Opinion of Mr Advocate General Ruiz-Jarabo Colomer delivered on 18 January 2001. - Commission of the European Communities v French Republic. - Failure of a Member State to fulfil its obligations - Quality of bathing water - Inadequate implementation of Directive 76/160/EEC. - Case C-147/00.



European Court reports 2001 Page I-02387



Opinion of the Advocate-General

1 The Commission seeks a declaration by the Court of Justice that the French Republic has failed to fulfil its obligations under Articles 3, 4, 5 and 6 of Council Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing water (1) (hereinafter `the directive').

2 In particular, the Commission raises a number of complaints against the French Republic alleging: (a) failure to observe the quality standards laid down by the directive; (b) insufficient number of samples taken and, (c) abandonment of the `total coliform' parameter.

I - Legal framework

A. Directive 76/160

3 The aim of the directive is, according to the first recital of the preamble and Article 1, to protect the environment and public health by reducing the pollution of bathing water (2) and protecting such water against further deterioration, with the exception of water intended for therapeutic purposes and water used in swimming pools. (3)

4 Article 3 requires the Member States to set, for all the bathing areas (4) or for each bathing area, the values applicable to bathing water for the physical, chemical and microbiological parameters given in the annex to the directive. Such values must be at least as stringent as those given in the annex. According to Article 2, those parameters form an integral part of the directive.

5 Under Article 4, within 10 years following the notification of the directive, the Member States were to have taken all necessary measures to ensure that the quality of bathing water conformed to the limit values set in accordance with Article 3. For France, that period expired on 10 December 1985.

6 Article 6(1) of the directive provides that the competent authorities in the Member States are to carry out sampling operations the minimum frequency of which is laid down in the annex.

7 Finally, every year the Member States are to submit to the Commission a report on their bathing water and the most significant characteristics thereof, according to the amended wording of Article 13 of the directive. (5)

8 Thus, among other obligations, Member States are required by the directive to set for all bathing areas the requisite values applicable to bathing water for the established physical, chemical and microbiological parameters, to adopt the necessary measures to ensure that, within a period of 10 years, the quality of bathing water conforms with those values and to carry out the requisite sampling operations with the frequency laid down in the directive itself. (6)

B. French legislation

9 The French Republic communicated to the Commission, as measures transposing the directive into national law, Decree No 91-980 of 20 September 1991 amending Decree No 81/324 of 7 April 1981 laying down the hygiene and safety rules applicable to swimming pools and specified bathing places. (7) The decree was brought into force by Ministerial Order of 29 November 1991. (8)

II - Facts

10 The Commission found a number of irregularities in the reports forwarded by the French authorities regarding the implementation of the directive in respect of the period from 1995 to 1997 and instituted two administrative proceedings.

A. Proceeding No A/96/2107

11 By document of 5 September 1996 and, subsequently, by a reasoned opinion of 5 August 1998, the Commission alleged that the French Republic had failed to fulfil its obligations under:

(1) Article 4(1) of the directive in that it did not adopt, within the period of 10 years, all the necessary measures to ensure that the quality of bathing water conformed to the requisite standards;

(2) Article 6(1) in that the French authorities carried out sampling operations at less than the minimum frequency laid down in the annex to the directive.

12 The reasoned opinion granted the French Republic a period of two months in which to make good the failure to fulfil its obligations.

13 By letter of 13 October 1998 the French authorities replied that conformity of bathing areas with the requirements of the directive had risen from 60% in 1980 to 93% in 1997. In that letter they undertook to adopt the measures necessary to ensure that, by 1999, all bathing areas would comply with the mandatory limit values set by the directive and that the sampling operations would be carried out with the requisite frequency.

14 Since it received no further information to justify the conclusion that the undertakings made by the French authorities had been complied with, the Commission concluded that the infringement still continued and therefore brought the present action.

B. Proceeding No A/98/2196

15 The Commission concluded from the abovementioned annual reports that the French authorities had not carried out sampling operations for the `total coliform' parameter. By, first, formal notice of 11 November 1998 and, subsequently, a reasoned opinion of 6 August 1999, the Commission alleged that the French Republic had not carried out sampling operations for the aforementioned parameter. The Commission gave the French Republic two months from its notification in which to comply therewith.

16 The French authorities replied by letter of 5 October 1999 in which they claimed that, since the 1995 bathing season, they had replaced measurement of total coliform and fæcal coliform with a more efficient method (9) which, in their view, observed the spirit of the directive and attained the objective of protecting the health of bathers.

17 Moreover, during a meeting which took place in Paris on 3 and 4 February 2000, the French authorities transmitted to the Commission circulars issued by the Direction Générale de la Santé-Direction de l'Eau (`DGS/DE') Nos 99/311 and 99/312 on 31 May 1999, which provide for several measures intended to ensure that the French Republic complies with its Community obligations. Nevertheless, the Commission considered it necessary to take further steps in the infringement procedure and on 17 April 2000 brought the present action.

18 The circular issued by the Direction Générale de la Santé-Direction de l'Administration Générale du Personnel et du Budget (`circular DGS/DAGPB') No 2000/312 of 7 June 2000, which is intended to ensure that the French Republic complies with its obligations under the directive, was subsequently adopted.

III - The complaints raised in the action

A. Failure to comply with the quality standards laid down by the directive

19 The Commission claims that it is clear from the 1995 report that the quality of bathing waters in France did not comply with the mandatory values specified in column I of the annex to the directive. The reports for 1996 and 1997 provided confirmation of continuing non-compliance with a clear and unconditional obligation laid down in the directive.

20 In its defence, the French Government admits that, indeed, in 1995, 1996 and 1997, certain bathing areas did not comply with the quality standards laid down by the directive. It points out, however, that in the consolidated report drawn up by the Commission for 1998 the levels of compliance of French bathing waters improved and will continue to do so as a result of the implementation of circulars DGS/DE of 31 May 1999 and DGS/DAGPB of 7 June 2000. That being the case, it concludes that it is not certain that, when the time-limit prescribed by the first reasoned opinion expired (5 October 1998), the infringement complained of by the Commission was still in existence and asks the Court to find that the infringement has not been established.

21 The Commission replies that the adoption of the three circulars, which were not officially notified, does no more than point up the recent efforts made by the French Government to comply with the requirements of the directive but in no way proves that it has actually done so. Moreover, the French authorities have not provided data relating to 1999, as required by Article 13 of the directive.

22 In the rejoinder, the French Government contends that failure to fulfil the obligation contained in Article 13 of the directive has nothing to do with those which are at issue in the present action, so that the Commission cannot rely in these proceedings on the lack of data in respect of 1999 and 2000.

23 This complaint must be examined on the basis of an undisputed fact: in 1995, 1996 and 1997 certain French bathing areas did not comply with the quality standards required by the directive. (10) The French Government has acknowledged as much. The purpose of the proceedings is thus limited to determining whether the infringement continued to exist on 5 October 1998, the date on which the two-month period prescribed in the reasoned opinion expired. That is the date to be taken account of when appraising whether the infringement complained of by the Commission took place. (11)

24 The fact that the French Government admits infringements in the period from 1995 to 1997 shows that the Commission has discharged its burden in these proceedings: it has established, so far as this complaint is concerned, that there was an actual infringement. (12) When the Commission instituted the administrative proceeding and when it issued the reasoned opinion, the French Republic was not fulfilling its obligations relating to the quality of bathing waters under the directive. It is therefore for the defendant State to prove that it had taken the necessary steps to remedy the situation and complied with the directive.

25 Since the Commission has proved that, when it issued the reasoned opinion, France had not put an end to the infringement, the burden of proof is reversed and it is for the Member State against which the infringement is alleged which must prove that the situation changed or, where appropriate, that it adopted the relevant measures before the expiry of the prescribed period.

26 The French Republic failed not only to reply to the Commission's reasoned opinion, it also failed to adduce any evidence during the administrative proceeding to show that it had put an end to the infringement before the prescribed period expired.

27 In my view, the consolidated report drawn up by the Commission for 1998 does not discharge that burden since it merely states that during that year the level of compliance improved by comparison with the previous years. Nothing in the report in question (appended to the defence) supports the claim that as at 5 October 1998, in contrast with the previous situation, French bathing waters were in conformity with the quality standards laid down in the directive.

28 Such hypothetical improvement in the quality of the bathing waters as might follow from the implementation of circulars DGS/DE and DGS/DAGPB supports still less such a claim. The directive required Member States to attain specific results (13) in addition to the obligation to implement the necessary measures to bring the quality of bathing waters into conformity with the limit values set down in it, (14) with the exception of the derogations provided for by the directive, (15) which are not relevant here.

29 The French Government is not wrong in claiming that its failure to fulfil its obligation under Article 13 to submit an annual report is of no relevance to these proceedings. However, it cannot be ignored that fulfilment of that obligation would have been an appropriate means of demonstrating to the Commission and, subsequently, to the Court, that as at 5 October 1998 it had attained the results required by the directive.

30 The foregoing considerations allow me to conclude that the French Republic has failed to fulfil its obligations under Article 4(1) of the directive by failing to adopt, within 10 years following the notification of the directive, all the necessary measures to ensure that the quality of bathing water conformed to the requirements of the directive.

B. Insufficient number of sampling operations

31 The Commission claims that, in the period from 1995 to 1997, the French Republic failed to observe the minimum frequency laid down in the directive for the carrying out of sampling operations, in particular with regard to the physical and chemical parameters, (16) and that it used methods other than those provided for by the directive.

32 The French Government acknowledges that, although in certain areas sampling during 1995 to 1997 was not in compliance with the directive, during that period the percentage improved progressively and constantly. It adds that, so far as coastal waters are concerned, the implementation of the measures contained in circulars DGS/DE and DGS/DAGPB, which provide for greater frequency in sampling operations, will result in full compliance with the directive, which had in any event already been achieved before the expiry of the period prescribed in the reasoned opinion. So far as concerns the sampling methods, it claims that, following the implementation of the aforementioned circulars, non-compliance with the directive could not have extended beyond the abovementioned time-limit because, from May 1999, the parameters for calculating conformity of bathing waters were brought into line with those required by the Commission.

33 In its reply, the Commission points out that reference to a hypothetical improvement in sampling is insufficient and that it may reasonably be presumed that the infringement continued because there is no information relating to 1999. Furthermore, although the number of sampling operations in coastal areas was sufficient in 1998, the level of non-compliance in respect of inland areas was 4.4%.

34 The scope of that complaint was implicitly reduced in the course of the proceeding. The Commission eventually acknowledged that, in 1998, sufficient samples were taken in bathing waters in coastal areas, as is shown in its consolidated report for 1998, which the French Government appended as annex I to its defence.

35 The alleged failure to fulfil the obligations under Article 6(1), in conjunction with Annex I to the directive, is thus restricted to the frequency of sampling of inland bathing waters and the parameters employed.

36 It should be borne in mind that the directive imposed on the Member States not only the obligation to transpose it into national law but also to attain certain specific results. It prescribed for fulfilment of the first obligation a period of 2 years (Article 12(1)) and, for the second, another period of 10 years (Article 4(1)). By adopting circulars DGS/DE of 31 May 1999, the French authorities have fulfilled the first obligation, but not necessarily the second. The defendant Government has not demonstrated that the methods laid down in the directive were being applied when the reasoned opinion was issued.

37 The same reasoning and conclusion must apply to the frequency of sampling operations stricto sensu. The French authorities have admitted the infringement alleged against them by the Commission. This admission reverses the burden of proof: whoever alleges an infringement must prove it, but, once having proved it, it is for the defaulting State to demonstrate that it has put an end to the infringement or to explain the reasons for the infringement continuing. However, despite claiming a steady approach to the minimum frequency required by the directive, the French Government has not proved (17) that, before the period prescribed in the reasoned opinion expired, it had put an end to the infringement to which it admits. Moreover, the hypothetical improvements which might derive from the implementation of circulars DGS/DE and DGS/DAGPB cannot be regarded as having the probative value which the French Government claims.

38 Finally, the French Republic has failed to fulfil its obligations under Article 6(1) of the directive inasmuch as it carried out sampling operations with less frequency than the minimum laid down in the annex to the directive.

C. Abandonment of the `total coliform' parameter

39 The abandonment, since the 1995 season, of that parameter when analysing bathing waters, is a fact admitted by the French authorities. None the less, they argue that the change in parameter is part of the improvement in monitoring means and methods.

40 No particular dialectical effort is required to find that the Commission is right in this regard. The French Government itself acknowledges that the obligation to measure the `total coliform' parameter is binding, so that its abandonment must be regarded as an infringement of Articles 3, 4, 5 and 6 of the directive.

41 Member States may fix more stringent measures than those laid down in the directive (Article 7(2)), but they may not replace the obligations it lays down with more efficient ones. That was the view taken by the French Government itself when it ordered, in Circular DGS/DAGPB, that with effect from the 2000 bathing season, the `total coliform' parameter should once again be applied.

IV - Costs

42 Since the complaints raised in the Commission's application have essentially been upheld, the defendant must be ordered to pay the costs, in accordance with Article 69(2) of the Rules of Procedure.

V - Conclusion

43 In view of the foregoing considerations, I propose that the Court, grant the present application and declare that: (a) by failing to adopt, within 10 years following the notification of the directive, all the measures necessary to ensure the quality of bathing water conformed to the requirements laid down in it; (b) by failing to carry out sampling operations in line with the minimum frequency laid down in the Annex to the directive in respect of bathing waters; and (c) by failing to carry out sampling operations for the `total coliform' parameter, the French Republic has failed to fulfil its obligations under Articles 3, 4, 5 and 6 of and the annex to Council Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing water.

(1) - OJ 1976 L 31, p. 1

(2) - `Bathing water' means all running or still fresh waters or parts thereof and seawater, in which bathing is explicitly authorised by the competent authorities of each member State, or bathing is not prohibited and is traditionally practised by a large number of bathers (Article 1(2)(a) of the directive).

(3) - See my Opinion in Case C-307/98 Commission v Belgium [2000] ECR I-3933.

(4) - `Bathing area' means any place where bathing water is found (Article 1(2)(b) of the directive).

(5) - As originally worded, Article 13 of the directive imposed the requirement to submit `regularly' to the Commission a report on bathing waters. However, that article was amended by Council Directive 91/692/EEC of 23 December 1991 standardising and rationalising reports on the implementation of certain directives relating to the environment (OJ 1991 L 377, p. 48), making the requirement an annual obligation.

(6) - See the judgment in Case 96/81 Commission v Netherlands [1982] ECR 1791, paragraph 2.

(7) - Journal Officiel de la République Française (hereinafter `JORF') No 225 of 26 September 1991, p. 12568.

(8) - JORF No 5 of 6 and 7 January 1992, p. 343.

(9) - Consisting in the use of the `microplate' method of analysis.

(10) - A single instance of non-compliance during a single season is sufficient to consider the directive to have been infringed, unless absolute impossibility to comply is duly established (see my Opinion, cited in footnote 4, paragraph 58).

(11) - The Court has consistently held that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion (see, by way of example, Case C-200/88 Commission v Greece [1990] ECR I-4299, paragraph 13, and Case C-96/98 Commission v France [1999] ECR I-8531, paragraph 19).

(12) - The Court has also consistently held that it is for the Commission to prove the existence of the alleged failure (see, inter alia, Case 121/84 Commission v Italy [1986] ECR 107, paragraph 12, and Commission v France, cited in footnote 12, paragraph 36).

(13) - For which it granted a generous period, greater than that provided for transposing the directive into domestic law.

(14) - See Case C-56/90 Commission v United Kingdom [1993] ECR I-4109, paragraphs 42 to 44, Case C-92/96 Commission v Spain [1998] ECR I-505, paragraph 28, Case C-198/97 Commission v Germany [1999] ECR I-3257, paragraph 35, and Commission v Belgium, cited in footnote 4, paragraph 48.

(15) - Article 4(3), Article 5(2) and Article 8.

(16) - In 1995, the percentage of coastal waters from which no samples were taken or from which insufficient samples were taken was 37.4% and for inland waters 47%. The percentages were 12.4% and 23.3% in 1996 and 2.5% and 11.6% in 1997.

(17) - As it could have done if it had fulfilled the obligation to submit an annual report as required under Article 13 of the directive, as worded since December 1991.