Opinion of Mr Advocate General Jacobs delivered on 26 January 1999. - Commission of the European Communities v Federal Republic of Germany. - Failure by a Member State to fulfil its obligations - Directive 76/160/EEC - Quality of bathing water - Admissibility of an action brought pursuant to Article 226 EC (ex Article 169) - Reasoned opinion - Observance of the principle of the collegiality of the Commission - Failure to comply with Articles 4(1) and 6(1) of Directive 76/160/EEC. - Case C-198/97.



European Court reports 1999 Page I-03257



Opinion of the Advocate-General

1 In this case the Commission seeks a declaration 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. (1) The Commission claims that Germany has infringed the Directive 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 by failing to comply with the minimum sampling frequency laid down in the Annex to the Directive.

2 The Directive seeks to protect the quality of bathing water in the Community, with the exception of water intended for therapeutic purposes and water used in swimming pools. (2) Bathing water means all running or still fresh waters or parts thereof and sea water in which bathing is explicitly authorised by the competent authorities of each Member State, or is not prohibited and is traditionally practised by a large number of bathers.

3 The Annex to the Directive lists a series of physical, chemical and microbiological parameters applicable to bathing water. Article 3 of the Directive provides:

`1. Member States shall set, for all bathing areas or for each individual bathing area, the values applicable to bathing water for the parameters given in the Annex.

In the case of the parameters for which no values are given in the Annex, Member States may decide not to fix any values pursuant to the first subparagraph, until such time as figures have been determined.

2. The values set pursuant to paragraph 1 may not be less stringent than those given in column I of the Annex.

3. ...'

4 Article 4 of the Directive provides:

`1. Member States shall take all necessary measures to ensure that, within 10 years following the notification of this Directive, the quality of bathing water conforms to the limit values set in accordance with Article 3.

...

3. In exceptional circumstances Member States may grant derogations in respect of the 10-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 six 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.

...'

5 Article 5 of the Directive provides:

`1. For the purposes of Article 4, bathing water shall be deemed to conform to the relevant parameters:

if samples of that water, taken at the same sampling point and at the intervals specified in the Annex, show that it conforms to the parametric values for the quality of the water concerned, in the case of:

- 95% of the samples for parameters corresponding to those specified in column I of the Annex;

- 90% of the samples in all other cases with the exception of the "total coliform" and "faecal coliform" parameters where the percentage may be 80%

and if, in the case of the 5, 10 or 20% of the samples which do not comply:

- the water does not deviate from the parametric values in question by more than 50%, except for microbiological parameters, pH and dissolved oxygen;

- consecutive water samples taken at statistically suitable intervals do not deviate from the relevant parametric values.

2. 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.'

6 Article 6(1) of the Directive requires Member States to carry out sampling operations for which the minimum frequency is laid down in the Annex.

7 Article 8 of the Directive provides as far as is relevant:

`This Directive may be waived:

(a) in the case of certain parameters marked (0) in the Annex, because of exceptional weather or geographical conditions;

(b) when bathing water undergoes natural enrichment in certain substances causing a deviation from the values prescribed in the Annex.

...

Where a Member State waives the provisions of this Directive, it shall forthwith notify the Commission thereof, stating its reasons and the periods anticipated.'

8 Article 13 of the Directive requires Member States to submit a comprehensive report to the Commission on their bathing water and the most significant characteristics thereof four years after notification of the Directive and at regular intervals thereafter.

9 Finally, Article 12 of the Directive prescribes an implementation date of two years from its notification.

I - Admissibility

10 The German Government contends that the application is inadmissible because in adopting the decision to issue the reasoned opinion and in bringing the proceedings before the Court the Commission infringed the principle of collegiality to which its decision-making is subject pursuant to Article 163, first paragraph, of the Treaty and Article 16 of the Commission's Rules of Procedure.

11 The Court considered an identical plea by Germany in its recent judgment in another case brought against Germany by the Commission. (3) There the Court noted that the principle of collegiality, by which the functioning of the Commission was governed, was based on the equal participation of the Commissioners in the adoption of decisions; this implied that decisions should be the subject of collective deliberation and that all the members of the college of Commissioners should bear collective responsibility at political level for such decisions. It added however that the formal requirements for effective compliance with the principle of collegiality varied according to the nature and legal effects of the acts adopted. Contrasting the effect of a decision adopted for the purpose of ensuring observance of the competition rules, the Court noted that a reasoned opinion did not determine conclusively the rights and duties of a Member State or afford that State guarantees concerning the compatibility of a given line of conduct with the Treaty. Its effect was merely to confer upon the Commission the right, but not the duty, to commence proceedings before the Court. Nor did the decision to commence proceedings before the Court per se alter the legal position in question. The Court concluded:

`It follows from all the foregoing considerations that both the Commission's decision to issue a reasoned opinion and its decision to bring an action for a declaration of failure to fulfil obligations must be the subject of collective deliberation by the college of Commissioners. The information on which those decisions are based must therefore be available to the members of the college. It is not, however, necessary for the college itself formally to decide on the wording of the acts which give effect to those decisions and put them in final form.

In this case it is not disputed that the members of the college had available to them all the information they considered would assist them for the purposes of adopting the decision when the college decided, on 31 July 1991, to issue the reasoned opinion, and approved, on 13 December 1994, the proposal to bring the present action.

In those circumstances, it must be held that the Commission complied with the rules relating to the principle of collegiality when it issued the reasoned opinion with regard to the Federal Republic of Germany and brought the present action.' (4)

12 The question in the present case therefore is whether the members of the Commission had available to them the information on which the decision to issue the reasoned opinion and to take proceedings was based. The Commission has produced, at the Court's request, the documents which were presented to the Commission at the meeting in which the decision concerning the reasoned opinion in issue was adopted. It is true, as the German Government points out, that the documents in question identify the alleged infringement only in the most 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 the same kind as those to which the opinions referred and constituted the same conduct.' (5) 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 forward arguments 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, (6) 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 the question 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) - OJ 1976 L 31, p. 1.

(2) - Article 1(1).

(3) - Case C-191/95 Commission v Germany, judgment of 29 September 1998.

(4) - Paragraphs 48 to 50 of the judgment.

(5) - Case 42/82 Commission v France [1983] ECR 1013, paragraph 20 of the judgment.

(6) - Paragraph (7)$$(7)

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

(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.