Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE COURT (Fifth Chamber)

8 June 1999 (1)

(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)

In Case C-198/97,

Commission of the European Communities, represented by Claudia Schmidt, of its Legal Service, acting as Agent, assisted by Alexander Böhlke, Rechtsanwalt, Frankfurt am Main, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, also of its Legal Service, Wagner Centre, Kirchberg,

applicant,

v

Federal Republic of Germany, represented by Ernst Röder, Ministerialrat at the Federal Ministry of the Economy, and Claus-Dieter Quassowski, Regierungsdirektor at the same Ministry, acting as Agents, Postfach 13 08, D - 53003 Bonn,

defendant,

APPLICATION for a declaration that, by failing to take, in the old Länder, the steps necessary to ensure that the quality of bathing water conforms to the limit

values set under 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 a period of 10 years following its notification on 10 December 1975, and by not adhering to the minimum sampling frequency prescribed in the annex, the Federal Republic of Germany has failed to fulfil its obligations under Articles 4(1) and 6(1) of that Directive,

THE COURT (Fifth Chamber),

composed of: J.-P. Puissochet, President of the Chamber, P. Jann, J.C. Moitinho de Almeida (Rapporteur), C. Gulmann and D.A.O. Edward, Judges,

Advocate General: F.G. Jacobs,

Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 26 January 1999,

gives the following

Judgment

1. By application lodged at the Court Registry on 23 May 1997, the Commission of the European Communities brought an action under Article 226 EC (ex Article 169) for a declaration that, by failing to take, in the old Länder, the steps necessary to ensure that the quality of bathing water conforms to the limit values set under Article 3 of Council Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing water (OJ 1976 L 31, p. 1, hereinafter 'the Directive') within a period of ten years following its notification on 10 December 1975, and by not adhering to the minimum sampling frequency prescribed in the annex, the Federal Republic of Germany has failed to fulfil its obligations under Articles 4(1) and 6(1) of the Directive.

2. Article 1(1) of the Directive, as amended inter alia 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), states that the Directive 'concerns the quality of bathing water, with the exception of water intended for therapeutic purposes and water used in swimming pools'.

3. As stated in the first recital in its preamble, the Directive's purpose is to protect the environment and public health by reducing the pollution of bathing water. The annex to the Directive establishes microbiological and physico-chemical parameters and fixes guide and mandatory values on the basis of which the Member States must set limit values for bathing waters.

4. In accordance with Article 3(1) and 3(2) of the Directive, the Member States must set, for all bathing areas or for each individual bathing area, the values applicable to bathing water for the parameters given in the annex, which may not be less stringent than those given in column I of the annex.

5. Under Article 4 of the Directive, the Member States must take all necessary measures to ensure that, within 10 years of the notification of the Directive, the quality of bathing water conforms to the limit values set in accordance with Article 3. For the Federal Republic of Germany, that period expired on 10 December 1985.

6. Article 6 of the Directive provides that the competent authorities must carry out sampling operations, the minimum frequency of which is laid down in the annex.

7. Article 8 of the Directive provides as follows:

   '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 12 provides that the Member States are to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive within two years of its notification and to inform the Commission thereof forthwith.

9. By letter of 26 July 1989, the Commission gave the Federal Republic of Germany formal notice to submit its observations upon its failure to fulfil certain of its obligations under the Directive. The Commission complained in particular that Germany had failed to set limit values for the bathing areas subject to the Directive (Article 3), had designated only about 110 bathing areas, although many more satisfied the objective criteria set out in Article 1, had failed to ensure compliance

   with the values laid down in the Directive (Article 4) and had submitted to it incomplete reports which did not enable it to verify whether the Directive's provisions were being complied with in practice and did not offer the public objective information on the quality of bathing water in Germany (Article 13).

10. On 17 November 1989, the German Government addressed a letter to the Commission in which it stated first that the Länder (with the exception of the Cities of Bremen and Hamburg) had adopted administrative provisions providing for the compulsory application of the Directive to all bathing waters, secondly that other Länder (Baden Wurtemberg, Hamburg, Lower Saxony, Rhineland North Westfalia and Schleswig Holstein) were about to adopt or had already adopted provisions relating to the purification of bathing water, and lastly that the reports submitted by Germany confirmed that sampling operations were being carried out on a monthly or fortnightly basis in accordance with the compulsory fortnightly schedule laid down in the Directive.

11. On 22 June 1994, the Commission sent Germany a reasoned opinion in which it stated that, as the German Government had admitted in its letter of 17 November 1989, in the Länder of Baden Wurtemberg, Hamburg, Lower Saxony, Rhineland North Westfalia and Schleswig Holstein, limit values had been exceeded, as had been confirmed in the reports for the following years (the last of which was for 1993), and that Germany had therefore failed to fulfil its obligations under Article 4(1) of the Directive. Furthermore, the Commission took the view that Germany had not adhered to the minimum sampling frequency laid down in the annex and had thus failed to fulfil its obligations under Article 6(1) of the Directive. The Commission therefore requested Germany to adopt, within two months, the necessary measures to comply with its obligations under the Directive.

12. In its reply to the reasoned opinion dated 28 October 1994, the German Government stated that certain limit values had been exceeded because of significant variance in the methods used to assess the microbiological parameters and that this did not warrant the classification of the bathing waters concerned as not conforming to the Directive. Where limit values had been exceeded by a significant amount, the competent authorities of the Länder had introduced the necessary provisions to ensure lasting improvement of the quality of the bathing waters.

13. The German Government admitted that it had failed to fulfil certain of its obligations under Article 6(1) but stated that, in the future, compliance with the minimum sampling frequency would be guaranteed by provisions adopted for that purpose by theLänder.

14. By letter of 16 November 1995, the Commission informed the German Government that it intended to bring proceedings unless, within six months, that government presented a detailed plan for the purification of those bathing waters whose quality did not correspond to the limit values fixed by the Directive, setting out the reasons

    why the bathing waters in question failed to comply with those values and notifying the Commission of the date on which Germany would comply with the Directive.

15. By letter of 5 June 1996, the German Government replied that it had adopted the measures necessary to comply with the limit values fixed by the Directive. It expressed the view that, as regards the large number of bathing areas classified in the Commission's report on the 1994 bathing season as not conforming to the Directive, there was no need for purification measures to be taken since no external cause of the departures from the limit values had been identified, despite the tests carried out, and, when samples were taken again immediately afterwards, the limit values were not found to be exceeded. It also took the view that no account should be taken of any instances of the limit values being exceeded for the 'total coliforms' parameter since scientific tests had shown that the criteria for analysis set out in the Directive made it impossible to tell whether the total coliform level was a result of the natural environment or caused by waste water polluted by faecal matter.

16. The Commission found that reply unsatisfactory because it failed to explain the reasons for the irregular sampling frequency, contained no definitive information concerning the budget available for the year and failed to give a date by which the bathing waters would conform to the Directive. It therefore brought the present proceedings.

    Admissibility

17. The German Government contends that the action is inadmissible because, in adopting its decision to issue the reasoned opinion and in bringing the proceedings before the Court, the Commission infringed the principle of collegiality laid down in the first paragraph of Article 163 of the EC Treaty (now, after amendment, the second paragraph of Article 219 EC) and Article 1 of its own Rules of Procedure (OJ 1993 L 230, p. 15).

18. The German Government submits that the principle of collegiality implies that decisions should be the subject of collective deliberation, which in turn requires that, at the relevant meeting, the college of Commissioners be aware of the operative part of the decision and the reasons for it. In the present case, the Commission is unable to show that that principle has been observed.

19. With regard to that submission the Court observes that, in Case C-191/95 Commission v Germany [1998] ECR I-5449, at paragraphs 48 to 50, the Court considered an identical plea presented by the German Government concerning the circumstances in which the Commission adopts reasoned opinions. There the Court held first of all that the principle of collegiality which governs the functioning of the Commission is based on the equal participation of the Commissioners in the adoption of decisions and implies that decisions should be the subject of collective

    deliberation and that all the members of the college of Commissioners should bear collective responsibility at the political level. It then explained that the formal requirements for effective compliance with the principle of collegiality varied according to the nature and legal effects of the acts adopted. A reasoned opinion merely conferred upon the Commission the right, but not a duty, to commence proceedings before the Court. The decision to commence proceedings before the Court did not per se alter the legal position in question.

20. The Court concluded 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 and that the information on which those decisions are based must therefore be available to the members of the college. However, the Court found that it was not necessary for the college itself formally to decide on the wording of the acts which gave effect to those decisions and put them in final form. The Commission had therefore complied with the rules relating to the principle of collegiality.

21. In the present case it is clear from the documents presented to the Commission at the meeting at which the decision concerning the reasoned opinion was adopted, and which were produced by the Commission at the Court's request, that the members of the college had available to them all the information that would assist them in adopting their decision when the college decided to issue the reasoned opinion and approved the proposal to bring the present action. The principle of collegiality was therefore observed.

22. It follows from the foregoing that the plea of inadmissibility must be rejected as unfounded.

    Substance

    Article 4(1) of the Directive

23. The Commission claims that it is clear in particular from the last annual Community report covering the 1995 bathing season that a large proportion of German bathing waters do not conform to the mandatory values set by the Directive. 11.9% of the 446 sea water bathing areas and 10.3% of the 1 822 fresh water bathing areas, it claims, fail to meet the stipulated values.

24. The German Government states first that the action relates to infringements only in the case of the bathing waters in the old Länder, whereas the figures in the 1995 report relate to all the Länder. Moreover, those figures are out of date and should be replaced by corrected figures provided by the Community database.

25. On the basis of those latter figures, the German Government maintains that, out of 1 770 sites in the old Länder listed as bathing areas within the meaning of the

    Directive, 180 were classified in the database as not conforming to the Directive. A further 27 bathing areas which the Commission says should be added to the 180 referred to by the German Government (namely three areas in Baden Wurtemberg and 24 in Lower Saxony) had been, it argues, classified as areas considered to be insufficiently tested and were transferred to the category of areas not conforming to the Directive only in the 1996 report.

26. The German Government claims that, of the 180 bathing areas mentioned above, 14 (or, excluding the bathing area at Itzehoe, 13) were wrongly classified as not conforming and that the limit values were exceeded in only 81 (or, including the bathing area of Stein Neustein, 82) of the remaining 166 areas whilst, as regards the other 85 areas, there was no infringement of Article 4(1) of the Directive.

27. First, as regards the 14 bathing areas wrongly classified as contravening the Directive either because of errors at the time when the data were taken (the formation of foam being due to the decomposition of algae rather than to the presence of surface-active substances) or errors in the transmission of the data which remain uncorrected, the German Government observed, in reply to a question put to it by the Court on this point, that the bathing area of Itzehoe had been closed only since 1996, not 1993, and for that reason its classification as an area not conforming to the Directive in 1995 was correct. The German Government stated that the correct information for the other 13 areas and its request for the data for 1995 to be corrected would be sent to the competent services of the Commission.

28. Second, as regards the 85 bathing areas in respect of which the German Government contends that there has been no breach of Article 4(1) of the Directive, that government claims that, in the case of 46 of those areas, the only departure from the limit values found since 1992, namely the excess recorded in 1995, should be regarded as an exception in relation to which requiring the adoption of costly purification measures would be contrary to the principle of proportionality. Moreover, such a requirement could not be satisfied because it has not been possible to discover the cause of the excess, despite extensive investigation.

29. The German Government acknowledges that, out of the 10 cases recorded by the Commission in respect of those 46 areas, there were multiple infringements in only one case, at the bathing area at Stein Neustein. Contrary to what the Commission maintains, there were no breaches of the Directive between 1992 and 1994 or in 1996. This means that there were 45 areas where there was no breach except in 1995 and these were therefore exceptions. It adds that any other view, like that of the Commission, would mean that there had to be 100% compliance with the limit values, something which the Directive does not require. Indeed, Article 5(1), which allows between 5% and 10% of samples taken to be discounted, is an expression of the principle of proportionality. Given that the bathing season lasts for between

    15 and 17 weeks of the year and that samples are taken every two weeks, giving a total of 9 samples per season, a single excessive result would be enough to exceed the 10% tolerance limit laid down.

30. The German Government claims that, in the case of seven of the 85 bathing areas, more extensive purification measures are not possible and would be incompatible with the principle of proportionality. It observes that five of those seven bathing areas have a catchment area extending beyond German territory and that, despite the measures implemented by Germany, the waters do not conform to the limit values. These cases therefore involve absolute physical impossibility within the meaning of the case-law of the Court (Case C-56/90 Commission v United Kingdom [1993] ECR I-4109, paragraph 46). In another of the seven areas, Riedsee Leeheim, aquatic birds were the main cause of the breaches of the Directive's limit values, and in the last of the seven, Hausen, Donau beim Campingplatz, the cause was connected with geographical conditions in respect of which Article 8(a) provides that the Directive may be waived. In this last case, however, in response to a question raised by the Court, the German Government offered the view that the parameter which had been exceeded, resulting in the failure to comply with the Directive's limit value in 1995, was not one of the parameters to which the exceptional circumstances set out in Article 8(a) apply, and it therefore maintained its initial position with regard only to the other six areas.

31. In the case of 32 of the 85 bathing areas, the German Government contends that, since 6 of the 32 were not to be considered as bathing areas for the years 1996 and 1997 and since measures had been taken in respect of the remaining 26 areas in the case of which there had been no recorded instances of limit values being exceeded in 1996, there is no longer any infringement of Article 4(1) of the Directive.

32. Thirdly, as regards the remaining 81 areas, representing 4.5% of all bathing waters (or, including the bathing area at Stein Neustein, 82 areas, representing 4.6% of the total), in the case of which the German Government acknowledges that limit values have been exceeded, the German Government maintains that the infringement in question is not sufficiently significant to warrant a declaration that the Federal Republic has infringed Article 4(1) of the Directive, given that, with such a large number of cases, it is reasonable if, due to unforeseen circumstances, some of them fail to comply with the requirements of Community law.

33. It must be observed first of all that, as the German Government itself recognises, the Federal Republic has not met the limit values set by the Directive in the case of the 81 areas mentioned in paragraph 32 of the present judgment, the three areas at Stein Neustein, Itzehoe and Hausen, Donau beim Campingplatz mentioned in paragraphs 29 and 32, 27, and 39 respectively, and the 32 bathing areas mentioned in paragraph 31. As regards the latter areas, the fact that they have lost their status as bathing areas or that remedial measures have been taken does not cure the infringement.

34. Next, it must be observed that, even if in 46 areas limit values were exceeded only once in only one season, the 1995 season, as mentioned in paragraph 29 of this judgment, that too constitutes an infringement of the Directive.

35. Contrary to what the German Government claims, it is not sufficient to take all reasonably practicable measures: the Directive requires the Member States to take all necessary measures to ensure that bathing waters conform to the limit values set therein, within a period 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, paragraphs 42 and 44). The Directive 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, and Case C-92/96 Commission v Spain [1998] ECR I-505, paragraph 28). The German Government does not rely on any of those derogations with regard to those areas.

36. Secondly, the German Government's argument that, because of the short duration of bathing seasons, it is necessary in practice to comply 100% with the obligations laid down in the Directive, given that a single infringing sample is sufficient to cause the values set out in Article 5 to be exceeded, cannot be accepted. The Directive only specifies the minimum frequency of sample-taking and does not therefore preclude the Member States from increasing the number of samples, thus reducing the proportion represented by samples not satisfying the conditions laid down.

37. As regards the other 27 bathing areas, mentioned in paragraph 25 of this judgment, which, according to the German Government, are held to have been insufficiently tested in the Commission's report for the 1995 season and which, according to the Commission, appear in the database as not conforming to the Directive, it is sufficient to observe that the German Government itself acknowledges that those areas failed to conform to the Directive in two respects: because some limit values were exceeded and because the physico-chemical parameters numbered 8, 9 and 10 in the annex to the Directive were insufficiently tested.

38. As regards the six areas mentioned in paragraph 30 of this judgment, in relation to which the German Government relies on the defence of absolute impossibility, a distinction must be made between the five bathing areas the catchment areas of which are alleged to extend beyond German territory (the three 'Nied' areas and the two 'Rhein' areas) and the bathing area in relation to which the defendant claims that the presence of aquatic birds is the principal cause of the infringements (the 'Riedsee' area).

39. In the case of the first five areas, the German Government has not shown that the adoption of measures other than those already taken up to 1994 was physically

    impossible, in particular, measures taken in collaboration with the neighbouring States.

40. As regards the 'Riedsee' bathing area, the Federal Republic has neither shown that the modernisation of the sanitation equipment undertaken in 1996 was adequate, taking into account the regular, natural fluctuations in the aquatic bird population present there, nor proven that it is not possible to adopt additional measures for the purification of the waters.

41. It follows that even if, under the Directive, the absolute impossibility of fulfilling the obligations arising from the Directive could justify a failure to comply with it, the Federal Republic has not succeeded in proving absolute impossibility in this case.

42. Lastly, as regards the 13 bathing areas mentioned in paragraph 27 of the present judgment which the German Government argues were incorrectly classified in the database, it should be noted first that the Commission states that all the information in its possession was supplied by Germany and, secondly, that the Commission does not dispute the German Government's allegation that those areas are wrongly classified in the database, but merely expresses doubt as to their classification. In those circumstances it cannot be held that an infringement has been established with regard to those areas.

43. Subject to that proviso, it must be held that, by failing to adopt, in the old Länder, the necessary provisions to ensure that the quality of bathing water conforms to the limit values set under Article 3 of the Directive within a period of ten years following its notification on 10 December 1975, the Federal Republic of Germany has failed to fulfil its obligations under Article 4(1) of the Directive.

    Article 6(1) of the Directive

44. The Commission maintains that it is clear from the annual Community report for the 1995 bathing season that 6.5% of the 446 sea water bathing areas and 42.5% of the 1 822 fresh water bathing areas have not been subject to sufficient inspections.

45. According to the German Government, it is clear from the corrected data that, of the 1 770 bathing areas listed in the old Länder for the year 1995, 591 have not been the subject of sufficient sampling.

46. It must therefore be held that, by not adhering to the minimum sampling frequency prescribed in the annex to the Directive, the Federal Republic of Germany has failed to fulfil its obligations under Article 6(1) of the Directive.

47. It is clear from the foregoing that, by failing to take, in the old Länder, the steps necessary to ensure that the quality of bathing water conforms to the limit values set under Article 3 of the Directive within a period of ten years following its

    notification on 10 December 1975, and by not adhering to the minimum sampling frequency prescribed in the annex, the Federal Republic of Germany has failed to fulfil its obligations under Articles 4(1) and 6(1) of the Directive.

    Costs

48. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Federal Republic of Germany has been largely unsuccessful in its pleas, it must be ordered to pay the costs as applied for in the Commission's pleadings.

On those grounds,

THE COURT (Fifth Chamber)

hereby:

1. Declares that, by failing to take, in the old Länder, the steps necessary to ensure that the quality of bathing water conforms to the limit values set under Article 3 of Council Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing water within a period of ten years following its notification on 10 December 1975, and by not adhering to the minimum sampling frequency prescribed in the annex, the Federal Republic of Germany has failed to fulfil its obligations under Articles 4(1) and 6(1) of that directive;

2. Orders the Federal Republic of Germany to pay the costs.

Puissochet Jann Moitinho de Almeida GulmannEdward

Delivered in open court in Luxembourg on 8 June 1999.

R. Grass J.-P. Puissochet

Registrar President of the Fifth Chamber

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1: Language of the case: German.