Opinion of Mr Advocate General Jacobs delivered on 5 April 2001. - Commission of the European Communities v Kingdom of Sweden. - Failure by a Member State to fulfil its obligations - Quality of bathing water - Inadequate implementation of Directive 76/160/EEC. - Case C-368/00.



European Court reports 2001 Page I-04605



Opinion of the Advocate-General

1. Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing water was adopted in order to protect the environment and public health. Article 4(1) of the directive required Member States to take all necessary measures to ensure that, within 10 years following the notification of the directive, the quality of bathing water should conform to the limit values set in accordance with Article 3.

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

3. The directive accepts however that bathing water will, under certain conditions, be deemed to conform to the relevant parameters even if a certain percentage of samples taken during the bathing season does not comply with the limits specified in the annex. Article 5(1) of the directive accordingly sets out what percentages of the samples taken to test the bathing water must be taken into account in order for the water to be deemed to conform to the relevant parameters.

4. Article 13 of the directive, as amended by Article 3 of Directive 91/692/EEC, provides that the Member States shall send to the Commission every year a report on the implementation of the directive in the current year.

5. The directive entered into force for the Kingdom of Sweden on 1 January 1995 by virtue of Article 2 of the Act of Accession.

6. Sweden duly communicated to the Commission reports for the years 1995, 1996, 1997 and 1998. From those reports the Commission detected certain insufficiencies. In 1998, in particular, it appeared to the Commission that 31 bathing areas did not comply with the limit values set in accordance with Article 3 of the directive. The Commission also considered that Sweden had not respected, in certain bathing areas, its obligations concerning the minimum frequency for carrying out sampling operations in accordance with Article 6(1) of the directive.

7. Having followed the pre-contentious procedure prescribed by Article 226 EC, the Commission brought the present case before the Court, in which it seeks a declaration that the Kingdom of Sweden, by failing to take all the measures necessary to ensure that the quality of bathing water conformed to the limit values prescribed by the directive, and by failing to respect the minimum frequency for carrying out sampling operations prescribed by the directive, has failed to fulfil its obligations under Article 4(1) and Article 6(1) of the directive.

8. In its defence the Kingdom of Sweden states that the samples taken in the 31 bathing areas in 1999 and 2000 show that the levels were - with certain exceptions - in accordance with the limits set by the directive. Nevertheless, it accepts that the Commission's claim based on Article 4(1) of the directive is well founded. Sweden also accepts that it did not satisfy the requirement of minimum frequency for sampling operations prescribed by Article 6(1) of the directive.

Conclusion

9. In those circumstances the Court should in my opinion:

(1) declare that, by failing to take all the measures necessary to ensure that the quality of bathing water conformed to the limit values prescribed by Council Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing water, and by failing to respect the minimum frequency for carrying out sampling operations prescribed by the directive, the Kingdom of Sweden has failed to fulfil its obligations under Article 4(1) and Article 6(1) of the directive;

(2) order the Kingdom of Sweden to pay the costs.