Avis juridique important

Judgment of the Court (Fifth Chamber) of 12 February 1998. - Commission of the European Communities v Kingdom of Spain. - Failure to fulfil obligations - Directive 76/160/EEC - Quality of bathing water. - Case C-92/96. European Court reports 1998 Page I-00505

Summary Parties Grounds Decision on costs Operative part

Approximation of laws - Quality of bathing water - Directive 76/160 - Implementation by Member States - Obligation to achieve the result set out - Exemptions - Scope

(Council Directive 76/160, Arts. 4(1) and 5(2))

Directive 76/160 concerning the quality of bathing water, which in Article 4(1) imposes an obligation on the Member States to take all necessary measures to ensure that their waters conform to the physical, chemical and microbiological values set by the directive within a period of ten years following its notification, requires the Member States to take steps to ensure that the results prescribed are attained, and, apart from the derogations expressly laid down by the directive, they cannot rely on particular circumstances to justify a failure to fulfil that obligation.

Although, in that regard, Article 5(2) of the directive provides that deviations from the values in question are not to be taken into consideration when they are the result of abnormal weather conditions, and although an abnormal drought could, by making it impossible to improve the quality of bathing water, constitute abnormal weather conditions within the meaning of that provision, the provision in question constitutes an exception to the obligation to achieve the result set out by the directive and must, therefore, be strictly interpreted. In particular, the weather conditions relied upon must be abnormal and the deviations from the values set must be the result of such conditions.

In Case C-92/96,

Commission of the European Communities, represented by Richard Wainwright, Principal Legal Adviser, and Fernando Castillo de la Torre, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of the Commission's Legal Service, Wagner Centre, Kirchberg,

applicant,

v

Kingdom of Spain, represented by Gloria Calvo Díaz, Abogado del Estado, acting as Agent, with an address for service in Luxembourg at the Spanish Embassy, 4-6 Boulevard E. Servais,

defendant,

APPLICATION for a declaration that, by failing to take all necessary measures to ensure that the quality of inshore bathing waters in Spain conforms to the limit values set in Article 3 of Council Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing water (OJ 1976 L 31, p. 1), the Kingdom of Spain has failed to fulfil its obligations under Article 4 of that directive and under Articles 5 and 189 of the EC Treaty,

THE COURT

(Fifth Chamber),

composed of: C. Gulmann, President of the Chamber, M. Wathelet, J.C. Moitinho de Almeida (Rapporteur), P. Jann and L. Sevón, Judges,

Advocate General: C.O. Lenz,

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 3 July 1997, at which the Commission was represented by Fernando Castillo de la Torre, and the Kingdom of Spain was represented by Paloma Plaza García, Abogado del Estado, acting as Agent,

after hearing the Opinion of the Advocate General at the sitting on 2 October 1997,

gives the following

Judgment

1 By application lodged at the Court Registry on 22 March 1996, the Commission of the European Communities brought an action under Article 169 of the EC Treaty for a declaration that, by failing to take all necessary measures to ensure that the quality of inshore bathing waters in Spain conforms to the limit values set in Article 3 of Council Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing water (OJ 1976 L 31, p. 1, hereinafter `the directive'), the Kingdom of Spain has failed to fulfil its obligations under Article 4 of that directive and under Articles 5 and 189 of the EC Treaty.

2 The purpose of the directive, as stated in the first recital in the preamble thereto, is to protect the environment and public health by reducing the pollution of bathing water and protecting such water against further deterioration.

3 According to Article 1(1), the directive concerns the quality of bathing water, with the exception of water intended for therapeutic purposes and water used in swimming pools.

4 Under Article 1(2)(a) and (b) of the directive:

`For the purposes of this directive:

(a) "bathing water" means all running or still fresh waters or parts thereof and sea water, in which:

- bathing is expressly authorised by the competent authorities of each Member State, or

- bathing is not prohibited and is traditionally practised by a large number of bathers;

(b) "bathing area" means any place where bathing water is found.'

5 The directive requires Member States to set the values applicable to bathing water for the physical, chemical and microbiological parameters indicated in the annex thereto; those values may not be less stringent than those given in column I of the annex (Articles 2 and 3).

6 Under Article 4(1) of the directive, the quality of bathing water must conform to the limit values set in accordance with Article 3 within a period of ten years following notification of the directive.

7 Under Article 5(1) of the directive, bathing water is deemed, for the purposes of Article 4, to conform to the relevant parameters, if samples taken in the manner provided for in the annex and at the same sampling point show that it conforms to the parametric values for the quality of the water concerned in the case of a specified percentage of samples.

8 In accordance with Article 6 of the directive, the competent authorities of the Member States are to carry out sampling operations, the minimum frequency of which is laid down in the annex.

9 Article 12(1) of the directive requires Member States to bring into force the laws, regulations and administrative provisions necessary to comply with the directive within two years of its notification.

10 Under Article 13 of the directive, Member States must, four years following the notification of the directive and at regular intervals thereafter, submit a comprehensive report to the Commission on their bathing water and the most significant characteristics thereof. That report must be submitted annually as from 1 January 1993, having regard to the amendment made to Article 13 by Council Directive 91/692/EEC of 23 December 1991 standardising and rationalising reports on the implementation of certain directives relating to the environment (OJ 1993 L 377, p. 48).

11 Finally, derogations from the obligations under the directive are allowed by certain provisions:

- Article 4(3) permits Member States, in exceptional circumstances, to grant derogations in respect of the ten-year period for ensuring that bathing water conforms to the parameters indicated in the annex. The justification for such a derogation must be based on plans for the management of water within the area concerned and be communicated to the Commission not later than six years following the notification of the directive.

- Under Article 5(2), deviations from the values referred to in Article 3 are not taken into consideration in the calculation of the percentages of the samples which must conform to those values when they are the result of floods, other natural disasters or abnormal weather conditions.

- Article 8 allows derogations in the case of certain of the parameters mentioned in the annex on account of exceptional weather or geographical conditions or when bathing water undergoes natural enrichment in certain substances causing a deviation from the values prescribed in the annex. A Member State waiving the provisions of the directive is to notify the Commission thereof forthwith, stating its reasons and the periods anticipated.

12 Since Article 395 of the Act concerning the conditions of Accession of the Kingdom of Spain and the Portuguese Republic and the adjustments to the Treaties (OJ 1985 L 302, p. 23) does not provide for any derogation from the directive in favour of the Kingdom of Spain, the quality of Spanish bathing water should have conformed to the limit values set by the directive as from 1 January 1986.

13 In accordance with Article 12 of the directive, on 7 September 1988 the Spanish authorities communicated to the Commission the text of the basic provisions transposing the directive into national law, namely Royal Decree No 734/1988 of 1 July 1988 concerning quality standards for bathing water (BOE - Official State Gazette - No 167 of 13 July 1988, and corrigenda, BOE No 169 of 15 July 1988). Pursuant to Article 13 of the directive, on 2 June and 3 November 1988 the Spanish authorities also communicated to the Commission the reports relating to bathing water for 1986 and 1987.

14 Having examined those reports, the Commission considered that the manner in which the Kingdom of Spain had applied the directive was inconsistent with Articles 3, 4, 5, 6 and 13 thereof, whereupon, by letter of 13 October 1989, it gave the Kingdom of Spain formal notice to submit its observations on the infringements found within a period of two months, in accordance with the procedure laid down in Article 169 of the Treaty.

15 In their letter of 13 November 1989 the Spanish authorities relied primarily on the heavy workload, which in 1988 had resulted in the implementing decree and the reports for 1986 and 1987 being drawn up at the same time, and they undertook for the future to avoid any gaps of the kind which had been left in those reports on account of the urgency with which they had been drafted.

16 Taking the view that those explanations did not affect its position with regard to the alleged infringements, the Commission sent a reasoned opinion to the Kingdom of Spain on 27 November 1990 requesting it to adopt all the measures necessary to comply with Articles 3, 4, 5, 6 and 13 of the directive within one month.

17 In a letter of 15 March 1991 the Spanish authorities pointed to the efforts they had made to improve the quality of water and to comply with the provisions of the directive. As a new Member State, the Kingdom of Spain asked to be accorded, in the same way as the other Member States, an extended period in which to align its legislation with the directive. Without challenging the Commission's assertions, the Spanish authorities argued that the report for 1990, which was annexed to that letter, showed that the infringements alleged by the Commission had been brought to an end. At a meeting held in Madrid on 13 and 14 October 1992, those authorities also undertook to provide the Commission with information on the variation in the number of locations designated as bathing waters and with the plans for cleaning up bathing waters considered not to be in conformity with the requirements laid down in the directive. By letters of 16 December 1992, 1 June 1993 and 17 May 1994, they informed the Commission of the reasons for the variation in the number of locations designated as inshore bathing waters and of such action as was either in progress or envisaged in order to improve the quality of water in Spain.

18 The Commission considered that information to be insufficient and reminded the Spanish authorities on several occasions that it should be notified of the specific programmes for cleaning up inshore bathing waters not meeting the requirements laid down.

19 By fax of 7 January 1996 the Spanish authorities forwarded information to the Commission concerning the action in progress and on 27 February 1996 drew up a report on inshore bathing waters not meeting the requirements laid down, which was notified to the Commission on 16 April 1996.

20 Whilst taking the view that the alleged infringements had still not been terminated, the Commission decided to limit the scope of the present action to the Kingdom of Spain's failure to comply with the obligation, provided for in Article 4 of the directive, to take all necessary measures to ensure that the quality of inshore bathing waters in Spain conforms to the limit values set in accordance with Article 3.

21 The first point to note is that the Commission has stated, without being challenged by the Spanish Government, that the limit values set by the directive have not been complied with in a large number of freshwater bathing areas in Spain.

22 The Spanish Government relies on four considerations in justifying such non-compliance with the limit values set in accordance with Article 3 of the directive.

23 First of all, the Spanish Government considers that the abnormal drought which has prevailed in Spain for five years has made it impossible to improve the quality of bathing water. A protracted drought of that kind constitutes `abnormal weather conditions' within the meaning of Article 5(2) of the directive, and the resultant deviations from the values referred to in Article 3 should not therefore be taken into consideration.

24 Second, the Spanish Government considers that, as is clear from the Commission's communication of 21 February 1996 on `European Community Water Policy' (COM(96) 59 final), some of the Community water legislation in force is obsolete and the objectives pursued could equally well, if not better, be achieved through the incorporation in a framework directive of the different rules on water resources. It also notes that on 16 February 1994 the Commission adopted a Proposal for a new Council directive concerning the quality of bathing water (OJ 1994 C 112, p. 3), simplifying the directive and adapting it to technical and scientific progress.

25 Third, the Spanish Government points to the very close connection between Directive 76/160 and Council Directive 91/271/EEC of 21 May 1991 concerning urban waste water treatment (OJ 1991 L 135, p. 40), which requires Member States in particular to ensure that agglomerations of a certain size are provided with collecting systems for urban waste water and that such water is treated before discharge. The Spanish Government emphasises, in particular, that waste water is the main cause of pollution in bathing areas. However, Member States have until 31 December 2005 in order to comply with certain provisions of Directive 91/271. According to the Spanish Government, therefore, it would be appropriate to take into account the period which the Member States are allowed by Directive 91/271 to ensure the treatment of urban waste water, when the question whether the quality of bathing water meets the requirements laid down in Directive 76/160 is examined.

26 Fourth, the Spanish Government argues that many of the bathing areas inspected are no longer used as a result of a change in social habits. Water in those areas should thus no longer be regarded as bathing water within the meaning of the directive. In its view, however, there may be some confusion as to such water continuing to be designated as `bathing water', because Article 1(2)(a) of the directive defines bathing water as water `in which bathing is explicitly authorised by the competent authorities of each Member State, or bathing is not prohibited and is traditionally practised by a large number of bathers', but does not define either the phrase `large number of bathers' or the specific criteria for imposing a permanent or temporary prohibition on bathing in such water.

30 Article 5(2) of the directive, on the other hand, expressly provides that deviations from the values referred to in Article 3 are not to be taken into consideration when they are the result of abnormal weather conditions. In that regard, an abnormal drought could, by making it impossible to improve the quality of bathing water, constitute abnormal weather conditions within the meaning of that provision.

32 In this case, the Spanish Government has not provided any specific evidence, for the individual regions concerned, either of the abnormal nature of the alleged drought or of the resultant inability on the part of the authorities to achieve the minimum standard for bathing water imposed by the directive, even by undertaking further efforts. Suffice it to note, in that regard, that many of the bathing waters not meeting the requirements laid down in the directive are, as the Advocate General has observed in point 28 of his Opinion, situated in the north of Spain which, as the Commission has stated without being contradicted, has been less affected by the drought.

33 Accordingly, the Spanish Government has failed to establish that the fact that the bathing water in question does not meet the requirements laid down is wholly or at least largely attributable to `abnormal weather conditions' within the meaning of Article 5(2) of the directive.

34 It must therefore be held that, by failing to take all necessary measures to ensure that the quality of inshore bathing waters in Spain conforms to the limit values set in accordance with Article 3 of the directive, the Kingdom of Spain has failed to fulfil its obligations under Article 4 thereof.

Costs

35 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Kingdom of Spain has been unsuccessful, it must be ordered to pay the costs.

On those grounds,

THE COURT

(Fifth Chamber)

hereby:

1. Declares that, by failing to take all necessary measures to ensure that the quality of inshore bathing waters in Spain conforms to the limit values set in accordance with Article 3 of Council Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing water, the Kingdom of Spain has failed to fulfil its obligations under Article 4 thereof;

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