1 By application received at the Court Registry on 5 August 1998, the Commission of the European Communities brought an action under Article 169 of the EC Treaty (now Article 226 EC) for a declaration that, by failing to adopt the necessary measures to ensure that the quality of bathing water conforms to the limit values set in accordance with Article 3 of Council Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing water (OJ 1976 L 31, p. 1) within 10 years following the notification of that directive, the Kingdom of Belgium has failed to fulfil its obligations under Article 4 of Directive 76/160/EEC and the third paragraph of Article 189 of the EC Treaty (now the third paragraph of Article 249 EC).
2 In these proceedings the Commission essentially criticises the Kingdom of Belgium - for excluding, without proper justification, from the scope of Directive 76/160 numerous inland bathing areas; - for not adopting the measures needed to ensure that the quality of bathing water conforms to the limit values set in accordance with Article 3 of that directive and for failing to achieve the results prescribed by that directive; - for not including in its legislation any obligation to prohibit bathing in areas in which the quality of the bathing water does not meet the limit values set in accordance with Article 3 of the said directive. The Community legislation
3 According to the first recital in its preamble, the purpose of Directive 76/160 is to protect the environment and public health by reducing the pollution of bathing water and protecting such water against further deterioration. To that end, the Annex thereto establishes a series of microbiological and physico-chemical parameters, with corresponding guide values (G) and mandatory values (I), in order to measure the quality of bathing water.
4 Article 1 of Directive 76/160 provides: 1. This Directive concerns the quality of bathing water, with the exception of water intended for therapeutic purposes and water used in swimming pools. 2. For the purposes of this Directive: (a) "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 - bathing is not prohibited and is traditionally practised by a large number of bathers; (b) "bathing area" means any place where bathing water is found; (c) "bathing season" means the period during which a large number of bathers can be expected, in the light of local custom, and any local rules which may exist concerning bathing and weather conditions.
5 Pursuant to Article 3 of Directive 76/160, Member States are to set the values applicable to bathing water for the microbiological and physico-chemical parameters given in the Annex and those values must not be less stringent than those set out in column I of that Annex.
6 Article 4(1) of Directive 76/160 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.
7 Under Article 5 of Directive 76/160: 1. [F]or 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.
8 Under Article 6 of Directive 76/160, the Member States are to carry out sampling operations, the minimum frequency of which is laid down in the Annex, in order to check the quality of bathing water.
9 Article 8 of Directive 76/160 states: 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. Natural enrichment means the process whereby, without human intervention, a given body of water receives from the soil certain substances contained therein. In no case may the exceptions provided for in this Article disregard the requirements essential for public health protection. Where a Member State waives the provisions of this Directive, it shall forthwith notify the Commission thereof, stating its reasons and the periods anticipated.
10 Article 12 of Directive 76/160 provides: 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive within two years of its notification. They shall forthwith inform the Commission thereof. 2. Member States will communicate to the Commission the texts of the main provisions of national law which they adopt in the field covered by this Directive.
11 In addition, under Article 13 of Directive 76/160, the Member States are required, for the first time four years following the notification of the directive and at regular intervals thereafter, to submit a comprehensive report to the Commission on their bathing water and the most significant characteristics thereof. Following the amendment of that provision made 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), the comprehensive report was required to be submitted annually as from 1 January 1993. Pre-litigation procedure
12 After examining the report on the quality of bathing water in Belgium for the years 1983 to 1987, the Commission, by letter of 8 October 1987, drew the attention of the Belgian authorities to various infringements of Directive 76/160, in particular deviations from limit values, the exclusion of certain bathing areas and the insufficient frequency of analyses. In their reply of 11 February 1988 the Belgian authorities provided information in response to the questions put to them by the Commission.
13 By letter of 21 June 1988 the Commission informed the Kingdom of Belgium that it had received a complaint that bathing was taking place in the Walloon Region in numerous areas in which the water did not conform to the parameters laid down in the Annex to Directive 76/160 and which had been excluded from its scope.
14 By letter of 6 October 1988 the Belgian authorities replied that the implementation of Directive 76/160 had been delayed by practical difficulties resulting from the regionalisation of administrative authorities.
15 By letter of 25 September 1989 the Commission formally called on the Kingdom of Belgium to submit its observations within a period of two months; the Kingdom of Belgium replied on 4 January 1990 to the effect that the directive had been applied incorrectly and that various measures had been taken to improve the quality of bathing water in the country.
16 By letter of 14 November 1995, the Commission informed the Belgian authorities that it would refrain from sending a reasoned opinion if they forwarded to it complete and detailed information concerning their plans for improving the bathing areas in which the limit values laid down by Directive 76/160 had been deviated from.
17 In response to the Commission's request, the Belgian authorities forwarded information on 31 January 1996 in respect of the Flemish Region and on 13 March 1996 for the Walloon Region.
18 On 27 December 1996 the Commission sent the Kingdom of Belgium a reasoned opinion calling on it to take the measures needed to comply with its obligations under Directive 76/160 within a period of two months following notification of the opinion. In the opinion, the Commission stated, first, that numerous inland bathing areas did not meet the parameters laid down in the annex to the directive. Second, it considered the information furnished as to the plans for improving bathing water in inland areas to be insufficient in relation to both the Flemish Region and the Walloon Region. Third, it did not accept the argument that Walloon watercourses did not carry enough water in summer to allow bathing. Last, the Commission contended that, other than in the cases mentioned in the reports on bathing water quality, the competent authorities had not availed themselves of the possibility of prohibiting bathing in water which did not conform to the parameters laid down in the Annex to Directive 76/160.
19 The Belgian authorities replied to the reasoned opinion by letters of 12 February 1997 in the case of the Brussels Region, of 6 March 1997 in the case of the Flemish Region and of 1 July 1997 in the case of the Walloon Region.
20 Considering that those letters contained no new information in relation to the Flemish Region and that, in the case of the Walloon Region, first, the Belgian authorities had reduced the number of bathing sites in a manner not consonant with the requirements of Directive 76/160 and, second, that it had not been adequately established that the right to bathe had in fact been removed at the polluted sites frequented by bathers, the Commission decided to bring the present action. Substance The exclusion, without proper justification, of numerous inland bathing areas from the scope of Directive 76/160
21 The Commission submits that the Walloon Region has cut down the scope of Directive 76/160 by excluding, without proper justification, from the annual reports on the quality of bathing water numerous inland bathing areas previously included in those reports.
22 The Belgian authorities contend that the only inland bathing areas which must be regarded as such within the meaning of Directive 76/160 are the 10 areas mentioned in the report on bathing water quality for the 1996 bathing season, in which bathing is expressly authorised. Samples were taken from those areas in accordance with Article 6 of the directive. Whenever there was any deviation from the values laid down in accordance with Article 3, bathing was prohibited so that the area in question was removed temporarily or permanently from the scope of Directive 76/160.
23 First, the Belgian authorities state that the Walloon Region, out of a concern for transparency, forwarded to the Commission the results obtained for 28 other bathing areas covered by a series of studies of the biological quality of Walloon watercourses. However, when, after the data were forwarded, those areas were taken into account in the report on the quality of bathing water for the 1991 bathing season, the Walloon Region drew the Commission's attention to the fact that those areas had no facilities for bathers and that the areas were used very little or not at all. They should not therefore be regarded as bathing areas within the meaning of Directive 76/160.
24 Second, the Belgian authorities state that the only criterion adopted by the Walloon Region in identifying bathing areas is that used in Article 1(2) of Directive 76/160 to define the term bathing water, namely use by a large number of bathers.
25 Factors such as the shallowness of the water, the absence of facilities, use of kayaks or unfavourable climatic conditions are relevant in determining whether bathing takes place to a limited extent or not at all and whether or not, consequently, those areas are to be regarded as bathing areas within the meaning of Directive 76/160. The Belgian authorities refer in that connection to the following extracts from the proposal for a Council Directive, COM(74) 2255 final of 3 February 1975, which were not included in the final text of the directive: - The directive concerns only authorised or tolerated bathing places. Bathing at unauthorised places is at the bather's own risk. (paragraph 3.2). - Special attention should be paid to sites where the concentration of bathers exceeds a mean value of 10 000 persons per linear kilometre of beach or bank (paragraph 3.4). - The hazards to health will be proportional to the time of exposure to the water and they vary greatly according to the temperature of the air and consequently of the water. The directive therefore prescribes for sea water - which is the preferred bathing medium - less stringent conditions for those areas where the low prevailing water temperature (less than 20 ºC) limits the time of bathing, compared with other regions where bathing may continue throughout the day (paragraph 3.5). - Prolonged immersion of the whole body is the principal activity that determines the required physical and chemical characteristics of bathing water (paragraph 3.6).
26 The Belgian authorities also contend that their argument that the shallowness of the water, which is in some places less than 50 centimetres deep because of insufficient flow, limits bathing is confirmed by the requirement, mentioned in point 11 of the Annex to Directive 76/160, that bathing water must be clear to a depth of at least one metre. A requirement of that kind constitutes an important indication that water of a depth of one metre is generally regarded as necessary for bathing.
27 Third, the Belgian authorities argue that the fact that, in an advertising leaflet for camp sites published in 1998 by the Walloon Region, at least 16 of the areas now excluded from the annual reports are described as bathing sites does not mean that bathing is practised there by a large number of bathers or that bathing is possible in such areas, since the depth of water there may be insufficient. Responsibility for that information attaches solely to the owners of the camp sites, who seek to make their sites more attractive.
28 It must be borne in mind that, according to the second indent of Article 1(2)(a) of Directive 76/160, bathing water means all running or still fresh waters, or parts thereof, and sea water in which bathing is not prohibited and is traditionally practised by a large number of bathers. That definition must be interpreted in the light of the directive's underlying purpose as set out in the first two recitals in the preamble thereto, which state that, in order to protect the environment and public health, it is necessary to reduce the pollution of bathing water and to protect such water against further deterioration and that surveillance of bathing water is necessary in order to attain, within the framework of the operation of the common market, the Community's objectives as regards the improvement of living conditions, the harmonious development of economic activities throughout the Community and continuous and balanced expansion (Case C-56/90 Commission v United Kingdom [1993] ECR I-4109, paragraph 33).
29 Those objectives would not be attained if the waters of bathing areas which have for years been subject to the controls provided for by Directive 76/160 and in respect of which results have been sent to the Commission for publication in its annual reports on the quality of bathing water in the Member States could be excluded from the scope of the directive solely because the number of bathers was below a certain threshold
30 Moreover, it is incumbent on a Member State which contends that bathing is no longer habitually practised in certain areas and wishes therefore no longer to treat them as bathing areas within the meaning of Directive 76/160 to prove both that bathing is not habitually practised in each of the areas concerned and that that situation is not the result of non-compliance in those areas with the limit values fixed in accordance with Article 3 of that directive.
31 It must be observed that the Belgian authorities have not provided any such proof for each of the areas concerned.
32 First, the reference to at least 16 areas as bathing sites in an advertising leaflet for camp sites implies that certain facilities, such as sanitary installations, are to be found near those areas. In those circumstances, such a reference is indicative of the fact that those areas continue to be used by a large number of bathers, whose health must be protected.
33 Second, the shallowness of waters is not in itself a factor on the basis of which Member States may exclude certain bathing sites within the meaning of Directive 76/160.
34 The possibility cannot be excluded that shallow waters are attractive to specific categories of people, such as the elderly or children. In any event, as the Commission rightly points out, it cannot be inferred from the criterion laid down in point 11 of the Annex to Directive 76/160, according to which waters must be transparent to a depth of at least one metre, that only those areas in which water exceeds that depth are to be regarded as bathing areas within the meaning of the directive. That criterion merely means that the transparency of bathing waters must extend to a depth of at least one metre or, if the water is less than one metre deep, that the transparency must be total.
35 Third, the Belgian authorities have not established that kayaks are used on a large scale and constantly in the areas concerned so as to render bathing there impossible.
36 Fourth, the existence of unfavourable climatic conditions likewise does not enable a Member State to treat certain areas as not being bathing areas within the meaning of Directive 76/160.
37 On the other hand, it must be borne in mind that the existence of such climatic conditions may, under Directive 76/160, be taken into account in determining the length of the bathing season. Article 1 of that directive defines bathing season as the period during which a large number of bathers can be expected, in the light of local custom, and any local rules which may exist concerning bathing and weather conditions.
38 Furthermore, under Articles 5(2) and 8 of Directive 76/160, where there are exceptional weather conditions, deviations from the values referred to in Article 3 of the directive need not be taken into account or its provisions may be waived provided that, in the latter case, the Commission is immediately notified thereof and of the reasons for and the expected duration of such exceptions.
39 However, it is common ground that those provisions, which must be strictly interpreted, have not been invoked by the Belgian authorities.
40 Finally, it is important to note that the interpretation of the provisions of Directive 76/160 contained in paragraphs 32 to 39 of this judgment cannot be called in question by the extracts from the proposal for a directive of 3 February 1975 relied on by the Belgian authorities, which were not included in the final text of Directive 76/160, as moreover those authorities expressly acknowledge.
41 It must therefore be concluded that, by excluding, without proper justification, from the scope of Directive 76/160 numerous inland bathing areas, the Kingdom of Belgium has failed to fulfil its obligations under Article 4(1) of the said directive. The failure to adopt the necessary measures to ensure that the quality of bathing water conforms to the limit values set in accordance with Article 3 of Directive 76/160 and failure to attain the results prescribed by that directive
42 The Commission criticises the Belgian authorities for failing to adopt the necessary measures to ensure that the quality of bathing water conforms to the limit values set in accordance with Article 3 of Directive 76/160 and for failing to attain the results prescribed by that directive.
43 It is necessary to examine those charges together since the result to be attained by the Member States in accordance with Article 4 of Directive 76/160 consists in ensuring that the quality of bathing water conforms to the limit values set in accordance with Article 3 thereof.
44 The Commission submits that the investment programmes for water purification are insufficient in both the Flemish Region and the Walloon Region. The Belgian authorities merely referred to the provision of infrastructures for the treatment of water in general, without specifying precisely how they would help improve the quality of bathing water. In the Flemish Region, not all bathing areas are covered by the water purification programme. In the Walloon Region the programme sets out neither the starting and completion dates of the planned infrastructural works nor their exact location.
45 The Belgian authorities have in its submission infringed Article 4 of Directive 76/160 by failing to adopt the necessary measures to ensure that the quality of bathing water conforms to the limit values set in accordance with Article 3 thereof. In particular, the results required by Article 5 of that directive, for the application of Article 4 thereof, have not been achieved and none of the derogations provided for by the directive are applicable. According to the report on the quality of bathing water for the 1995 bathing season for Belgium as a whole, the compliance rate for fresh-water bathing areas is 41.4%.
46 The Belgian authorities contend that, as far as the Flemish Region is concerned, the requisite measures have been taken to bring about improvements in the quality of bathing water in the few areas where such action was necessary. Action programmes for the improvement of water quality have been submitted to the Commission on several occasions. They cover investments for certain purification facilities intended to improve the quality of coastal bathing areas and also give an outline of the inter-municipal investment programmes for fresh-water bathing areas.
47 The Belgian authorities add that for bathing water the objective of 100% compliance with the requirements of Directive 76/160 is illusory. Bathing in the natural environment involves health risks which are not capable of being totally controlled, associated with unlawful tipping, the use of the banks and the pollution caused by the bathers themselves.
48 It must be pointed out, first of all, that Article 4(1) of Directive 76/160 requires the Member States to take all necessary measures to ensure that bathing waters conform to the limit values set in accordance with Article 3 of that directive within a period of 10 years after notification thereof, which is longer than that laid down for transposition of the Directive, in order to enable the Member States to satisfy such a requirement (Commission v United Kingdom, cited above, paragraph 42, and Case C-198/97 Commission v Germany [1999] ECR I-3257, paragraph 35).
49 Directive 76/160 therefore requires the Member States to ensure that certain results are achieved and, apart from the derogations provided for, does not allow them to rely on particular circumstances to justify a failure to fulfil that obligation (Commission v United Kingdom, cited above, paragraph 43, Case C-92/96 Commission v Spain [1998] ECR I-505, paragraph 28, and Commission v Germany, cited above, paragraph 35).
50 However, the Belgian authorities have not sought to rely on any of those derogations. Nor do they deny that, according to the report on the quality of bathing water for the 1995 bathing season, the rate of compliance for fresh-water bathing areas was 41.4% for Belgium as a whole.
51 In those circumstances, the fact that, in relation to the Flemish Region, the necessary measures may have been taken to bring about the requisite improvements in the quality of bathing water cannot justify the failure to achieve the results prescribed by Directive 76/160 (see, to that effect, Commission v United Kingdom, paragraph 44, and Commission v Germany, paragraph 35, both cited above).
52 Next, as regards the Belgian authorities' argument that 100% compliance for bathing waters in the natural environment would be impossible to achieve, it must be pointed out that, under Article 5(1) of Directive 76/160, bathing waters are deemed to conform to the parameters laid down therein if samples, taken at the same sampling point and at the intervals specified in the Annex, show that they conform to the parametric values for the quality of the water concerned, in the case of 95, 90 or 80% of the samples, according to the circumstances set out in that provision.
53 It follows that, in certain circumstances, and under the conditions laid down in the third and fourth indents of Article 5(1) of Directive 76/160, bathing water is deemed to conform to the requirements of the directive even if 5, 10 or 20% of the samples taken at the same point do not so conform.
54 Finally, even if, under Directive 76/160, the absolute impossibility of fulfilling the obligations arising from the directive could justify a failure to comply with it, the Belgian authorities have not succeeded in proving absolute impossibility in this case (Commission v Germany, cited above, paragraph 41).
55 It must therefore be concluded that, by failing to adopt the necessary measures to ensure that the quality of bathing water conforms to the limit values set in accordance with Article 3 of Directive 76/160 and by failing to attain the results prescribed by that directive, the Kingdom of Belgium has failed to fulfil its obligations under Article 4(1) of that directive. The obligation to prohibit bathing in areas where water quality does not conform to the limit values set in accordance with Article 3 of Directive 76/160
56 The Commission submits that the measures provided for by the Belgian legislation in the event of deviation from the limit values set in accordance with Article 3 of Directive 76/160 in a bathing area are insufficient. It observes that the decision to prohibit bathing is a matter for the municipal authorities, which are informed by the public health administration of any deviation from the limit values in bathing areas within their territory, but that the Belgian authorities cannot be certain that the municipalities actually comply with requests addressed to them to prohibit bathing. Only one municipal order - of 17 June 1996 -, prohibiting bathing in an areas polluted by salmonella, was notified in relation to the Walloon Region and the Commission annual report on the quality of bathing water for the 1995 bathing season indicates that no area was subject to any such prohibition.
57 Correct application of Directive 76/160 involves, according to the Commission, an obligation to prohibit bathing if there is any deviation from the limit values in a particular bathing area. Such an obligation, which is admittedly not expressly laid down by Directive 76/160, derives from the combined provisions of Articles 1(2)(a) and 4(1) of that directive, interpreted in the light of its objective, expressed in the first recital in its preamble and referred to in the third paragraph of Article 8, the purpose of which is in particular to ensure protection of public health. In the absence of any such prohibition, bathers would be exposed to numerous health risks.
58 The Belgian authorities contend that, whenever controls reveal that, in a bathing area, the limit values set in accordance with Article 3 of Directive 76/160 have been deviated from, the public health administration notifies the municipality concerned and the latter prohibits bathing in that area after consulting all the relevant departments. Proposals to prohibit bathing have always been followed. The bathing area concerned is then excluded, temporarily or permanently, from the scope of Directive 76/160. The Belgian authorities take exception to the interpretation of Directive 76/160 contended for by the Commission to the effect that Belgian legislation should have imposed on the municipalities an obligation to prohibit bathing in the event of a deviation from the limit values in a given area.
59 It must be observed, first, that in the event of a deviation from the limit values set in accordance with Article 3 of Directive 76/160, the Member State concerned is, pursuant to Article 4(1) thereof, under an obligation to take the measures necessary to ensure that bathing water quality is made to conform with those limit values.
60 Next, it must be noted that no provision of Directive 76/160 imposes any obligation to prohibit bathing in an area as soon as it is noted that the limit values have been deviated from there.
61 Nor, finally, can any such obligation be inferred from the objective of Directive 76/160, which, as recalled in paragraph 25 of this judgment, is to ensure the protection of public health.
62 The need to protect public health does not entail any obligation on a Member State to prohibit bathing in a given area unless, because of local conditions, the extent of the deviation from the limit values observed in that area or the nature of the limit values not complied with is such that a danger to public health is involved.
63 Consequently, in view of the wording of the provisions of Directive 76/160, the Commission cannot criticise the Kingdom of Belgium for failing to include in its legislation an obligation to prohibit bathing in areas in which water quality does not conform to the limit values set in accordance with Article 3 of Directive 76/160.
64 The third complaint must therefore be rejected as unfounded.
65 In those circumstances, it must be concluded that, - by excluding, without proper justification, from the scope of Directive 76/160 numerous inland bathing areas, and - by not adopting, within 10 years following notification of the directive, the measures needed to ensure that the quality of bathing water conforms to the limit values fixed in accordance with Article 3 of that directive and by not attaining the results prescribed by it, the Kingdom of Belgium has failed to fulfil its obligations under Article 4(1) of that directive.