Avis juridique important

Judgment of the Court of 17 October 1991. - Commission of the European Communities v Federal Republic of Germany. - Non-transposition of Council Directives 75/440/EEC and 79/869/EEC - Surface water intedned for the abstraction of drinking water - Obligations to provide information. - Case C-58/89. European Court reports 1991 Page I-04983

Summary Parties Grounds Decision on costs Operative part

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1. Approximation of laws - Quality of surface water intended for the abstraction of drinking water - Division of water into categories according to limiting values - Adoption of formal classification provisions - Obligation of Member States - Absence

(Council Directive 75/440, Art. 2)

2. Measures adopted by the Community institutions - Directives - Implementation by Member States - Transposition of a directive without a legislative act - Conditions - Existence of a general legal framework guaranteeing full application of the directive

(EEC Treaty, Art. 189, third para.)

3. Approximation of laws - Quality of surface water intended for the abstraction of drinking water - Directives 75/440 and 79/869 - Need for precise transposition by Member States

(Council Directives 75/440 and 79/869)

(Council Directive 75/440, Art. 4(2) and Art. 8, first and fourth paras)

1. Whilst the division of surface water into categories according to limiting values, as provided for by Article 2 of Directive 75/440 concerning the quality required of surface water intended for the abstraction of drinking water, is essential for the implementation of that directive and of Directive 79/869 concerning the methods of measurement and frequencies of sampling and analysis of such water, that categorization does not impose on the Member States any separate obligation which must be complied with by means of a formal act indicating, in respect of each individual sampling point, the category in which the water has been classified.

2. The transposition of a directive into domestic law does not necessarily require that its provisions be incorporated formally and verbatim in express, specific legislation; a general legal context may, depending on the content of the directive, be adequate for the purpose provided that it guarantees the full application of the directive in a sufficiently clear and precise manner so that, where the directive is intended to create rights for individuals, the persons concerned can ascertain the full extent of their rights and, where appropriate, rely on them before the national courts.

3. Directives 75/440 and 79/869 are intended to protect public health and, to that end, to ensure the exercise of surveillance over surface water intended for the abstraction of drinking water and over the purification treatment of such water. That implies, first, that whenever non-compliance with the measures required by them might endanger the health of persons, those concerned should be able to rely on mandatory rules in order to enforce their rights and, second, that the operators of surface water sampling points may know precisely which obligations apply to them. Consequently, correct transposition requires the adoption of provisions with unquestionable binding force which are sufficiently specific, precise and clear in order to satisfy the requirements of legal certainty.

4. It follows from Article 4(2) of Directive 75/440 that each Member State is to draw up a systematic plan of action for the improvement of all surface water the parameters of which are capable of improvement, and that that plan must comprise stages, taking account of certain priorities and economic and technical constraints. In Member States whose federal states or regions are competent to act in the matter, that plan may make appropriate coordination necessary.

A Member State may not exclude certain water from that plan on the ground that it is polluted owing to the nature of the soil, thereby disregarding the rules governing derogation from the obligations imposed by the directive and provided for by the first and fourth paragraphs of Article 8 thereof.

In Case C-58/89,

Commission of the European Communities, represented by Ingolf Pernice, a member of its Legal Service, acting as Agent, with an address for service in Luxembourg at the office of Roberto Hayder, a representative of its Legal Service, Wagner Centre, Kirchberg,

applicant,

v

Federal Republic of Germany, represented by Dietmar Knopp, Rechtsanwalt of Cologne, acting as Agent, with an address for service in Luxembourg at the Embassy of the Federal Republic of Germany, 20-22 Avenue Émile Reuter,

defendant,

APPLICATION for a declaration that by not adopting all the laws, regulations and administrative provisions needed in order fully to transpose into national law Council Directive 75/440/EEC of 16 June 1975 concerning the quality required of surface water intended for the abstraction of drinking water in the Member States (Official Journal 1975 L 194, p. 26) and Council Directive 79/869/EEC of 9 October 1979 concerning the methods of measurement and frequencies of sampling and analysis of surface water intended for the abstraction of drinking water in the Member States (Official Journal 1979 L 271, p. 44), and by not meeting all its obligations to provide information under Article 4(2) in conjunction with Article 10 of Directive 75/440 and under Article 8 of Directive 79/869, the Federal Republic of Germany has failed to fulfil its obligations under the EEC Treaty,

THE COURT,

composed of: O. Due, President, Sir Gordon Slynn, R. Joliet, F. Grévisse and P.J.G. Kapteyn (Presidents of Chambers), C.N. Kakouris, J.C. Moitinho de Almeida, M. Díez de Velasco and M. Zuleeg, Judges,

Advocate General: F.G. Jacobs,

Registrar: D. Louterman, Principal Administrator,

having regard to the Report for the Hearing,

after hearing argument from the parties at the hearing on 19 March 1991,

after hearing the Opinion of the Advocate General at the sitting on 8 May 1991,

gives the following

Judgment

1 By application lodged at the Court Registry on 28 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 all the laws, regulations and administrative provisions needed in order fully to transpose into national law Council Directive 75/440/EEC of 16 June 1975 concerning the quality required of surface water intended for the abstraction of drinking water in the Member States (Official Journal 1975 L 194, p. 26) and Council Directive 79/869/EEC of 9 October 1979 concerning the methods of measurement and frequencies of sampling and analysis of surface water intended for the abstraction of drinking water in the Member States (Official Journal 1979 L 271, p. 44), and by not meeting all its obligations to provide information under Article 4(2) in conjunction with Article 10 of Directive 75/440 and under Article 8 of Directive 79/869, the Federal Republic of Germany has failed to fulfil its obligations under the EEC Treaty.

2 Article 10 of Directive 75/440 and Article 13 of Directive 79/869 provide that the Member States are to bring into force the laws, regulations and administrative provisions necessary to comply therewith within two years of their notification and that the Member States are forthwith to inform the Commission thereof. In the case of the defendant, those periods expired on 18 June 1977 and 9 October 1981 respectively.

3 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the procedure and the submissions 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 obligation under Article 2 of Directive 75/440 to divide water into categories

4 The Commission complains that the Federal Republic of Germany has not adopted any formal act indicating, in relation to each sampling point, the category in which the water has been classified.

5 It is to be noted in this regard that, under Article 2 of Directive 75/440, "surface water shall be divided according to limiting values into three categories, A1, A2 and A3, which correspond to the appropriate standard methods of treatment given in Annex I. These groups correspond to three different qualities of surface water, the respective physical, chemical and microbiological characteristics of which are set out in the table given in Annex II".

6 Such division of water into categories is essential for the Member States' implementation of the directives in question. This applies in particular to the setting, for all sampling points, or for each individual sampling point, of the values applicable to surface water for all the parameters given in Annex II, pursuant to Article 3(1) of Directive 75/440, the drawing up of a systematic plan of action including a timetable for the improvement of surface water, pursuant to Article 4(2) of Directive 75/440, and the sampling and analysis provided for in Article 6 of and Annex II to Directive 79/869, the frequencies and methods of which vary according to water quality.

7 Moreover, the division of water into categories pursuant to Article 2 of Directive 75/440 also determines the methods of treatment to be adopted by the Member States, in accordance with Annex I to that directive, in order to turn surface water in categories A1, A2 and A3 into drinking water.

8 It does not however follow that there is any separate obligation imposed on the Member States by the abovementioned Article 2 to divide water into categories, which must be complied with by means of a formal act indicating, in respect of each individual sampling point, the category in which the water has been classified. Furthermore, the Commission has not been able to provide any explanation regarding the existence of any such obligation.

9 It follows that the complaint regarding the failure to implement Article 2 of Directive 75/440 cannot be upheld.

The obligation to set values applicable to surface water under Article 3(1) of Directive 75/440 and to ensure that those values are maintained under Article 4(1) of that directive

10 The Commission complains, first, that the Federal Republic of Germany has failed to set, by means of acts which are binding and adequately published, the values applicable to surface water in respect of all sampling points, or each individual sampling point, pursuant to Article 3(1) of Directive 75/440.

11 The Federal Republic of Germany maintains in this regard that compliance with the obligation in question is ensured by the Laender concerned, first, by the issue of ministerial service instructions or administrative directions which are officially published and notify the local authorities of the requirements of the directive, on the basis of which the latter proceed, by way of decisions or regulations, to categorize the water, and, second, by individual acts addressed to the operators of surface water sampling points, laying down the conditions applying to the exercise of that activity and providing in particular for compliance with the values in question.

12 According to the Federal Republic of Germany, the binding effect of such measures arises by virtue of Paragraphs 7 and 36(b)(2)(2) of the Law on the Management of Water Resources (Gesetz zur Ordnung des Wasserhaushalts, Bundesgesetzblatt 1986 I, p. 1530, hereinafter referred to as the "WHG"), which state that the activity in question must be subject to the grant of a licence and provide for operating plans to be drawn up wherever necessary in respect of all or part of the surface water, in particular for the purposes of the implementation of binding decisions of the European Communities.

17 Furthermore, certain documents relied upon as evidence by the Federal Republic of Germany have not been produced by it and the instructions sent by the Minister for Nature and the Environment of Schleswig-Holstein to the local water authorities for Luebeck and Kreis Stormarn, by letters of 14 December 1988 and 5 January 1989 respectively, postdate the expiry of the time-limit set in the Commission' s reasoned opinion.

18 It follows that Article 3(1) of Directive 75/440 has not been shown to have been implemented with unquestionable binding force, nor in a specific, precise and clear manner as required under the Court' s case-law in order to satisfy the requirements of legal certainty and that, in any event, certain measures pleaded have not been proved or were not adopted until after the expiry of the time-limit set in the reasoned opinion.

19 The complaint regarding the failure to implement Article 3(1) of Directive 75/440 is therefore well founded.

20 The Commission complains, secondly, that the Federal Republic of Germany has failed in certain instances to comply with the limiting values set pursuant to Article 3 of Directive 75/440, and that it has thus infringed Article 4(1) of that directive, which requires compliance with those values.

21 It is to be noted in this regard that there is no reference to this complaint in either the letter of formal notice or the reasoned opinion and that it cannot therefore form the subject-matter of a finding by the Court.

The obligation to draw up a systematic plan of action under Article 4(2) and to communicate that plan to the Commission under Article 10 of Directive 75/440

22 According to the Commission, the Federal Republic of Germany has failed to draw up a systematic plan of action including a timetable for the improvement of surface water, pursuant to Article 4(2) of Directive 75/440.

24 Regard should be had in this connection to the wording of Article 4(2) of Directive 75/440, which provides:

"In line with the objectives of this Directive, Member States shall take the necessary measures to ensure continuing improvement of the environment. To this end, they shall draw up a systematic plan of action including a timetable for the improvement of surface water and especially that falling within category A3. In this context, considerable improvements are to be achieved under the national programmes over the next 10 years.

The timetable referred to in the first subparagraph will be drawn up in the light of the need to improve the quality of the environment, and of water in particular, and the economic and technical constraints which exist or which may arise in the various regions of the Community.

The Commission will carry out a thorough examination of the plans referred to in the first subparagraph, including the timetables, and will, if necessary, submit appropriate proposals to the Council."

26 The plan must include water which is polluted owing to the nature of the soil. Derogation is permissible under the first paragraph of Article 8 of Directive 75/440 only in the cases listed in that paragraph and provided that the Member State forthwith notifies the Commission thereof, stating its reasons and the periods anticipated, in accordance with the fourth paragraph of Article 8.

27 Since the Federal Republic of Germany has not sought any such derogation, it should have included in the improvement plan water which is polluted owing to the nature of the soil.

28 The Federal Republic of Germany further asserts that improvement plans have been drawn up in relation to the Danube and North Rhine-Westphalia and that two watercourses in Bavaria, although classed for safety reasons in category A3, are of a quality corresponding to category A1, which does not require any improvement.

29 It is to be noted in this regard, first, that of the measures referred to by the German Government in relation to North Rhine-Westphalia, namely the adoption of the treatment method applicable to category A2 water in respect of the category A1 waters of the Perlenbach and Dreilaegerbach dams, where certain higher values than the limiting values have been established, and the provision in the direct vicinity of the Heilenbecke dam, where the permitted limiting value in respect of nitrate content is being exceeded as a result of the intensive agricultural use of its catchment basin, of an unworked strip of land, only the latter constitutes a measure to improve the water quality within the meaning of Article 4(2) of Directive 75/440. The water in the Perlenbach and Dreilaegerbach dams should in fact have been classed in the category corresponding to the treatment process used.

30 Moreover, a plan has been drawn up with regard to the Danube in the Land of Baden-Wuerttemberg. The sampling point is situated in Bavaria but, as the German Government has observed - and this is not contradicted by the Commission - the requisite improvement needs to be carried out upstream, in Baden-Wuerttemberg, since in that region the river flows from west to east.

31 Finally, no provision has been made for any improvement measures in relation to the water sampled in Bavaria, which has been classed in category A3 in the light of the risk of pollution emanating from Czechoslovakia. The fact that the pollution is from an external source does not mean that it is impossible to undertake any improvement measures, as is demonstrated by those taken in relation to the improvement of Lake Constance by the defendant in collaboration with the riparian States, which the Commission has accepted as meeting the requirements of Article 4(2) of Directive 75/440.

32 Accordingly, even though improvement plans have been drawn up at Laender level in respect of certain waters, those plans do not extend to all the waters covered by the directive in question, and in any event the Federal Republic of Germany has failed to draw up the overall plan required by Article 4(2) of that directive.

33 It follows that the complaint regarding the failure to implement Article 4(2) of Directive 75/440 is well founded and that there is consequently no need to consider the complaint regarding the failure to communicate to the Commission the plan provided for in that article, in breach of Article 10 of the directive.

The obligation to provide information on the frequency of analysis under Article 8(1) of Directive 79/869

34 Under this head, the Commission complains that the Federal Republic of Germany has failed to provide it with a full reply to its request for information on the frequency of analysis. It asserts that the Federal Republic of Germany has sent to it only a table stating the frequency of analysis in respect of the sampling points in Lower Saxony and that, as regards other cases, the defendant merely stated that the frequency met the requirements of Directive 79/869. The Commission adds that the information relating to Lower Saxony was incomplete since it did not give figures for the population served by each sampling point, whereas that information is essential in order to assess whether the frequency of analysis satisfies the requirements of Annex II of the directive, which depends upon the size of the population.

35 It is to be noted in this regard that Article 8(1) of Directive 79/869 requires the Member States to provide the Commission at its request with all relevant information on the methods of analysis used and the frequency of analysis.

36 The generalized information provided by the Federal Republic of Germany fulfils neither the requirements laid down by the actual wording of the aforesaid article nor its intended aim, which is to enable the Commission to draw up a consolidated report on the application of the directive.

37 The complaint regarding the failure to comply with the obligation to communicate information under Article 8(1) of Directive 79/869 is therefore well founded.

38 It follows from all the foregoing considerations that by not adopting all the laws, regulations and administrative provisions needed to transpose into national law Articles 3(1) and 4(2) of Council Directive 75/440/EEC of 16 June 1975 concerning the quality required of surface water intended for the abstraction of drinking water in the Member States, and by not meeting all its obligations to provide information under Article 8 of Council Directive 79/869/EEC of 9 October 1979 concerning the methods of measurement and frequencies of sampling and analysis of surface water intended for the abstraction of drinking water in the Member States, the Federal Republic of Germany has failed to fulfil its obligations under the EEC Treaty.

Costs

39 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Federal Republic of Germany has been essentially unsuccessful, it must be ordered to pay the costs.

On those grounds,

THE COURT

hereby:

1. Declares that by not adopting all the laws, regulations and administrative provisions needed to transpose into national law Articles 3(1) and 4(2) of Council Directive 75/440/EEC of 16 June 1975 concerning the quality required of surface water intended for the abstraction of drinking water in the Member States, and by not meeting all its obligations to provide information under Article 8 of Council Directive 79/869/EEC of 9 October 1979 concerning the methods of measurement and frequencies of sampling and analysis of surface water intended for the abstraction of drinking water in the Member States, the Federal Republic of Germany has failed to fulfil its obligations under the EEC Treaty;

2. Dismisses the remainder of the application;

3. Orders the Federal Republic of Germany to pay the costs.