61990C0056
OPINION OF ADVOCATE GENERAL
LENZ
delivered on 16 December 1992 (
*1
)
Mr President,
Members of the Court,
A — Introduction
1.
Some time ago, on 2 March 1990 to be precise, the Commission initiated proceedings under Article 169 against the United Kingdom for failure to comply with Council Directive 76/160/EEC (
1
) concerning the quality of bathing water. The waters of the bathing area in Blackpool and of the bathing area adjacent to Formby and Southport were alleged not to comply with the quality requirements laid down in the directive, in breach of Article 4 thereof.
2.
At the time of the hearing in October 1992 the proceedings were going ahead on the footing that the bathing water in the bathing areas of Blackpool, Southport and to a certain extent of Ainsdale did not conform to the directive's values. The allegation with regard to the quality of the bathing waters in Formby had already been discontinued in the course of the procedure.
3.
For some time there have been plans for works in order to improve water quality which — although the hearing was twice postponed — have not yet been carried out. The Commission is therefore maintaining its action for a declaration that the United Kingdom has failed to observe the limit values laid down in Article 3 of the directive.
4.
For details of the facts of the case, the course of the proceedings and the arguments of the parties, reference is made to the Report for the Hearing.
B — Opinion
1. Admissibility
5.
The United Kingdom raises several objections to admissibility but does not separate its submissions in this connection from its arguments against the substance of the application. The arguments against the admissibility of the action, on the one hand, and against its substance, on the other, are interwoven to such an extent that it is difficult to make a clear distinction between the examination of admissibility and the substantive examination of the action.
6.
The United Kingdom raises objections of admissibility drawn essentially from the Commission's conduct prior to the proceedings. The Commission did not state its views on the criteria drawn up and notified by the United Kingdom for the identification of bathing waters within the meaning of the directive, which was to be construed as approval thereof. The Commission was therefore precluded from initiating proceedings under Article 169 of the Treaty without first defining its position vis-à-vis those criteria. The fact that the Commission did not earlier clearly state its position was a clear infringement of the duty of mutual cooperation under Article 5 of the EEC Treaty necessarily resulting in the inadmissibility of the action. Finally, it was impossible during the period of two months specified in the reasoned opinion to take further practicable steps in addition to those already taken.
7.
Where the United Kingdom takes its arguments in support of inadmissibility from its substantive arguments, the Commission's submissions in reply also go to the substance of the case.
8.
In an abridged form the arguments of the Commission on admissibility may be summarized as follows: it does not accept the extent of the legal consequences attached by the United Kingdom to the adoption of the criteria in 1979 on the identification of bathing waters so as to affect both the material and the temporal application of the directive. The Commission therefore had no cause to proceed. But even if it had unjustifiably remained inactive that could not justify a Treaty infringement by the United Kingdom. Moreover the Commission enjoys a discretion whether or not to commence proceedings under Article 169 of the EEC Treaty.
9.
With regard to the last objection, it is in principle correct, as the Commission argues, that the commencement of proceedings under Article 169 of the Treaty is in the Commission's discretion. There is no actionable legal duty to intervene. Rather there is an obligation to take active steps.
10.
On the other hand the Commission does not act in a legal vacuum, so that the Commission's freedom in the context of proceedings under Article 169 of the EEC Treaty encounters legal limits. One such limit, for example, can be found in past Treaty infringements. (
2
)
11.
This is not such a case. Even at the time of the hearing on 27 October 1992 the bathing waters at issue undeniably did not conform to the quality standards laid down in Directive 76/160. The parties differ as to whether this situation is to be deemed to be a Treaty infringement or whether under the specific circumstances there is no Treaty infringement. However, this is precisely a classic case of the examination of the merits of an action under Article 169 of the Treaty. For as long as the Commission has cause to regard certain factual situations or a given legal situation as contrary to Community law, it is open to it to commence Article 169 proceedings.
12.
However, the question might arise as to whether the Commission by its earlier conduct was estopped from bringing an action, in the sense that it had led the Member State to believe it was acting within the context of its Community obligations, but subsequently altered its opinion at a time when it was objectively impossible for the Member State to comply with its obligations within the time permitted.
13.
The United Kingdom believes that a situation of estoppel is constituted by the fact that the Commission raised no objections to the criteria for identifying bathing waters notified in 1979.
14.
The first point to remember is that in 1979 the period for attaining the results prescribed by the directive under Article 4(1) had not expired. Even as regards the grant of derogations under Article 4(3) of the directive there was still time until the end of 1981. The United Kingdom seemed to be clear about that, for at paragraph 2 of the contested administrative circular it wrote:
‘... “bathing waters” must be monitored at regular intervals and where they do not comply with the Directive's quality requirements, they must be brought up to them by December 1985. This time-limit may only be extended in individual cases if, by December 1981, the UK Government has notified the EEC Commission of its intention to allow more time, and justified its decision on the basis of a management plan for the waters concerned. ...’ (
3
)
15.
The object of the administrative circular as such is to call upon the appropriate authorities to identify bathing waters within the meaning of the directive in order to ensure that they are monitored. With regard to the specific identification of certain bathing waters, the administrative circular is still of a provisional nature:
‘Decisions on whether a particular stretch of water falls under the second EEC definition will need to be based on the degree of use by bathers actually entering the water. The water authority and district council concerned should discuss whether a particular stretch of water is one where “bathing is traditionally practised by a large number of bathers”, bearing in mind the guidelines and Appendix A. Water authorities should send DOE as soon as possible a list of those waters which it has agreed fall within the scope of the Directive. Any points of disagreement between the Water Authority and the District Council should be referred to DOE or the Welsh Office as indicated in paragraph 6 above.’ (
4
)
16.
The guidelines in Appendix A referred to in no way give the impression of a definitive determination:
‘4.
... The method of assessment of the degree of use is for water authorities to decide on, but some guidance as to the numbers of bathers which the Department and the Welsh Office would expect on a beach which attracted “large numbers” is given in paragraph 6 below.’ (
5
)
17.
Paragraph 6 goes on to state:
‘6.
The Department and the Welsh Office would not expect a stretch of water to be classified as “bathing water” for the purposes of the Directive unless it had been assessed that at some time during the bathing season there were at least 500 people in the water (regardless of the length of the stretch of the water in question). Any stretch where the number of bathers has been assessed as more than 1500 per mile will be classified as bathing water. Where the number of bathers is assessed as being between 750 and 1500 per mile water authorities and district councils should discuss whether the water in question is sufficiently well used to be classified as bathing water under the terms of the Directive.’ (
6
)
18.
In fact, specific figures are mentioned here for the first time. There was nothing to indicate that the determination thereof was not objective, particularly since on the basis of open-ended terms used they were not to be construed as absolute, exclusive criteria.
19.
The fact that the Commission did not take action against the criteria laid down as an aid for identifying bathing waters within the meaning of the second indent of Article l(2)(a) of the directive cannot preclude it from examining at a considerably later stage the defective implementation of the directive, inter alia, owing to delay in identifying the bathing waters, when the successful results expected from the application of the guidelines have not been achieved. As the Commission submitted without being contradicted, an additional factor is that, under the criteria, the waters in issue ought to have been identified as bathing waters within the meaning of the directive.
20.
A situation of reliance in which the Commission might be estopped from proceeding against the inadequate implementation of the directive did not arise. On the basis of the timing and contents of the administrative circulars notified the Commission was entitled to await further developments.
21.
The United Kingdom considers that an automatic infringement of the duty of faithful cooperation under Article 5 of the EECTreaty is constituted by the fact that the Commission did not in its own right take action on the criteria. On that point Article 5 imposes no duties on the Commission. The Commission's duties follow from other Treaty provisions. Secondly the Commission in its pleas in law did not regard the criteria in themselves as problematic. If properly applied, they ought, the Commission submitted, to have led to the bathing waters at issue being included within the directive's scope. In order to substantiate the allegations in its action the Commission did not need to challenge the criteria. On the other hand, the United Kingdom in its defence submissions attached considerable significance to the criteria.
22.
If the Commission considered a legal assessment of the criteria different to that contended for by the United Kingdom to be essential, there was no need for it to conduct any procedure prior to the pre-litigation procedure in order to inform the Member State thereof. The pre-litigation phase of proceedings brought under Article 169 of the Treaty is intended to eliminate differences of opinion, conflicting interpretations and similar inconsistencies in order to arrive at an amicable settlement.
23.
The Commission's view on the contested criteria prior to commencement of the proceedings under Article 169 cannot therefore result in a declaration that the action is inadmissible.
24.
Finally, the United Kingdom submitted that it was not possible for practicable steps to be taken within the two-month period set by the reasoned opinion. The United Kingdom's point is that measures to regularize the situation were objectively impossible. Without making an assessment on whether and, if so, what steps ought to have been taken, bathing in the polluted waters could at any rate have been forbidden. If the United Kingdom ruled out that possibility in internal administrative circulars, that cannot affect the duties of a Member State under Community law. Under certain circumstances resources could conceivably have been made available in order to accelerate the requisite works. Irrespective of which possible solution ought to have been preferred, this is not a case of objective impossibility.
25.
The Commission pointed out that the two-month period is allowed to the Member State for the preparation of defence submissions. In the case of situations which for their regularization require longer periods of time, whether it be that legislative measures must be adopted or physical changes in the environment must be carried out, it is contrary to the meaning and purpose of the pre-litigation procedure to infer from those factors that the action is inadmissible. Otherwise a Member State which caused the requisite works to suffer considerable delays could not be prosecuted under the Article 169 procedure, which would defeat the rationale of that procedure.
26.
Additionally it should be mentioned that the Commission applied the two-month period in anything but a formalistic manner. The reasoned opinions date from February 1988. The application was brought in March 1990 and the hearing was in the end twice postponed with the approval of the Commission, on the last occasion from Summer 1992 to October 1992.
27.
Accordingly I am of the view that the action is admissible.
2. Substance
(a) The duties imposed on Member States by the directive
28.
By way of preliminary observation in the examination of whether the United Kingdom has failed to fulfil its obligations under Directive 76/160, it is appropriate to give a general description of the requirements laid down in the directive. The directive imposes different kinds of duties. First, it calls for the laws, regulations and administrative provisions in order to comply with the directive to be brought into force. For the performance of this duty Member States are given a period of two years from the notification of the directive (
7
) which after notification of the directive on 31 December 1975 expired in the United Kingdom on 31 December 1977.
29.
In addition to the obligation to adopt legislation the directive requires limit values for the quality of bathing water to be achieved. Member States were allowed a considerably longer period, namely a period of ten years, in order to conform with the limit values. (
8
) This unusually long period for implementing a directive already shows that at the time of its adoption possible difficulties were expected in conforming with the limit values.
30.
Beyond the ten-year period there is even the possibility, in exceptional cases, for a longer period to be availed of in order to comply with the prescribed norms. However, in such cases a specific procedure must be observed. In accordance with Article 4(3) of the directive justification for any such derogation based on plans for the management of water must be communicated to the Commission not later than 6 years following the notification of the directive.
31.
This provision forces the Member States to clarify within the first six years after notification of the directive whether difficulties are likely to be encountered in conforming with the limit values and to draw up contingency plans. Administrations must have an overall view of the situation 4 years prior to expiry of the period provided for under Article 4(1) of the directive.
(b) The initiation of the period by the identification of the waters
32.
According to the United Kingdom's view of the concept underlying the directive, the ten-year period for conformity with the limit values begins to run only when the relevant waters are identified as bathing water within the meaning of the directive. In the case of the bathing water at issue that would mean that following their identification in 1987 they would be required to conform with the requirements of the directive only in 1997.
33.
Several factors militate against this construction. In the first place Article 4(1) of the directive expressly states that notification of the directive is to be the beginning of the ten-year period. The notification of a directive occurs at a specific moment in time, in the present case on 31 December 1975, which cannot be departed from.
34.
Secondly, the directive does not state that the identification of bathing water might be capable of establishing the applicability of the directive. For the identification of a stretch of water as bathing water within the meaning of the directive to be able to trigger the application of the provisions, that possibility ought at least to emerge from the directive. However, the directive offers no scope for any such interpretation. Since the directive prescribes a strict timetable for achieving its objectives, to construe the directive in such a way that certain bathing water is provisionally omitted from the scope of the directive would be to run counter to the directive. In the absence of appropriate indications it cannot be assumed that it is open to a Member State to determine to which bathing water within the meaning of the directive its norms apply.
(c) The substance of the criteria for identifying the waters
35.
On the other hand considerable difficulties of application may arise, where the State authorities have to decide whether certain bathing waters also in fact constitute bathing water within the meaning of the directive with the result that the norms contained in the directive are binding and the prescribed procedures for their observance must be carried out. For not every water in which people may happen to bathe constitutes bathing water within the meaning of the directive. Article l(2)(a) defines bathing water as:
‘all running or still fresh waters or parts thereof and seawater, in which:
—
bathing is explicitly authorized by the competent authorities of each Member State, or
—
bathing is not prohibited and is traditionally practised by a large number of bathers;
...’
36.
The possibility of explicit authorization plays a secondary role in the United Kingdom. However, the interpretation of a ‘large number’ of bathers is open to considerable doubt. In order to ensure the uniform application of the directive over the whole of the Member State, not to say the whole of the Community, it is possible and also sensible to provide the administration with assistance in the application thereof in the form of implementing provisions. It is in this light that the identification of bathing water provided for in the United Kingdom is to be seen. The administrative circular in itself, which provides for the identification of the bathing water also underlines this interpretation. Mention is made therein of specific dates for implementation and conformity with the aims of the directive. Moreover, criteria are laid down for the explicit purpose of ensuring the application of the second indent of Article l(2)(a).
37.
Under this provision it is also appropriate to work out criteria in order to give concrete form to the abstract definition of bathing water contained in the directive. However, the substantive scope of application of the directive cannot be altered by those criteria. Otherwise, it would in the end be up to the Member State whether the norms laid down by the directive were to apply to specific waters or not. The establishment of criteria restricting or extending the scope of application of the directive, does not constitute the correct implementation of the directive.
38.
It should be borne in mind that it was not open to the United Kingdom to render the directive substantively or temporally inapplicable to certain stretches of bathing water either by the application of restrictive criteria or by altering the directive's timetable.
39.
The bathing waters at issue may be taken to constitute bathing water within the meaning of the directive. The Commission's submission that even under the application of the original 1979 criteria the beaches ought to have been identified as bathing areas has not been refuted. Moreover, in 1987 the United Kingdom itself expressly identified the waters in question and notified them to the Commission by letter of 2 February 1988. To the extent to which the United Kingdom in its defence states that new criteria have since been drawn up such as to identify the waters for the first time, that argument must be countered in line with the terms set out above by stating that the substantive scope of application of the directive cannot be altered by amendments to its implementing provisions. The United Kingdom's arguments tend to militate against the correctness of the original criteria, which, however, for these purposes does not in the final analysis need to be decided. It is sufficient to state that from the beginning the waters in question fell under the directive, which means that by the end of 1985 they were required to conform to the norms of the directive, unless any derogations applied.
(d) The derogations from the directive
40.
The directive itself provides for the following derogations. First of all there is Article 4(3) which has already been mentioned in the foregoing and which allows for an extension of the ten-year period provided for in Article 4(1) of the directive.
41.
In addition to Article 4(3), Article 5(3) and Article 8 allow deviations from the directive. Article 5(2) takes account of the difficulties in observing the values in the case of natural events. It reads as follows:
‘Deviations from the values referred to in Article 3 shall not be taken into consideration in the calculation of the percentage referred to in paragraph 1 when they are the result of floods, other natural disasters or abnormal weather conditions.’
42.
Article 8 enables the directive to be waived in the case of exceptional weather, geographical or natural conditions.
43.
None of the exceptional provisions apply in the present case, particularly not Article 4(3) because no derogation was notified or justified in due time. The United Kingdom is of the view that substantively all the preconditions laid down in Article 4(3) are met. The failure to notify the Commission is merely a formal defect which cannot entail the refusal of a derogation in respect of the beaches concerned. The United Kingdom's submissions on entitlement to the extension of time are, however, contradictory, when it is asserted that an application at the correct time was not possible because the plans had not then been drawn up. The substantive preconditions for the derogation were therefore not all met.
44.
In the remainder of my analysis I shall suppose, in favour of the United Kingdom, that all substantive preconditions were met so that the question arises whether the formal defect constituted by the failure to notify precludes reliance on the derogation.
45.
Article 4(3) reads as follows:
‘In exceptional circumstances Member States may grant derogations in respect of the ten-year time-limit laid down in paragraph 1. Justifications for any such derogations based on plans for the management of water within the area concerned must be communicated to the Commission as soon as possible and not later than 6 years following the notification of this directive. The Commission shall examine these justifications in detail and, where necessary, make appropriate proposals concerning them to the Council.’
46.
That formulation makes it evident that a derogation must first be expressly granted. Notification to the Commission is stated to be a duty (must). The mandatory nature of the notification is also borne out by the unconditional requirement to observe time-limits. Finally, the Commission is to be enabled in a proper case to submit appropriate proposals to the Council. Even if the Commission is not obliged to take concrete steps, it must receive sufficient information to examine the situation in the light of all significant factors and to draw its conclusions.
47.
If it were possible for the derogation under Article 4(3) to be granted in disregard of any requirement as to form, that could to all intents and purposes lead to unchecked delay in the application of the directive. In my view observance of the formal requirements may also be required of the appropriate authorities. They should as a rule be informed of the procedural provisions to be observed. Specifically it may be assumed that they were also actually informed, as may be seen from the administrative circular of 1979. (
9
) On 1 December 1981 certain deviations were notified to the Commission, however not in respect of the bathing waters at issue in these proceedings. On the basis of all the foregoing the derogation cannot in my view be deemed to have been tacitly granted. The formal notification on 23 June 1986 of construction projects in Blackpool, with the indication that the works were due to begin in 1990, cannot justify an extension of time under Article 4(3), since it was out of time.
48.
In the alternative the United Kingdom submits that a Member State denied an extension of time only on account of late notification would unjustly be treated in the same way as a Member State wrongly failing to comply in due time with its obligations under the directive. In my view that may be countered by acknowledging that the objective infringement of duties must render the conduct unlawful, whether on formal or substantive grounds.
(e) Impossibility of compliance with the duties imposed
49.
Finally, the United Kingdom contends that the directive cannot demand the impossible. The requisite remedial works could not objectively have been carried out within the periods allowed. Duties entailing physical alterations to the environment cannot be absolute. A Member State can only be obliged to take all practicable steps. Particularly in environmental law legal duties were not to be construed as duties as to the result to be achieved, since a Member State would otherwise be liable for occurrences and for the conduct of third parties over which it had no influence. The Member State could not be liable as the guarantor of a specific outcome.
50.
The United Kingdom's submissions compel a view to be taken of the legal nature of the duties enshrined in the directive. The duty within two years to bring into force the laws, regulations and administrative provisions necessary to comply with the directive is straightforward. A Member State is always responsible for meeting the requirement to enact requisite legislation and cannot, when the need arises, rely on internal difficulties in the legislative process to escape liability for the punctual fulfilment of its obligations under Community law.
51.
It might be otherwise where physical alterations of the environment must be brought about in order to meet specific objectives. Therefore, the question arises whether the values to be set pursuant to Article 3 of the directive must be absolutely complied with within the ten-year period contained in Article 4(1), failing which the Member State concerned is in breach of the Treaty. The terms in which the duty are couched are unconditional:
‘Member States shall take all necessary measures to ensure that, within ten years following the notification of this directive, the quality of bathing water conforms to the limit values set in accordance with Article 3.’
52.
Allowance is made for the fact that difficulties may be encountered in attaining the objectives set by the fact that the ten-year period for attaining the objectives is unusually long. Moreover, as already stated, an extension of time may be available. Finally, allowance is also made for the possible effect on the parameters to be attained of natural disasters, abnormal weather conditions, exceptional weather or geographical conditions or specific natural features in the context of Article 5(2) and Article 8.
53.
The United Kingdom is of the view that the inference to be drawn from the availability of the derogation provision is that the duties in regard to attainment of the parameters are not absolute. The derogations are provided for in order to ensure the requisite flexibility in the application of the provisions. The United Kingdom considers this machinery to be evidence of the fact that requirements imposed by the directive must also be applied in a flexible manner. It is not reasonable to demand the impossible.
54.
In my view the availability of derogations is to be construed the other way around. Directive 76/160 is structured in the same way as Directive 80/778 relating to the quality of water intended for human consumption. (
10
) With regard to that directive I expressed the view, (
11
) that derogations were to be construed strictly. The Court has followed that interpretation in two judgments. (
12
) I am of the view that in Directive 76/160 the Community legislator chose the same structure of legal duties. For that reason the derogations ought to be given a narrow interpretation in this case as well. In the result that means that a duty as to the result to be achieved was imposed on the Member States, from which departures were possible only in the context of the explicitly authorized exceptions.
55.
In my opinion there is no reason why a Member State should not be liable as a guarantor vis-à-vis the Community for the attainment of specified aims. As regards liability for the conduct of third parties, the Member State may avail itself of means, such as legislative action, in order to ensure that certain courses of conduct are followed.
56.
Moreover, in the cleansing of the bathing waters at issue one is not confronted with a case of objective impossibility. Since the requisite works were only started on expiry of the ten-year period, the timely fulfilment of the duties was no longer possible. However, the belated start made on the requisite works is undoubtedly the responsibility of the Member State. It may remain open whether on account of the extent of the works it would have been possible to carry them out earlier. Certainly, it appears to me questionable for there to be consultation phases lasting over several years before concrete steps are taken. In any event it was open to the Member State to obtain an extension of time under Article 4(3). Certainly, that would have required the competent authorities of the Member State concerned to have reached a decision within 6 years on whether and, if so, what remedial measures were necessary. However, that is not in my view an impracticable requirement.
57.
In the result I am of the view that the United Kingdom's arguments cannot justify the long delay of at least ten years following expiry of the ten-year period provided for in the attainment of the parameters prescribed by Community law — and then only if the projected works are started immediately. The appreciable delay in fulfilling these duties under Community law also constitutes an infringement of Articles 5 and 189 of the EEC Treaty.
58.
The declaration against the United Kingdom should be granted in the terms sought in the action.
C — Conclusion
59.
I propose that the Court should:
(1)
declare that, by failing to take all the necessary measures to ensure that the quality of the bathing water of the bathing areas of Blackpool and at Southport conforms to the limit values set in accordance with Article 3 of Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing water, the United Kingdom has failed to fulfil its obligations under Article 4 of that directive and under Articles 5 and 189 of the EEC Treaty;
(2)
order the United Kingdom to pay the costs.
(
*1
)	Original language: English.
(
1
)	Council Directive of 8 December 1975, OJ 1975 L 31. p. 1.
(
2
)	Cf. my Opinion of 2 February 1992 in Case C-362/90 [1992] ECR I-2353.
(
3
)	Cf. administrative circular in Annex 2 to the defence.
(
4
)	Cf. Annex 2 to the defence.
(
5
)	Annex 2 to Annex 2 of the defence.
(
6
)	Cf. Annex 2 to Annex 2 of the defence.
(
7
)	Article 12 of the directive.
(
8
)	Article 4(1) of the directive.
(
9
)	Annex 2 to the defence.
(
10
)	Council Directive of 15 July 1980, OJ 1980, p. 11.
(
11
)	See my Opinions of 14 December 1989 in Case C-42/89 Commission v Belgium [1990] ECR I-2821, at page I-2828 and of 21 January 1992 in Case C-337/89 Commission v United Kingdom [1992] ECR I-6103, at page I-6125.
(
12
)	Judgment of 5 July 1990 in Case C-42/89 Commission v Belgium [1990] ECR I-2821, and of 25 November 1992 in Case C-337/89 Commission v United Kingdom [1992] ECR I-6103.