JUDGMENT OF 25. 5. 1982 — CASE 96/81 COMMISSION v NETHERLANDS

In Case 96/81

THE COURT composed of: J. Menens de Wilmars, President, G. Bosco and A. Touffait (Presidents of Chambers), Lord Mackenzie Stuan, A. O'Keeffe, T. Koopmans and U. Everling, Judges, Advocate General: F. Capotoni Registrar: J. A. Pompe, Deputy Registrar

gives the following

JUDGMENT

Facts and Issues

I — Summary of the facts

II — Conclusion and written procedure

III — Submissions and arguments of the parties put forward during the written procedure.

IV — Answers to questions put by the Court

V — Oral procedure

Decision

Costs

I —. Summary of the facts

1. Council Directive No 76/160/EEC of 8 December 1975 concerning the quality of bathing water (Official Journal 1976, L 31, p. 1) provides that Member States are to take certain measures in order to reduce the pollution of bathing water and to protect such water against further deterioration. To that end, the directive lays down the physical, chemical and microbiological parameters applicable to bathing water and provides that Member States shall set, for all bathing areas or for each individual bathing area, the values applicable to bathing water as regards those parameters. Members States are obliged, by virtue of the directive, to take all necessary measures to ensure that, within a period of 10 years, the quality of bathing waters conforms with those values and to ensure that those values are observed in newly-created bathing areas. The competent authorities in the Member States are obliged to earn out sampling operations in accordance with the detailed rules laid down in the directive. Member States are obliged, four years following the notification of the directive and regular intervals thereafter, to submit a comprehensive repon to the Commission on their bathing water and the most significant characteristics thereof.

2. By letters of 24 February 1976 and 13 October 1977 the Commission requested the Netherlands Government to inform the Commission of the measures taken by the Netherlands to implement the directive.

3. By letter of 8 February 1979 the Commission informed the Netherlands Government that it was of the opinion that the Kingdom of the Netherlands had failed to fulfil its obligations under the directive since the Netherlands authorities had still not adopted the measures needed to give effect to the directive under its internal law and since, notwithstanding the provisions of Article 12 (I) of the directive, the Commission had not yet received any communication regarding such measures. The Commission therefore invited the Netherlands Government, pursuant to Article 169 of the EEC Treaty, to submit its observations on the matter within two months.

4. By letter of 27 July 1979 the Commission delivered to the Netherlands Government a reasoned opinion within the meaning of Article 169 of the EEC Treaty stating that the Kingdom of the Netherlands had failed to fulfil an obligation imposed on it by the directive by not adopting the laws, regulations and administrative provisions needed to comply with its terms.

II —. Conclusion and written procedure

1. By an application registered at the Court on 24 April 1981, the Commission brought an action against the Kingdom of the Netherlands claiming that the Court should:

2. At the conclusion of the written procedure, which followed normal course, the Court, upon hearing the views of the Advocate General, decided to request the Commission to reply in writing to a number of questions and decided to invite the Government of the Netherlands to submit in writing us observations on those replies.

III —. Submissions and arguments of the parties put forward during the written procedure.

1. The Commission contends in its application that the Netherlands Government did not deny, in its reply to the Commission or in its subsequent letters, that the directive required an amendment to the legislation in force in the Netherlands. It was apparent from the contents of those letters that that amendment to its legislation had still not been enacted and that therefore, contrary to Article 12 of the directive, the Netherlands still had not adopted all the laws, regulations and administrative provisions needed in order to implement the directive.

2. In its defence the Netherlands Government points out that the Commission did not respond to the observations submitted on the reasoned opinion as to the manner in which the directive was already being implemented and that the Commission did not state which provisions of the directive had not been implemented in the Netherlands.

3. In its reply the Commission maintains that the Netherlands Government fails to realize the true scope of the application and is basing itself on misconceptions as regards the nature ot directives in general and of the directive at issue in particular.

4. In its rejoinder the Netherlands Government denies that it is agreed between the parties that the Netherlands is in breach of its duty in regard to the information to be given to the Commission by virtue of the second sentence of Article 12 (1) of the directive.

IV —. Answers to questions put by the Court

V —. Oral procedure

1. By application received at the Court Registry on 24 April 1981, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that, by not introducing within the period prescribed the laws, regulations and administrative provisions needed to comply with Council Directive No 76/160/EEC of 8 December 1975 concerning the quality of bathing water (Official Journal 1976, L 31, p. 1) the Kingdom of the Netherlands had failed to fulfil its obligation under the Treaty.

2. By virtue of that directive, which was adopted pursuant to Anieles ICO and 235 of the EEC Treaty, Member States are obliged to set, for all bathing areas or for each individual bathing area, the values applicable to bathing water for the physical, chemical and microbiological parameters laid down in the directive, to adopt the necessary measures to ensure that, within a period of 10 years, the quality of bathing water conforms with those values, to ensure that those values are observed in newly-created bathing areas, to carry out sampling operations in accordance with the detailed rules laid down in the directive and, four years following the notification of the directive, to submit a first comprehensive report to the Commission on their bathing water and the most significant characteristics thereof.

3. Article 12 (1) of the directive provides that the Member States are to bring into force the laws, regulations and administrative provisions necessary to comply with the directive within two years of its notification, a period which expired on 10 December 1977, and forthwith to inform the Commission thereof.

4. The Commission considers that the Netherlands Government has failed to fulfil its obligation to provide information pursuant to the above-mentioned provision. In view of that failure the Commission considers that it is entitled to presume, during the first phase of its verification of the implementation of the directive, which is confined to establishing in general whether the necessary implementing measures have been brought into force within the prescribed period, without any detailed examination of such measures, that the defendant has failed to fulfil the obligation to put into effect the necessary measures.

5. The subject-matter of these proceedings is not, however, failure to comply with the duty to provide information but failure to fulfil the obligation to bring into force the laws, regulations and administrative provisions needed to ensure compliance with the directive.

6. It should be emphasized that, in proceedings under Article 169 of the EEC Treaty for failure to fulfil an obligation, it is incumbent upon the Commission to prove the allegation that the obligation has not been fulfilled. It is the Commission's responsibility to place before the Court the information needed to enable the Court to establish that the obligation has not been fulfilled, and in so doing the Commission may not rely on any presumption.

7. It should nevertheless also be emphasized that the Member States are obliged, by virtue of Article 5 of the EEC Treaty, to facilitate the achievement of the Commission's tasks which, under Article 155 of the EEC Treaty, consist in particular of ensuring that the provisions of the Treaty and the measures adopted by the institutions pursuant thereto are applied. It is for those reasons that Article 12 of the directive in question, like other directives, imposes upon the Member States an obligation to provide information.

8. The information which the Member States are thus obliged to supply to the Commission must be clear and precise. It must indicate unequivocally the laws, regulations and administrative provisions by means of which the Member State considers that it has satisfied the various requirements imposed on it by the directive. In the absence of such information, the Commission is not in a position to ascertain whether the Member State has effectively and completely implemented the directive. The failure of a Member State to fulfil that obligation, whether by providing no information at all or by providing insufficiently clear and precise information, may of itself justify recourse to the procedure under Article 169 of the EEC Treaty in order to establish the failure to fulfil the obligation.

9. In view of the purpose of this action and in order to examine whether it is well founded, those provisions must be compared with the laws, regulations and administrative provisions existing in the Netherlands by means of which the Netherlands Government considers it has implemented the directive.

10. In that respect, it must be recorded that in reply to a question put by the Court at the close of the written procedure, the Commission stated that, as appears from the explanatory memorandum to the draft Netherlands law amending the Wet Hygiene en Veiligheid Zweminrichtingen [Law relating to hygiene and safety in bathing establishments], at the present time no provisions exist in the Netherlands determining the desired quality for bathing water by means of values for the parameters mentioned in the annex to the directive, as provided for in Article 3 of the directive, nor are there any provisions prescribing the measures necessary to achieve the quality laid down for bathing water, as provided for in Article 4 (1). The Netherlands Government did not deny that fact either in its observations on the Commission's reply or during the oral procedure and it has adduced no evidence from which it might be inferred that such provisions already exist in the Netherlands.

11. The Netherlands Government referred to the fact that the supervision of the quality of water is carried out in the Netherlands within the framework of a decentralized system. The regional and local authorities are directly bound bv the provisions of the directive and they implement it in the practical management of water quality, under the control of the national authorities.

12. It is true that each Member State is free to delegate powers to its domestic authorities as it considers fit and to implement the directive by means of measures adopted by regional or local authorities. That does not however release it from the obligation to give effect to the provisions of the directive by means of national provisions of a binding nature. The directive in question, adopted inter alia pursuant to Article 100 of the EEC Treaty, is intended to approximate the applicable laws, regulations and administrative provisions in the Member States. Mere administrative practices, which by their nature may be altered at the whim of the administration, may not be considered as constituting the proper fulfilment of the obligation deriving from that directive.

13. None of the matters put forward by the Netherlands Government justifies the conclusion that provisions of a binding nature have actually been adopted either by the national authorities or by regional or local authorities in order to determine for all bathing areas or for each of them the values applicable to bathing water for all the parameters indicated in the annex to the directive and in order to ensure that the quality of bathing conforms with the values thus determined. In particular, the prospective multiennial programme to which the Netherlands Government referred in its correspondence with the Commission prior to the commencement of these proceedings, affirming that that programme adopted the rules contained in the directive, constituted, at that time, nothing more than a set of guidelines for those responsible for the supervision of water quality and had no legally binding force. That programme could not therefore be considered as sufficient for the purpose of implementation of the directive.

14. In its observations on the Commission's reply to the questions put by the Court before the oral procedure and also during the oral procedure, the Netherlands Government again referred to an amendment of the Wet Verontreiniging Oppervlaktewateren [Law relating to the pollution of surface water], which entered into force on 1 January 1982, claiming that by virtue of that amendment the prospective multiennial programme would enable the directive to be fully implemented. At the hearing, the Commission, whilst not departing from its views, declared that that amendment to the law would, if supplemented by certain administrative measures, make it possible for the directive to be implemented properly. In that regard it must be pointed out, without its being necessary to consider whether, merely by reason of that amendment, the failure to fulfil the obligation might have been wholly remedied, that the measures needed to ensure the full implementation of the directive were not aòcpcrd within the prescribed periods and in any case did not exist when u'i 3 action was brought.

15. It follows from the foregoing that the Kingdom of the Netherlands did not adopt within the prescribed periods the provisions needed to ensure the full implementation of the directive in question and must be declared to have failed to fulfil its obligations under the Treaty.

16. Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs, if they have been asked for in the successful party's pleading. As the defendant has failed in its submissions, it must be ordered to pay the costs.

On those grounds, THE COURT hereby:

1 Declares that by not bringing into force within the periods prescribed the provisions needed to ensure the full implementation of Council Directive No 76/160/EEC of 8 December 1975 concerning the quality of bathing water, the Kingdom of the Netherlands has failed to fulfil its obligations under the Treaty;

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