Report for the Hearing in Case C-42/89

I — Facts and procedure

1. Legal background

1. 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), provides, in Article 2, that water intended for human consumption is to mean

2. Background to the proceedings

By a letter of 4 August 1986, the Commission gave notice to the Belgian Government to submit within a period of two months its observations concerning two infringements which it had noted in the transposition into Belgian law of Directive 80/778. According to the Commission, one of those infringements results from a partial transposition of Article 9(l)(b) and (3) of the directive. The combined effect of those provisions prohibits Member States from providing for derogations from the system instituted by the directive in order to take account of situations arising from exceptional meteorological conditions if those derogations relate to toxic or microbiological factors or constitute a public-health hazard. The Commission points out that Article 5 of the Royal Decree of 27 April 1984 (Moniteur belge of 6.7.1984, p. 9860), subjects those derogations to conditions that are less strict than those laid down in the directive. In effect it suffices that the water supply cannot be assured in any other way and that the derogations permitted do not present any unacceptable risk to public health.

As regards the second infringement noted, the Commission states that following the expiry of the period laid down in Article 19 of the directive on 18 July 1985, it has received no information from which it could be concluded that the quality of water from the Gileppe dam, which supplies the town of Verviers, complies with the directive. It points out that the treatment plant for that water, the construction of which was notified to it in letters dated 22 February 1984 and 15 November 1985 from the Permanent Representation of Belgium, is not yet in operation. Moreover, the Commission states that the Kingdom of Belgium has not had recourse to the procedure set out in Article 20 of the directive which would enable it, as far as the consumers of Verviers are concerned, to submit a special request to the Commission for a longer period before the directive was to be applied.

On 15 December 1987, the Commission issued a further notice to the Belgian Government, in which another discrepancy between Belgian law and Community law was notified. It stated that the Royal Decree of 27 April 1984, by excluding from its area of application water drawn by private individuals for household use, did not comply with the provisions of Directive 80/778 and, in particular, with Articles 1 and 2 thereof. The further notice imposed a new time-limit of two months on the Belgian Government for the submission of its observations in respect of that additional infringement and the two infringements previously notified.

The Belgian Government replied to the two notices in a letter from its Permanent Representation, which the Commission received on 25 February 1988. In that letter it informed the Commission that, as regards Article 5 of the Royal Decree of 27 April 1984, a draft amendment intended to eliminate the discrepancy between that provision and Article 9 of the directive had been prepared, approved by the three regional executives and submitted to the Conseil d'État for its opinion on 18 December 1987. In respect of the Verviers water supply, it stated that construction of the water treatment plant and connected work had begun on 5 April 1984 and the commissioning of the plant was planned for the end of 1990. In that connection the Belgian Government referred to Article 20 of the directive and requested a delay in the application of the directive until 1 January 1991 for the consumers served by the Verviers water supply. Finally, with regard to Article 1 of the Royal Decree which excludes from protection as to the quality of water distributed by a supply water drawn by private individuals for their household use, it maintained that that exception was to be deduced by implication from the contents of the directive which, in its view, was not applicable either, for obvious reasons, to such a case.

Since the Commission considered that the Belgian Government's reply was unsatisfactory and that not all the measures necessary for the implementation of the directive had yet been taken, it issued a reasoned opinion on 16 May 1988 giving the Belgian Government a period of two months from the date of the notification to comply therewith, pursuant to the second paragraph of Article 169 of the EEC Treaty.

In a letter from the Secretary of State for the Environment and Social Emancipation dated 17 January 1989, the Belgian Government requested additional time to comply with its obligations under Annex I to the directive in respect of water supplied in one part of Verviers. In that letter it reiterated that the work for carrying out water purification would be completed before 1 January 1991 and indicated that the delay was caused by disagreements between the regions on the determination of the public works which should be paid for by the State in application of the Special Law on Institutional Reform of 8 August 1980.

Since the Commission considered that that request did not fulfil the conditions set out in Article 20 of the directive because no action programme including a timetable was attached and furthermore a request made pursuant to that article was not admissible if submitted after the expiry of the period laid down in Article 19, it rejected the request and brought the present proceedings against the Member State for failure to fulfil its obligations.

The Commission's application was lodged at the Court Registry on 20 February 1989.

The written procedure followed the normal course. Upon hearing the Report of the Judge-Rapporteur and the view of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.

II — Conclusions of the parties

The Commission claims that the Court should:

The Belgian Government has not denied the alleged infringements.

III — Pleas in law and arguments of the parties

1. The Commission claims first that the exception provided for in Article 1 of the Royal Decree of 27 April 1984 for water drawn by private individuals for household use is not compatible with Directive 80/778. It emphasizes that the scope of the directive is described generally in Article 1 as standards for water intended for human consumption and under Article 2 that water is defined as all water used for that purpose ... regardless of origin.

1 Language of the case: Dutch.