Opinion of the Advocate General — ECLI:EU:C:2005:439
Date: 2005-07-07
Language of the case: Spanish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;Approximation of laws;Pollution
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: Spain

summary report. 10. Article 395 of the Act of Accession of Spain and Portugal (5) does not include any waiver regarding the transposition and implementation of the Bathing Water Directive by Spain. Accordingly the quality of the bathing waters in Spain should have been in conformity with the mandatory limit values contained in that directive by 1 January 1986. Assessment 11. The Commission seeks a ruling that Spain has failed to ‘officially designate’ the three beaches concerned as bathing areas under the Bathing Water Directive. The Commission maintains, without being contradicted by Spain, that such an obligation arises from Article 4(1) thereof. 12. Neither Article 4(1) nor any other provision in the Bathing Water Directive explicitly requires Member States to previously ‘designate’ or ‘identify’, in an official or any other manner, which of their national waters are to be considered as bathing waters for the purposes of the directive. The Commission relies however on the Opinion of Advocate General Léger in Case C-272/01 Commission v Portugal in support of its interpretation. According to that Opinion, such an obligation follows from a teleological interpretation of the Bathing Water Directive. (6) In its judgment, the Court did not deal with this issue since it decided the case on other grounds. 13. I am not convinced that an obligation to ‘officially designate’ bathing waters arises from the provisions of the Bathing Water Directive or can be inferred from its objectives. 14. The Bathing Water Directive, as the Court has held, is a directive which requires ‘Member States to obtain very precise and specific results after a certain period’. (7) In order to achieve those results, it imposes a set of specific and detailed obligations on Member States. However, the obligation to ‘officially designate’ or even ‘identify’ the relevant waters is not expressly included. The absence of such an obligation in the Bathing Water Directive is emphasised by the fact that other directives relating to the protection of the environment and public health do contain an express provision requiring Member States to ‘designate’ or ‘identify’ certain areas or waters by a certain date. (8) 15. Clearly, the realisation of the objectives under the Bathing Water Directive presupposes, as pointed out by Advocate General Léger, the prior identification by the Member State of the bathing waters to which the directive applies. That is especially so in the case of bathing waters under the second indent of Article 1(2)(a), namely where bathing is not prohibited and is traditionally practised by a large number of bathers. 16. However, whereas an obligation to identify the relevant bathing waters covered by the directive might be inferred from the provisions of the directive, (9) that is not tantamount to requiring Member States to ‘officially designate’ such waters. The latter obligation would in my view involve not only the identification by the Member State of which waters fall within the scope of the directive, but also the adoption of an explicit formal act to that effect. 17. In the absence of any such specific obligation of designation or any procedure to that effect in the Bathing Water Directive, the means by which such areas are identified are left to the discretion of the Member States, provided, of course, that all waters falling within the scope of the directive are sampled and the results sought by the directive are achieved. One could imagine a situation where a Member State had not drawn up an official list of the affected waters, but had nevertheless complied with the specific obligations under the Bathing Water Directive and had achieved the quality standard laid down therein. In those circumstances I cannot see a breach of the directive arising from the absence of official designation. 18. It appears from the case-file that samplings were not taken at the required frequency, a claim that Spain does not dispute, from the waters of the three beaches concerned. If those beaches, as the Commission claims, were to fall within the scope of the Bathing Water Directive at the material time, the breach would arise not because Spain had failed to ‘officially designate’ the three beaches concerned as bathing waters under the directive, but because of the failure to carry out the mandatory samplings. (10) 19. The Commission is not, however, seeking a declaration from the Court to that effect. Given that in an action under Article 226 EC, the role of the Court is to decide whether or not the Member State in question has failed to fulfil its obligations as alleged by the Commission, I consider that the Court should dismiss the Commission’s action as regards the alleged infringement of the Bathing Water Directive. 20. I shall nevertheless address the arguments put forward by Spain in the event that the Court decides not to adhere to the above reasoning and finds, in line with the Commission’s claims, that an obligation to ‘officially designate’ the relevant waters under the Bathing Water Directive follows implicitly from its general scheme and underlying purpose. 21. Spain alleges, first, that, in view of its substantial efforts to improve the quality of the waters and reduce pollution in that part of the coast where the three beaches are located, (11) it is in compliance with the main objective of the Bathing Water Directive, namely, the adoption of measures intended to improve and regenerate the quality of the bathing waters. 22. I fail to see how such argument could be of any relevance in the present proceedings as it does not address the grounds on which the Commission bases its infringement action, namely the failure to ‘officially designate’ the waters in question. In any event, as the Court has held, the Bathing Water Directive requires Member States ‘to ensure that certain results are achieved and, apart from the derogations provided for, does not allow them to rely on particular circumstances to justify a failure to fulfil that obligation’. (12) If, as Spain contends, it has made a substantial effort to achieve the results required by the directive, that is commendable but not sufficient for compliance. (13) That argument should therefore be dismissed. 23. Spain denies, secondly, that the evidence submitted by the Commission proves in a sufficient and convincing manner that it was in breach of its obligations under the Bathing Water Directive in October 2001 and that such breach persisted in September 2002. 24. In order to reach the conclusion that the three beaches in question fall within the definition in Article 1(2)(a) of waters in which ‘bathing is not prohibited and is traditionally practised by a large number of bathers’ and should therefore have been ‘officially designated’, the Commission relies on the information provided on those beaches by the ‘Guide to beaches’ (the ‘Guide’) published by the Spanish Ministry for the Environment. The Guide gives general information on Spanish beaches, such as photos, access maps, main characteristics, nearby services such as hospitals, hotels, camping sites, etc. The Guide also indicates the level of use for each beach. According to the pages annexed by the Commission to its application, the three beaches concerned enjoy a high level of use. 25. Spain argues in essence that the Guide is a merely informative document and does not indicate when the information was obtained. The pages annexed by the Commission to its application do not show that Spain was in breach of its obligations at the dates alleged by the Commission. 26. In my view a guide which is officially published by the Spanish Ministry for the Environment and which states the level of use of the beaches concerned to be high constitutes sufficient evidence on which the Commission may rely for the purposes of establishing that bathing is traditionally practised by a large number of bathers in the beaches in question. Moreover, as the Commission points out, the Court has in other cases accepted advertising leaflets for camping sites referring to certain areas as bathing sites as indicative of the fact that those areas are used by a large number of bathers. (14) 27. In the face of such evidence, it would be incumbent upon Spain to prove the contrary. Instead, Spain has merely called into question the value of the evidence presented by the Commission, without providing the Court with the reasons why the Commission’s inferences from its Guide were wrong. In fact, it seems to me that Spain, as author of the Guide, was in a unique position to disclose when and how the information contained therein was obtained, if by doing so it could rebut the Commission’s argument. However, Spain has failed to do so. 28. Thus, if the Court were to find that there is an implicit obligation under the Bathing Water Directive to ‘officially designate’ the relevant bathing waters, it should conclude that by failing to do so as regards the beaches of ‘A Videira’, ‘Niño do Corvo’ and ‘Canabal’ located in Moaña, Ría de Vigo, on the Galician coast, Spain has failed to fulfil its obligations under Article 4(1) thereof. Infringement of the Shellfish Waters Directive The Shellfish Waters Directive 29. According to the first and second recitals in its preamble, the objectives of the Shellfish Waters Directive are to protect waters, including shellfish waters, against pollution and to safeguard certain shellfish populations from various harmful consequences resulting from the discharge of pollutant substances into the sea. 30. Article 1 states: ‘This Directive concerns the quality of shellfish waters and applies to those coastal and brackish waters designated by the Member States as needing protection or improvement in order to support shellfish … life and growth and thus to contribute to the high quality of shellfish products directly edible by man.’ 31. Article 3(1) provides that ‘Member States shall, for the designated waters, set values for the parameters listed in the annex, in so far as values are given in column G or in column I. They shall comply with the comments contained in both columns’. Article 3(2) requires Member states not to set values less stringent than those given in column I of the annex and to endeavour to observe the values in column G, which are for guidance rather than mandatory. 32. Article 5 provides that ‘Member States shall establish programmes in order to reduce pollution and to ensure that designated waters conform, within six years following designation in accordance with Article 4, to both the values set by the Member States in accordance with Article 3 and the comments contained in columns G and I of the Annex’. 33. Article 6 states that ‘for the purposes of implementing Article 5, the designated waters shall be deemed to conform to the provisions of this Directive if samples of such waters, taken at the minimum frequency specified in the Annex, at the same sampling point and over a period of 12 months, show that they conform to both the values set by the Member States in accordance with Article 3 and the comments contained in columns G and I of the Annex’ as regards specified percentages of samples for each of the parameters listed in the annex. 34. Under parameter 10 of the Annex, ‘Faecal coliforms/100 ml’, a guidance value of ‘< 300 in the shellfish flesh and intervalvular liquid’ is laid down. Despite the fact that such a value appears in column G, a footnote to it provides that ‘pending the adoption of a Directive on the protection of consumers of shellfish products, it is essential that this value be observed in waters in which live shellfish directly edible by man’, thus rendering that value mandatory for the interim period. 35. Article 395 of the Act of Accession of Spain and Portugal (15) does not include any waiver regarding the transposition and implementation of the Shellfish Waters Directive by Spain. Accordingly the programmes referred to in Article 5 of the Shellfish Waters Directive should have been implemented by 30 October 1987 at the latest. Other relevant Community rules 36. The directive on the protection of consumers of shellfish products referred to in point 34 above (the ‘Shellfish Consumer Protection Directive’) was adopted by the Council on 15 July 1991. (16) Chapter I of its annex requires the competent authorities to identify the various production areas, including those areas where shellfish can be collected and used for direct human consumption. Such shellfish must meet the requirements set out in Chapter V of the annex, which lays down the conditions under which live bivalve molluscs (to which I shall refer generically as ‘shellfish’) may be made available for ‘immediate’ human consumption. Those requirements relate mainly to the physical characteristics and to the chemical and bacteriological composition of the shellfish. Assessment 37. The Commission considers that by failing to adopt a pollution reduction programme for the Ría de Vigo, Spain has failed to fulfil its obligations pursuant to Article 5 of the Shellfish Waters Directive. 38. The Commission, without being contradicted by Spain, states that the Ría de Vigo has been designated by Spain as shellfish waters. The Ría de Vigo falls therefore within the scope of Article 5 of the Shellfish Waters Directive and, accordingly, a programme must be established to reduce pollution and ensure that its waters conform to the standards required by the directive. Since such a programme has never been communicated to the Commission despite the latter’s formal requests, the Commission has concluded that the programme has not been adopted. 39. Spain puts forward two arguments in its defence. It claims, first, that the Ría de Vigo does not fall within the scope of the Shellfish Waters Directive; and, second, if it does, Spain argues in the alternative that it has in any event complied with the obligations under Article 5. 40. As regards its first main argument, Spain alleges that pursuant to Article 1, the Shellfish Waters Directive applies only to those waters destined for the production of shellfish for ‘direct’ human consumption. Since, according to the latest classification of 1998, the shellfish collected from the shellfish waters in the Ría de Vigo are subject to further treatment before they are placed on the market for human consumption, those waters do not fall within that category. Spain further argues that several Community measures regulate the production and marketing of shellfish products by distinguishing between different production areas depending on whether the shellfish products collected therein are intended for direct human consumption or for further treatment before consumption. In the interest of a uniform interpretation and in order to avoid internal discrepancies between Community acts concerning related subject-matters, the Shellfish Waters Directive should be interpreted in the light of those related Community measures. Spain refers to Regulation (EC) No 854/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific rules for the organisation of official controls on products of animal origin intended for human consumption, (17) and, in particular, to its annex II describing the official controls to which shellfish intended for human consumption must be subject. 41. Those submissions should in my view be rejected. 42. As regards the scope of the Shellfish Waters Directive, it is true that by referring to the aim of contributing to the high quality of ‘shellfish products directly edible by man’, Article 1 of the Shellfish Waters Directive creates ambiguity as to its exact scope. I agree with the Commission, however, that on a systematic interpretation it must be concluded that its scope includes all shellfish waters and not just those producing shellfish products directly edible by man. (18) 43. First of all, the scope of the Shellfish Waters Directive is defined in broad terms in Article 1 as applying to all ‘coastal and brackish waters designed by Member States as needing protection or improvement in order to support shellfish ... life and growth’. The reference to ‘shellfish life and growth’ is without further qualification. The phrase ‘and thus to contribute to the high quality of shellfish products directly edible by man’ does not in my view limit the scope of the directive to that aim, but rather indicates a further objective which may be achieved by the same means. The use of the adverb ‘thus’ is significant in this respect. 44. Secondly, nothing in the preamble to the Shellfish Waters Directive points to an intention of the Community legislature to restrict the scope of that directive in the sense argued by Spain. In fact, the preamble refers always to shellfish waters in a generic way (19) and nowhere is there to be found a reference to waters where ‘shellfish products directly edible by man’ are collected. The same is true with respect to the title of the directive, which refers generically to the quality of shellfish waters. 45. Thirdly, pursuant to Articles 3(1) and 5, Member States are required to comply with the comments contained in both columns G and I of the annex. Under parameter 10 of the annex, ‘Faecal coliforms/100 ml’, a guidance value of ‘≤ 300 in the shellfish flesh and intervalvular liquid’ is laid down. Despite the fact that such a value appears in column G, a footnote to it provides that ‘pending the adoption of a Directive on the protection of consumers of shellfish products, it is essential that this value be observed in waters in which live shellfish directly edible by man’. 46. As the Commission notes, the specification made by that footnote implies that the value expressed in the annex remains a guidance value for all shellfish waters other than those ‘in which live shellfish directly edible by man’ and that, therefore, the directive’s scope is broader than Spain contends. 47. With respect to Spain’s argument concerning the interpretation of the Shellfish Waters Directive in the light of subsequent Community measures regulating the production and marketing of shellfish products, I would observe that it appears from the preamble to the Shellfish Waters Directive (20) that its main objective is environmental rather than consumer protection. That some aspects concerning the protection of consumers of shellfish products are regulated by the directive is incidental to its main objective. Those provisions were only meant to be transitory until the adoption of a specific directive addressing consumer protection in this area, namely the Shellfish Consumer Protection Directive. (21) 48. It is the latter directive which specifies the health conditions for the production and placing on the market of shellfish intended either for ‘immediate’ human consumption or for further treatment prior to human consumption. Although the two directives are closely related, they remain different pieces of legislation pursuing different, albeit complementary, aims. Thus, whereas the objective of the Shellfish Waters Directive is mainly the quality of the waters where shellfish live and grow, the aim of the Shellfish Consumer Protection Directive is specifically the quality of the shellfish itself in order to make it suitable for human consumption, either directly or after further processing. That is clearly shown by the fact that the parameters, values and means of testing contained in their respective provisions and annexes, even though some may coincide, are largely different. 49. The same reasoning applies to other Community measures adopted in related fields, including Regulation No 854/2004, which is cited by Spain to support its position. (22) The main objective of that regulation is the organisation of official controls on products of animal origin, inter alia, shellfish, and not the quality of shellfish waters themselves. 50. Finally, I cannot see any provisions in the Shellfish Consumer Protection Directive or in Regulation No 854/2004 to support the argument that the intention of the legislature was to alter or modify the scope of the Shellfish Waters Directive in the sense argued by Spain. 51. Spain seems to be confusing the aims, scope and obligations of those different Community measures. It is Chapter I of the annex to the Shellfish Consumer Protection Directive and Annex II to Regulation No 854/2004 which require competent national authorities to distinguish between the areas of shellfish production according to whether the shellfish produced are intended for immediate human consumption or not. It is therefore only as regards the implementation of those Community measures that such a classification by areas becomes relevant. 52. In view of the above I am of the opinion that the scope of the Shellfish Waters Directive is not limited to those shellfish waters where shellfish products collected are intended for direct human consumption, but covers all waters designated as shellfish waters by Member States pursuant to Article 1 thereof. Since Spain does not contest that the waters of the Ría de Vigo are to be classed as shellfish waters, the Shellfish Waters Directive applies to it. 53. In the alternative Spain contends that in any event it has adopted measures to comply with the requirements of Article 5 of the Shellfish Waters Directive, namely, the 2000-2015 ‘Plan General de Saneamiento de Galicia’ and Law 8/2001 of the Comunidad Autónoma de Galicia concerning the protection of the quality of the waters of the Rías de Galicia and the regulation of the public service of urban waste water treatment. 54. I must begin by pointing out that it appears from the file that Spain did not notify the Commission of those measures which it had allegedly adopted in implementation of Article 5 of the Shellfish Waters Directive despite the Commission’s requests; nor did Spain reply to the Commission’s reasoned opinion. Those failings could already justify the Commission’s action. (23) 55. In Commission v Germany (24) the Commission alleged, inter alia, that by not presenting the programmes required by Article 5 of the Fresh Waters Directive (25) and Article 5 of the Shellfish Waters Directive, Germany had failed to implement its obligations thereunder. The Court held that ‘it follows clearly from the wording of Article 5 of [Directive] 79/923 as well as from the detailed arrangements for monitoring water quality laid down by [that directive] that Member States have an obligation to establish specific programmes in order to reduce pollution of … shellfish waters within … six years …’. (26) 56. The Court rejected Germany’s argument that general water-purification programmes could be regarded as constituting an adequate transposition of Article 5 of the Fresh Waters Directive. It also held that the objective of reducing water pollution caused by effluent pursued by such general programmes does not necessarily correspond to the more specific objective of the Fresh Waters Directive, which is to improve the quality of fresh waters in order to support fish life. (27) 57. Even though those statements were made in relation to Article 5 of the Fresh Waters Directive, the Court’s conclusions could be regarded as equally applicable in the present context given the practically identical wording of the provisions. To my mind the implementation measures proposed by Spain do not comply with the requirements of the Shellfish Waters Directive. Both the ‘Plan General de Saneamiento de Galicia’ and Law 8/2001 lack in my view the required precision to satisfy the requirements of Article 5 of the Shellfish Waters Directive as interpreted by the Court. As the Commission rightly states, neither measure was adopted specifically to implement the obligations arising from the Shellfish Waters Directive, but rather to give effect to other EC directives in the field of water treatment and water quality. (28) 58. More importantly, as the Commission points out without being contradicted by Spain, neither of those measures contains precise provisions to ensure that the quality of Galician waters, and in particular in the Ría de Vigo, complies with the detailed and precise physical and chemical parameters laid down in the Annex of the directive, something which, moreover, should have been attained by October 1987. As I have argued on an earlier occasion, whereas such general measures may indirectly contribute to the improvement in the cleanliness of waters, it is not obvious, at least without corroboration, that they will of necessity have the effect sought by the Shellfish Waters Directive, namely, to support shellfish life and growth. (29) Conclusion 59. I accordingly conclude that the Court should: (1) declare that, by failing to adopt by the prescribed date a pollution reduction programme for the Ría de Vigo, Spain has failed to fulfil its obligations under Article 5 of Council Directive 79/923/EEC of 30 October 1979 on the quality required of shellfish waters; (2) dismiss the remainder of the Commission’s application; (3) order each party to bear its own costs. 1 – Original language: English. 2 – Of 8 December 1975 concerning the quality of bathing water (OJ 1976 L 31, p. 1). 3 – Of 30 October 1979 on the quality required of shellfish waters (OJ 1979 L 281, p. 47). 4 – OJ 1991 L 377, p. 48. 5 – OJ 1985 L 302, p. 32. 6 – ‘[The objectives of the Bathing Water Directive] would not be attained if … beaches where bathing is neither explicitly authorised nor prohibited by …, and where bathing is practised, were not identified as bathing areas in terms of the Directive and were not the subject of monitoring by the Commission under it’, Opinion in Case C-272/01 Commission v Portugal [2004] ECR I-0000, at point 34. 7 – Case C-60/01 Commission v France [2002] ECR I-5679, at paragraph 28 and the case-law cited therein. 8 – See, for instance, Article 4(1) of the Shellfish Waters Directive, cited in footnote 3 above; Article 4(1) of Council Directive 78/659/EEC of 18 July 1978 on the quality of fresh waters needing protection or improvement in order to support fish life (OJ 1978 L 222, p. 1); Article 3 (1) of Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources (OJ 1991 L 375, p. 1). See also Article 5(1) of Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment (OJ 1991 L 135, p. 40) 9 – It is worth noting that in Commission v Portugal, cited in footnote 6 above, the Commission had challenged the failure by Portugal to identify all relevant inland waters, not the failure to ‘officially designate’ them as in the present case. 10 – Failure to adhere to the minimum sampling frequency prescribed therein constitutes a breach of the obligations under the directive, even where such an infringement is of limited scope and has negligible practical consequences: Case C-226/01 Commission v Denmark [2003] ECR I-1219, at paragraphs 32 and 33; see also Case C-198/97 Commission v Germany [1999] ECR I-3257, at paragraph 46. 11 – Spain refers in that respect to the 2000-2015 ‘Plan General de Saneamiento de Galicia’, adopted by the Xunta de Galicia in November 2000, one of whose objectives is to carry out the necessary investments to ensure that safe bathing is possible in Galician beaches, and to the new drainage system of the municipality of Moaña, where the three beaches are located, which was being implemented when the complaint was introduced and which was completed in July 2003. 12 – Commission v Germany, cited in footnote 10 above, at paragraph 35. 13 – See ibid. and the case-law cited therein. See more recently Commission v Portugal cited in footnote 6 above, at paragraph 34. 14 – Case C-307/98Commission v Belgium [2000] ECR I-3933, at paragraph 32. 15 – Cited in footnote 5 above. 16 – Council Directive 91/492/EEC of 15 July 1991 laying down the health conditions for the production and the placing on the market of live bivalve molluscs (OJ 1991 L 268 p. 1). 17 – OJ 2004 L 139, p. 206. 18 – It may be noted that Article 1 of the original act of implementation of the Shellfish Waters Directive in Spain, Royal Decree 38/1989, only referred to shellfish edible by man, without specifying shellfish ‘directly’ edible. It was only while implementing the Shellfish Consumer Protection Directive that Royal Decree 345/1993 (Normas de calidad de las aguas y de la producción de moluscos y otros invertebrados marinos vivos, BOE No 74, de 27 marzo de 1993) introduced such a distinction, in line with the requirement of the latter directive. That Royal Decree repealed Royal Decree 38/1989 and integrated the latter’s provisions within its text, consolidating both legal acts. The consolidated text was maintained when Council Directive 97/61/EC of 20 October 1997 amending the Annex to Directive 91/492/EEC laying down the health conditions for the production and placing on the market of live bivalve molluscs (OJ 1997 L 295, p. 35) was implemented. That directive was implemented by Royal Decree 571/1999 of 9 April (BOE No 86, de 10 de abril de 1999). 19 – See for instance the 1st, 3rd, 7th and 10th recitals. 20 – See the 1st, 2nd and 10th recitals. 21 – Cited in footnote 16 above. 22 – Cited in footnote 17 above. 23 – See the judgment of 16 June 2005 in Case C-456/03 Commission v Italy [2005] ECR I-0000, at paragraph 27 and the case-law cited therein. 24 – Case C-298/95 [1996] ECR I-6747. 25 – Council Directive 78/659/EEC of 18 July 1978 on the quality of fresh waters needing protection or improvement in order to support fish life (OJ 1978 L 222, p. 1). 26 – Commission v Germany, cited in footnote 24 above, at paragraph 24. 27 – Ibid., at paragraphs 25 and 26. See also my Opinion in the same case, at points 17 and 18. 28 – It follows from its own wording that the ‘Plan General de Saneamiento de Galicia’ was primarily adopted to implement the obligations arising from Directive 91/271/EEC, cited in footnote 8. Law 8/2001, even though it lays down quality objectives for the waters of the Galician Rías, is generally concerned with the regulation and control of discharges of urban and industrial waste water in the Galician Rías. 29 – See my Opinion in Commission v Germany, cited in footnote 24 above, at points 17 and 18. See also paragraph 26 of the judgment in the same case.