61989J0337

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1. Approximation of laws ° Quality of water intended for human consumption ° Directive 80/778 ° Implementation by the Member States ° Obligation as to the result to be achieved if no recourse to authorized derogations

(Council Directive 80/778, Arts 7, 9, 10 and 20)

2. Approximation of laws ° Quality of water intended for human consumption ° Directive 80/778 ° Implementation by the Member States ° Obtaining of a longer period for compliance with the quality requirements specified in Annex I ° Belated submission of application ° Period within which directive to be implemented

(Council Directive 80/778, Arts 19 and 20)

3. Approximation of laws ° Quality of water intended for human consumption ° Directive 80/778 ° Maximum permissible concentrations ° Special rules for lead pipes

(Council Directive 80/778, Art. 7(5))

1. It follows from Article 7(6) of Directive 80/778 relating to the quality of water intended for human consumption that the Member States must take the steps necessary to ensure that water intended for human consumption at least meets the requirements specified in Annex I to the directive. The only derogations from that obligation are those provided for in Articles 9, 10 and 20. The directive therefore requires Member States to ensure that certain results are achieved and, except within the limits of the derogations laid down, they may not rely on special circumstances in order to justify a failure to discharge that obligation. The fact of having taken all practical steps cannot therefore justify failure to comply with the obligation.

2. A request made by a Member State, availing itself of the possibility offered under Article 20 of Directive 80/778, for a longer period for complying with the qualitative requirements for water intended for human consumption specified in Annex I must be made within the period laid down in Article 19 for implementation of the directive.

3. By virtue of Article 7(5) of Directive 80/778 relating to the quality of water intended for human consumption, account is to be taken of the comments in Annex I, which fixes values, for the purpose of interpreting those values.

In respect of lead content, those comments lay down special rules where water goes through lead pipes. Compliance by the Member States with their obligation to implement the directive must be assessed in the light of those rules.

In Case C-337/89,

Commission of the European Communities, represented by Rolf Waegenbaur and Richard Wainwright, Legal Advisers, acting as Agents, with an address for service in Luxembourg at the office of Roberto Hayder, of its Legal Service, Wagner Centre, Kirchberg,

applicant,

v

United Kingdom of Great Britain and Northern Ireland, represented by John Collins, of the Treasury Solicitor' s Department, acting as Agent, assisted by John Laws and Derrick Wyatt, Barristers, with an address for service in Luxembourg at the British Embassy, 14 Boulevard Roosevelt,

defendant,

APPLICATION for a declaration that, by failing to implement in its domestic legislation and to apply correctly Council Directive 80/778/EEC of 15 July 1980 relating to the quality of water intended for human consumption (OJ 1980 L 229, p. 11), the United Kingdom has failed to fulfil its obligations under the EEC Treaty,

THE COURT,

composed of: O. Due, President, C.N. Kakouris and G.C. Rodríguez Iglesias (Presidents of Chambers), R. Joliet, J.C. Moitinho de Almeida, F. Grévisse and M. Diez de Velasco, Judges,

Advocate General: C.O. Lenz,

Registrar: J.A. Pompe, Deputy Registrar,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 27 November 1991,

after hearing the Opinion of the Advocate General at the sitting on 21 January 1992,

gives the following

Judgment

1 By an application lodged at the Court Registry on 31 October 1989 the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that, by failing to implement in its domestic legislation and to apply correctly Council Directive 80/778/EEC of 15 July 1980 relating to the quality of water intended for human consumption (OJ 1980 L 229, p. 11, hereinafter "the directive"), the United Kingdom has failed to fulfil its obligations under the EEC Treaty.

2 Article 18(1) of the directive requires the Member States to bring into force the laws, regulations and administrative provisions necessary to comply with the directive and its annexes within two years following its notification and to inform the Commission forthwith. In addition, Article 19 requires the Member States to take the necessary measures to ensure that the quality of water intended for human consumption complies with the directive within five years of its notification. In the case of the United Kingdom, those periods expired on 18 July 1982 and 18 July 1985 respectively.

3 The Commission' s complaints are, first, that the United Kingdom failed to implement within the prescribed periods all or part of the provisions of the directive (depending on the regions of the United Kingdom concerned) and, secondly, that it failed to comply in certain supply zones with the maximum admissible concentration for nitrates and lead laid down by the directive.

4 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the procedure and the pleas in law and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

Admissibility

5 The United Kingdom claims that, in both the letter of formal notice and the reasoned opinion, the complaint concerning the non-implementation of the directive related solely to private water supplies. It adds that in its judgment in Case C-42/89 Commission v Belgium [1990] ECR I-2821, which also concerned this directive, the Court held that the directive did not apply to private water supplies. Consequently, the complaint concerning the non-implementation of the directive must be considered inadmissible in its entirety.

6 It should be noted, however, that in the letter of formal notice and in the reasoned opinion the Commission made a general complaint concerning the non-implementation of the directive and that private water supplies were mentioned only by way of example. In support of its complaint the Commission pointed out that the administrative circulars which, according to the United Kingdom Government, had been issued for the purpose of implementing the directive did not impose legal requirements, particularly as regards private suppliers, and that this constituted sufficient evidence that the directive had not been implemented in domestic law.

7 In its application the Commission did not enlarge the scope of the alleged infringement but, on the contrary, limited the general complaint made in the pre-litigation phase to certain areas in which the directive was said not to have been implemented.

8 The United Kingdom' s objection must therefore be rejected.

Substance

The non-implementation of the directive

9 The Commission claims that the United Kingdom failed, first, to implement the provisions of the directive concerning water used in the food industry in the regulations applicable to England and Wales and, secondly, to adopt measures for the implementation of any of the provisions of the directive in Scotland and Northern Ireland. Whilst acknowledging that the Water Supply Regulations 1990 constitute "satisfactory formal implementation" of the directive in Scotland, the Commission adheres to its complaint in its entirety in respect of that part of the United Kingdom.

10 The defendant argues that the water used for food production comes, in virtually all cases, from the same source as water used for domestic purposes, and that the latter conforms to the requirements of the directive.

11 In that regard suffice it to note that, as the defendant itself acknowledges, some water used for food production comes from sources other than domestic water.

12 The defendant argues further that, as far as Scotland is concerned, the competent Member of the Commission of the European Communities stated, in a letter of 13 April 1989, that the adoption of appropriate regulations under the Water Act 1973 would lead to the withdrawal of the application with respect to the implementation of the directive in Scotland. Since those regulations were adopted, the Commission is said to have failed in its duty of cooperation under Article 5 of the Treaty by pursuing this complaint.

13 That argument cannot be upheld. Without its being necessary to assess the legal significance of the letter, it is to be noted that its author confined himself to the possibility that the application might be withdrawn in the event of the United Kingdom legislation constituting not merely formal, but complete, implementation of all the provisions of the directive. No undertaking was therefore given by the Commission.

14 The defendant claims finally that, as far as Northern Ireland is concerned, difficulties relating to the organization of the public authorities in that part of the United Kingdom explain the delay in the implementation of the directive.

15 However, as the Court has consistently held, a Member State may not plead provisions, practices or circumstances in its internal legal system in order to justify a failure to comply with obligations or time-limits imposed by directives (see inter alia the judgment in Case 279/83 Commission v Italy [1984] ECR 3403).

16 It follows that the Commission' s complaint is well founded.

Nitrate levels

17 The Commission claims that water supplied in 28 supply zones in England does not conform to the maximum admissible concentration (hereinafter "MAC") of 50 mg/l for nitrates and that the excessive levels are not justified by the derogations provided for in Article 9 of the directive.

18 The United Kingdom Government argues, first, that the directive does not impose an obligation to achieve a result but merely requires Member States to take all practicable steps to comply with the standards laid down. The United Kingdom claims to have done so in this case. It adds that the failure to achieve the objective is due to extraneous factors relating in particular to techniques used in agriculture.

19 It argues further that the Commission' s view that a State is in breach of the directive where the MAC is not observed, even if the State has taken all practicable steps to secure compliance, would mean that the directive would be infringed wherever a MAC was exceeded after 18 July 1985 even though the excessive level went unnoticed when the inspections required by the directive were carried out. The State would therefore be in breach of the directive even before it was afforded the opportunity of verifying whether there was a breach and of remedying the situation.

20 That argument cannot be upheld.

21 It follows from Article 7(6) of the directive that the Member States must take the steps necessary to ensure that water intended for human consumption at least meets the requirements specified in Annex I.

22 That result had to be achieved within a period of five years from notification of the directive (Article 19), that period being longer than that allowed for implementation of the directive, namely two years from notification (Article 18), in order to enable Member States to satisfy the abovementioned requirements.

23 As the Court stated in its judgment in Case 228/87 Pretura Unificata di Torino v X [1988] ECR 5099 (paragraph 10), the only derogations from the obligation on Member States to ensure that water intended for human consumption conforms to the requirements of the directive are those provided for in Articles 9, 10 and 20. The first of those provisions permits derogations to take account of situations arising from the nature and structure of the ground in the area from which the supply in question comes, as well as situations arising from exceptional meteorological conditions; the second authorizes derogations in the event of emergencies; and, finally, the third provision permits Member States, in exceptional cases and for geographically defined population groups, to submit a special request to the Commission in order to obtain a longer period for compliance with Annex I.

24 The directive therefore requires Member States to ensure that certain results are achieved and, except within the limits of the derogations laid down, they may not rely on special circumstances in order to justify a failure to discharge that obligation.

25 It follows that the defendant' s claim that it took all practicable steps to secure compliance cannot justify, except within the limits of the derogations expressly laid down, its failure to comply with the requirement to ensure that water intended for human consumption at least meets the requirements of Annex I of the directive.

26 Finally, the United Kingdom Government claims that it granted derogations under Article 9 of the directive for the zones in which the MAC specified for nitrates was exceeded and that it notified those derogations to the Commission on 9 October 1985. The Commission did not express any view concerning those derogations until it issued the letter of formal notice on 11 August 1987, in which it stated that, where the MAC for nitrates had been exceeded, Article 9 could not be used as a basis for the derogations so notified. The United Kingdom Government considers that in those circumstances the Commission, instead of proceeding with its complaint, should have automatically granted the United Kingdom an extension of the time-limit notwithstanding the expiry of the period within which a request under Article 20 must be submitted.

27 As the Court held in its judgment in Commission v Belgium, mentioned above (paragraph 23), a request under Article 20 of the directive for a longer period for complying with Annex I must be made within the period laid down in Article 19 for implementation of the directive. Notification of the derogations in accordance with Article 9 of the directive occurred after 18 July 1985, that is to say after that period had expired. Consequently, it is unnecessary to rule on the request made by the United Kingdom Government.

28 The second complaint is therefore also well founded.

Lead levels

29 The Commission considers that compliance with the MAC for lead (parameter 51) has not been secured in Scotland in 17 supply zones serving a population of approximately 52 000 inhabitants. According to the applicant, the directive must be interpreted as meaning that, in the case of water distributed through lead pipes, the samples taken after flushing, that is to say from running water, must comply with the MAC of 50 *g/l laid down for parameter 51, whereas direct samples must not exceed 100 *g/l frequently or to an appreciable extent. According to the table produced by the United Kingdom Government as an annex to its defence, of 204 samples taken after flushing, nine had a lead content of between 51 and 100 *g/l and four exceeded 100 *g/l. From the figures available at the time when the application was lodged it appears that, out of 151 samples, four had a lead content of between 51 and 100 *g/l and two exceeded 100 *g/l; the situation has therefore worsened since the application was lodged.

30 According to the comments concerning parameter 51:

"Where lead pipes are present, the lead content should not exceed 50 *g/l in a sample taken after flushing. If the sample is taken either directly or after flushing and the lead content either frequently or to an appreciable extent exceeds 100 *g/l, suitable measures must be taken to reduce the exposure to lead on the part of the consumer."

31 As the United Kingdom Government has correctly pointed out, those comments would be superfluous if they were to be interpreted in the manner suggested by the Commission. The obligation to comply with the MAC of 50 *g/l in the case of running water is already apparent from the values specified for parameter 51.

32 The comments relating to that parameter must therefore be interpreted as referring to the values to be observed in the case of lead pipes, for which special rules have been laid down. In such a case the 50 *g/l value is for guidance only, and suitable measures are required only where samples are taken directly or after flushing and the lead content exceeds 100 *g/l frequently or to an appreciable extent.

33 By virtue of Article 7(5) of the directive, which provides that account is to be taken of the comments for the purpose of interpreting the values shown in Annex I, it is those special rules which apply in the case of lead piping.

34 The United Kingdom Government claims that, contrary to the Commission' s assertion, the rules are observed in the 17 zones in question. It refers in that regard to the results of the samples taken in accordance with a procedure agreed between the Commission and the United Kingdom; according to those results, which appear in the abovementioned table, 4% of the samples had a lead content exceeding 50 *g/l and 2% a lead content exceeding 100 *g/l.

35 The Commission replies that those sampling results do not establish compliance with the parameter in question. In its view, the United Kingdom would need to indicate the number of flushed samples taken per household supplied by lead pipes, the proportion of those samples which did not conform to the 100 *g/l limit and the extent to which that limit was exceeded in each case. Only on the basis of such data could the United Kingdom validly claim that the lead content did not exceed 100 *g/l frequently or to an appreciable extent.

36 That argument cannot be upheld. As the United Kingdom Government has asserted without being challenged, the samples in question were taken in accordance with Annex II to the directive, and in any event the Commission has not shown that, if the samples had been taken according to the method which it indicates, they would have shown that the 100 *g/l limit was exceeded frequently or to an appreciable extent.

37 This complaint must therefore be rejected.

38 In the light of all the foregoing considerations, it must be held that, by failing, first, to implement Council Directive 80/778/EEC of 15 July 1980 in the regulations applicable in Scotland and Northern Ireland and, as regards water used in the food industry, also in England and Wales and, secondly, to ensure that the quality of water supplied in 28 supply zones in England conforms to the requirements of the directive concerning nitrates, the United Kingdom has failed to fulfil its obligations under the EEC Treaty.

Costs

39 Under Article 69(2) of the Rules of Procedure the unsuccessful party is to pay the costs if they have been asked for in the successful party' s pleading. Since the United Kingdom has for the most part failed in its submissions, it must be ordered to pay the costs.

On those grounds,

THE COURT

hereby:

1. Declares that, by failing, first, to implement in the regulations applicable in Scotland and Northern Ireland and, as regards water used in the food industry, also in England and Wales Council Directive 80/778/EEC of 15 July 1980 relating to the quality of water intended for human consumption and, secondly, to ensure that the quality of water supplied in 28 supply zones in England conforms to the requirements of the directive concerning nitrates, the United Kingdom has failed to fulfil its obligations under the EEC Treaty;

2. Dismisses the remainder of the application;

3. Orders the United Kingdom to pay the costs.