C-97/81

THE COURT

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

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

gives the following

COMMISSION v NETHERLANDS

JUDGMENT

The facts of the case, the course of Article 10 of the directive provides as the procedure and the conclusions, follows : submissions and arguments of the parties may be summarized as follows: "Member States shall bring into force the laws, regulations and administrative provisions needed in order to comply I — Summary of the facts with this directive within two years of its notification. They shall forthwith inform the Commission thereof". 1. Council Directive No 75/440/EEC of 16 June 1975 concerning the quality required of surface water intended for Notification of the directive to the the abstraction of drinking water in the Netherlands took place on 18 June 1975. Member States (Official Journal 1975, Thus the period specified in Article 10 L 194, p. 26) provides that Member expired on 18 June 1977. States are to take certain measures to reduce the pollution of surface water intended for the abstraction of drinking water and to protect surface water 2. By letters of 23 September 1975 and against subsequent deterioration. To that 25 March 1977 the Commission end, the directive lays down parameters requested the Netherlands Government for the physical, chemical and micro- to inform the Commission of the biological characteristics of different measures taken by the Netherlands to categories of surface water and provides implement the directive. that Member States shall set, for all sampling points or for each individual sampling point, the values applicable to In reply to those letters the Netherlands surface water as regards those Permanent Representation to the parameters. Member States are obliged European Communities forwarded, to take all necessary measures to ensure under cover of a letter of 2 November that surface water conforms to the values 1977, a letter from the Ministerie van thus set, to draw up a systematic plan of Verkeer en Waterstaat [Ministry of action including a timetable for the Transport, Water Control and Con- improvement of surface water and to struction] of the Netherlands and from achieve considerable improvements under the Ministerie van Volksgezondheid en the national programmes over the next Milieuhvgiene [Ministry of Health and ten years. Surface water having physical, the Environment] dated 12 October 1977 chemical and microbiological charac- giving the reply of those two ministries teristics falling short of certain limit to the aforementioned letters from the values may not be used for the Commission. abstraction of drinking water. The directive provides for samples to be taken in accordance with rules laid down by The two ministries explained in that the directive. letter that existing Netherlands legis-

lation controlling the quality of surface values laid down in the directive. The water was based on a decentralized two ministries stated that it was apparent system established by the Wet Veront­ from the report that the measuring reiniging Oppervlaktewateren [Law programme covered many but not all of relating to pollution of surface water] the parameters laid down in the under which responsibility for the quality directive. In respect of certain of certain waters was delegated to parameters, moreover, the values were decentralized authorities (provinces, being exceeded. Since the present "Waterschappen" [Water Boards] or programme was incomplete no definite "Zuiveringsschappen" [Waste and conclusions could be drawn from it. Surface Water Purification Boards] and that central government did not have the power directly to impose rules on the activities of those subordinate authorities. The two ministries concluded their letter of 21 October 1977 by stating that they were prepared to supply the Commission with anv further information which it A proposed amendment to the law was might require. being prepared, in particular with a view to the implementation of Council Directive No 76/464/EEC of 4 May 1976 on pollution caused by certain 3. By letter of 9 January 1979 the dangerous substances discharged into the Commission informed the Netherlands aquatic environment of the Community, Government that it was of the opinion as well as of the directive at issue. That that the Kingdom of the Netherlands amendment would inter alia enable had failed to fulfil its obligations under national standards to be laid down the directive since the Netherlands auth­ relating to the discharge of certain sub­ orities had still not adopted the measures stances and to ensure that water not needed to give effect to the directive directly subject to government control under their internal law and since, satisfied the requirements laid down in notwithstanding the provisions ot Article the directive. 10 of the directive, the Commission had not yet received any communication regarding such measures. The Com­ mission therefore invited the Netherlands It was also necessary to enact provisions Government, pursuant to Article lfa9 ot prohibiting the use for the abstraction of the EEC Treaty, to submit its obser­ drinking water of surface water not vations on the matter within two months. satisfying the requirements of the directive, which would be effected by an amendment to the Waterleidingwet [Law relating to the distribution of water] and The Netherlands Government replied to by the implementing decree adopted that letter by a letter dated 19 April 197" pursuant to that law. from its Permanent Representation to the European Communities.

The Netherlands Government also drew attention to the significance of the The Netherlands Government also prospective multiennial programmes annexed to its letter a copy of the which, under the terms of the law, were proposed amendment to the law on the drawn up every five years for the distribution of water stating that that purposes of the campaign against water amendment designed to ensure that that pollution and which contained in their law complied with the directive. annexes the norms laid down by the directive. A copy of that document was annexed to the letter. The Netherlands Government concluded its letter by stating that it believed it had demonstrated by the contents of the The Netherlands Government stated in letter that, it was in practice already addition that the implementation of all implementing the directive at issue on the legislative and administrative the basis of existing legislation. It added provisions was however often not that it was prepared to supply the enough to combat the adverse effects of Commission with any further infor- the pollution of transfrontier waters, in mation which it might require. particular as regards ammonia.

4. By letter of 27 July 1979 the The Commission had already been pre- Commission delivered to the Nether- viously informed of the proposed lands Government a reasoned opinion extension of the measuring programme within the meaning of Article 169 of the to all catchment points of surface water EEC Treaty stating that the Kingdom of intended for the abstraction of drinking the Netherlands had failed to fulfil an water as well as its extension to include obligation imposed on it by the directive all the parameters contained in the by not adopting the laws, regulations directive. Practical effect was being given and administrative provisions needed to to that programme. comply with its terms.

In its reply to that reasoned opinion, by 1. By an application registered at the a letter of 30 November 1979 from Court on 24 April 1981, the Commission its Permanent Representation to the brought an action against the Kingdom European Communities, the Netherlands of the Netherlands claiming that the Government reaffirmed that the law Court should: relating to the pollution of surface water, in its present form, already provided mechanisms making it possible to pursue Declare that the Kingdom of the a policy aimed at meeting or continuing Netherlands, by not adopting within the to observe the quality requirements period prescribed the laws, regulations which surface water intended for the and administrative provisions needed in abstraction of drinking water must order to complv with the requirements of satisfy. Although, for the purpose of Council Directive No 75/443/EEC of implementing the directive, it was 16 June 1973, has failed to fulfil necessary to amend the law relating to an obligation imposed upon it by the pollution of surface water in order to the Treaty; create a legal instrument by which general and binding instructions might be issued to all the authorities Order the Kingdom of the Netherlands responsible for the quality of water, that to pay the costs. did not mean, contrar)· to the belief of the Commission, that it was impossible The Government of the Kingdom of the for the Netherlands to implement the Netherlands contends that the Court directive without such adaptation. The should: amendments which were being made to the existing legislation on the subject were considered desirable in order to Dismiss the application as unfounded; give to the parameters laid down in the directive formal status and to be able to issue binding directions. The Order the Commission to pay the costs. Netherlands was already implementing the directive by means of existing legislative instruments. In that letter, the 2. At the conclusion of the written Netherlands Government supplied details procedure, which followed the normal of the existing legislation and added that course, the Court, upon hearing the it was prepared to engage in further views of the Advocate General, decided consultations with the Commission. to request the Commission to reply in writing to a number of questions and decided to invite the Government of the Bv letter of 24 March 1981 the Netherlands to submit in writing its Permanent Representation of the observations on those replies. Kingdom of the Netherlands to the European Communities informed the Commission as to the stage reached in The Court, upon hearing the views of the legislative procedure relating to the the Advocate General, decided to open aforementioned amendments to the the oral procedure without any relevant Netherlands legislation. preparatory inquiry.

The statement, contained in the letter of 30 November 1979, that the Netherlands 2. In its defence the Netherlands was implementing the directive, through Government points out that the administrative channels, by means of Commission did not repond to the obser- existing legislative provisions, as well as vations submitted on the reasoned by means of guidelines at the practical opinion as to the manner in which the level, is contradicted by certain state- directive was already being implemented ments also contained in that letter to the and that the Commission did not state effect that it was "necessary to adapt which provisions of the directive have that law for the purposes of implement- not been implemented in the ing the directive". That notion also Netherlands. conflicts with the viewpoint expressed by the Netherlands Government in the reply The Netherlands Government had of 12 October 1977 by the two ministries already forwarded to the Commission, concerned. under cover of the letter of 12 October 1977 from the two ministries concerned, a repon concerning the quality of The need for certain laws, regulations or surface water intended for the ab- administrative provisions also emerges straction of drinking water indicating by clearly from a comparison of the which authorities measurements had directive with the existing legislation. It been carried out, and ai which is not however necessary at this stage measuring points. and also the systematically to examine the differences parameters used and the frequency of between the Netherlands legislation and measurement. It was clear from that the directive but the Commission report that the mandatory and guide expressly reserves the right to present values of the directive had been used to further argument on this point if that determine the quality of water and that it

The favourable trend constituted by In effect, the objectives of the directive a decrease in the presence and are being given effect in the practical concentration of the substances subject administration carried out by the to measurement is continuing. The subordinate authorities. Those auth- recordings made at sampling points since orities, which are obliged to put into then show that the values laid down by effect the terms of the directive, are the directive are not being exceeded. The aided in their management by all the Netherlands Government announced its instruments put at their disposal by the intention to forward to the Commission law relating to the pollution of surface and to the Court a report on the quality water, in particular prohibitions, declar- of water intended for the abstraction of ations of inadequacy, the provisions drinking water in respect of 1979 and governing authorizations, the levying of 1980 and that report was in fact lodged a tax and the components of the general at the Court Registry on 10 July 1981. improvement policy. To achieve the The Netherlands Government has also objectives of the directive in the annexed to its defence the repon drawn Netherlands it was not necessary to up bv the Rijkwaterstaat [National adapt the law, since existing legislation Water Authority] and the authorities confers, on even· authority responsible responsible for public health and for the for the quality of water, the necessary supply of drinking water, on an inquiry instruments for pursuing a policy aimed into the quality of national water in at ensuring that the quality of water respect of the third quarter of 1980. satisfies requirements which are essential Those factors adequately demonstrate for its recognized use or function. It is that the objectives of the directive had not possible to conclude from the been achieved in the Netherlands. existence of a draft amendment to the law, intended to supplement the existing provisions, that the directive had not been implemented. The legislative amendment is designed to impose more The draft law amending the law relating stringent rules than those laid down in to the pollution of surface water was the directive. The instruments to be considered desirable for the purpose of created within the framework of the law creating a uniform scheme in the context relating to the pollution of surface water of a system under which managerial are, moreover, based on Council responsibility for the quality of water Directive No 7b/464/EEC of 4 May rested with decentralized administrative 1976 which is subsequent in time to the authorities and under which central directive at issue and places that directive government did not have the power to in a general context. regulate directly the management by those subordinate authorities as regards the grant of authorizations or the laying down of quality standards for surface water. Moreover, an amendment to the Bv their nature, the provisions of the law relating to the distribution of water directive at issue are primarily addressed is intended to create provisions making it to the national authorities. The Member possible to prohibit the abstraction of States are free to choose the form and

methods of implementing the directive. scribed period. During the second stage The Commission has not shown that the which involves a close and lengthy Netherlands did not have at its disposal examination and a scrupulous compari- the instruments needed for implementing son of the national provisions with the the directive. The directive has hitherto various provisions of the directive, the been adequately implemented in the Commission verifies, on the basis of Netherlands. information supplied by the Member States pursuant to Article 10 of the directive, whether the Member States 3. In its reply the Commission maintains have satisfactorily implemented the that the Netherlands Government fails to provisions of the directive. realize the true scope of the application and is basing itself on misconceptions as The duty to supply information and the regards the nature of directives in supervision, in two stages, of the general and of the directive at issue in implementation of the directive entails particular. consequences as regards the procedure laid down in Article 169 of the EEC The duty to inform the Commission Treaty in the event of failure by a under Article 10 of the directive, on Member State to fulfil its obligations. An which the application is based, is for the incomplete or delayed communication of Commission an indispensable instrument the implementing provisions constitutes a in its u s k of supervising the implemen- failure to comply with the terms of the tation of directives and constitutes a second sentence of Anicie 10 of the specific instance of the general duty, directive which is sufficient of itself to imposed on Member States by Article 5 justify the initiation of the procedure laid of the EEC Treaty, of facilitating the down in Article 169 of the EEC Treaty. achievement of the Commission's tasks. Failure to comply with the second A general communication stating that, sentence of Article 10 of the directive for the purpose of its implementation the also gives rise to the presumption that directive was the subject of a certain the Member State has not complied with legislative amendment or that its its obligation to bringing into force the implementation was already effected necessary provisions as laid down in the within the context of existing legislation, first sentence of Article 10. Where the may not be considered as sufficient. Member State has informed the Commission of the implementing measures which it considered necessary As with many other directives, under the but did not bring them into force within terms of the system laid down by Article the prescribed period the Member State 10 of the directive, the supervision by is not entitled to rebut that presumption the Commission of the correct by evidence to the contran·, thus implementation of the directive is contradicting the previous communi- generally carried out in two stages. cation to the Commission.

period all the necessary implementing constitute the information stipulated by measures. There is no need for the the second sentence of Article 10. Commission to state or demonstrate that the Member State has failed to comply with certain specific obligations laid down in the directive. Verification in regard to such matters takes place during Whilst the more detailed information, contained in subsequent letters from the the second stage of the procedure. In any Netherlands Government, on the means event it is sufficient for the Commission available under existing Netherlands to show that at least one of the legislation constituted valuable material provisions of the directive had not been for the purpose of verifying the correct implemented or had been implemented implementation of the directive during incorrectly. the second stage of the Commission's examination, it is of no significance in the present case which is concerned with the first stage of that examination. The Commission brought this action during the first stage of its supervision of the implementation of the directive since, as it is stated in its application, and that The Netherlands Government stated for statement has not been contradicted, the the first time, in its defence, explicitly Netherlands had not communicated to and unequivocally, that the directive had it, within the prescribed period and been implemented in the Netherlands. pursuant to the second sentence of Such a viewpoint is unacceptable since it Article 10, the implementing measures repudiates the earlier attitude adopted by adopted. Both parties admit that the the Netherlands and undermines the Netherlands has not complied with that confidence with which that attitude provision of the directive. The had inspired the Commission. The Commission has confined the present Commission continues therefore to rely case to the fact that the Netherlands had on the presumption that the Netherlands not brought into force, within the pre- has not adopted all the implementing scribed period, all the laws, regulations measures and it need not reply in detail and administrative provisions necessary. to all the arguments put forward by the On that narrow issue, the burden of Netherlands Government as regards the proof on the Commission is clearly much present state of the implementation of less onerous and, in addition, the the directive. aforementioned presumption applies.

Moreover, even supposing that no such supplied by way of a general information presumption existed, the Commission has procedure such as that instituted by the clearly shown that the Netherlands has Council on 5 March 1973 concerning not brought into force, within the pre- legal measures relating to the protection scribed period, all the necessary of the environment (Official Journal, implementing provisions. Merely to bring C 9, 15. 3. 1973) under which all those into force some of the provisions of the measures designed for the protection and directive is not sufficient to comply with improvement of the environment were

The Netherlands in practice. The various points contained Government has shown from the infor- in the letter of the Netherlands mation supplied that it was not Government dated 2 November 1977 necessary, merely in order to implement show sufficiently clearly that the the directive, to enact amending implementation of the directive in the legislation. Netherlands was governed, at least in pan, by means of non-mandatory provisions and that the existing legislation does not lay down all the measures prescribed by the directive. The Netherlands Government acknowl- edges that the general information contained in its letter of 2 November 1977 concerning the new laws, regu- lations and administrative provisions,

The between, on the one hand, information

Netherlands Government considers that determination of the applicable limit it has satisfied, albeit after a certain values (Article 3) intended to ensure that delay, its obligation in regard to the surface water conformed with the pre- information to be given to the scribed criteria (Article 4) or regarding Commission and reserves the right to the assessment of the results of the submit further observations during the measures (Article 5), nor were there any course of the second stage relating to the provisions implementing Article 4 (3) of allegation that the implementation of the the directive. directive has been inadequate. The Netherlands Government observed that the law amending the Wet Ver- ontreiniging Oppervlaktewateren [Law IV — A n s w e r s to t h e questions relating to pollution of surface water] p u t by t h e C o u r t had entered into force on 1 January 19S2 and notice of that fact had been given to In reply to questions put by the Court at the Commission by letter of 14 January the close of the written procedure, The 1982. Therefore, in view of the present Commission stated in particular that the state of the Netherlands legislation, there legislative framework now existing in the was no reason to proceed with the Netherlands for the implementation of action. the directive was still incomplete since, as indicated in the explanatory memorandum to the draft law amending V — Oral procedure the Waterleidingwet, no provisions yet existed prescribing the measures needed to ensure that surface water used for the At the sitting on 2 March 1982 oral abstraction of drinking water conformed argument was presented for the with specific values for the parameters Commission by Auke Haagsma, a referred to in the annex to the directive, member of its Legal Department, and for and the prohibition, stipulated in the the Government of the Kingdom of the directive, of the use for the abstraction Netherlands, represented by Adriaan of drinking water of surface water not Bos, Assistant Legal Adviser, Ministry complying with the conditions laid down for Foreign Affairs. for that purpose in the directive, had not yet been imposed. No implementing The Advocate General delivered his provisions existed concerning the opinion at the sitting on 31 March 1982.

4 The Commission considers that the Netherlands Government has failed to fulfil its obligation to provide information pursuant to the abovementioned 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 implement the necessary measures.

j The subject-matter of these proceedings is not, however, failure to comply with a 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.

JUDGMENT OF 25. 5. 1982 — CASE 97/81

6 It should be emphasized that, in proceedings under Anicie 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.

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 infor- mation.

1 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.

: 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 bv means of national provisions of a binding nature. The directive in question, adopted inter alia pursuant to Anicie 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 verv 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.

? None of the matters put forward by the Netherlands Government justifies the conclusion that provisions of a binding nature have actually been adopted either bv the national authorities or by regional or local authorities in order

JUDGMENT OF 25. 5. 193: — CASE «7/81

N 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 muliiennial 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 be reason of that amendment, the failure to fulfil the obligation might have been wholly remedied, that the measures needed to ensure 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.

COMMISSION v NETHERLANDS

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 Stuart O'Keeffe Koopmans Everling

Delivered in open court in Luxembourg on 25 May 1982.

For the Registrar

H . A . Rühi J. Menens de Wilmars Principal Administrator President