in which the Commission may participate".
1) OJEC 1980 L 20/43 (furthermore referred to as groundwater directive")
2) this review is purposely referring to European Economic Community Law, not European Union Law,
as this was the law in force at the time the directive was issued
3) see Herdegen, Europarecht, 1997, pg.57
4) France, Germany, Italy, Holland, Belgium, Luxembourg, Great Britain, Ireland, Denmark
5) Greece, Portugal, Spain, Austria, Finland, Sweden
6) see Art. 4
7) for more detail see Art. 7
8) see Art.5
9) this process is expressly outlined in Art. 4 (1 - paragraph 3)