CELEX: 62001CJ0272
Failure of a Member State to fulfil its obligations
Directive 76/160/EEC
Quality of bathing water
Failure to conform to limit values
Failure to identify all inland bathing areas in Portugal
Failure to collect a sufficient number of samples

By application lodged at the Court Registry on 10 July 2001, the Commission of the European Communities brought an action
under Article 226 EC for a declaration that:
–
by failing to adopt all the measures necessary to ensure that the quality of bathing water conforms to the values laid down
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’),
–
by failing to take samples at the minimum frequencies laid down in the Annex to the Directive, and
–
by failing to identify all the inland bathing areas in Portugal,
the Portuguese Republic has failed to fulfil its obligations under Article 4(1), in conjunction with Articles 1(2) and 3 and
the Annex to the Directive, and under Article 6(1) and (2) of the Directive, and that it be ordered to pay the costs.
The Portuguese Republic contends that the Court should:
–
dismiss the action;
–
order the Commission to pay the costs.
Legal framework
Community legislation
The first recital in the preamble to the Directive states that its purpose is to protect the environment and public health
by reducing the pollution of bathing water and protecting such water against further deterioration. To that end, a series
of physical, chemical and micro-biological parameters applicable to bathing water are laid down in the Annex to the Directive,
together with guidelines and mandatory values which are to be applied by Member States in setting the limit values for bathing
water.To that
Article 1(1) of the Directive provides that it ‘concerns the quality of bathing water, with the exception of water intended
for therapeutic purposes and water used in swimming pools’.
Article 1(2) of the Directive states:
‘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 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;
(b)
“bathing area” means any place where bathing water is found;
(c)
“bathing season” means the period during which a large number of bathers can be expected, in the light of local custom and
any local rules which may exist concerning bathing and weather conditions.’
Under Article 3(1) of the Directive, Member States are to set, for all bathing areas or for each individual bathing area,
the values applicable to bathing water for the parameters given in the Annex. Article 3(2) provides that the values set pursuant
to Article 3(1) are not to be less stringent than those given in column I of the Annex.
By By  ByAUnder  rticle 4(1) of the Directive, Member States are to take all necessary measures to ensure that the quality of bathing water
conforms to the limit values set in accordance with Article 3 within 10 years following notification of the Directive.
As it envisaged that the application of the Directive might cause it certain problems, when it acceded to the European Communities
the Portuguese Republic sought a derogation in relation to its transposition and application. It was granted that derogation
until 1 January 1993 by virtue of Article 395 and Point 3 of Part III of Annex XXXVI to 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).
Under Article 5(1) of the Directive, for the purposes of Article 4, bathing water is to be deemed to conform to the relevant
parameters if samples of that water, taken at the same sampling point and at the intervals specified in the Annex, show that
it conforms to the parametric values for the quality of the water concerned in the case of the percentage of those samples
laid down in Article 5(1).
Article 6(1) of the Directive provides that the competent authorities in the Member States are to carry out sampling operations,
the minimum frequency of which is laid down in the Annex. According to the first and third sentences of Article 6(2), samples
are to be taken at places where the daily average density of bathers is highest, and sampling is to begin two weeks before
the start of the bathing season.
The first paragraph of Article 8 of the Directive states that it may be waived (a) in the case of certain parameters specified
in the Annex because, inter alia, of exceptional weather or geographical conditions, and (b) when bathing water undergoes
natural enrichment in certain substances causing a deviation from the values prescribed in the Annex. When a Member State
waives the provisions of the Directive, the fourth paragraph of Article 8 requires it forthwith to notify the Commission thereof,
stating its reasons and the periods anticipated.
Article 13 of the Directive provides that Member States must, four years after 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 (hereinafter ‘the annual report’). That report has been required to be submitted annually since 1 January 1993, the
date on which the amendment of Article 13 by Council Directive 91/692/EEC standardising and rationalising reports on the implementation
of certain directives relating to the environment (OJ 1991 L 377, p. 48) came into force.
National legislation
The Directive was transposed into Portuguese law by Decree-Law No 74/90 of 7 March 1990 (
Diário da República
I, Series No 55 of 7 March 1990). That decree-law was repealed and replaced by Decree-Law No 236/98 of 1 August 1998 (
Diário da República
I, Series A, No 176 of 1 August 1998), which lays down inter alia the values applicable to bathing water for the parameters
specified in the Annex to the Directive.
Under Article 3(24) of Decree-Law No 236/98, the Portuguese bathing season comprises, on the mainland, the period from 1 June
to 30 September in each year, while in the Autonomous Region of the Azores the bathing season runs from 15 June to 15 September.
The expression ‘large number of bathers’, used in the second indent of Article 1(2)(a) of the Directive, is defined in Article
3(12) of Decree-Law No 236/98 as corresponding to ‘approximately 100 bathers per day during the bathing season’.
Pre-litigation procedure
As it took the view, first, that certain Portuguese bathing areas did not comply with the mandatory values laid down in the
Directive and were not subject to adequate sampling operations and, secondly, that the Portuguese Republic had failed to identify
all inland bathing areas, the Commission initiated the infringement procedure.
Having served formal notice on the Portuguese Republic to submit its observations, the Commission issued a reasoned opinion
on 11 December 1998, calling on that Member State to take the measures necessary to comply with it within two months of its
notification. Since it was not satisfied with the answers given by the Portuguese authorities, the Commission brought the
present action.
The action
The Commission has raised three complaints against the Portuguese Republic. It is of the view that the Portuguese Republic
has failed to comply with its obligations under the Directive, inasmuch as it has failed to:
–
comply with the quality standards laid down in the Directive;
–
identify all bathing areas, and
–
collect samples at the minimum frequency.
The first complaint: failure to comply with the mandatory limit values laid down in the Directive
Arguments of the parties
The Commission alleges that the Portuguese Republic has allowed a significant number of bathing areas to exist where the water
quality fails to meet the mandatory values laid down in the Directive. That is in breach of Article 4(1), in conjunction with
Article 3, of the Directive.
The Commission contends that the table set out at paragraph 2 of the Commission’s report on the 1998 bathing season shows
that the non-compliance rates were 10.5% for coastal waters and 79.1% for inland waters during that season.
The compliance rates disclose a clear decline during the 1998 season in comparison with 1997, when the non-compliance rates
were 9.8% and 66.7% for coastal and inland waters respectively.
The Commission observes that the report prepared by the Portuguese authorities on the quality of bathing water during the
1999 bathing season shows that, despite some improvement, the position was not yet satisfactory in that 6.1% of sea-water
and 21.6% of fresh-water areas failed to comply with the mandatory values.
The Commission also states that its first complaint is not based on the figures notified to it for the 2000 bathing season.
The Portuguese Government contends that there was a significant and sustained improvement in Portugal until 1999. That improvement
applied both to the adequacy of sampling operations and to the limit values.
To counter the known difficulties in the problem areas which remained despite that significant improvement, the Portuguese
authorities promoted a variety of corrective and preventive measures, which were notified to the Commission in response to
the reasoned opinion. As regards the measures adopted, the Portuguese Government refers, by way of example, to the programme
for monitoring cleanliness at bathing areas, mentioned in its letter of 30 April 1999, to the different improvement programmes
in each bathing season for non-compliant areas, which included current or planned purification works and were annexed to each
annual report on the application of the Directive, and to the programme of works intended to protect and improve the quality
of bathing water.
The Portuguese Government observes that the compliance rates of the coastal bathing zones have reached levels close to the
European average of 90%. In 1999, the compliance levels were almost 94%.
As regards inland bathing areas, the Portuguese Government challenges the figures given in the Commission’s report for the
1998 bathing season. It claims that the percentage for non-compliance for that year was 54% and not 79%.
The Portuguese Government is of the view that the inland bathing areas give rise to problems which it will be more complicated
to resolve.
Findings of the Court
According to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined
by reference to the situation prevailing in that Member State at the end of the period laid down in the reasoned opinion (see,
inter alia, Case C-147/00
Commission
v
France
[2001] ECR I-2387, paragraph 26).
In the present case, the reasoned opinion gave the Portuguese Republic a two‑month period from its notification to comply
with it. That opinion was notified on 11 December 1998, and the period accordingly expired on 11 February 1999. It is therefore
at the latter date that the question whether or not there was a failure to fulfil obligations must be determined.
Although the precise parameters pertaining to the bathing water at that date are unknown, there is no doubt that the quality
of that water did not conform to the mandatory values specified in the Annex to the Directive on the expiry of the period
laid down in the reasoned opinion. Having regard to the reports on the quality of Portuguese bathing water during the previous
and subsequent bathing seasons, the only possible conclusion is that there was such a failure to comply.
The report on the quality of bathing water during the 1998 bathing season, prepared by the Portuguese authorities themselves,
thus shows that the bathing water did not fully comply with the mandatory values laid down in the Annex to the Directive in
the 1998 bathing season.
It is not disputed that, despite a measure of improvement that is accepted by the Commission, Portuguese bathing water did
not fully conform to the mandatory values laid down in the Annex to the Directive during the 1999 bathing season.
As regards the measures and difficulties relied on by the Portuguese Government, it must be pointed out that Article 4(1)
of the Directive requires Member States to ensure that certain results are achieved, inasmuch as the quality of bathing water
must conform to the mandatory values laid down in the Directive. Apart from the derogations provided for, the Directive does
not allow Member States to rely on particular circumstances to justify a failure to fulfil that obligation (see, inter alia,
Case C-92/96
Commission
v
Spain
[1998] ECR I-505, paragraph 28, and Case C‑307/98
Commission
v
Belgium
[2000] ECR I-3933, paragraph 49).
The Portuguese Government does not rely on any derogation provided for under the Directive.
The Commission’s first complaint is accordingly well founded.
The second complaint: failure to identify all inland bathing areas
Arguments of the parties
The Commission alleges that the Portuguese authorities have failed to identify all inland bathing areas, as defined in Article
1(2) of the Directive. It notes a difference between the number of inland bathing areas identified, namely 26 in 1998, and
the number of river beaches referred to in an operational programme submitted to its staff by the Portuguese Republic with
a view to obtaining Community funding, namely 91.
The Portuguese Government claims that the upgrading programme for river beaches aimed to provide inland areas with new space
for recreational and sporting activities and there is no doubt that it covered in that regard areas that were suitable for
bathing. However, the Portuguese Government claims that that programme was intended at the same time to upgrade the river
areas from an environmental and landscaping point of view. Many of those areas are unsuitable for bathing because of natural
conditions.
The Portuguese Government states that in the fresh-water areas covered by that programme where bathing is not prohibited,
it is not practised by a large number of bathers.
The Portuguese Government submits that the number of bathers per day set by Decree-Law No 236/98 should not be considered
as representing a test that is to be rigidly applied. It is instead an indicative number to be taken into account by the Portuguese
authorities in achieving a higher level of monitoring of cleanliness, under conditions specified in that Decree-Law and in
accordance with the Directive.
In summary, the Portuguese Government states that the results of the application of the national legislation transposing the
Directive are as follows:
–
where water is classified as bathing water, the Portuguese authorities explicitly authorise bathing when the quality of the
water presents no risk to public health; the areas concerned are then included in the annual report on the quality of bathing
water sent to the Commission;
–
where water is not classified as bathing water, but is traditionally used by a large number of bathers, its quality is monitored
taking into account the parameters and sampling frequency laid down in the Directive; that water is classified as bathing
water when its conformity with those parameters is established on the basis of at least one set of analytical results during
the previous bathing season; if the values recorded fail to conform with the parameters of the Directive, bathing is explicitly
prohibited; that water does not appear in the annual report on the quality of bathing water unless it is classified as such.
On the basis of an analysis of the areas which are subject to the upgrading programme for river beaches, the Commission observes
that the inland bathing areas are usually frequented by a smaller number of bathers each day than the limit set by the Portuguese
authorities. Accordingly, those authorities still fail to identify all inland bathing areas.
Findings of the Court
The obligations imposed on Member States under Articles 3 and 4 of the Directive apply to all bathing areas.
According to Article 1(2)(b) of the Directive, a bathing area is any place where bathing water is found. It follows from Article
1(2)(a) that classification as bathing water presupposes that, in the type of water specified in that paragraph, bathing is
either explicitly authorised by the competent authorities of each Member State or is not prohibited and is traditionally practised
by a large number of bathers.
The parties are essentially in dispute as to the classification of the river beaches, the number of which exceeds that of
the areas designated as bathing areas.
By its arguments, the Commission implicitly calls into question the compatibility of Decree-Law No 236/98 with the Directive,
in so far as that Decree-Law defines a large number of bathers as approximately 100 bathers per day during the bathing season.
However, during the pre-litigation procedure, the Commission did not accuse the Portuguese Republic of failing to transpose
Article 1(2)(b) of the Directive correctly into national law in so far as that provision refers to a large number of bathers.
The Commission’s reasoned opinion and the application must be founded on the same grounds and pleas (see Case C-237/90
Commission
v
Germany
[1992] ECR I-5973, paragraph 20).
It follows that the Commission cannot argue in the present proceedings that river beaches frequented by a smaller number of
bathers than the limit set under Decree-Law No 236/98, at which bathing is neither explicitly authorised nor prohibited, have
not been identified as bathing areas within the meaning of the Directive.
It is, admittedly, clear from the records of the Portuguese Government that river beaches are not classified as bathing areas
unless the compliance of their parameters is confirmed by at least one set of analytical results during the previous bathing
season, a condition which is not specified in the Directive.
The Commission, however, has not contended that that practice applies to river beaches where the water is frequented by a
large number of bathers, as defined in the Portuguese legislation.
The Commission’s second complaint must therefore be rejected.
The third complaint: failure to take samples at the minimum frequency laid down in the Directive
Arguments of the parties
Relying on Article 6(1) and (2) of the Directive, the Commission alleges that, although the sampling frequency is 100% in
both sea- and fresh-water bathing areas, the Portuguese Republic carried out sampling operations in relation only to the identified
bathing areas. In failing to comply with the minimum sampling frequency because the inland bathing water is inadequately identified,
the Portuguese Republic has failed to fulfil its obligations under Article 6.
The Portuguese Government claims that at no time during the pre-litigation procedure did the Commission allege that there
was a failure to comply with the sampling frequency on the basis of the arguments referred to above, namely the inadequate
identification of bathing water. The grounds stated in the reasoned opinion and those relied on in the application must be
the same, failing which the action will be inadmissible. The Portuguese Government alleges that in the present case the Commission
altered the subject-matter of the dispute by relying in the application on arguments which had not been raised in the pre-litigation
procedure. The Commission seriously infringed the rights of the defence, which are a fundamental principle of the Community
legal order.
The Commission refers to paragraph 11(d) of its reasoned opinion, which states: ‘it therefore follows that the Directive must
be applied to water at the river beaches, inasmuch as the fact that bathing is not encouraged there does not mean that it
is prohibited, and those beaches must accordingly be classified as bathing areas under Article 1(2)(a) and (b) of the Directive.
It also follows that the water concerned does not conform to the parameters laid down in the Directive’.
Findings of the Court
As the third complaint alleges failure to comply with the minimum sampling frequency by reason of inadequate identification
of inland bathing water and this judgment has rejected the second complaint relating to the allegation of inadequate identification,
no more need be said than that the third complaint also cannot in any event be upheld.
Having regard to all the foregoing considerations, it must be held that, by failing to adopt all the measures necessary to
ensure that the quality of bathing water conforms to the mandatory limit values laid down under Article 3 of the Directive,
the Portuguese Republic has failed to fulfil its obligations under Article 4(1) of the Directive, in conjunction with Article
3 and the Annex to that Directive.
The remainder of the application must be dismissed.
Costs
Under Article 69(3) of the Rules of Procedure, the Court may order that the costs be shared or that the parties bear their
own costs where each party succeeds on some and fails on other heads. As the Commission and the Portuguese Republic have been
partly unsuccessful, each party should bear its own costs.
On those grounds,
THE COURT (Second Chamber)
hereby:
1.
Declares that, by failing to take all the measures necessary to ensure that the quality of bathing water complies with the
mandatory limit values laid down under Article 3 of Council Directive 76/160/EEC of 8 December 1975 concerning the quality
of bathing water, the Portuguese Republic has failed to fulfil its obligations under Article 4(1) of the Directive, in conjunction
with Article 3 and the Annex to that Directive;
2.
Dismisses the remainder of the application;
3.
Orders each party to bear its own costs.
Timmermans
Gulmann
Puissochet
Cunha Rodrigues
Colneric
Delivered in open court in Luxembourg on 15 July 2004.
R. Grass
C.W.A. Timmermans
Registrar
President of the Second Chamber
–
Language of the case: Portuguese.