C-96/81

THE COURT

composed of: J. Menens de Wilmars, President, G. Bosco and A. Touffait (Presidents of Chambers), Lord Mackenzie Stuan, A. O'Keeffe, T. Koopmans and U. Everling, Judges,

Advocate General: F. Capotoni Registrar: J. A. Pompe, Deputy Registrar

gives the following

COMMISSION v NETHERL\NDS

JUDGMENT

1. Council Directive N o 76/160/EEC Notification of the directive to the of 8 December 1975 concerning the Netherlands took place on 10 December quality of bathing water (Official Journal 1975. Thus the period specified in Article 1976, L 31, p. 1) provides that Member 12 expired on 10 December 1977. States are to take certain measures in order to reduce the pollution of bathing water and to protect such water against further deterioration. To that end, the 2. By letters of 24 February 1976 and directive lays down the physical, 13 October 1977 the Commission chemical and microbiological parameters requested the Netherlands Government applicable to bathing water and provides to inform the Commission of the that Member States shall set, for all measures taken by the Netherlands to bathing areas or for each individual implement the directive. bathing area, the values applicable to bathing water as regards those parameters. Members States are obliged, In reply to those letters the Ministerie by virtue of the directive, to take all van Verkeer en Waterstaat [Ministry of necessary measures to ensure that, within Transpon, Water Control and Con- a period of 10 years, the quality of struction] of the Netherlands informed bathing waters conforms with those the Commission, by letter of 28 March values and to ensure that those values are 1978, that an amendment to the Wei observed in newly-created bathing areas. Verontreiniging Oppervlaktewateren The competent authorities in the [Law relating to the pollution of surface Member States are obliged to earn· out water] was in preparation. That sampling operations in accordance with amendment would inter alia enable the detailed rules laid down in the national standards to be set concerning directive. Member States are obliged, the discharge of certain substances and four years following the notification of to maintain everywhere a general the directive and regular intervals there- minimum quality level required tor the after, to submit a comprehensive repon various, uses of surface water. That to the Commission on their bathing amendment therefore had great water and the most significant charac- significance in connection with the teristics thereof. implementation of the directive.

In that letter the Netherlands Govern- Furthermore the competent authorities ment supplied a number of further details were in the process of taking concerted concerning the content of the law action to extend the sampling relating to the pollution of surface water programme in order to adapt it to the accompanied by certain extracts of that provisions of the directive. law. It stated that that legislation provided for a certain number of Finally, the Netherlands Government methods of controlling the quality of remarked that certain requirements, surface water. A prospective multiennial based on an opinion of the programme drawn up every five years for Gezondheidsraad [Health Council] and the purposes of the campaign against contained in a report entitled "Interim- water pollution, and determining the rapport Zwemwater" ["Interim report on policy to be pursued in practice by the bathing water"] dated 25 June 1973, had authorities responsible for the quality of been imposed for a long time in the water contained, in the annexes thereto, Netherlands on the use of surface water the norms laid down in the directive. for recreational purposes. That report The programme was attached to the was attached to the letter. letter. The Netherlands Government emphasized that whilst the preamble to and the explanatory statement The Ministerie van Verkeer en accompanying the draft law designed to Waterstaat concluded its letter of 28 amend the law relating to the pollution March 1978 by stating its willingness to of surface water referred to the directive supply the Commission with any further that did not mean that the directive was information which it might require. not being applied in the Netherlands in the absence of such amendment since for that purpose the present law already provided for a number of methods and 3. By letter of 8 February 1979 the laid down certain administrative pro- Commission informed the Netherlands visions enabling the directive to be Government that it was of the opinion implemented to a considerable extent. that the Kingdom of the Netherlands had failed to fulfil its obligations under the directive since the Netherlands auth- The Netherlands Government also orities had still not adopted the measures forwarded to the Commission a copy of needed to give effect to the directive the law relating to hygiene and safety in under its internal law and since, bathing establishments, which enabled notwithstanding the provisions of Article certain measures to be taken, in respect 12 (I) of the directive, the Commission of bathing establishments, concerning the had not yet received any communication quality of bathing water. The proposed regarding such measures. The Com- amendment to that law would have the mission therefore invited the Netherlands effect of extending still further the scope Government, pursuant to Article 169 of of its application.

In that connection the Netherlands Commission of the measures taken to Government also referred to the Wet comply with the directive and the bestrijding Infectieziekten en Opsporing Commission must therefore assume that Ziekteoorzaken [Law to combat the Kingdom of the Netherlands had not infectious diseases and to detect the yet taken such measures. The provisions causes of disease] which compels the of the existing legislation to which the mayor of any municipality to order the Netherlands Permanent Representation total or partial closure of a bathing had referred in its letter of 23 May 1979 establishment if the department and the repon on bathing areas did responsible for the inspection of public not constitute implementation of the health makes a request to that effect. directive for the purposes of Article 12. The Commission had still not been informed that the proposed amendments to that legislation had been enacted. The Netherlands Government annexed to that letter a report on bathing areas in respect of 1978 and on the most significant characterisitics of their bathing water. In its reply to that reasoned opinion, by letter of 26 November 1979 from its Permanent Representation to the European Communities, the Netherlands Government reaffirmed that existing The Netherlands Government concluded legislation already provided mechanisms its letter by stating that it believed it had making it possible to pursue a policy shown by the contents of the letter that it aimed at meeting or continuing to was in practice already implementing the observe the quality requirements which directive as the basis of existing surface water intended for bathing must legislation. It added that it was prepared satisfy. Although, for the purpose of to supply the Commission with any- implementing the directive, it was further information which it might necessary to adapt the law relating to the require. pollution of surface water in order to create a legal instrument by which general and binding instructions might be issued to all the authorities responsible for the quality of water, that 4. By letter of 27 July 1979 the did not mean, contrary to the belief of Commission delivered to the Nether- the Commission, that it was impossible lands Government a reasoned opinion for the Netherlands to implement the within the meaning of Article 169 of the directive without such adaptation. The EEC Treaty stating that the Kingdom of amendments which were being made to the Netherlands had failed to fulfil an the legislation on the subiect were obligation imposed on it by the directive considered desirable and the Netherlands by not adopting the laws, regulations Government attached great importance and administrative provisions needed to to them. The Netherlands was already comply with its terms. implementing the directive bv means of existing legislative instruments. In that letter, the Netherlands Government supplied further details of the existing legislation and added that it wa< The Commission stated in its reasoned prepared to engage in any further opinion that the Kingdom of the consultations with the Commission. Netherlands had not informed the

By letter of 24 March 1981 the The Court, upon hearing the views of Permanent Representation of the the Advocate General, decided to open Kingdom of the Netherlands to the the oral procedure without any European Communities informed the preparator}· inquiry. Commission as to the stage reached in the legislative procedure relating to the aforementioned amendments to the relevant Netherlands legislation. Ill — Submissions and argu- m e n t s of t h e p a r t i e s put forward during the written procedure. II — C o n c l u s i o n and written procedure 1. The Commission contends in its application that the Netherlands 1. By an application registered at the Government did not deny, in its reply to Court on 24 April 1981, the Commission the Commission or in its subsequent brought an action against the Kingdom letters, that the directive required an of the Netherlands claiming that the amendment to the legislation in force in Court should: the Netherlands. It was apparent from the contents of those letters that that Declare that the Kingdom of the amendment to its legislation had still not Netherlands, by not adopting within the been enacted and that therefore,, period prescribed the laws, regulations contrary to Article 12 of the directive, and administrative provisions needed in the Netherlands still had not adopted all order to comply with the requirements of the laws, regulations and administrative Council Direct'ive No 76/160/EEC of 8 provisions needed in order to implement December 1975, has failed to fulfil an the directive. obligation imposed upon it by the Treaty; The statement, contained in the letter of Order the Kingdom of the Netherlands 26 November 1979. that the Netherlands was implementing the directive by means to pay the costs. of existing legilsative provisions, through administrative channels, as well as by The Government of the Kingdom of the means of guidelines at the practical levei, Netherlands contends that the Court is contradicted by certain statements also should: contained in that letter to the effect that it was "necessary to adapt that law for Dismiss the application as unfounded; the purpose of implementing the directive". That notion also conflicts Order the Commission to pay the costs. with the viewpoint expressed by the Netherlands Government in its reply of 28 March 1978. 2. At the conclusion of the written procedure, which followed normal course, the Court, upon hearing the The need for certain laws, regulations or views of the Advocate Genera!, decided administrative provisions also emerges to request the Commission to reply in cle.-Hv from a comparison of the writing to a number of questions and directive with the existing legislation. It decided to invite the Government of the is not however necessary at this stage Netherlands to submit in writing us systematically to examine the differences observations on those replies. between the Netherlands legislation and

In the Commission's view, the Netherlands Government wishes to give the impression that the quality of bathing Moreover, the Netherlands Government water in the Netherlands is in fact recalls that, according to Article 4 of the largely the same as that prescribed by the directive, it is only within a period of 10 directive without, however, denying that years that the quality of bathing water this situation derives only to an must be made to conform to the limit insufficient degree from the powers, and values set in accordance with Anicie 3 of the mandatory statements and task- the directive. descriptions stipulated in the directive. What is important in the present case is not the practical result brought about by the policy pursued by the Government and by the various subordinate auth- The draft law amending the law relating orities in the Netherlands but the fact to the pollution of surface water was that the Netherlands legislation does not considered desirable for the purpose of make provision for all the instruments creating a uniform scheme in a system prescribed in the directive. under which managerial responsibility for the quality of water rested with decentralized administrative authorities and under which central government did not have the power to regulate directly 2. In its defence the Netherlands the management by those subordinate Government points out that the authorities as regards the grant of auth- Commission did not respond to the orizations or the laying down of quality- observations submitted on the reasoned standards for surface water. opinion as to the manner in which the directive was already being implemented and that the Commission did not state which provisions of the directive had not been implemented in the Netherlands. Nevertheless, the existing instruments taken, as a whole, could be used to implement the directive. The subordinate authorities, which are obliged to put into effect the terms of the directive, are The Netherlands Government, by a letter aided in their management by all the of 23 May 1979 trom its Permanent instruments pui ai their disposal by the Representation, had already informed law relating to the pollution ot surface the Commission that its programme for water, in particular prohibitions, dec- sampling bathing water had been made larations of inadequacy, the provisions to comply with the directive. The governing authorizations, the levying of Commission had received reports con- a tax and the components of the general

improvement policy·. Existing legislation facilitating the achievement of the confers, on every authority responsible Commission's tasks. A general communi for the quality of water, the necessary cation stating that, for the purpose of its instruments for pursuing a policy aimed implementation the directive was the at ensuring that the quality of water subject of a certain legislative amend satisfies requirements which are essential ment or that its implementation was for its recognized use or function. It is already effected within the context of not possible to conclude from the existing legislation, may not be existence of a draft amendment to the considered as sufficient. law, intended to supplement the existing provisions, that the directive had not As with many other directives, under the

methods of implementing the directive. which involves a close and lengthy The Commission has not shown that the examination and a scrupulous compari Netherlands did not have at its disposal son of the national provisions with the the instruments needed for implementing various provisions of the directive, the the directive. The directive has hitherto Commission verifies, on the basis of been adequately implemented in the information supplied by the Member Netherlands. States pursuant to Anicie 12 (1) of the directive, whether the Member States

An which the application is based, is for incomplete or delaved communication of the Commission an indispensable the implementing provisions constitutes a instrument in its task of supervising the failure to complv with tne terms ol the implementation of directives and second sentence ot Article 12 (1) of ihr constitutes a specific instance of the directive which is sufficient ot itsclt io general dutv. imposed on the Member justify the initiation ot the procedure laid Slates by Anicie ŕ> of the EEC Treaty, of down in Article 169 ot the EEC Treat v.

Failure to comply with the second measures adopted. Both parties admit sentence of Anicie 12 (1) of the directive that the Netherlands has not complied also gives rise to the presumption thai with that provision of the directive. The the Member State has not complied with Commission has confined the present its obligation to bring into force the case to the fact that the Netherlands had necessary provisions as laid down in the not brought into force, within the pre- first sentence of Article 12 (1). Where scribed period, all the laws, regulations the Member State has informed the and administrative provisions necessary. Commission of the implementing On that narrow issue, the burden of measures which it considered necessary proof on the Commission is clearly much but did not bring them into force within less onerous and, in addition the afore- the prescribed period the Member State mentioned presumption applies. is not entitled to rebut that presumption by evidence to the contrary, thus contradicting the previous communi- cation to the Commission. The presumption of belated or incomplete implementation is confirmed by the letter of the Netherlands Government dated 28 March 197S which On the basis of that presumption the shows that the Netherlands Government Commission may also incorporate, in the was, at that time, convinced that the default procedure which it initiates, a implementation of the directive required failure to fulfil the obligation to bring the enactment of a certain number of into force the provisions referred to in provisions, indicated in outline. That the first sentence of Article 12 (1), on the letter therefore did not constitute the basis that the Member State had not information stipulated by the second brought into force within the prescribed sentence of Article 12 (1). Whilst the period all the necessary implementing more detailed information, contained in measures. There is no need for the subsequent letters from the Netherlands Commission to state or demonstrate that Government, on the means available the Member State has failed to comply under existing Netherlands legislation with certain specific obligations laid constituted valuble material for the down in the directive. Verification in purpose of verifying the correct regard to such matters takes place during implementation of ihe directive during the second stage of the procedure. In any the second stage of the Commission's event it is sufficient for the Commission examination, it is of no significance in to show that at least one of the the present case which is concerned with provisions of the directive has not been the first stage of that examination. implemented or has been implemented incorrectly.

had inspired the Commission. The authorities and that the practical result Commission continues therefore to rely sought by the directive can already be on the presumption that the Netherlands achieved. T h e contents of the letters has not adopted all the implementing written by the Netherlands Government measures and it need not reply in detail before this action was brought show to all the arguments put forward by the sufficiently clearly that the implemen- Netherlands Government as regards the tation of the directive in the Netherlands present state of the implementation of was governed, at least in part, by means the directive. of non-mandatory provisions and that the existing legislation does not lay d o w n all the measures prescribed by the directive. In any event, the presumption that the directive has not been fully implemented has not been rebutted by the Netherlands Government even if it were accepted 4. In its rejoinder the Netherlands that that possibility is open to the Government denies that it is agreed Government. For that purpose, it would between the parties that the Netherlands have had to demonstrate, in respect of is in breach of its duty in regard to the each provision of the directive, that information to be given to the equivalent mandatory provisions already Commission by virtue of the second exist in Netherlands law and its defence sentence of Article 12 (1) of the does not contain any such directive. demonstration.

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IV — Answers to q u e s t i o n s put by the Court V — Oral procedure

In replv to the questions put by the Court ai the close of the written procedure, the Commission stated in At the sitting on 2 March 1982 oral particular that the legislative framework argument was presented for the now existing in the Netherlands for the Commission by Auke Haagsma, a implementation of the directive was still member of its Legal Department, and for incomplete since, as indicated in the first the Government of the Kingdom of the

JUDGMENT OF 25. 5. I9S2 — CASE 96/SI

Netherlands, represented by Adriaan The Advocate General delivered Bos, Assistant Legal Adviser, Ministry his opinion at the sitting on 31 March for Foreign Affairs. 1982.

Decision

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.

s 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 infor- mation 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.

; 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 Anicie 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 infor- mation.

¡. 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.

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

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considered as constituting the proper fulfilment of the obligation deriving from that directive.

M 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 Ver- ontreiniging 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 aòcpcrd within the prescribed periods and in any case did not exist when u'i 3 action was brought.

•s 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.

JUDGMENT OF 25. 5. 1982 — CASE 96/81

Costs

i6 Under Anicie 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.

Mackenzie Stuan O'Keeffe Koopmans Everling

Delivered in open court in Luxemburg on 25 May 1982.

For the Registrar

H . A . Rühi J. Menens de Vilmars Principal Administrator Presidem