Avis juridique important

Judgment of the Court of 5 July 1990. - Commission of the European Communities v Kingdom of Belgium. - Failure to transpose Council Directive 80/778/EEC into national law - Protection of the quality of water intended for human consumption. - Case C-42/89. European Court reports 1990 Page I-02821

Summary Parties Grounds Decision on costs Operative part

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1 . Actions against Member States for failure to fulfil obligations - Subject-matter of the dispute - Purely formal adaptation of the claims during the course of the proceedings owing to an amendment of national legislation - Whether permissible

( EEC Treaty, Art . 169 )

2 . Approximation of laws - Quality of water intended for human consumption - Directive 80/778 - Implementation by the Member States - Derogations from the qualitative requirements set out in the directive - Conditions for granting

( Council Directive 80/778, Art . 9(3 ) )

3 . Approximation of laws - Quality of water intended for human consumption - Directive 80/778 - Scope - Water from private sources - Exclusion

( Council Directive 80/778, Art . 2 )

4 . Approximation of laws - Quality of water intended for human consumption - Directive 80/778 - Implementation by the Member States - Grant of an additional period for compliance with the quality requirements laid down in Annex I - Period for making the request - Period for implementing the directive

( Council Directive 80/778, Arts 19 and 20 )

5 . Member States - Obligations - Implementation of directives - Failure - Justification - Not permissible

( EEC Treaty, Art . 169 )

1 . Where, after an action against a Member State for failure to fulfil its obligations has been brought, the national legislation which allegedly did not meet the obligations of the Member State in question under Community law is replaced by other legislation having the same content, the fact that in the course of the proceedings the Commission imputed its claims concerning the previous legislation to the legislation which replaced it does not mean that it has altered the subject-matter of the dispute .

2 . When implementing Directive 80/778 relating to the quality of water intended for human consumption and using the power to grant derogations provided for in Article 9 thereof, a Member State may not authorize derogations relating to toxic and microbiological factors, since that type of derogation is prohibited by paragraph 3 of that article .

3 . It follows from Article 2 of Directive 80/778 relating to the quality of water intended for human consumption that the directive applies only to water supplied for human consumption and to water used in foodstuffs by a food production undertaking . Water taken from private sources is excluded from its scope .

4 . The possibility afforded, in exceptional cases and with regard to geographically limited population groups, to Member States by Article 20 of Directive 80/778 of lodging with the Commission a request for an extension of the period for ensuring compliance with the quality requirements laid down in Annex I to the directive, which water intended for human consumption must meet, could be used only within the period prescribed for the implementation of the directive by Article 19 thereof .

5 . A Member State may not plead practical or administrative difficulties in order to justify non-compliance with the obligations and time-limits laid down in Community directives . The same holds true of financial difficulties, which it is for the Member States to overcome by adopting appropriate measures .

In Case C-42/89,

Commission of the European Communities, represented by Thomas van Rijn, a member of its Legal Department, acting as Agent, with an address for service in Luxembourg at the office of Georgios Kremlis, a member of its Legal Department, Wagner Centre, Kirchberg,

applicant,

v

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

defendant,

APPLICATION for a declaration that the Kingdom of Belgium has failed to fulfil its obligations under the EEC Treaty by not adopting within the prescribed period all the measures necessary to comply with Council Directive 80/778/EEC of 15 July 1980 ( Official Journal 1980 L 229, p . 11 ) relating to the quality of water intended for human consumption, in particular Articles 1, 2, 9, 18, 19 and 20 thereof,

THE COURT

composed of O . Due, President, F . A . Schockweiler and M . Zuleeg ( Presidents of Chambers ), G . F . Mancini, R . Joliet, T . F . O' Higgins, J . C . Moitinho de Almeida, G . C . Rodríguez Iglesias and F . Grévisse, Judges,

Advocate General : C . O . Lenz

Registrar : J . A . Pompe, Deputy Registrar,

having regard to the Report for the Hearing,

after hearing oral argument presented by the representatives of the parties at the hearing on 6 December 1989,

after hearing the Opinion of the Advocate General delivered at the sitting on 14 December 1989,

gives the following

Judgment

1 By an application lodged at the Court Registry on 20 February 1989, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that by not adopting within the prescribed period the laws, regulations and administrative provisions necessary to comply with the provisions of Council Directive 80/778/EEC of 15 July 1980 relating to the quality of water intended for human consumption ( Official Journal 1980 L 229, p . 11 ), and in particular Articles 1, 2, 9, 18, 19 and 20 thereof, the Kingdom of Belgium has failed to fulfil its obligations under the EEC Treaty .

2 The action in this case has its origin in the finding by the Commission, in the first place, that the Royal Decree of 27 April 1984 transposing the directive into Belgian law ( Moniteur belge 1984, p . 9860 ) is not in conformity with Article 9(1)(b ) and ( 3 ) of that directive inasmuch as it allows derogations from the provisions of the directive under conditions which are less stringent than those prescribed by the directive ( Article 5 of the Royal Decree ) and excludes from its scope water drawn by private individuals for household use ( Article 1 of the Royal Decree ), and, secondly, that the water supplied to the town of Verviers does not, in view of its lead content, comply with the requirements set out in the directive .

3 On 4 August 1986, the Commission, pursuant to the first paragraph of Article 169 of the Treaty, issued a formal notice to the Belgian Government mentioning the infringement of the provisions of the directive prohibiting certain derogations and the infringement relating to the inadequate quality of the water in Verviers . On 15 December 1987 the Commission issued a further notice to the Belgian Government concerning the exclusion from the measures transposing the directive of water drawn by private individuals for household use . Since it considered that the Belgian Government' s reply was not such as to cause it to withdraw those objections, the Commission on 16 May 1988 issued a reasoned opinion giving the Belgian Government a period of two months within which to take the measures necessary to comply therewith .

4 By letter of 17 January 1989, the Belgian Government first requested additional time under Article 20 of the directive in order to comply with its obligations under Annex 1 to the directive in respect of the water at Verviers . It then replied to the reasoned opinion by letter of 1 March 1989 in which it claimed, first, that it was the acidity level of the water supplied to the population of Verviers, in respect of which no rule is laid down in the annexes to the directive, which was the cause of the pollution in houses still equipped with lead conduits . It considered that, inasmuch as Article 12 of the directive provided for monitoring only at the point where the water was made available to the user, that is to say its supply by the water company, the water supplied in Verviers must be deemed to be in compliance with the requirements of the directive . It added that in any event the pollution in question affected only a small number of inhabitants ( 10 000 ).

5 Secondly, the Belgian Government claimed that the drawing of water by individuals did not fall within the scope of the directive . In support of that contention it referred not only to the first indent of Article 2 and to Article 12(2 ) of the directive, but also to the practical difficulties in monitoring individual wells and to the purpose of the directive which, according to the second recital in its preamble, was to prevent differences in the conditions of competition and, as a result, was concerned only with water supplied commercially .

6 Since it considered that the Belgian Government' s reply to the reasoned opinion was not satisfactory, the Commission brought the present action .

7 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of 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 .

The claims concerning the non-compliance of the Royal Decree of 27 April 1984 with the provisions of the directive

8 It should, first of all, be pointed out that, by a judgment of 14 December 1988, the Belgian Conseil d' État ( Council of State ) annulled the Royal Decree of 27 April 1984 on the ground that the Regional Executives had not been associated in the drawing-up of that decree, as required by Article 6(4 ) of the Law of 8 August 1980 on institutional reforms ( Moniteur belge 1980, p . 9434 ).

12 It is therefore appropriate to examine the Commission' s claims concerning the derogations permitted by the national legislation as compared with those provided for by the directive, and those concerning the exclusion of private water supplies from its scope .

14 The decree in question in no way excludes derogations relating to toxic or microbiological factors, although that is an express requirement of the aforementioned provision of the directive . The claim, to that effect, which moreover is not contested by the Belgian Government, must therefore be upheld .

15 The Commission submits, in the second place, that the exclusion of private water supplies from the scope of the legislation applicable to the Walloon and Brussels Regions is incompatible with Article 1 of the directive according to which the directive applies to all water regardless of its origin, intended for human consumption .

16 In that connection it should be borne in mind that according to Article 2 of the directive "water intended for human consumption shall mean all water for that purpose, either in its original state or after treatment, regardless of origin,

( i ) whether supplied for consumption, or

( ii ) whether

( a ) used in a food production undertaking for the manufacture, processing, preservation or marketing of products or substances intended for human consumption, and

( b ) affecting the wholesomeness of the foodstuff in its finished form ".

17 It follows from that provision that the directive applies only to water supplied for human consumption and to water used in foodstuffs by a food production undertaking and that water from private sources of supply is excluded from its scope .

20 It follows that the claim based on the exclusion of private water supplies from the measures transposing the directive which relate to the Walloon and Brussels Regions must be rejected .

The claim concerning the conformity of drinking water in Verviers with the requirements laid down in the directive

21 It should first be observed that, contrary to the Belgian Government' s contention in its reply to the reasoned opinion, the Verviers drinking water which comes from the Eupen treatment station and supplies a part of the town pending the completion of works at the Gileppe treatment station, is not in conformity with the requirements of the directive . In accordance with Section D of Annex I, the lead content, where lead pipes are present, is evaluated on the basis of samples taken directly after the passage of water and, if the lead content, either frequently or to an appreciable extent, exceeds 100 ug/l, suitable measures must be taken to reduce consumer exposure to lead . It is not disputed that the Verviers drinking water supplied by the Eupen treatment station exceeds that parameter and that no suitable measure has been adopted .

22 The Belgian Government contended before the Court that owing to the cost and complexity of the construction works at the water treatment station which were needed in order that the town of Verviers might be supplied with water in conformity with the requirements of the directive, it will be possible to comply with those requirements only towards the end of 1990 . That situation underlies the request made by the Belgian Government on 17 January 1989 under Article 20 of the directive for a longer period for complying with Annex 1 to the directive .

25 It follows that the Commission' s claim that the Verviers drinking-water supply is not in confirmity with the requirements set out in the directive is well founded .

26 It must therefore be held that by permitting the Walloon Region to allow the maximum admissible concentrations set out in Annex 1 to Council Directive 80/778 of 15 July 1980 relating to the quality of water intended for human consumption to be exceeded in circumstances other than those provided for in that directive, and the supply to Verviers of drinking water not in conformity with the requirements laid down in the same directive, the Kingdom of Belgium has failed to fulfil its obligations under the Treaty .

Costs

27 Under Article 69(2 ) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs . However, the first subparagraph of Article 69(3 ) provides that the Court may order the parties to bear their own costs in whole or in part if each party succeeds on some and fails on other heads, or where the circumstances are exceptional .

28 Since the parties have been partially unsuccessful in their submissions, they should bear their own costs .

On those grounds,

THE COURT

hereby declares that :

( 1 ) By permitting the Walloon Region to allow the maximum admissible concentrations listed in Annex I to Council Directive 80/778/EEC of 15 July 1980 relating to the quality of water intended for human consumption to be exceeded in circumstances other than those provided for in the directive, and the supply to Verviers of drinking water not in conformity with the requirements laid down in the same directive, the Kingdom of Belgium has failed to fulfil its obligations under the Treaty .

( 2 ) The remainder of the application is dismissed .

( 3 ) The parties shall bear their own costs .