C-58/89

OPINION OF MR JACOBS —CASE C-58/89

O P I N I O N O F M R ADVOCATE GENERAL JACOBS delivered on 8 May 1991 *

My Lords, maintained for such water, and provides for the drawing up, by the Member States, of national programmes of water improvement. The sampling directive then defines more closely the methods and frequencies of sampling and analysis by which water quality is to be monitored.

1. In this case, the Court is asked to declare that the Federal Republic of Germany has failed fully to implement and comply with two directives: Council Directive 75/440/EEC of 16 June 1975 (Official Journal 1975 L 194, p. 26), concerning the 3. The Commission brought its action quality required of surface water intended under four heads: (1) breach of an obli- for the abstraction of drinking water; and gation to classify water into the three Council Directive 79/869/EEC of 9 categories defined by the quality directive; October 1979 (Official Journal 1979 L 271, (2) breach of the obligations to set and p. 44), concerning the methods of maintain quality levels for the water so measurement and frequencies of sampling classified; (3) failure to draw up a plan of and analysis of such water. I shall refer to action for water improvement and these as the 'quality directive' and the communicate it, and any improvements 'sampling directive' respectively, and collec- achieved, to the Commission; (4) failure to tively as 'the directives'. Time for the provide the Commission with information implementation of the directives expired on required under Article 8(1) of the sampling 18 June 1977 and 11 October 1981 directive. It will be convenient to take these respectively. four points in turn.

5. It is I think clear from the wording of Annex II and Article 4(3) that these quality levels relate to the characteristics of water intended for the abstraction of drinking water, not of water which has already been Annex I accordingly defines three categories abstracted and given purification treatment. of treatment for transforming water of each The English version of Article 1 is category into drinking water. Corre- misleading in this respect, and the French sponding to category A l , for instance, are version perhaps ambiguous. The German methods of 'simple physical treatment and version of Article 1 is, on the other hand, disinfection', whereas category A2 methods free from ambiguity, and is in my opinion include 'normal physical treatment, chemical correct. treatment and disinfection', and those of category A3 include 'intensive' and 'extended' methods of treatment and disin- fection. The second sentence of Article 2 then provides that: 6. This categorization of water is funda- mental to both directives. Unless it has been taken into account, a Member State cannot fix the parameter values applicable at each sampling point, pursuant to Article 3 of the quality directive, or draw up a plan of 'These groups correspond to three different action for water improvement, pursuant to qualities of surface water, the respective Article 4(2). Nor would it be in a position physical, chemical and microbiological to comply with Article 6 and Annex II of characteristics of which are set out in the the sampling directive (which lay down, table given in Annex II.' with reference to the three categories, the minimum annual frequencies of sampling and analysis). On the other hand, it is by no means obvious that Article 2, taken by itself, gives rise to a separate obligation to classify the surface waters of a Member State.

Commission's reasoned opinion of 20 June points are not mentioned in Article 2. Of 1988, that 'all waters in Baden-Württemberg course, if Article 2 did create a distinct duty which are used to supply drinking water fall to classify water, the Commission would no under category A l ' . What the Commission doubt be right in contending that such an requires is for a classification to be carried obligation could not always relate to whole out concretely for each 'sampling point' stretches of water, as opposed to individual (point at which water is abstracted), and this sampling points, since it is clear that water has been done, according to the can be of different quality at different Commission, only for Bavaria, Rhineland- points. There is for instance no reason to Palatinate and Schleswig-Holstein. suppose that water taken from two points of a single river must necessarily be of the same category, since an additional source of pollution might lie between the two. In my view, this merely goes to show that Article 2 does not itself impose any obligation to classify water. 8. The German Government replies that, in any case, what is required is a classification of water, not of each individual sampling point. All water abstracted for drinking water has, it says, been classified into one of the categories A l , A2 and A3 by the competent regional authorities. The investi- gations which, at the time of the Commission's application, were still 10. What Article 2 does, in effect, is to continuing in some cases (notably North define the three categories of water, Al, A2 Rhine-Westphalia) were to determine the and A3, in terms of appropriate methods of source of pollution, and not the quality of purification treatment. In other words, the water. Those investigations have Article 2 itself accomplishes the classifi- meanwhile been concluded. cation, by defining water in terms of the standard methods of treatment described in Annex I: it does not require Member States to embark upon an independent process of classification. If Article 2 implies any obli- gation, therefore, it is that of not subjecting a given category of drinking water to the wrong method of treatment, i.e. a method 9. In my view, the Commission's first head appropriate only to water meeting more of claim is misconceived, in so far as it stringent standards of purity. assumes that Article 2 creates an inde- pendent obligation to classify water, distinct from the other obligations imposed by the directives. It is however difficult to see how Article 2 could create any such separate duty. Thus, it is significant that under this first head, the Commission refers to a duty to classify water at each sampling point. As the German Government points out, 11. Until the hearing, the Commission did however, it is Article 3(1) which imposes an not make any allegation that water had obligation 'for all sampling points, or for been given treatment which was inappro- each individual sampling point': sampling priate in this sense. The complaint made in

12. It follows from Article 3 that a value specified in Annex II for water of category A2 cannot be set for water classified as Al (see below, paragraph 15). A Member State which did this would be in clear breach of its obligation under Article 3. Suppose, on the other hand, that water given Al purifi- cation treatment is classified by the Member State as category A2 (so that it claimed the right to set A2 values pursuant to Article 3). This would not, it seems to me, be permitted by the directive: but the error would consist in treating water meeting only 14. In my opinion, it is by no means clear A2 quality levels by means of an insufficient what formal act, distinct from the act of method of purification (namely one appro- setting applicable values pursuant to Article priate only to Al category water); and it 3(1), would be required to fulfil such a duty should be noted that the directive's second of classification. In selecting a method of recital refers to the need to exercise purification, the Member State will in effect surveillance 'over surface water intended for have categorized the water being treated. the abstraction of drinking water and over Thus, whatever formal declaration it may the purification treatment of such water1 (my make, if water is subjected to Al treatment, emphasis). The error would not consist in the quality levels to be complied with are wrongly classifying the water, since if it those specified for water of category A l . If meets only A2 standards it is correctly any formal act of categorization is required, classified as A2. If, on the other hand, it it is best regarded as a preliminary step in does meet Al standards, and values are set the setting of values pursuant to Article 3. accordingly pursuant to Article 3, its cate- As far as Article 2 itself is concerned, it does gorization as A2 would be an empty not seem to me that the Commission has gesture, and would it seems to me have no established the breach of any distinct obli- legal consequences. gation imposed by that article.

'Member States shall take all necessary (...)' measures to ensure that surface water conforms to the values laid down pursuant to Article 3. Each Member State shall apply this Directive without distinction to national waters and waters crossing its frontiers.' These values must be set within the ranges specified by Annex II. A column of 'I' values specifies the minimum standard a Member State is required to set for a given water category (e.g. not more than 0.05mg/l of arsenic for category Al). A column of 'G' 18. According to the Commission, it does values specifies standards Member States are not appear from the information supplied by to strive to attain (in the same example, not the German Government that values have more than 0.01 mg/1 of arsenic). been set for every sampling point in accordance with Article 3 of the quality directive. At best, this has been belatedly done for the Land of Schleswig-Holstein (not before December 1988). The German 16. From Article 5(4) of the directive, it Government replied that the necessary appears that a 'sampling point' is any place measures have been taken in different ways at which surface water is abstracted before by different Länder, but always within the being sent for purification treatment. The framework of the "Wasserhaushaltsgesetz' English version of the directive uses the ( W H G ) , the law on the management of term to refer both to the points for which water resources. It pointed out that by values are set, pursuant to Article 3(1), and Paragraph 7 of the W H G (read with to the points at which samples are taken for Paragraph 2), the use of water for a the purpose of verifying that water particular purpose is permitted only conforms to those values (Article 5(1)). The pursuant to a licence ('Erlaubnis'). Licences French version, like the German, uses two for the abstraction of water for public use as different terms: 'point de prélèvement' for drinking water are, it appears, issued by the

19. The German Government's argument appears therefore to run as follows. The W H G gives the competent administrative authorities a discretionary power to grant, refuse or revoke licences for the use of water, and, Paragraphs 4 and 5, to impose conditions and requirements on such use. It is claimed that arrangements are in place which ensure that any licences issued are subject to the appropriate requirements and conditions. In some cases at least, those arrangements consist in binding instructions issued to the local licensing authorities by (for instance) the appropriate ministry of 21. According to the Commission, adminis- the Land concerned. Now suppose a licence trative instructions, not being rules of law, contains conditions relating to minimum cannot be regarded as effectively trans- standards specified in accordance with posing the rules of a directive into a Annex II of the quality directive : then, if the Member State's domestic legal system. Such water falls below the standards specified, a measures lack, in particular, the necessary licensee who continues to use the water is in element of legal effect on third parties, i.e. breach of licence conditions. H e will then persons other than the authorities and water be in breach of Paragraph 2 of the W H G , undertakings concerned. The Commission or at least will be liable to have the licence argues that even where the instructions took withdrawn. The licences are accordingly the the form of published ministerial circulars means by which the appropriate values are binding on the addressee, they would not set and maintained, and the directives are suffice. The Commission's objection seems implemented in Germany by virtue of the to be that it is not clear whether a third combined effect of the legislative framework party could challenge, either the behaviour of the W H G , on the one hand, and the of a licensing authority acting contrary to imposition of licence conditions, on the ministerial instructions, or that of a water other. undertaking breaching licence conditions.

22. According to the German Government, the administrative measures relied upon for implementation of Article 3 take one of two 'It follows from that provision [the third forms, depending upon the Land concerned. paragraph of Article 189 of the Treaty] that In some cases — for instance in Bavaria — the implementation of a directive does not ministerial announcements have been necessarily require legislative action in each published which notify the requirements of Member State. In particular the existence of the directive to the licensing authorities general principles of constitutional or concerned. In other cases, it seems that the administrative law may render implemen- only measures relied upon are individual tation by specific legislation superfluous, decisions addressed to water undertakings provided however that those principles by the licensing authorities. It is argued guarantee that the national authorities will that, in either of these cases, the measures in fact apply the directive fully and that, taken meet the requirements of legal where the directive is intended to create certainty and clarity. Since neither directive rights for individuals, the legal position concerns the relation between the State and arising from those principles is sufficiently the citizen, it is said to be sufficient if the precise and clear and the persons concerned licensing authorities are bound by their are made fully aware of their rights and, instructions, and if the water undertakings where appropriate, afforded the possibility are in turn bound by the conditions of relying on them before the national attaching to the licences, without there courts.' (paragraph 23 of the judgment; see being any need to create rights or obli- also Case C-339/87 Commission v gations in third parties. Netherlands [1990] E C R 1-851, paragraphs 6-8).

recognized so that they could work in allowed to rely upon what the Court has Germany. It followed that the German often referred to as 'mere administrative Government was not permitted to rely upon practices, which by their nature may be an established and consistent administrative changed according to the whim of the auth- practice of recognizing diplomas, for that orities and which lack appropriate publicity' did not create a situation which was 'suffi- (see e.g. Case 160/82 Commission v ciently precise, clear and transparent as to NetherUnds [1982] ECR 4637, paragraph 4 enable nationals of other Member States to of the judgment). The phrase recurs as a discover their rights and to rely on them' constant refrain in non-implementation (paragraph 28 of the judgment). cases, but it deserves closer analysis. The Court cannot in my view be saying that any administrative measure is defective, in that it can be changed too easily by the authorities and is insufficiently public. Such an inter- pretation would be inconsistent with the Court's frequent pronouncements that there can in principle be cases in which legislation 25. Other cases in which administrative (as opposed to administrative provision) is measures were found to be insufficient have »oí required: see Case 29/84 Germany and involved directives harmonizing technical Case C-339/87 Netherlands, cited above at standards, or conditions of authorization, paragraph 24. for the benefit of traders: see Case 102/79 Commission v Belgium [1980] ECR 1473, Case 145/82 Commission v Italy [1983] ECR 711. In the latter case, the existing national provisions which were required to be harmonized took the form of statutory provisions. It followed that administrative measures were not enough, even when they took the form of ministerial circulars which were binding on the administration, and had been notified to the economic interests concerned: see the remarks of Advocate 27. In the first place, a distinction should be General Reischl in Case 145/82 at drawn between administrative measures and pp. 722-3. administrative practices. There is a difference between implementing a directive by means of binding rules issued by a national authority, and relying merely on the estab- lished practices or habits of officials. Only in the former case can there be said to be measures in place which guarantee continuing compliance. On the other hand, 26. As the Court has frequently it cannot in my opinion be decisive that emphasized, the choice of form and administrative measures can easily be methods given to Member States by the changed by the administration, since the third paragraph of Article 189 of the Treaty same may be true of legislative provisions. is to be understood in relation to the In many Member States, certain legislative objective of the directives in question (see powers will be delegated to administrative Case 102/79 Belgium, cited above, authorities, in some cases without the need paragraph 7 of the judgment). It is however for any further approval by the legislature. clear that a Member State will never be In such circumstances the line between

31. Although, in Case 9 7 / 8 1 , it was said that national provisions were required, the Court observed that

29. It seems to me, therefore, that three separate requirements can be distinguished. There is, first of all, a requirement that there should be implementing measures which go beyond mere administrative practice by imposing a binding norm upon 'None of the matters put forward by the official action. Next, there is the Netherlands Government justifies the requirement that whatever measures are conclusion that provisions of a binding taken be made public. Finally, there is the nature have actually been adopted either by requirement that enforceable rights be the national authorities or by regional or local created in individuals. It should not however authorities in order to s e t . . . the values be assumed that all three requirements must applicable . . . ' (paragraph 13, my be fulfilled in the case of every directive. emphasis).

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The requirement of appropriate publicity Creation of enforceable rights

32. In what circumstances will the implementing measures also be required to 33. As I have said, it is clear from the be made public? It is difficult to obtain case-law of the Court that where a directive guidance on this question from the Court's intends that rights or obligations be created case-law, because the question of publicity in individuals, the legal position resulting is often subsumed under the question of the from implementation must be made suffi- creation of enforceable rights. Where a ciently precise and clear to them: this directive requires rights or obligations to be includes the requirement of sufficient created in individuals, the legal position publicity discussed above. In addition, must obviously be made sufficiently precise however, where such rights arise, the indi-

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34. In contrast to the groundwater and 35. As I have already mentioned, even if no atmospheric pollution directives, those at such enforceable rights are to be created it

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may be that there should nonetheless be an general prohibition on the unauthorized use obligation on the implementing State to of water. Before implementation of the make public the measures it has taken, so quality directive fell due, it appears that that the concerned citizen can have recourse water quality was controlled in the Federal to whatever channels of redress are available Republic by the administrative act of issuing under national law against administrative licences within the framework of the W H G . inaction. It might be argued that where the If, therefore, the German Government quality of the environment is concerned, could indeed show that in each of the there are particularly compelling reasons for Länder, binding administrative instructions requiring full publication of implementing had been issued from a central ministerial measures; and it should be noted that the authority, to every local authority Council has recently adopted a directive competent to grant water licences, then that providing for a right of access to infor- would at least go some way towards estab- mation concerning the environment lishing proper implementation of the (Council Directive 9 0 / 3 1 3 / E E C of 7 June directives. The instructions would have to 1990, Official Journal 1990 L 158, p. 56). be measures with binding effects in German As regards the measures relied upon by the administrative law, and would have to German Government, it appears that some require that appropriate amendments be but not all have been published in official or made to all relevant licences. Each of these ministerial journals. measures would also have to be communicated to the Commission under Articles 13 and 10 respectively of the quality or sampling directives.

various examples of what it considered to be isolated administrative decision. Nor, on the adequate implementation of Article 3 of the other hand, can it be sufficient merely to quality directive. In the case of Bavaria, a draw the existence of a directive to the decision of the Landratsamt Hof dated 24 attention of local authorities, or to instruct July 1981 was produced (Annex Bl to the them in general terms to draw the necessary rejoinder), and it appears from the German consequences. In either case, national Government's response to the Commission's provisions of a binding character are reasoned opinion that similar decisions were lacking: see Case 97/81 Netherlands (cited taken by the other competent local auth- above at paragraph 30). orities in Bavaria (Annex 2 to the communi- cation of 26 January 1989). The decision modifies the terms of a licence authorising abstraction of water from the Steinbach and Goldbach, inter alia by setting values corre- sponding to the minimum specified for category A2 water in Annex II of the quality directive. T h e grounds for the decision refer to the two directives, and to a letter dated 30 December 1977 from the Bavarian Ministry of the Interior instructing 41. In the case of Rhineland-Palatinate, the the Landratsamt to draw the necessary defendant produced a decision dated conclusions from the quality directive. That 15 November 1988 of the Bezirksregierung letter was not produced in evidence. The Trier (Annex B4 to the rejoinder), which is defendant did produce a published apparently one of a number of similar announcement of the same ministry dated decisions for that Land (see Annex 5 to the 12 July 1977, but this appears to do no German Government's communication of 26 more than draw to the attention of local January 1989). The decision appears to authorities the terms of the quality directive, impose subsequent conditions on a licence, request them to supply certain information, pursuant to Paragraph 5(1) of the W H G , and promise further instructions (see Annex setting parameter values appropriate for B3 to the rejoinder). category A2 water, as well as setting frequencies of sampling pursuant to the sampling directive. Again, this decision is, at best, correct administrative practice. It is true that the Trier decision also refers to administrative measures ('Verwaltungsvor- schriften') applying the directives, and taking the form of circulars from the Ministry for Agriculture and the Environment (presumably of Rhineland- Palatinate) dated 20 October 1977 and 23 June 1981. These however have not been 40. These documents — namely the indi- produced in evidence, so that their vidual decision of the Landratsamt Hof and adequacy as implementing measures cannot the published announcement of the Bavarian be assessed, and the defendant did not seek ministry — cannot in my view be regarded to rely upon any such measures in its as sufficient evidence of proper implemen- rejoinder (where the position in Rhineland- tation. The former, although binding on the Palatinate was expressly distinguished from recipient water undertaking, and however that obtaining in Bavaria, where ministerial adequate in itself, is no more than an measures were published in the relevant

42. At the hearing, the Commission raised 43. In the case of Schleswig-Holstein, the in addition various points of detail arising defendant produced, in response to the from the decision of the Bezirksregierung Commission's reasoned opinion, two letters Trier. First, it objected that only one value dated 14 December 1988 and 5 January had been set for each parameter, whereas 1989, written by the Minister for Nature the directive specifies two: a mandatory and the Environment of Schleswig-Holstein, value (given by the 'I' column in Annex II), to the local water authorities for Lübeck and a guidance value (given by the 'G' and Kreis Stormarn respectively (Annex 6 to column). I do not think however that Article the German Government's communication 3 of the directive requires two separate of 26 January 1989). These do appear to values to be set: the two columns are better issue binding instructions to amend in seen as specifying the ranges within which a appropriate terms water licences issued by single value is to be set for each parameter these authorities. Both letters were written (the 'I' value specifying the minimum, the after the expiry of the time-limit set in the 'G' value the realistic maximum). Next, the Commission's reasoned opinion, and would Commission pointed out that some of the not therefore amount to evidence of full and values specified were appropriate for timely compliance with Article 3 of the category Al water, but others, for instance quality directive, even if acted upon the value for iron, only for A2. There would immediately by the recipient authorities. At of course be no objection to this, assuming the hearing, the German Government the water to be of category A2, and confirmed that an appropriate licensing assuming an appropriate method of purifi- decision had been taken by the Kreis cation treatment were used. In Annex 5 to Stormarn water authority at the end of the German Government's communication 1989, and said that no drinking water was

44. According to the German Government, no surface water is abstracted for use as drinking water in the case of Hesse, Saarland, Berlin, Bremen and Hamburg. It 46. If a Member State has failed to set the does not dispute, on the other hand, that applicable values pursuant to Article 3, it the directives apply to water abstracted in will of course be unable to ensure that the Baden-Württemberg, Lower Saxony, and water conforms to the values set, and will North Rhine- Westphalia, but it has produced therefore also be in breach of its obligations no evidence of any measures taken in those under Article 4(1). Furthermore, the Länder setting values in accordance with mechanism by which the German Article 3 of the quality directive. As far as Government claims the values are main- Lower Saxony is concerned, the only tained is essentially the same as that by evidence produced was a document annexed which it claims the values are set, namely to its response to the Commission's the attachment of appropriate conditions to reasoned opinion (Annex 3 to the communi- water licences. If it has failed to show that cation of 26 January 1989). The source or there are binding provisions ensuring such status of that document was not clear, but it values are set, it would have equal difficulty appears in any case to relate solely to in demonstrating that there are provisions frequencies of sampling and analysis. In the which ensure water conforms to those case of North Rhine-Westphalia, there was values. an announcement dated 17 October 1989 by the Regierungspräsident of Detmold, declaring the waters of the Aabach Dam to be of category Al (Annex B2 to the rejoinder). It is true that the German Government also referred in its rejoinder to other measures taken in North Rhine-West- phalia, including published ministerial circulars and subsequent decisions of local Regierungspräsidenten. These were however 47. In its reply, the Commission suggested not produced to the Court, and again it is moreover that the German Government had therefore impossible to assess their conceded that limiting values had been adequacy. At the hearing, the German breached, at least in the case of North Government stated that implementation had Rhine-Westphalia (where the defendant had taken place in Baden-Württemberg and indicated that this was due in part to Lower Saxony in exactly the same way as it geological factors). In its rejoinder, the had in Bavaria, but once again no further German Government explained that, evidence was produced. although waters in North Rhine-Westphalia

51. The Commission said that it has received from the German Government no notification of any such plan, despite an express request, and despite the general 49. I do not in any event consider it either duty to communicate implementing necessary or appropriate for the Court to measures imposed by Article 10. Nor, said make any separate declaration regarding a the Commission, has it received any details breach of Article 4(1). To the extent that of what improvements have actually been the two duties are inseparable, it suffices to achieved. In response to a written question find a failure to comply with Article 3. In so of the Court, however, this head of claim far, on the other hand, as they can be was withdrawn in respect of the Bodensee distinguished, it should be observed that a (Lake Constance). breach of Article 4(1) is mentioned neither in the Commission's letter of formal notice of 18 August 1987, nor in its reasoned opinion of 20 June 1988. It is however these documents which define the subject-matter of proceedings under Article 169: see Case 52. The German Government responded to 211/81 Commission v Denmark [1982] ECR this complaint as follows. On the one hand, 4547, Case 51/83 Commission v Italy [1984] it considers that an obligation to plan and E C R 2793 and Case C-48/89 Commission v carry out water improvement exists only in Italy, judgment of 14 June 1990. respect of water which is not classified as

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53. As far as pollution due to the nature of the soil is concerned, this is, as the 54. Similarly, given that the directive applies Commission pointed out, a matter expressly without distinction to national waters and regulated by Article 8 of the quality waters crossing frontiers (see the second directive, which allows a Member State to sentence of Article 4(1)), its obligations 'waive' (i.e. derogate from) the directive in extend also to pollution originating outside various circumstances, including those in the territory of the implementing Member which water undergoes natural enrichment State. Once again, a Member State must be from the soil. The fourth paragraph of prepared at least to consider what measures Article 8 provides that: could be taken over a 10-year period.

55. It is true that the plan envisaged by Article 4(2) will be one which assigns 'Where a Member State waives the priorities and takes account of economic provisions of this Directive, it shall and technical constraints. The most polluted

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56. It does not seem to me, moreover, that the German Government has established that the waters on its territory were already of such a high quality that the 'continuing' and 'considerable' improvements referred to 'For the purposes of applying this Directive, in the first subparagraph of Article 4(2) the Member States shall provide the were impossible to achieve. It is true that in Commission at its request with all relevant its rejoinder it was able to point to some information on: measures of improvement which have taken place in the cases of the Danube and Lake Constance. The fact remains that, in the absence of a systematic plan, it is not possible to say what improvements could reasonably be expected under Article 4(2), the obligations of which are predicated — the methods of analysis used, upon the existence of a plan and a dialogue with the Commission. In my view, the failure to draw up such a plan and submit it to the Commission's examination was in itself a clear breach of the obligations imposed by Article 4(2). — the frequency of analysis.'

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Had use been made of the possibility provided in Article 7, of reducing the 60. It is true that the Commission's original frequencies of sampling and analysis? request did not ask for population figures, although I think it would have been entitled to do so, since those figures are relevant for the purposes of applying the directive. Similarly, despite the suggestion in the Commission's application that an express request was made for information on methods as well as frequency of analysis, it The Commission claimed that this infor- appears that only the latter was in fact mation was not provided in the requisite requested by the Commission. The fact detail, and that where it was provided, it remains that, with the possible exception of was deficient in not specifying the popu- Lower Saxony, the defendant has not lation served by each sampling point. supplied information which the

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Commission, as it was entitled to do, did for the purpose of drawing up a expressly request. The argument which the consolidated report on the application of German Government put forward in its the directive. Although the German defence must be rejected, according to Government indicated in its rejoinder that it which Article 8(1) only covers cases where is prepared to supply the information, the there exists a 'specific need' for information, fact remains that it had failed to do so by one which has to be Objectively justified' by the time this action was brought, and must the Commission. The need which the consequently be found to be in breach of its gathering of this information serves is the obligations under Article 8(1) of the general one of obtaining all relevant data, sampling directive.

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63. I am accordingly of the opinion that the Court should:

(1) Declare that the Federal Republic of Germany has failed to fulfil its obli- gations under the EEC Treaty, by failing to take the measures required under

(a) Article 3 and Article 4(2) of Council Directive 75/440/EEC of 16 June 1975, and

(b) Article 8(1) of Council Directive 79/869/EEC of 9 October 1979;