Opinion of Mr Advocate General Lenz delivered on 21 February 1991. - Commission of the European Communities v Kingdom of Belgium. - Failure to comply with Council Directives 75/440/EEC and 79/869/EEC - Surface water for the production of drinking water - Duty to notify. - Case C-290/89.



European Court reports 1991 Page I-02851



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

A - Facts

1 The case in which I am giving my Opinion relates to proceedings for infringement of the Treaty brought against the Kingdom of Belgium for failing to fulfil its obligations under Directives 75/440/EEC(1) and 79/869/EEC(2) and for breach of its obligations of cooperation and notification in relation to the implementation of the said directives.

2 Directive 75/440 should, in accordance with Article 10 thereof, have been transposed into national law within two years of its notification to the Member States on 18 June 1975, that is, on 18 June 1977, and Directive 79/869, according to Article 13, likewise within two years of notification, that is, on 19 October 1981.

3 The provisions of the directives were transposed into Belgian law by the Royal Decree of 25 September 1984.(3) By virtue of a law of 8 August 1980 the implementation of the directives falls within the competence of the Regions. By letter of 8 December 1986 to the Belgian Government the Commission requested detailed information about the measures taken to implement the provisions of the directives. Since there was no answer to the letter, the Commission initiated the procedure for infringement of the Treaty. The period of two months given in the reasoned opinion of 25 May 1988 expired on 25 July 1988 without the Commission' s having been informed in any way of any implementing measures.

4 In the course of the written procedure before the Court and until the day of the hearing the Belgian Government, partly in response to questions from the Court, gave information as to the measures which the regions gradually adopted in order to comply with the obligations arising from the directives.

5 At the date of the hearing the position was as follows:

(a) It was not disputed that no implementing measures were needed in the Brussels Region since that region had no surface water for the purposes of the directive. There would also therefore be no need to implement the directive in the future.

(b) All the requisite measures had in all essential respects been adopted in the Flanders Region during the course of the proceedings before the Court. Only the systematic plans of action, including a timetable for the improvement of surface water, required under Article 4(2) of Directive 75/440 had not yet been drawn up.

(c) Even by the day of the hearing only some of the requisite measures had been adopted in the Walloon Region. According to explanations supplied by the Belgian Government' s representative, the necessary implementing measures could not be adopted earlier owing to a lack of the necessary financial means. In the meantime the financial conditions had been created by a decree so that also the Walloon Region would adopt the requisite measures for the transposition of the two directives.

6 In view of the developments which had taken place in the meantime, the question was raised at the hearing as to how the subject-matter of the action should now be dealt with. The Commission' s Agent stated that he did not think it sensible to pursue matters which had already been settled and to have them sanctioned by a judgment. At the same time he stressed that he had no instructions to withdraw the application.

7 In its application the Commission claimed that the Court should:

- declare that, by failing to notify the measures taken by it in order to comply with its obligations under Council Directive 75/440 of 16 June 1975 concerning the quality required of surface water intended for the abstraction of drinking water in the Member States and Council Directive 79/869 of 9 October 1979 concerning methods of measurement and frequencies of sampling and analysis of surface water intended for the abstraction of drinking water in the Member States or by failing to adopt measurements to implement the provisions of those directives, the Kingdom of Belgium has failed to fulfil its obligations under the Treaty establishing the European Economic Community;

- order the Kingdom of Belgium to pay the costs.

8 In view of the factual and legal situation in the Brussels Region, the Commission restricted its claims in the reply with the result that they now relate only to the implementation and transposition of the directives in the Flemish and Walloon Regions.

9 The Kingdom of Belgium has not specified any form of order which it seeks.

10 Reference is made to the Report of the Hearing for details of the facts and observations of the parties.

B - Opinion

11 It is first necessary to consider what effect the settlement a part of the claim during the course of the proceedings has on the subject-matter of the action.

12 The Court has consistently held that the interest in bringing proceedings for breach of obligations under the Treaty does not cease to exist solely because the defendant Member State has subsequently adopted the line of conduct required of its authorities. All that is required for the action to be admissible is that the Member State had failed to comply with its obligations under the Treaty when the period allowed in the reasoned opinion expired.(4)

13 Failure to put an end to an infringement of the Treaty before the expiry of the time-limit is not only relevant in deciding whether there is an interest in bringing an action but must also be regarded substantively as a definitive breach of the Treaty.(5) Just as the admissibility of an action for breach of the Treaty cannot be called into question by the subsequent conduct of the defendant Member State, so the action cannot in that manner be deprived of its substance.

14 The withdrawal of the action or the applicant' s restriction of it to the matters of complaint that are still outstanding is conceivable and constitutes a wholly adequate response to the termination of the situation complained of.

15 In the present case, however, there has been neither a formal restriction of the claim nor a partial withdrawal of the application. It is true the Commission' s representative expressed the view that it would not be sensible to pursue the matters which have been settled. However, on being asked, he expressly stated that he had no instructions to withdraw the application.

16 The explanations of the Commission' s representative in the course of the proceedings must be fully attributed to the Commission, since there was a proper and unlimited authorization for him to represent it. The representative' s explanations can therefore be understood only as meaning that he wished neither to withdraw the application nor formally to restrict the claim.

17 The subject-matter of the action on which a decision has to be given therefore remains the subject-matter set out in the application and amended in the reply.

18 It may be asked what all the procedural consequences of the conduct of the Belgian Government, which at no stage of the proceedings sought any form of order. A properly drafted defence must, according to Article 40(1) of the Rules of Procedure, state inter alia "the form of order sought". If a defendant fails to lodge a defence in a proper form, the applicant has the possibility under Article 94(1) of the Rules of Procedure to apply for judgment by default. If, however, there is no such application the normal proceedings continue.(6)

19 In a letter dated 8 December 1986 the Commission requested the Belgian Government to answer a number of questions which would have enabled the Commission to determine whether Directives 75/440 and 79/869 had been properly implemented.

20 In addition to the general duty to transpose Directive 75/440, as laid down in Article 10, the Member States are required to notify the Commission of the measures they have taken. The Commission has, furthermore, more extensive powers of investigation which are directly anchored in the directive. Under the third subparagraph of Article 4(2) the Commission has, for example, to carry out "a thorough examination of the plans referred to in the first subparagraph, including the timetables". Exceptions to the standard treatment of surface water within the meaning of Article 4(3) must be notified to the Commission in advance in the case of new installations.

21 The Commission has similar extensive powers of inspection under Directive 79/869. Apart from the general obligation under Article 13 to comply with the directive and to inform the Commission, there is an obligation under Article 8 for the Member States to "provide the Commission at its request with all relevant information on the methods of analysis used" and "the frequency of analysis".

22 The failure to provide the information requested, which had not been made good by the expiry, on 27 July 1988, of the period laid down in the reasoned opinion, constitutes therefore a clear breach of the duties incumbent on the Member States under the two directives and Article 5 of the EEC Treaty.

23 As regards the question whether the measures required by the directives were in fact adopted, it is not denied that, with regard to the Flemish and Walloon Regions, the necessary steps had not been initiated before the expiry of the time-limit laid down in the reasoned opinion in the context of the pre-litigation procedure and that, at the time of the hearing, the obligations had not been fulfilled in their entirety.

24 In particular, the objection formulated in relation to the Walloon Region, namely that it lacked the financial means to adopt the requisite measures, can provide no answer to the charge of conduct contrary to the Treaty, since the Court has consistently held that a Member State may not plead provisions, practices or circumstances existing in its internal legal or financial system to justify a failure to comply with obligations and time limits laid down in Community law.(7)

25 For the purposes of a finding of infringement of the Treaty, it is moreover of no relevance whether in the course of proceedings before the Court the defendant Member State has partially or completely brought the conduct which infringes the Treaty to an end if the infringement had already been entirely constituted.(8) There is, however, no dispute about that in the present case. The defendant Member State is, therefore, also to be adjudged not to have adequately implemented Directives 75/440 and 79/869.

Costs

26 The decision on costs is governed by Article 69 of the Rules of Procedure. Under Article 69(2) the unsuccessful party is to be ordered to pay the costs.

C - Conclusion

27 In view of the above observations I propose the following decision:

"It is declared that the Kingdom of Belgium has failed to fulfil its obligations under Directives 75/440 and 79/869 by failing to provide the Commission with the information requested and by failing to adopt the measures needed to implement those directives within the time-limit laid down.

The Kingdom of Belgium is ordered to pay the costs."

(*) Original language: German.

(1) Council Directive of 16 June 1975 concerning the quality required of surface water intended for the abstraction of drinking water in the Member States (OJ 1975 L 194, p. 34 et seq.).

(2) Council Directive of 9 October 1979 concerning methods of measurement and frequencies of sampling and analysis of surface water intended for the abstraction of drinking water in the Member States (OJ 1979 L 271, p. 44 et seq.).

(3) Royal Decree of 25 September 1984, Moniteur Belge of 27 February 1985, p. 2168.

(4) Case 39/72 Commission v Italy [1973] ECR 101, paragraphs 9 and 11; Case 103/84 Commission v Italy [1986] ECR 1759, paragraphs 8 and 9; Case 154/84 Commission v Italy [1987] ECR 2717, paragraph 6; see also my Opinion in Case 240/86 [1988] ECR 1835, paragraph 12.

(5) See the judgment in Case 200/88 Commission v Hellenic Republic [1990] ECR I-4299, paragraph 13 et seq.

(6) See judgment in Case 28/69 Commission v Italy [1970] ECR 187, in particular at p. 190.

(7) See the judgment in Case 309/84 Commission v Italy [1986] ECR 599, paragraph 17.

(8) See Case 200/88, above.