Opinion of the Advocate General — ECLI:EU:C:1999:23
Date: 1999-01-26
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;Approximation of laws
Procedure: Action for failure to fulfil obligations - successful
Origin: Germany

summary way. However the documents were those of a kind customarily presented to the Commission in accordance with its standard practice, and that practice must be taken to have been approved by the Court in the abovementioned judgment. 13. It follows that the objection to the admissibility of the application must be rejected. II - Substance A - Infringement of Article 4(1) of the Directive 14. The Commission claims that the information presented by Germany, as contained in the published annual Community reports, shows that a large proportion of German bathing waters do not conform to the mandatory values of the Directive. The Commission relies in that respect on the report concerning the 1995 season, although that report post-dates the reasoned opinion, which is dated 22 June 1994. As the Commission points out, the Court has held that the Commission may rely in Article 169 proceedings on 'practices which had already been condemned in the reasoned opinions and which were continued subsequently or are practices which occurred after the opinions had been given but were of thesame kind as those to which the opinions referred and constituted the same conduct. (6) According to the report concerning the 1995 season, 11.9% of the 446 sea water bathing zones did not satisfy those values. Moreover, 6.5% of bathing zones had not been subject to satisfactory inspections. In the case of the 1 822 fresh water bathing zones 10.3% did not satisfy the mandatory values and 42.5% had not been subject to adequate testing. 15. In its defence the German Government notes that the Commission's application is limited expressly to the old Länder, whereas the 1995 report to which the Commission refers concerns all the Länder. Moreover, the 1995 figures are out of date and should be replaced by the corrected figures relating to the year 1995 provided by the Community database maintained by the competent services of the Commission. The German Government therefore bases its defence on the corrected figures. The Commission does not appear to contest this. 16. The German Government notes that in the old Länder there were 1 770 bathing areas within the meaning of the Directive. The database classifies 180 (10.1%) of those areas as not being in conformity with the Directive. In its reply the Commission notes that the Community database mentions 207 bathing areas in the old Länder (rather than 180) as not being in conformity with the Directive: three additional bathing areas in Baden Wurttemberg and 24 for lower Saxony. In its rejoinder the German Government explains that the additional 27 areas were classified among the 591 areas considered to be insufficiently tested in the report on the 1995 bathing season and were transferred to the category of areas not conforming only in the 1996 report. (a) Arguments concerning the 180 bathing areas classified on the Community database as not conforming to the limit values of the Directive in the 1995 season (i) Areas alleged to have been wrongly classified 17. The German Government claims that of the abovementioned 180 areas 14 were wrongly classified as contravening the Directive. In its reply to a question put by the Court the Commission explains that its information is based on that presented by the German Government and that the German Government has not sought to have the figures corrected on the Community database. In response the German Government, while conceding that one of the bathing areas was correctly classified as not conforming to the Directive (Itzehoe), maintains its claim that the remaining 13 areas were wrongly classified and states that it has now requested correction of the database by letter of 25 August 1998. It also puts forwardarguments to dispel doubts expressed by the Commission concerning five of the areas. (ii) Areas for which all practicable measures are said to have been taken 18. In its defence the German Government contends further that in the case of 85 of the remaining areas there is no breach of Article 4(1) of the Directive. There can be no breach of that provision, in the German Government's view, where a Member State has taken all measures which can be demanded of it in accordance with the principle of proportionality. 19. In the case of 46 of the 85 areas, only a single instance of the limit values being exceeded was recorded in 1995, and no instances at all in 1992 to 1994 or 1996. In such circumstances there was no justification for measures to improve the quality of the waters. The Commission replies that multiple infringements or insufficient sampling were recorded for 10 of the areas for which Germany claims a single infringement. Moreover, the Commission disputes Germany's view that a single recorded excess does not infringe the Directive since Article 4(1) imposes on Member States an obligation to attain a result. In its rejoinder the German Government acknowledges that there were multiple infringements in one case (Stein Neustein) but observes that in the case of the other nine there were no infringements in 1992 to 1994 and 1996. Thus in the case of 45 areas there was an infringement only in the case of 1995. The German Government considers that that cannot be considered to be a breach of the Directive since it took all measures which were necessary and reasonable. The Commission's view would mean that there had to be 100% compliance. Article 5(1) provides a degree of flexibility and is to be seen as a specific expression of the proportionality principle. Germany is in practice prevented from relying on Article 5(1) since the bathing season comprises only 15 to 17 weeks per year. Testing each 14 days means a maximum of nine samples per season. A single excess would mean a departure of more than 10%. 20. The German Government claims that in the case of seven of the 85 bathing areas more extensive measures are not possible. For five areas the source of the waters goes beyond the German frontiers with the result that despite the measures adopted by Germany the waters do not conform to the limit values. In the case of a further area the water pollution is attributable to aquatic birds (and measures cannot be taken which will destroy their habitat). Finally, for a seventh area (Hausen, Donau beim Campingplatz) the German Government initially contended that the principal cause of the infringement was connected with geographical factors and that the area therefore qualified as a permitted derogation under Article 8(a). However, it subsequently abandoned that argument in its response to the Commission's answer to a question put by the Court. 21. In its reply and in its answer to that question the Commission disputes Germany's claim that the six remaining areas are cases of objective impossibility. The Commission notes that in the 1997 season four of the areas were classified as conforming to the Directive, which suggests that there was no absolute impossibility. As regards the other two areas, the Commission rejects the German Government's claim that national measures would be pointless because of sewage plants upstream in Switzerland, pointing out that the Swiss plants are of first-class quality and that, owing to the quantities of water flowing down the Rhine, any impurities of Swiss origin should disappear. The Commission adds that it would be open to Germany to prohibit bathing and remove the areas from the list of bathing areas. The German Government replies that the fact that three bathing areas met the standards of the Directive in 1997 had nothing to do with further measures taken by the German authorities - the purification plants in those areas entered into service in 1991 and 1994. While it is true in the case of a fourth area that the sewage facilities were modernised in 1996, the German Government shares the view of the Länder authorities that the fact that the limit values were met in 1997 was attributable instead to variations in the bird population - in 1998 the limits were once again not met. As regards the remaining two areas, the purification plants on the German side have been improved and represent state of the art technology. There is nothing further that can be done. The excesses are not however so serious in the case of the six areas to justify a total prohibition of bathing. 22. Germany notes that in the case of 32 of the 85 areas the limit values are no longer exceeded today and hence there is no longer an infringement of Article 4(1). The Commission replies that the fact that the infringements became immaterial in the case of six of the 32 areas because they lost their status as bathing areas in 1996 or 1997 and that the situation was remedied in 26 others in 1996 does not remove the infringement. The date for the determination of the existence of a Treaty infringement is in principle the date fixed in the Commission's reasoned opinion. Where infringements continue the dispute can be extended to facts which occurred after the issue of the reasoned opinion. For that reason the application takes account of the 1995 season, which Germany does not contest. However, later seasons are not covered by the application and are not therefore to be taken into account. (iii) Areas not conforming to the limit values 23. Having concluded that there is no breach of Article 4(1) in respect of the abovementioned 85 areas, the German Government considers that the remaining 81 areas (4.5%) which did not conform to the limit values in 1995 are not sufficiently significant to warrant a declaration that Germany has failed to fulfil its obligations under Article 4(1) of the Directive. In its rejoinder the German Government revised the figure to 82 so as to include Stein Neustein. (b) Appraisal of the arguments 24. In my view it is clear that the Commission is entitled to the declaration sought on this point. It is first of all common ground that Germany failed to meet the limit values laid down by the Directive in the case of 84 areas (the 81 areas originally mentioned by Germany plus Stein Neustein, Itzehoe and Hausen, Donau beim Campingplatz). To be added to those 84 areas are the 32 bathing areas for which infringements were recorded in 1995 and earlier years but which subsequently lost their status as bathing areas or for which the situation was subsequently remedied. Although the subject-matter of the dispute is determined by the pre-litigation procedure, the Commission is, as I have mentioned, (7) entitled in the case of continuing infringements to extend the subject-matter of the dispute to facts which occur after the date on which the reasoned opinion is delivered. Accordingly, whereas the Commission's reasoned opinion of 22 June 1994, concerning the quality of bathing water in the old German Länder, was based on the reports concerning the 1993 and earlier seasons, its application to the Court took account of the latest information then available regarding the bathing areas in question, namely the report relating to the 1995 bathing season. The fact that certain infringements subsequently ceased either because the waters in question lost their status as bathing waters or because the situation was remedied does not remove the infringement. 25. It is therefore clear that 116 bathing areas in the former German Länder contravened the limit values laid down. That would of itself be sufficient to support a finding that Germany has failed to fulfil its obligations, without examining the remaining - disputed - areas. As the Commission observes, it is no defence to an action under Article 169 of the Treaty for a Member State to argue that the infringements which it has committed are minor ones or are not significant. The Court has consistently held that an action under Article 169 'is objective in nature and the bringing of such an action before the Court is a matter for the Commission in its entire discretion. (8) In any event it seems to me that the Commission would have had ample justification in instituting the proceedings in respect of the above infringements. 26. It is moreover clear that, as the Commission contends, failure to meet the standards of the Directive in 45 areas for a single season also constitutes an infringement of the Directive. Contrary to the German Government's view, the Directive requires Member States, subject to the derogations specifically laid down,to attain a result and not merely to take all practicable measures. In Commission v United Kingdom the Court held: (9) 'It is clear from Article 4(1) of the directive that the Member States are to take all necessary measures to ensure that, within 10 years following the notification of the directive, bathing water conforms to the limit values set in accordance with Article 3. This period is longer than that laid down for the implementation of the directive, namely two years from the date of notification (Article 12(1)), in order to enable the Member States to comply with the aforementioned requirement. The only derogations from the obligation incumbent upon Member States to bring their bathing waters into conformity with the requirements of the directive are those provided for in Articles 4(3), 5(2) and 8, whose provisions are summarised above. It follows that the directive requires the Member States to take steps to ensure that certain results are attained, and, apart from those derogations, they cannot rely on particular circumstances to justify a failure to fulfil that obligation. Consequently, the United Kingdom's argument that it took all practicable steps cannot afford a further ground, in addition to the derogations expressly permitted, justifying the failure to fulfil the obligation to bring the waters at issue into conformity at least with the Annex to the directive. 27. The German Government does not seek to rely in respect of those areas on any of the derogations permitted by the Directive. It follows that its failure to meet the value limits in the 1995 season for the 45 areas must be added to the more persistent infringements mentioned above. 28. I am not convinced by Germany's argument that, owing to the shortness of its bathing seasons, the Directive in effect requires 100% compliance because a single adverse sample would exceed the limits laid down by Article 5. First, Article 5(2) provides that deviations due to floods, other natural disasters or abnormal weather conditions are to be disregarded in calculating the percentage of samples complying with the limit values. Secondly, Article 6 of the Directive, in conjunction with the Annex, merely lays down a minimum frequency for sampling; there would therefore appear to be nothing to prevent Germany from conducting more frequent sampling, thereby reducing the proportion of the total represented by adverse samples. Finally, the comparatively short bathing season in northern Europe is in any event a factor which Germany - and other Member States - must be taken to have considered in formulating the limits laid down by the Directive. 29. Since it is clear that Germany failed to meet the standards required by the Directive in the case of 161 bathing areas, I do not think it necessary to resolve thequestion of the 27 areas which are listed, according to the Commission, on the Community database as not conforming to the Directive but listed, according to the German Government, as being insufficiently tested in the Community report for the 1995 season. Nor for similar reasons do I need to take a view on the six areas in respect of which the German Government claims absolute impossibility. Equally it is unnecessary to come to a definitive view on the 13 areas which the German Government claims are wrongly classified on the database; on the latter point I would note however that it would be difficult to regard the infringement as substantiated in respect of those areas given that the Commission's case is based on information supplied by the German Government, which the latter now claims - without being rebutted by the Commission - to be incorrect. B - Infringement of Article 6(1) of the Directive - failure to meet sampling requirements 30. The German Government concedes in its defence that, even after making a number of adjustments to the figures presented in the 1995 report, there remain 591 bathing areas in which inadequate sampling was carried out. It therefore acknowledges its failure to comply with Article 6(1) of the Directive. Conclusion 31. Accordingly the Court should in my opinion: (1) declare that the Federal Republic of Germany has failed to fulfil its obligations under Article 4(1) and Article 6(1) of Council Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing water (i) by failing to adopt in the old Länder the necessary provisions to ensure that the quality of bathing water is in conformity with the values laid down under Article 3 within a period of 10 years following notification of the directive, and (ii) by failing to comply with the minimum sampling frequency laid down in the Annex to the directive; (2) order the Federal Republic of Germany to pay the costs. 1: Original language: English. 2: - OJ 1976 L 31, p. 1. 3: - Article 1(1). 4: - Case C-191/95 Commission v Germany, judgment of 29 September 1998. 5: - Paragraphs 48 to 50 of the judgment. 6: - Case 42/82 Commission v France [1983] ECR 1013, paragraph 20 of the judgment. 7: - Paragraph 14 above. 8: - See for example Case 209/89 Commission v Italy [1991] ECR I-1575. 9: - Case C-56/90 [1993] ECR I-4109, paragraphs 42 to 44 of the judgment. See also Case C-92/96 Commission v Spain [1998] ECR I-505, paragraphs 28 and 29.