Opinion of the Advocate General — ECLI:EU:C:1998:405
Date: 1998-09-15
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Provisional data;Environment;Approximation of laws
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - inadmissible
Origin: United Kingdom

Summary of the judgment in Case C-310/89 Commission ν 
Netherlands [1991] ECR I-1381 (summary publication). 
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COMMISSION ν UNITED KINGDOM 
73. However, the Commission correctly 
counters that submission by pointing out that 
the criticism levelled at the United Kingdom 
is not that it penalises infringements of the 
rules deriving from Community law less 
strictly than comparable infringements under 
national law. 
74. I would add that the fact that the system 
of undertakings has proved effective in the 
context of, for example, application of the 
United Kingdom competition rules does not 
justify the conclusion that it is acceptable in 
the context of implementation of the Direc­
tive in issue. 
The specific issue of individual rights 
75. The Commission and the United 
Kingdom also disagree about the issue of the 
protection of the rights conferred on indi­
viduals by the Directive. The Commission 
states in its application that the system of 
undertakings 'would seem' to preclude reli­
ance by individuals on the rights conferred 
by the Directive in proceedings against water 
companies before the national courts, where 
the authorities responsible for ensuring com­
pliance with the rules have accepted an under­
taking offered by a company and that under­
taking is still in force. 
76. The defendant contests the admissibility 
of that argument, on the ground that it was 
never raised in the course of the pre-litigation 
procedure. 
77. The Commission considers, for its part, 
that this plea supports the complaint, consist­
ently maintained by it throughout the pro­
ceedings, that, by accepting undertakings, the 
United Kingdom has failed to fulfil its obliga­
tion to secure compliance by water compa­
nies with the provisions of the Directive. That 
plea has not therefore been raised out of time. 
78. I am unable to accept that argument. It is 
true that the applicant cites a judgment of the 
Court n in which it was held that the Com­
mission may set out further details of its sub­
missions in its application to the Court. That 
does not mean, however, that it is entitled to 
raise for the first time at the stage of the 
application a complaint such as that relating 
to the right of individuals to bring proceed­
ings, which is not mentioned in the Directive 
and to which, by contrast with the situation 
in the case cited, the Commission had not 
previously made any reference. 
79. This is an important and specific issue, 
such that it cannot be regarded as a secondary 
matter necessarily flowing from the main 
argument advanced by the Commission. 
11 — Case 23/84 Commission ν United Kingdom [1986] ECR 
3581. 
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O P I N I O N ' OF MR MISCHO — CASE C-340/96 
80. It must be emphasised in that regard that 
this issue extends far beyond the scope of the 
Water Industry Act 1991, since it concerns 
the entire system of rights of action under 
national law against a supplier who fails to 
comply with his legal obligations. It is quite 
possible that a right of action which does not 
arise from the legislation specifically adopted 
in implementation of the Directive may exist 
pursuant to other national legislation of gen­
eral application. 
81. Since the Commission had previously 
alleged defective application of the Directive 
without making any reference to that issue, 
which, as has been noted, is not mentioned in 
the Directive itself, the defendant was justi­
fied in thinking that the scope of the Com­
mission's complaints did not extend beyond 
the ambit of the national legislation specifi­
cally enacted for the purposes of implementing 
it. 
82. I therefore conclude that the purpose of 
the pre-litigation procedure as defined by the 
case-law of the Court, which is intended, in 
particular, to indicate to the Member State 
concerned the information needed for the 
preparation of its defence and to enable it to 
take the steps needed in order to comply with 
its obligations,12 would not be achieved if the 
Commission were permitted to put forward 
detailed issues of such a nature and of such 
moment at the stage of the application. 
83. Consequently, the following consider­
ations regarding that plea are mentioned only 
as wholly secondary points. 
84. The Commission initially stated, in its 
application: 
'The provisions of the Directive on the quality 
of drinking water are clearly intended, in the 
sense of the case-law of the Court, to create 
rights for individuals. Unlike the usual run of 
cases which have come before the Court the 
problem in the present case is not one of an 
absence of binding measures or of a specific 
legal framework. By the Water Industry Act 
1991 and the regulations made thereunder the 
United Kingdom has implemented the Direc­
tive ih a sufficiently clear and precise way to 
allow individuals to ascertain the full extent 
of their rights. However, under the system of 
undertakings they are, it seems, prevented 
from asserting these rights against a water 
company before the national courts where an 
undertaking from the company to the enforce­
ment authorities has been accepted and is still 
in force.' 
85. The defendant states in response to this 
that consumers are entitled to apply for judi­
cial review of the legality of the authorities' 
decision to accept an undertaking. Moreover, 
if a consumer surfers damage resulting from 
poor water quality, he may bring an action 
for compensation under the Consumer 
12 — See, for example, Case 229/87 Commission ν Greece [1988] 
ECR 6347. 
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COMMISSION ν UNITED KINGDOM 
Protection Act 1987, which transposes into 
English law the provisions of Directive 
85/374/EEC on product liability. 1 3 The right 
to bring such an action against a water com­
pany exists regardless of the fact that an 
undertaking may have been accepted. 
86. The Commission accepts that argument 
but goes on to point out that the relief avail­
able to a consumer under the Consumer Pro­
tection Act does not include compensation 
for damage to property intended for commer­
cial or industrial use. However, the submis­
sions of the United Kingdom Government 
show that, where such damage is sustained, 
an action may be brought under the common 
law of negligence, even where an undertaking 
has been accepted. 
87. It follows, therefore, that the issue is con­
fined to the fact that an individual cannot 
obtain an injunction against a water company 
where an undertaking has been accepted and 
is subsisting. This, according to the Commis­
sion, is 'of course contrary to the principle of 
guaranteeing the full application or effective­
ness of Community law, as established by the 
case-law of the Court — see, in particular, 
[the] judgment of 19 June 1990 [in] Factor-
tame and Others [1990] ECR I-2433'. 
88. In order to decide this issue, it is in my 
view necessary to take into consideration the 
following points. 
89. As the Commission acknowledges, the 
Directive has been transposed into national 
law by legislation which is sufficiently clear 
and precise to allow individuals to ascertain 
the full extent of their rights. The present case 
does not concern any question of the 'direct 
effect' of a directive, let alone that of its 'hori­
zontal' application. 
90. Second, the present case concerns an action 
brought under Article 169 of the Treaty for 
failure to fulfil obligations, and not a refer­
ence for a preliminary ruling made pursuant 
to Article 177. It is not a case in which the 
Court is being asked by a national court to 
rule on the question whether the Directive 
confers on consumers a direct right, enforce­
able against a water company, to receive 
water complying with the standards of the 
Directive. 
91. The sole issue here is the general prin­
ciple that, where the Community authorities 
have, by directive, imposed on Member States 
the obligation to pursue a particular course of 
conduct, the useful effect of such an act would 
be weakened if individuals were prevented 
from relying on it before their national courts, 
and if the latter were prevented from taking 
it into consideration as an element of Com­
munity law in order to rule whether the 
national authorities, in exercising the choice 
open to them as to the form and methods for 
13 — Council Directive 85/374/EEC of 25 July 1985 on the 
approximation of the laws, regulations and administrative 
provisions of the Member States concerning liability for 
defective products (OJ 1985 L 210, p. 29). 
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OPINION OF MR MISCHO — CASE C-340/96 
implementation, have conducted themselves 
in accordance with that directive. 14 
92. There remains to be considered the ques­
tion whether the legal remedies which the 
United Kingdom describes, and the existence 
of which is not disputed by the Commission, 
render those rights enforceable. 
93. In my view, the Commission is right to 
regard as an unsatisfactory remedy the right 
to bring an action for damages pursuant to 
the Consumer Protection Act 1987, which 
transposed Directive 85/374. A remedy which 
is limited to a right to obtain compensation 
where failure to comply with the applicable 
standards has caused damage does not fulfil 
the criteria laid down by the Court. 
94. On the other hand, the right of a con­
sumer to bring proceedings contesting a deci­
sion by the Secretary of State to accept an 
undertaking (an example of which is provided 
by the United Kingdom in the annexes to its 
defence) is in my view sufficient to warrant 
the conclusion that the rights of individuals 
are adequately protected. 
95. The essential issue in the present case is 
the failure to achieve quality objectives 
resulting from the acceptance of undertakings 
which defer the achievement of those objec­
tives to a later date. 
96. Once such an undertaking is annulled at 
the suit of an individual, the quality objec­
tives laid down in the statute take immediate 
effect and the Secretary of State is bound to 
make an enforcement order against the water 
company concerned. 
97. The fact that an action challenging an 
undertaking can be brought only against the 
Secretary of State, and not against a water 
company, does not substantially alter the situ­
ation. In the context of undertakings, there 
exists a close link between the competent 
authority and the water company — the latter 
has even been regarded by the High Court 15 
as an emanation of the former, following the 
decision in Foster and Others 1 6 — and annul­
ment of a decision to accept an undertaking 
gives rise to immediate consequences for the 
water company. 
98. Consequently, I consider that the Com­
mission's complaint concerning the absence 
of legal remedies for individuals is inadmis­
sible and, in the alternative, unfounded. 
14 — See, in particular, Case C-72/95 Kraaijeveld and Others ν 
Gedeputeerde Staten van Zuid-Holland [1996] ECR I-5403, 
paragraph 56. 
15 — Griffin ν South West Water Services Ltd [1995] IRLR 15. 
16 — Case C-188/89 Foster and Others [1990] ECR I-3313. 
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COMMISSION ν UNITED KINGDOM 
99. In concluding this analysis, I am there­
fore compelled to say that, whilst the system 
of undertakings is far from ineffective in prac­
tical terms, it is nevertheless unacceptable in 
law, inasmuch as it enables companies, in cir­
cumstances not provided for by the Direc­
tive, to put off to a later date compliance with 
the obligations with which they have been 
under a duty to comply with since 18 July 
1985. 
100. Whether it is regarded as a method of 
implementing the Directive or as a penalty 
mechanism coupled with the grant of a sus­
pension or period of grace, the fact remains 
that the inescapable conclusion must be — to 
borrow the phrase used by the Commission 
at the hearing — that that system 'does not 
guarantee full and complete application of the 
Directive'. 
C o n c l u s i o n 
101. I therefore propose that the C o u r t should u p h o l d the C o m m i s s i o n ' s applica­
t ion in the terms in which it has been made and declare that: 
(1) b y failing, b y the acceptance of undertakings, t o enforce compliance b y water 
companies w i t h t h e requirements of C o u n c i l Directive 80/778/EEC of 15 Ju ly 
1980 relating t o the qual i ty of water in tended for h u m a n c o n s u m p t i o n , and 
(2) b y failing, thereby, t o ensure t h a t t h e qual i ty of water supplied in several par t s 
of the U n i t e d K i n g d o m conforms t o t h e requirements of that directive, in that 
m a x i m u m admissible concentrat ions for several parameters in t h e Direct ive are 
exceeded, 
t h e U n i t e d K i n g d o m has failed t o fulfil its obligations u n d e r the Treaty. 
102. I further p r o p o s e that the C o u r t should order the U n i t e d K i n g d o m t o pay the . 
costs. 
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