61981J0096

1 . ACTION FOR FAILURE OF A STATE TO FULFIL ITS OBLIGATIONS - PROOF OF FAILURE - NON-COMPLIANCE WITH THE OBLIGATION TO PROVIDE INFORMATION IMPOSED BY A DIRECTIVE - PRESUMPTION OF NON-IMPLEMENTATION OF THE DIRECTIVE - NOT PERMISSIBLE

( EEC TREATY , ART . 169 )

2 . MEASURES ADOPTED BY THE INSTITUTION - DIRECTIVES - IMPLEMENTATION BY THE MEMBER STATE - ADOPTION OF BINDING NATIONAL PROVISIONS - IMPLEMENTATION BY WAY OF ADMINISTRATIVE PRACTICES - INADEQUACY

( EEC TREATY , ART . 169 )

1 . IN PROCEEDINGS UNDER ARTICLE 169 OF THE EEC TREATY FOR FAILURE TO FULFIL AN OBLIGATION IT IS INCUMBENT UPON THE COMMISSION TO PROVE THE ALLEGATION THAT THE OBLIGATION HAS NOT BEEN FULFILLED . IT IS THE COMMISSION ' S RESPONSIBILITY TO PLACE BEFORE THE COURT THE INFORMATION NEEDED TO ENABLE THE COURT TO ESTABLISH THAT THE OBLIGATION HAS NOT BEEN FULFILLED , AND IN SO DOING THE COMMISSION MAY NOT RELY ON ANY PRESUMPTION .

IF A DIRECTIVE IMPOSES ON THE MEMBER STATES THE OBLIGATION TO INFORM THE COMMISSION ABOUT THE BRINGING INTO FORCE OF THE NATIONAL PROVISIONS NEEDED TO COMPLY WITH THE DIRECTIVE , THE FAILURE OF A MEMBER STATE TO FULFIL THAT OBLIGATION , WHETHER BY PROVIDING NO INFORMATION AT ALL OR BY PROVIDING INSUFFICIENTLY CLEAR AND PRECISE INFORMATION , MAY OF ITSELF JUSTIFY RECOURSE TO THE PROCEDURE UNDER ARTICLE 169 OF THE EEC TREATY IN ORDER TO ESTABLISH THE FAILURE TO FULFIL THE OBLIGATION , BUT IT DOES NOT ENTITLE THE COMMISSION TO PRESUME THAT THE OBLIGATION TO BRING INTO FORCE THE MEASURES FOR IMPLEMENTING THE DIRECTIVE HAS NOT BEEN FULFILLED .

2.ALTHOUGH EACH MEMBER STATE IS FREE TO DELEGATE POWERS TO ITS DOMESTIC AUTHORITIES AS IT CONSIDERS FIT AND TO IMPLEMENT THE DIRECTIVE BY MEANS OF MEASURES ADOPTED BY REGIONAL OR LOCAL AUTHORITIES , IT MAY NOT HOWEVER BE RELEASED FROM THE OBLIGATION TO GIVE EFFECT TO THE PROVISIONS OF THE DIRECTIVE BY MEANS OF NATIONAL PROVISIONS OF A BINDING NATURE . MERE ADMINISTRATIVE PRACTICES , WHICH BY THEIR NATURE MAY BE ALTERED AT THE WHIM OF THE ADMINISTRATION , MAY NOT BE CONSIDERED AS CONSTITUTING THE PROPER FULFILMENT OF THE OBLIGATION DERIVING FROM THE DIRECTIVE IN QUESTION .

IN CASE 96/81

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , ROBERT CASPAR FISCHER , ACTING AS AGENT , ASSISTED BY AUKE HAAGSMA , A MEMBER OF ITS LEGAL DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER , ORESTE MONTALTO , JEAN MONNET BUILDING , KIRCHBERG ,

APPLICANT ,

V

KINGDOM OF THE NETHERLANDS , REPRESENTED BY ADRIAAN BOS , ACTING AS AGENT , ASSISTANT LEGAL ADVISER AT THE MINISTRY OF FOREIGN AFFAIRS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE EMBASSY OF THE KINGDOM OF THE NETHERLANDS , 5 RUE C . M . SPOO ,

DEFENDANT ,

APPLICATION FOR A DECLARATION THAT THE KINGDOM OF THE NETHERLANDS HAS FAILED TO FULFIL AN OBLIGATION IMPOSED ON IT BY THE EEC TREATY , BY NOT ADOPTING WITHIN THE PERIOD PRESCRIBED THE LAWS , REGULATIONS AND ADMINISTRATIVE PROVISIONS NEEDED IN ORDER TO COMPLY WITH COUNCIL DIRECTIVE NO 76/160/EEC OF 8 DECEMBER 1975 CONCERNING THE QUALITY OF BATHING WATER ( OFFICIAL JOURNAL 1976 , L 31 , P . 1 ),

1 BY APPLICATION RECEIVED AT THE COURT REGISTRY ON 24 APRIL 1981 , THE COMMISSION OF THE EUROPEAN COMMUNITIES BROUGHT AN ACTION UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT , BY NOT INTRODUCING WITHIN THE PERIOD PRESCRIBED THE LAWS , REGULATIONS AND ADMINISTRATIVE PROVISIONS NEEDED TO COMPLY WITH COUNCIL DIRECTIVE NO 76/160/EEC OF 8 DECEMBER 1975 CONCERNING THE QUALITY OF BATHING WATER ( OFFICIAL JOURNAL 1976 , L 31 , P . 1 ) THE KINGDOM OF THE NETHERLANDS HAD FAILED TO FULFIL ITS OBLIGATION UNDER THE TREATY .

2 BY VIRTUE OF THAT DIRECTIVE , WHICH WAS ADOPTED PURSUANT TO ARTICLES 100 AND 235 OF THE EEC TREATY , MEMBER STATES ARE OBLIGED TO SET , FOR ALL BATHING AREAS OR FOR EACH INDIVIDUAL BATHING AREA , THE VALUES APPLICABLE TO BATHING WATER FOR THE PHYSICAL , CHEMICAL AND MICROBIOLOGICAL PARAMETERS LAID DOWN IN THE DIRECTIVE , TO ADOPT THE NECESSARY MEASURES TO ENSURE THAT , WITHIN A PERIOD OF 10 YEARS , THE QUALITY OF BATHING WATER CONFORMS WITH THOSE VALUES , TO ENSURE THAT THOSE VALUES ARE OBSERVED IN NEWLY-CREATED BATHING AREAS , TO CARRY OUT SAMPLING OPERATIONS IN ACCORDANCE WITH THE DETAILED RULES LAID DOWN IN THE DIRECTIVE AND , FOUR YEARS FOLLOWING THE NOTIFICATION OF THE DIRECTIVE , TO SUBMIT A FIRST COMPREHENSIVE REPORT TO THE COMMISSION ON THEIR BATHING WATER AND THE MOST SIGNIFICANT CHARACTERISTICS THEREOF .

3 ARTICLE 12 ( 1 ) OF THE DIRECTIVE 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 , A PERIOD WHICH EXPIRED ON 10 DECEMBER 1977 , AND FORTHWITH TO INFORM THE COMMISSION THEREOF .

4 THE COMMISSION CONSIDERS THAT THE NETHERLANDS GOVERNMENT HAS FAILED TO FULFIL ITS OBLIGATION TO PROVIDE INFORMATION PURSUANT TO THE ABOVE-MENTIONED PROVISION . IN VIEW OF THAT FAILURE THE COMMISSION CONSIDERS THAT IT IS ENTITLED TO PRESUME , DURING THE FIRST PHASE OF ITS VERIFICATION OF THE IMPLEMENTATION OF THE DIRECTIVE , WHICH IS CONFINED TO ESTABLISHING IN GENERAL WHETHER THE NECESSARY IMPLEMENTING MEASURES HAVE BEEN BROUGHT INTO FORCE WITHIN THE PRESCRIBED PERIOD , WITHOUT ANY DETAILED EXAMINATION OF SUCH MEASURES , THAT THE DEFENDANT HAS FAILED TO FULFIL THE OBLIGATION TO PUT INTO EFFECT THE NECESSARY MEASURES .

5 THE SUBJECT-MATTER OF THESE PROCEEDINGS IS NOT , HOWEVER , FAILURE TO COMPLY WITH THE DUTY TO PROVIDE INFORMATION BUT FAILURE TO FULFIL THE OBLIGATION TO BRING INTO FORCE THE LAWS , REGULATIONS AND ADMINISTRATIVE PROVISIONS NEEDED TO ENSURE COMPLIANCE WITH THE DIRECTIVE .

6 IT SHOULD BE EMPHASIZED THAT , IN PROCEEDINGS UNDER ARTICLE 169 OF THE EEC TREATY FOR FAILURE TO FULFIL AN OBLIGATION , IT IS INCUMBENT UPON THE COMMISSION TO PROVE THE ALLEGATION THAT THE OBLIGATION HAS NOT BEEN FULFILLED . IT IS THE COMMISSION ' S RESPONSIBILITY TO PLACE BEFORE THE COURT THE INFORMATION NEEDED TO ENABLE THE COURT TO ESTABLISH THAT THE OBLIGATION HAS NOT BEEN FULFILLED , AND IN SO DOING THE COMMISSION MAY NOT RELY ON ANY PRESUMPTION .

7 IT SHOULD NEVERTHELESS ALSO BE EMPHASIZED THAT THE MEMBER STATES ARE OBLIGED , BY VIRTUE OF ARTICLE 5 OF THE EEC TREATY , TO FACILITATE THE ACHIEVEMENT OF THE COMMISSION ' S TASKS WHICH , UNDER ARTICLE 155 OF THE EEC TREATY , CONSIST IN PARTICULAR OF ENSURING THAT THE PROVISIONS OF THE TREATY AND THE MEASURES ADOPTED BY THE INSTITUTIONS PURSUANT THERETO ARE APPLIED . IT IS FOR THOSE REASONS THAT ARTICLE 12 OF THE DIRECTIVE IN QUESTION , LIKE OTHER DIRECTIVES , IMPOSES UPON THE MEMBER STATES AN OBLIGATION TO PROVIDE INFORMATION .

8 THE INFORMATION WHICH THE MEMBER STATES ARE THUS OBLIGED TO SUPPLY TO THE COMMISSION MUST BE CLEAR AND PRECISE . IT MUST INDICATE UNEQUIVOCALLY THE LAWS , REGULATIONS AND ADMINISTRATIVE PROVISIONS BY MEANS OF WHICH THE MEMBER STATE CONSIDERS THAT IT HAS SATISFIED THE VARIOUS REQUIREMENTS IMPOSED ON IT BY THE DIRECTIVE . IN THE ABSENCE OF SUCH INFORMATION , THE COMMISSION IS NOT IN A POSITION TO ASCERTAIN WHETHER THE MEMBER STATE HAS EFFECTIVELY AND COMPLETELY IMPLEMENTED THE DIRECTIVE . THE FAILURE OF A MEMBER STATE TO FULFIL THAT OBLIGATION , WHETHER BY PROVIDING NO INFORMATION AT ALL OR BY PROVIDING INSUFFICIENTLY CLEAR AND PRECISE INFORMATION , MAY OF ITSELF JUSTIFY RECOURSE TO THE PROCEDURE UNDER ARTICLE 169 OF THE EEC TREATY IN ORDER TO ESTABLISH THE FAILURE TO FULFIL THE OBLIGATION .

9 IN VIEW OF THE PURPOSE OF THIS ACTION AND IN ORDER TO EXAMINE WHETHER IT IS WELL FOUNDED , THOSE PROVISIONS MUST BE COMPARED WITH THE LAWS , REGULATIONS AND ADMINISTRATIVE PROVISIONS EXISTING IN THE NETHERLANDS BY MEANS OF WHICH THE NETHERLANDS GOVERNMENT CONSIDERS IT HAS IMPLEMENTED THE DIRECTIVE .

10 IN THAT RESPECT , IT MUST BE RECORDED THAT IN REPLY TO A QUESTION PUT BY THE COURT AT THE CLOSE OF THE WRITTEN PROCEDURE , THE COMMISSION STATED THAT , AS APPEARS FROM THE EXPLANATORY MEMORANDUM TO THE DRAFT NETHERLANDS LAW AMENDING THE WET HYGIENE EN VEILIGHEID ZWEMINRICHTINGEN ( LAW RELATING TO HYGIENE AND SAFETY IN BATHING ESTABLISHMENTS ), AT THE PRESENT TIME NO PROVISIONS EXIST IN THE NETHERLANDS DETERMINING THE DESIRED QUALITY FOR BATHING WATER BY MEANS OF VALUES FOR THE PARAMETERS MENTIONED IN THE ANNEX TO THE DIRECTIVE , AS PROVIDED FOR IN ARTICLE 3 OF THE DIRECTIVE , NOR ARE THERE ANY PROVISIONS PRESCRIBING THE MEASURES NECESSARY TO ACHIEVE THE QUALITY LAID DOWN FOR BATHING WATER , AS PROVIDED FOR IN ARTICLE 4 ( 1 ). THE NETHERLANDS GOVERNMENT DID NOT DENY THAT FACT EITHER IN ITS OBSERVATIONS ON THE COMMISSION ' S REPLY OR DURING THE ORAL PROCEDURE AND IT HAS ADDUCED NO EVIDENCE FROM WHICH IT MIGHT BE INFERRED THAT SUCH PROVISIONS ALREADY EXIST IN THE NETHERLANDS .

11 THE NETHERLANDS GOVERNMENT REFERRED TO THE FACT THAT THE SUPERVISION OF THE QUALITY OF WATER IS CARRIED OUT IN THE NETHERLANDS WITHIN THE FRAMEWORK OF A DECENTRALIZED SYSTEM . THE REGIONAL AND LOCAL AUTHORITIES ARE DIRECTLY BOUND BY THE PROVISIONS OF THE DIRECTIVE AND THEY IMPLEMENT IT IN THE PRACTICAL MANAGEMENT OF WATER QUALITY , UNDER THE CONTROL OF THE NATIONAL AUTHORITIES .

12 IT IS TRUE THAT EACH MEMBER STATE IS FREE TO DELEGATE POWERS TO ITS DOMESTIC AUTHORITIES AS IT CONSIDERS FIT AND TO IMPLEMENT THE DIRECTIVE BY MEANS OF MEASURES ADOPTED BY REGIONAL OR LOCAL AUTHORITIES . THAT DOES NOT HOWEVER RELEASE IT FROM THE OBLIGATION TO GIVE EFFECT TO THE PROVISIONS OF THE DIRECTIVE BY MEANS OF NATIONAL PROVISIONS OF A BINDING NATURE . THE DIRECTIVE IN QUESTION , ADOPTED INTER ALIA PURSUANT TO ARTICLE 100 OF THE EEC TREATY , IS INTENDED TO APPROXIMATE THE APPLICABLE LAWS , REGULATIONS AND ADMINISTRATIVE PROVISIONS IN THE MEMBER STATES . MERE ADMINISTRATIVE PRACTICES , WHICH BY THEIR NATURE MAY BE ALTERED AT THE WHIM OF THE ADMINISTRATION , MAY NOT BE CONSIDERED AS CONSTITUTING THE PROPER FULFILMENT OF THE OBLIGATION DERIVING FROM THAT DIRECTIVE .

13 NONE OF THE MATTERS PUT FORWARD BY THE NETHERLANDS GOVERNMENT JUSTIFIES THE CONCLUSION THAT PROVISIONS OF A BINDING NATURE HAVE ACTUALLY BEEN ADOPTED EITHER BY THE NATIONAL AUTHORITIES OR BY REGIONAL OR LOCAL AUTHORITIES IN ORDER TO DETERMINE FOR ALL BATHING AREAS OR FOR EACH OF THEM THE VALUES APPLICABLE TO BATHING WATER FOR ALL THE PARAMETERS INDICATED IN THE ANNEX TO THE DIRECTIVE AND IN ORDER TO ENSURE THAT THE QUALITY OF BATHING CONFORMS WITH THE VALUES THUS DETERMINED . IN PARTICULAR , THE PROSPECTIVE MULTIENNIAL PROGRAMME TO WHICH THE NETHERLANDS GOVERNMENT REFERRED IN ITS CORRESPONDENCE WITH THE COMMISSION PRIOR TO THE COMMENCEMENT OF THESE PROCEEDINGS , AFFIRMING THAT THAT PROGRAMME ADOPTED THE RULES CONTAINED IN THE DIRECTIVE , CONSTITUTED , AT THAT TIME , NOTHING MORE THAN A SET OF GUIDELINES FOR THOSE RESPONSIBLE FOR THE SUPERVISION OF WATER QUALITY AND HAD NO LEGALLY BINDING FORCE . THAT PROGRAMME COULD NOT THEREFORE BE CONSIDERED AS SUFFICIENT FOR THE PURPOSE OF IMPLEMENTATION OF THE DIRECTIVE .

14 IN ITS OBSERVATIONS ON THE COMMISSION ' S REPLY TO THE QUESTIONS PUT BY THE COURT BEFORE THE ORAL PROCEDURE AND ALSO DURING THE ORAL PROCEDURE , THE NETHERLANDS GOVERNMENT AGAIN REFERRED TO AN AMENDMENT OF THE WET VERONTREINIGING OPPERVLAKTEWATEREN ( LAW RELATING TO THE POLLUTION OF SURFACE WATER ), WHICH ENTERED INTO FORCE ON 1 JANUARY 1982 , CLAIMING THAT BY VIRTUE OF THAT AMENDMENT THE PROSPECTIVE MULTIENNIAL PROGRAMME WOULD ENABLE THE DIRECTIVE TO BE FULLY IMPLEMENTED . AT THE HEARING , THE COMMISSION , WHILST NOT DEPARTING FROM ITS VIEWS , DECLARED THAT THAT AMENDMENT TO THE LAW WOULD , IF SUPPLEMENTED BY CERTAIN ADMINISTRATIVE MEASURES , MAKE IT POSSIBLE FOR THE DIRECTIVE TO BE IMPLEMENTED PROPERLY . IN THAT REGARD IT MUST BE POINTED OUT , WITHOUT ITS BEING NECESSARY TO CONSIDER WHETHER , MERELY BY REASON OF THAT AMENDMENT , THE FAILURE TO FULFIL THE OBLIGATION MIGHT HAVE BEEN WHOLLY REMEDIED , THAT THE MEASURES NEEDED TO ENSURE THE FULL IMPLEMENTATION OF THE DIRECTIVE WERE NOT ADOPTED WITHIN THE PRESCRIBED PERIODS AND IN ANY CASE DID NOT EXIST WHEN THIS ACTION WAS BROUGHT .

15 IT FOLLOWS FROM THE FOREGOING THAT THE KINGDOM OF THE NETHERLANDS DID NOT ADOPT WITHIN THE PRESCRIBED PERIODS THE PROVISIONS NEEDED TO ENSURE THE FULL IMPLEMENTATION OF THE DIRECTIVE IN QUESTION AND MUST BE DECLARED TO HAVE FAILED TO FULFIL ITS OBLIGATIONS UNDER THE TREATY .

COSTS

16 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS , IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY ' S PLEADING . AS THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS , IT MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,

THE COURT

HEREBY :

1 . DECLARES THAT BY NOT BRINGING INTO FORCE WITHIN THE PERIODS PRESCRIBED THE PROVISIONS NEEDED TO ENSURE THE FULL IMPLEMENTATION OF COUNCIL DIRECTIVE NO 76/160/EEC OF 8 DECEMBER 1975 CONCERNING THE QUALITY OF BATHING WATER , THE KINGDOM OF THE NETHERLANDS HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE TREATY ;

2.ORDERS THE KINGDOM OF THE NETHERLANDS TO PAY THE COSTS .