Opinion of the Advocate General — ECLI:EU:C:1999:539
Date: 1999-10-28
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;Approximation of laws
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: Belgium

Summary of the Judgment 
1. Approximation of laws — Quality of bathing water — Directive 76/160 — Batbing 
waters — Definition — Exclusion from the scope of the directive of water of bathing 
areas because bathing not habitually practised there — Burden of proof on the Member 
States — Shallow waters — No effect 
(Council Directive 76/160, Art. 1(2)(a), second indent, and annex) 
2. Approximation of laws— Quality of bathing water— Directive 76/160— Imple­
mentation by the Member States — Obligation as to results 
(Council Directive 76/160) 
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SUMMARY — CASE C-307/98 
3. Approximation of laws — Quality of bathing water — Directive 76/160 — Protection 
of public health — Obligation on Member States to prohibit bathing in specific 
areas — Scope 
(Council Directive 76/160, Art. 3) 
1. The definition of 'ba thing water ' 
within the meaning of the second 
indent of Article 1(2)(a) of Directive 
76/160 concerning the quality of bath­
ing water must, in the light of the 
directive 's under ly ing purpose as 
expressed in the recitals in the pream­
ble thereto, be understood as preclud­
ing the water of bathing areas from 
being excluded from the scope of the 
directive simply because the number of 
bathers is below a certain threshold. 
Moreover, it is incumbent on a Mem­
ber State which contends that bathing 
is no longer habitually practised in 
certain areas and wishes therefore no 
longer to treat them as bathing areas 
within the meaning of Directive 76/160 
to prove both that bathing is not 
habitually practised in each of the areas 
concerned and that that situation is not 
the result of non-compliance in those 
areas with the limit values fixed in 
accordance with Article 3 of that direc­
tive. 
In that connection the shallowness of 
waters is not in itself a factor on the 
basis of which Member States may 
exclude certain bathing sites within the 
meaning of Directive 76/160. The pos­
sibility cannot be excluded that shal­
low waters are attractive to specific 
categories of people, such as the elderly 
or children. In any event, it cannot be 
inferred from the criterion laid down in 
point 11 of the Annex to Directive 
76/160, according to which waters 
must be transparent to a depth of at 
least one metre, that only those areas in 
which water exceeds that depth are to 
be regarded as bathing areas within the 
meaning of the directive. That criterion 
merely means that the transparency of 
bathing waters must extend to a depth 
of at least one metre or, if the water is 
less than one metre deep, that the 
transparency must be total. 
(see paras 28-30, 33-34) 
2. Directive 76/160 concerning the qual­
ity of bathing water, Article 4(1) of 
which requires the Member States, 
within 10 years of notification of that 
measure, to take all necessary measures 
to ensure that bathing waters conform 
to the microbiological and physico-
chemical limit values set therein, 
requires the Member States to ensure 
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COMMISSION V BELGIUM 
that the prescribed results are achieved 
within the time-limit allowed and, save 
for the derogations provided for, does 
not allow them to rely on particular 
circumstances to justify a failure to 
fulfil that obligation. 
(see paras 48-49) 
3. The need to protect public health does 
not entail any obligation on a Member 
State to prohibit bathing in a given area 
unless, because of local conditions, the 
extent of the deviation from the limit-
values set in accordance with Article 3 
of Directive 76/160 observed in that 
area or the nature of the limit values 
not complied with is such that a danger 
to public health is involved. 
(see para. 62) 
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