CELEX: 61990CJ0237
Failure to transpose Council Directive 80/778/EEC
Water intended for human consumption

Grounds
1 By application lodged at the Court Registry on 27 July 1990, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Council Directive 80/778/EEC of 15 July 1980 relating to the quality of water intended for human consumption (OJ 1980 L 229, p. 11, hereinafter "the directive"), the Federal Government of Germany has failed to fulfil its obligations under the EEC Treaty.
2 Article 18(1) of the directive provides that Member States are to bring into force the laws, regulations and administrative provisions necessary to comply with the directive and its annexes within two years following its notification, and that they are to inform the Commission thereof forthwith. As far as the Federal Republic of Germany is concerned that period expired on 18 July 1982.
3 The Federal Republic of Germany considers that it has transposed the directive into domestic law in particular by means of the Trinkwasserverordnung of 22 May 1986 (regulation on drinking water, BGBl. 1986I, p. 760, hereinafter "the TrinkwV"), which entered into force on 1 October 1986 and was amended by the Verordnung zur AEnderung der Trinkwasserverordnung und der Mineral- und Tafelwasser-Verordnung of 5 December 1990 (regulation amending the regulation on drinking water and the regulation on mineral and table water, BGBl. 1990I, p. 2600), which entered into force on 1 January 1991.
4 During the written procedure before the Court, the Commission withdrew seven of the ten complaints initially made in its application, while maintaining that, contrary to the defendant' s claims, the directive had not been correctly transposed into German domestic law as regards those points in respect of which the complaints were withdrawn, until the aforementioned regulation of 5 December 1990.
5 The three complaints maintained relate to an infringement of Article 10(1) of the directive, the failure to notify derogations in accordance with Article 9(1) and Article 10(3) and the absence of measures enabling the competent authorities to notify specific derogations within the periods prescribed.
6 Reference is made to the Report for the Hearing for a fuller account of the facts, the procedure and the pleas and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.
Infringement of Article 10(1) of the directive
7 Article 10(1) of the directive provides as follows:
"In the event of emergencies, the competent national authorities may, for a limited period of time and up to a maximum value to be determined by them, allow the maximum admissible concentration shown in Annex I to be exceeded, provided that this does not constitute an unacceptable risk to public health and provided that the supply of water for human consumption cannot be maintained in any other way".
8 That provision of the directive was transposed into German domestic law by Paragraph 4(1) of the TrinkwV.
9 The original version of 22 May 1986 of Paragraph 4(1) of the TrinkwV provided as follows:
"In individual cases, the competent authority may, for a limited period of time and up to a maximum value to be determined by it, allow derogations from the limits fixed in Annex 2, provided that this does not constitute a risk to public health and provided that the supply of water for human consumption cannot be maintained in any other way at an acceptable cost".
10 Paragraph 4(1) of the TrinkwV, as amended by the regulation of 5 December 1990, cited above, provides, as regards the period subsequent to 1 January 1991, that
"In emergencies, the competent authority may, for a limited period of time and up to a maximum level to be determined by it, allow derogations from the limits fixed in Annex 2, provided that this does not constitute a risk to public health and provided that the supply of water for human consumption cannot be maintained in any other way"
11 As regards the original version of Paragraph 4(1) of the TrinkwV, the Commission considers that, by restricting the possibility of granting derogations to "emergencies" and authorizing such derogations when the supply of water cannot be maintained in any other way "at an acceptable cost", the aforesaid German provision did not properly transpose Article 10(1) of the directive into domestic law.
12 The defendant considers that, in so far as derogations were in fact granted under the relevant provision only in the event of emergencies and the criterion of "acceptable cost" was designed only to ensure compliance with the principle of proportionality, the Commission' s complaint is unfounded.
13 That argument cannot be upheld.
14 In Case 228/87 Criminal proceedings against X [1988] ECR 5099, also concerning Directive 80/778, the Court held that derogations from the directive must be interpreted strictly (paragraph 10) and that the term "emergencies" within the meaning of Article 10(1) of the directive must be construed as meaning urgent situations in which the competent authorities are required to cope suddenly with difficulties in the supply of water intended for human consumption (paragraph 14).
15 However, the derogation provided for in Paragraph 4 of the TrinkwV could be granted in circumstances other than those laid down in Article 10(1) of the directive. There was no requirement for an emergency to exist and authorization could be granted where there was no risk to public health and supply was possible, but at an unacceptable cost.
16 Nor may the principle of proportionality be relied on to justify exceeding the maximum admissible concentrations set out in Annex I to the directive. As the Commission rightly argues, such an interpretation of the directive would be contrary to its objective, namely implementation in the Community of a uniform minimum health standard for water intended for human consumption.
17 It follows that the complaint that Article 10(1) of the directive was not properly transposed into German domestic law by Paragraph 4(1) of the TrinkwV in its original version of 22 May 1986 is well founded.
18 As regards the amended version of Paragraph 4(1) of the TrinkwV, the Commission concedes in its reply that it corresponds textually to Article 10 of the directive. However, it observes that in practice the German authorities do not comply with the requirements laid down by that provision and that hence the Court should declare that the Federal Republic of Germany has failed to fulfil its obligations in this regard.
19 That reasoning cannot be accepted.
20 According to the case-law of the Court (see, in particular, Case 166/82 Commission v Italy [1984] ECR 459, paragraph 16), the scope of an action brought under Article 169 of the Treaty is delimited both by the preliminary administrative procedure provided for by that article and by the form of order sought in the application. The reasoned opinion and the application must be founded on the same grounds and pleas.
21 However, in the application, and in the pre-litigation phase of these proceedings, the Commission merely accused the defendant of having failed to transpose into its domestic law the requirements laid down by Article 10 of the directive. Consequently, the Commission, which concedes that Paragraph 4(1) of the TrinkwV, as amended, now corresponds textually to Article 10 of the directive cannot, without broadening the scope of these proceedings, accuse the defendant of failing to comply in practice with the terms of a regulation which, itself, dates from after the present action was brought.
22 It follows that the complaint alleging that the German authorities do not in practice comply with the requirements laid down in Article 10 of the directive falls outside the scope of these proceedings for failure to fulfil obligations and must therefore be dismissed as inadmissible.
Failure to notify derogations as required by Article 9(1) and Article 10(3) of the directive
23 The Commission observes that the original version of the TrinkwV did not entail any obligation for the competent authorities of the Laender to report to the Federal authorities derogations granted under the TrinkwV, whereas only notification from the Laender would enable the Federal Government to comply with its obligation to notify such derogations to the Commission in the circumstances and within the time-limits laid down by Article 9(1) and Article 10(3) of the directive.
24 The German Government contests that complaint. It argues in the first place that the conditions for the grant of derogations from the maximum values laid down by Article 9(1) of the directive were notified to the Commission by forwarding the text of the TrinkwV of 22 May 1986, which sets out the reasons for the parameters adopted for ammonium, potassium, magnesium and sulphates. However, it adds that, to date, no derogation has been granted under the aforementioned provision.
25 The German Government goes on to argue that the directive does not require the incorporation in domestic legislation of the obligation of notification laid down by Article 9(1) and Article 10(3) of the directive on the ground that that obligation ensues directly from the directive. The obligation for the Laender to notify the Federal Government is not imposed by the directive and would, in any event, be otiose in that it already ensues from the principle of loyalty towards the Federation (Grundsatz des bundesfreundlichen Verhaltens).
26 Lastly, the German Government argues that Paragraph 4(3) of the TrinkwV, in the version resulting from the regulation of 5 December 1990, satisfies the requirements of the directive in any event.
27 That argument cannot be accepted.
28 In the first place, the obligation to provide information set out in Article 9(1) of the directive is not satisfied by notification of the parameters which each derogation must satisfy and of the reasons which led to their adoption. The obligation in question is designed to enable the Commission to assess whether derogations granted individually fulfil the conditions laid down in Article 9 of the directive and cannot therefore be satisfied by merely forwarding the text of the TrinkwV.
29 In the second place, the Commission' s complaint relates to the absence, not of any transposition into domestic law of Article 9(1) and Article 10(3) of the directive, but of actual measures enabling the competent national authorities to provide information to the Commission in accordance with the directive, that is to say, inter alia, within the prescribed time-limits. As the Commission observes, the principle of loyalty towards the Federation is not sufficient to guarantee that the Federal Government will obtain in good time information about derogations granted by the Laender. In that regard, the Commission has provided, without being contradicted, several examples of delays in communicating information to the Federal authorities.
30 Thirdly, the German Government cannot rely on changes in the rules which it adopted after the period prescribed by the reasoned opinion.
31 Nor, in any event, are the new rules consistent with the directive. Although the obligation to notify derogations is now set out in Paragraph 4(3) of the TrinkwV, it appears from Section III of Annex 4 to that regulation that the obligation in question does not cover derogations relating to certain parameters up to a certain maximum value where the exceeding of maximum values is connected with geological conditions. In that case, derogations of a general nature are involved which, for the reasons set out in paragraph 28 above, do not satisfy the requirements of the directive.
32 It follows from the foregoing that the complaint relating to the absence of notification of derogations as required by Article 9(1) and Article 10(3) of the directive is well founded.
Absence of notification of derogations specific to certain maximum admissible concentrations
33 The Commission has withdrawn this complaint as regards the derogations laid down in the TrinkwV for iron and silver, which were abolished by the regulation of 5 December 1990. Consequently, this complaint is confined to the absence of measures designed to ensure that the information required by Article 9(1) can be provided to the Commission within the time-limits laid down therein.
34 That complaint, which merges with the preceding complaint, cannot be separately assessed by the Court.
35 Having regard to all the foregoing considerations, it should be declared that, by permitting, until 1 January 1991, derogations from Council Directive 80/778/EEC of 15 July 1980 relating to the quality of water intended for human consumption in circumstances not envisaged in Article 10(1) of that directive and by not providing the obligation for the Laender to notify permitted derogations in order to ensure compliance with Article 9(1) and Article 10(3) of the directive, the Federal Republic of Germany has failed to fulfil its obligations under the EEC Treaty.
Decision on costs
Costs
Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Federal Republic has been unsuccessful in all essential respects, it must be ordered to pay the costs.
Operative part
On those grounds,
THE COURT
hereby:
1. Declares that, by permitting, until 1 January 1991, derogations from Council Directive 80/778/EEC of 15 July 1980 relating to the quality of water intended for human consumption in circumstances not envisaged in Article 10(1) of that directive and by not providing the obligation for the Laender to notify permitted derogations in order to ensure compliance with Article 9(1) and Article 10(3) of the directive, the Federal Republic of Germany has failed to fulfil its obligations under the EEC Treaty;
2. Orders the Federal Republic of Germany to pay the costs.