C-42/89

OPINION OF MR LENZ —CASE C-42/89

O P I N I O N OF M R ADVOCATE GENERAL LENZ delivered on 14 D e c e m b e r 1989*

Mr President, defendant dated 24 November 1989 in Members of the Court, which notice was given of the transposition of Directive 80/778 by the Flanders, Brussels and Walloon Regions, the Commission withdrew its action in part. It is A — The facts of the case maintaining its action in so far as the following alleged infringements are concerned: 1. The case on which I deliver this Opinion today concerns proceedings under Article 169 of the EEC Treaty brought against the Kingdom of Belgium (hereinafter referred to as the 'defendant') for failure to fulfil its (i) the measure adopted by the Brussels obligations under that treaty. The case Region for transposing the directive is concerns the failure adequately to transpose contrary to the Treaty in so far as into national law Directive 80/778/EEC water drawn by private persons for relating to the quality of water intended for household use is excluded from the human consumption. 1 scope of the measure;

only in so far as they are essential for the effective transposition measure, the reasoning. application lacked in that respect the substantive basis required for it to be considered. The legal measures adopted by the Regions, which superseded the Royal Decree of 27 April 1984 during the course B — Opinion of the proceedings, could, however, come within the compass of the subject-matter of the action. As far as the transposition measure in respect of the Flanders Region is I —Admissibility concerned, the question does not arise, since in that respect the action has been withdrawn. The situation is different, however, in regard to the transposition measures taken by the Brussels and Walloon 5. It has been consistently held by the Regions since, in so far as these are Court that the subject-matter of the action concerned, the claims concerning incorrect in Treaty-infringement proceedings is transposition have in part been maintained. delimited by the subject-matter of the pre-litigation procedure. In that procedure in the present case the complaint raised against the defendant concerned belated 8. In view of the fact that the subject-matter transposition, the fact that the transposition of the dispute has remained the same to the by the Royal Decree of 27 April 1984 was extent to which, in abstracto, it is the trans- not in conformity with the terms of the position of Directive 80/778 that is in issue, directive and the problems arising in the substantive alteration in the matters to connection with the inadequate water be reviewed must be regarded as admissible; supply in Verviers. reasons of procedural economy also militate in favour of that conclusion. If the action currently pending were inadmissible in part, the Commission would have to bring fresh proceedings in order to establish the irregu- 6. As far as the belated transposition of the larities in the transposition measures which directive into national law is concerned the have since become applicable. defendant has expressly acknowledged its default. The lateness of the transposition is no longer an issue. II — The substance of the case

10. It is true that in Directive 80/778 12. The distinction between the first and mention is made in general terms both in second indents may signify that the the title and in the recitals (first recital) of provision contains an exhaustive 'water for human consumption'. In that enumeration of alternatives, so that water general context all water used by persons in drawn by private persons for household use whatever manner falls within the scope of falls into neither of the two categories. It is the directive. Article 1 of Directive 80/778 neither supplied for consumption nor used is also framed in general terms; it reads: in the manufacture of products, within the 'This directive concerns standards for water meaning of the provision, whose whole- intended for human consumption'. someness may be affected thereby. However, it would also be possible to regard the two alternatives contained in Article 2 of the directive as a non-exhaustive enumeration so that the legality of the 11. However, both in the recitals to and in contested measure could not be assessed Anicie 4 of the directive, the sphere of solely by means of an interpretation of application of the directive is from the Article 2. outset restricted. Natural mineral waters, medicinal waters and certain waters used in the food industry are excluded from the application of the directive. However, Article 2 of the directive is equivocal. It reads: 'For the purposes of this directive, 13. Nor may it be inferred from Article 12, water intended for human consumption which provides the legal basis for the moni- shall mean all water used for that purpose, toring, that water drawn for household use either in its original state or after treatment, falls within the sphere of application of the regardless of origin, directive. However, Article 12(4) makes express reference to Annex II to the directive which, moreover, even without that reference, forms part of the directive.

17. (a) In so far as as it is objected, with regard to the legal measure by which the Walloon Region transposed Directive 80/778, that it excludes from the scope of the directive water drawn by private indi- 15. It may therefore be inferred from viduals for household use, the same Annex II to the directive that for quantities considerations as those set out above in of water drawn for private purposes and for regard to the measure adopted for Brussels the categories of persons concerned thereby apply. not only is frequency of monitoring at the discretion of the competent authorities but in fact no analyses at all are provided for. If therefore the categories of persons who draw water for their households fall, both in 18. (b) In addition, the applicant maintains fact and in law, outside the analysis its objection, already directed against the provisions, the fact that a Member State, Royal Decree of 27 April 1984, that the drawing the inference from this, has incor- possibility provided by Article 9 of the porated that legal consequence in the actual directive for derogating from its provisions text of the transposing provision cannot was transposed into national law subject to constitute an infringement of the Treaty. less stringent conditions than those laid down in the directive. The condition laid down in Article 9(3) of the directive that the derogations should in no case relate to toxic or microbiological factors was not reproduced in the national legal measure.

3. The Verviers water supply the Commission from the Permanent Repre- sentation of Belgium dated 15 November 1985 mention was made of an application for a longer period and notice was given that the competent (Belgian?) authorities were examining it. In a letter of 25 February 20. It is not disputed that water intended 1988 from the Belgian Permanent Represen- for human consumption in Verviers supplied tation a special request was for the first time from the la Gileppe barrage lake contains an made to the Commission for an extension of excessively high lead content, as calculated the period, a request which, in a letter of 17 according to the values laid down in January 1989 from the Secretary of State Directive 80/778. Even if the population for Environment and Social Emancipation, now receives part of its water supplies from was reiterated, and in the letter of 1 March other sources, about 10 000 persons remain 1989 put in evidence at the hearing, was potentially at risk. substantiated in detail.

24. It now falls to be considered whether an 21. A water treatment station is currently infringement of the Treaty is to be seen in under construction which should be ready the fact that the Verviers water supply, at by the end of 1990, so that by the beginning least in part, did not satisfy the requirements of 1991 it will be possible to supply Verviers of the directive within the period laid down with water which conforms to the provisions in Article 19 of the directive or whether a of the directive. The financial outlay special request within the meaning of Article for the project amounts to about 20 was made, the effect of which in law was BFR 1 500 000 000 (1.5 billion). Tendering to extend the period. procedures for the constructions works were begun on 25 October 1983 and the actual work was started on 5 April 1984.

(iii) a timetable for the improvement of the quality of the water. 26. The fact that derogations from the directive are also possible under Articles 9 and 10 supports the view that Article 20 is 28. The difficulties did not in this case need in the nature of a transitional provision. If to be set out down to the last detail, since one takes the view that the request under the excessive lead content of the water in Article 20 must be made within the periods Verviers was a known fact and had been the laid down in Articles 18 and 19, it does not subject of lively correspondence between the matter whether the two-year period laid parties. down in Article 18 or the five-year period laid down in Article 19 is considered to be decisive, since the request in February 1988 was in any event made too late. Even the announcement that such a request would be 29. The action programme was constituted made in November 1985 did not occur until by the realization of a substantial project, after expiry of the period laid down in the construction of a water treatment plant. Article 19 of the directive. My view is therefore that the special request was not made in good time and that the period cannot legally be extended. 30. The timetable was also determined in advance, inasmuch as at no time was it counted on completing the project before the end of 1990. Moreover, in its letter of 1 March 1989, which was produced at the 27. (b) If, leaving aside the formal hearing, the defendant gave a detailed argument, and having regard to the fact that timetable setting out which financial the problems concerning the supply of water resources in which financial year would be to Verviers were also known to the available for completion of the works, and Commission and that the work, which was would be employed. substantial in nature and entailed considerable expense, was begun during the period laid down in Article 19, one was disposed to regard the request as having 31. In view of the fact that the project to be been made in good time, it remains to implemented was known about since the examine whether the request also satisfies beginning of the 1980s and that work had the requirements of Article 20(2) of the actually started on it, which meant that directive. In accordance with that provision considerable sums had to be made available, a request must contain the request submitted satisfies, in my opinion, the substantive requirements of 3 — Judgment in Case 228/87 Criminal proceedings against X [1988J F.CR 5099, paragraph 11 Article 20(2) of the directive.

(a) in the measure adopted by the Walloon Region for implementing the directive the derogating provisions are subject to conditions which are less stringent than is required by the directive,

(b) the Verviers water supply did not conform to the requirements of the directive within the prescribed periods.

(2) The remainder of the application is dismissed.

(3) The parties shall bear their own costs.'

I-2834