C-72/81
ECLI:EU:C:1982:29
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JUDGMENT OF T H E COURT 2 FEBRUARY 1982 1
Commission of the European Communities v Kingdom of Belgium
(Failure of a State to fulfil its obligations — Bathing water)
Case 72/81
Member States — Obligations — Implementation of directives — Failure to comply — Justification — Not possible (EEC Treaty, Art. 169)
A Member State may not plead pro- to comply with obligations under visions, practices or circumstances in its Community directives. internal legal system to justify failure
In Case 72/81
COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, René-Christian Béraud, acting as Agent, with an address for service in Luxembourg at the office of Oreste Montalto, a member of the Legal Department of the Commission, Jean Monnet Building, Kirchberg, applicant, v
KINGDOM OF BELGIUM represented by Robert Hoebaer, a director in the Ministry for Foreign Affairs, Foreign Trade and Cooperation and Development, acting as Agent, with an address for service in Luxembourg at the Belgian Embassy, defendant,
1 — Language of the Case: French.
JUDGMENT OF 2. 2. 1982 — CASE 72/81
APPLICATION for a declaration that by not implementing, within the prescribed period Council Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing water (Official Journal L 31 of 5 February 1976, p. 1), the Kingdom of Belgium has failed to fulfil its obligations under the Treaty,
THE COURT
composed of: J. Mertens de Wilmars, President, G. Bosco, A. Touffait and O. Due (Presidents of Chambers), P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe, T. Koopmans, U. Everling, A. Chloros and F. Grévisse, Judges,
Advocate General: F. Capotorti Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts and Issues
The facts of the case, the course of the prohibited and is traditionally practised, procedure, the claims, submissions and with the exception of water intended for arguments of the parties may be therapeutic purposes and water used in summarized as follows: swimming pools.
Article 12 of the directive provides that I — Facts and written procedure Member States are to bring into force the laws, regulations and administrative The aim of Council Directive provisions necessary to comply with the 76/160/EEC of 8 December 1975 is to directive within two years of its organize at Community level surveillance notification. The directive was notified of bathing water. It is concerned with to the Kingdom of Belgium on fresh water and sea water in which 10 December 1975 so that the period bathing is explicitly authorized, or is not expired on 10 December 1977.
COMMISSION v BELGIUM
Having found that at the above- of national law on the implementation of mentioned date "the provisions adapting the directive had not yet been adopted national law had not been adopted" and and since it had received no further that "in any event it had not received communication from the Belgian auth- any official information to that effect" orities on the subject the Commission the Commission initiated the procedure brought the present proceedings on 6 provided for in Article 169 of the EEC April 1981. Treaty against the Kingdom of Belgium for failure to fulfil its obligations under Upon hearing the report of the Judge- the Treaty. Rapporteur and the views of the Advocate General the Court decided to By a letter dated 9 January 1979 it open the oral procedure without any invited the Belgian Government to preparatory inquiry. It nevertheless submit its observations pursuant to the invited the Commission to explain at the first paragraph of Article 169 of the hearing the position in regard to the Treaty. implementation of the directive in the other Member States. By a letter dated 13 July 1979 the Belgian Government informed the Commission essentially that the existing laws and regulations already enabled II — C o n c l u s i o n s of t h e p a r t i e s certain provisions of the directive to be applied but that full implementation was The Commission claims that the Court encountering difficulties arising from should: "the continuing uncertainty as to the precise nature of the devolution of the 1. Declare that by failing to adopt powers which will result from the within the prescribed period the institutional reforms undertaken in our provisions needed in order to comply country" and "the considerable arrears with Council Directive 76/160 of of work which have accumulated in the 8 December 1975 concerning the Parliament". quality of bathing water, the Kingdom of Belgium has failed to On 23 July 1979 the Commission fulfil one of its obligations under the delivered the reasoned opinion provided Treaty; for in the first paragraph of Article 169 of the Treaty and invited the Kingdom 2. Order the Kingdom of Belgium to of Belgium to take the measures pay the costs. necessary to comply therewith within a period of two months from its notification. The Kingdom of Belgium has not presented any formal conclusions. In its letter of 14 November 1979 the Belgian Government answered that "although Belgium has not so far incor- III — Submissions and argu- porated those directives into its laws" m e n t s of t h e p a r t i e s that failure "is an indirect effect of the fundamental reforms of the institutions in progress in Belgium at the present The Commission argues that according time" and it requested an additional to established case-law of the Court a period of one year. Member State cannot justify the non- implementation of a directive on grounds Having found that more than a year relating to national provisions on after the date of the letter the provisions practices or particular circumstances at
JUDGMENT OF 2. 2. 1982 — CASE 72/81
national level. Compliance with the this unavoidable delay regarding the provisions of the Treaty or of secondary application of the Community rules from law may not therefore depend on the the constitutional changes themselves. difficulties which a Member State The Community authorities should encounters, as in the present case, as a therefore take account of the exceptional result of the alteration in the distribution situation with which the Belgian of powers between central government Government is confronted. and the regional or local authorities. The Belgian Government observes that the directive in question has already been IV — O r a l p r o c e d u r e the subject of measures implementing it in part. The delay in its complete The parties presented oral argument at implementation is the result of the actual the sitting on 12 November 1981. process of fundamental reforms of the The Advocate General delivered his institutions of the country at present in opinion at the sitting on 2 December progress. It is not possible to dissociate 1981.
Decision
1 By application l o d g e d at the C o u r t Registry o n 6 April 1981 the C o m m i s s i o n of the E u r o p e a n C o m m u n i t i e s b r o u g h t an action for a declaration u n d e r Article 169 of t h e E E C T r e a t y t h a t by failing t o a d o p t within the prescribed period the provisions n e e d e d in o r d e r to comply with Council Directive 7 6 / 1 6 0 / E E C of 8 D e c e m b e r 1975 c o n c e r n i n g the quality of b a t h i n g w a t e r (Official J o u r n a l L 3 1 , 5 F e b r u a r y 1976, p. 1), the K i n g d o m of Belgium has failed t o fulfil its obligations u n d e r the third p a r a g r a p h of Article 189 of the Treaty.
2 Article 12 of t h e directive provides t h a t M e m b e r States are t o bring into force t h e m e a s u r e s n e e d e d to comply therewith within t w o years of its notification; t h a t p e r i o d expired in this case o n 10 D e c e m b e r 1977.
3 T h e Belgian G o v e r n m e n t does n o t d e n y that it has n o t fulfilled t h a t obligation. A l t h o u g h the Belgian G o v e r n m e n t asked the C o u r t " t o t a k e n o t e that t h e directive in question has a l r e a d y been the subject of m e a s u r e s implementing it in p a r t " , it is clear from the particulars subsequently given by t h a t G o v e r n m e n t t h a t the measures w h i c h it has a d o p t e d are n o t d e s i g n e d to implement C o u n c i l Directive 7 6 / 1 6 0 / E E C .
COMMISSION v BELGIUM
4 Essentially, the Belgian Government justifies its failure by the fact that important institutional reforms concerning the redistribution of powers and responsibilities between the national and regional institutions are in progress, especially in the area covered by the directive in question. So long as the new institutions are not yet in a position to exercise their powers it will not be possible, according to the Belgian Government, to implement the directive.
5 Although those circumstances may explain the difficulty in applying the directive they do not expunge the failure of the Kingdom of Belgium to fulfil its obligations. According to established case-law of the Court a Member State may not plead provisions, practices or circumstances in its internal legal system to justify failure to comply with obligations under Community directives.
6 It should also be pointed out that, in order that the exceptional situation referred to by his government should be taken into account, the Belgian Minister for Public Health and the Environment, in answer to the reasoned opinion provided for in the first paragraph of Article 169 of the Treaty, requested the Commission on 14 November 1979 to grant to the Kingdom of Belgium an additional period of one year to adopt the measures of national law needed to implement the directives. These measures ought to have entered into force in December 1977, and in fact it was only on 6 April 1981 that the Commission brought the matter before the Court under the second paragraph of Article 169 of the Treaty.
7 It must therefore be held that by not adopting within the prescribed period the provisions needed to comply with Council Directive 76/160/EEC of 8 December 1975, the Kingdom of Belgium has failed to fulfil its obligations under the Treaty.
Costs
8 Article 69 (2) of the Rules of Procedure provides that the unsuccessful party shall be ordered to pay the costs if they have been asked for. Since the defendant has been unsuccessful, it must be ordered to pay the costs.
OPINION OF MR CAPOTORTI — CASE 72/81
On those grounds,
THE COURT
hereby:
1. Declares that by not adopting within the prescribed period the provisions needed to comply with Council Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing water (Official Journal L 31 of 5 February 1976, p. 1), the Kingdom of Belgium has failed to fulfil its obligations under the Treaty;
2. Orders the Kingdom of Belgium to pay the costs.
Mertens de Wilmars Bosco Touffait Due Pescatore Mackenzie Stuart O'Keeffe Koopmans Everling Chloros Grévisse
Delivered in open court in Luxembourg on 2 February 1982.
A. Van Houtte G. Bosco Registrar President of the First Chamber, acting as President
O P I N I O N OF MR ADVOCATE GENERAL C A P O T O R T I
(see Case 68/81, p. 159)