C-290/89
ECLI:EU:C:1991:71
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COMMISSION v BELGIUM
O P I N I O N OF MR ADVOCATE GENERAL LENZ delivered on 21 February 1991 *
Mr President, a law of 8 August 1980 the implementation Members of the Court, of the directives falls within the competence of the Regions. By letter of 8 December 1986 to the Belgian Government the Commission requested detailed information A — Facts about the measures taken to implement the provisions of the directives. Since there was no answer to the letter, the Commission initiated the procedure for infringement of the Treaty. The period of two months given 1. The case in which I am giving my in the reasoned opinion of 25 May 1988 Opinion relates to proceedings for expired on 25 July 1988 without the infringement of the Treaty brought against Commission's having been informed in any the Kingdom of Belgium for failing to fulfil way of any implementing measures. its obligations under Directives 75/440/EEC' and 79/869/EEC 2 and for breach of its obligations of cooperation and notification in relation to the implemen- tation of the said directives. 4. In the course of the written procedure before the Court and until the day of the hearing the Belgian Government, partly in 2. Directive 75/440 should, in accordance response to questions from the Court, gave with Article 10 thereof, have been information as to the measures which the transposed into national law within two regions gradually adopted in order to years of its notification to the Member comply with the obligations arising from the States on 18 June 1975, that is, on 18 June directives. 1977, and Directive 79/869, according to Article 13, likewise within two years of noti- fication, that is, on 19 October 1981.
5. At the date of the hearing the position 3. The provisions of the directives were was as follows: transposed into Belgian law by the Royal Decree of 25 September 1984. 3 By virtue of
* Original language: German. 1 — Council Directive of 16 June 1975 concerning the quality required of surface water intended for the abstraction of (a) It was not disputed that no drinking water in the Member Slates (OJ 1975 L 194, p. 34 et seq.). implementing measures were needed in 2 — Council Directive of 9 October 1979 concerning methods the Brussels Region since that region of measurement and frequencies of sampling and analysis had no surface water for the purposes of surface water intended for the abstraction of drinking water in the Member Slates (OJ 1979 L 271, p. 44 et of the directive. There would also seq.). therefore be no need to implement the 3 — Royal Decree of 25 September 1984, Moniteur Belge of 27 February 1985, p. 2168 directive in the future.
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(b) All the requisite measures had in all Directive 75/440 of 16 June 1975 essential respects been adopted in the concerning the quality required of Flanders Region during the course of surface water intended for the the proceedings before the Court. Only abstraction of drinking water in the the systematic plans of action, including Member States and Council Directive a timetable for the improvement of 79/869 of 9 October 1979 concerning surface water, required under Article methods of measurement and 4(2) of Directive 75/440 had not yet frequencies of sampling and analysis of been drawn up. surface water intended for the abstraction of drinking water in the Member States or by failing to adopt measurements to implement the (c) Even by the day of the hearing only provisions of those directives, the some of the requisite measures had been Kingdom of Belgium has failed to fulfil adopted in the Walloon Region. its obligations under the Treaty estab- According to explanations supplied by lishing the European Economic the Belgian Government's represen- Community; tative, the necessary implementing measures could not be adopted earlier owing to a lack of the necessary financial means. In the meantime the — order the Kingdom of Belgium to pay financial conditions had been created by the costs. a decree so that also the Walloon Region would adopt the requisite measures for the transposition of the 8. In view of the factual and legal situation two directives. in the Brussels Region, the Commission restricted its claims in the reply with the result that they now relate only to the implementation and transposition of the 6. In view of the developments which had directives in the Flemish and Walloon taken place in the meantime, the question Regions. was raised at the hearing as to how the subject-matter of the action should now be dealt with. The Commission's Agent stated that he did not think it sensible to pursue 9. The Kingdom of Belgium has not matters which had already been settled and specified any form of order which it seeks. to have them sanctioned by a judgment. At the same time he stressed that he had no instructions to withdraw the application. 10. Reference is made to the Report of the Hearing for details of the facts and obser- vations of the parties. 7. In its application the Commission claimed that the Court should: B — Opinion
— declare that, by failing to notify the measures taken by it in order to comply 11. It is first necessary to consider what with its obligations under Council effect the settlement a part of the claim
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during the course of the proceedings has on adequate response to the termination of the the subject-matter of the action. situation complained of.
15. In the present case, however, there has 12. The Court has consistently held that the been neither a formal restriction of the interest in bringing proceedings for breach claim nor a partial withdrawal of the of obligations under the Treaty does not application. It is true the Commission's cease to exist solely because the defendant representative expressed the view that it Member State has subsequently adopted the would not be sensible to pursue the matters line of conduct required of its authorities. which have been settled. However, on being All that is required for the action to be asked, he expressly stated that he had no admissible is that the Member State had instructions to withdraw the application. failed to comply with its obligations under the Treaty when the period allowed in the reasoned opinion expired. 4
16. The explanations of the Commission's representative in the course of the proceedings must be fully attributed to the Commission, since there was a proper and 13. Failure to put an end to an infringement unlimited authorization for him to represent of the Treaty before the expiry of the it. The representative's explanations can time-limit is not only relevant in deciding therefore be understood only as meaning whether there is an interest in bringing an that he wished neither to withdraw the action but must also be regarded substan- application nor formally to restrict the tively as a definitive breach of the Treaty. 5 claim. Just as the admissibility of an action for breach of the Treaty cannot be called into question by the subsequent conduct of the defendant Member State, so the action cannot in that manner be deprived of its 17. The subject-matter of the action on substance. which a decision has to be given therefore remains the subject-matter set out in the application and amended in the reply.
14. The withdrawal of the action or the applicant's restriction of it to the matters of 18. It may be asked what all the procedural complaint that are still outstanding is consequences of the conduct of the Belgian conceivable and constitutes a wholly Government, which at no stage of the proceedings sought any form of order. A 4 — Case 39/72 Communon v Italy [1973] ECR 101, para- properly drafted defence must, according to graphs 9 and 11; Case 103/84 Communon v Italy[1986] Article 40(1) of the Rules of Procedure, ECR 1759, paragraphs 8 and 9, Case 154/84 Communon v Italy [1987] ECR 2717, paragraph 6, see also mv Opinion state inter alia 'the form of order sought'. If in Case 240/86 [1988] ECR 1835, paragraph 12 a defendant fails to lodge a defence in a 5 — See lhe judgment in Case 200/88 Communon v Hellenic Republic[1990] ECR I-4299, paragraph 13 et seq proper form, the applicant has the possibility
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under Article 94(1) of the Rules of on the methods of analysis used' and 'the Procedure to apply for judgment by default. frequency of analysis'. If, however, there is no such application the normal proceedings continue. 6
22. The failure to provide the information requested, which had not been made good by the expiry, on 27 July 1988, of the 19. In a letter dated 8 December 1986 the period laid down in the reasoned opinion, Commission requested the Belgian constitutes therefore a clear breach of the Government to answer a number of duties incumbent on the Member States questions which would have enabled the under the two directives and Article 5 of the Commission to determine whether EEC Treaty. Directives 75/440 and 79/869 had been properly implemented.
23. As regards the question whether the measures required by the directives were in fact adopted, it is not denied that, with 20. In addition to the general duty to regard to the Flemish and Walloon Regions, transpose Directive 75/440, as laid down in the necessary steps had not been initiated Article 10, the Member States are required before the expiry of the time-limit laid to notify the Commission of the measures down in the reasoned opinion in the context they have taken. The Commission has, of the pre-litigation procedure and that, at furthermore, more extensive powers of the time of the hearing, the obligations had investigation which are directly anchored in not been fulfilled in their entirety. the directive. Under the third subparagraph of Article 4(2) the Commission has, for example, to carry out 'a thorough exam- ination of the plans referred to in the first subparagraph, including the timetables'. 24. In particular, the objection formulated Exceptions to the standard treatment of in relation to the Walloon Region, namely surface water within the meaning of Article that it lacked the financial means to adopt 4(3) must be notified to the Commission in the requisite measures, can provide no advance in the case of new installations. answer to the charge of conduct contrary to the Treaty, since the Court has consistently held that a Member State may not plead provisions, practices or circumstances existing in its internal legal or financial system to justify a failure to comply with 21. The Commission has similar extensive obligations and time limits laid down in powers of inspection under Directive Community law. 7 79/869. Apart from the general obligation under Article 13 to comply with the directive and to inform the Commission, there is an obligation under Article 8 for the Member States to 'provide the Commission 25. For the purposes of a finding of at its request with all relevant information infringement of the Treaty, it is moreover of
6 — See judgment in Case 28/69 Commisiion v Haly [1970] 7 — See the judgment in Case 309/84 Commisiion v Italy [1986] ECR 187, in particular at p. 190. ECR 599, paragraph 17.
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no relevance whether in the course of have adequately implemented Directives proceedings before the Court the defendant 75/440 and 79/869. Member State has partially or completely brought the conduct which infringes the Costs Treaty to an end if the infringement had already been entirely constituted. 8There is, 26. The decision on costs is governed by however, no dispute about that in the Article 69 of the Rules of Procedure. Under present case. The defendant Member State Article 69(2) the unsuccessful party is to be is, therefore, also to be adjudged not to ordered to pay the costs.
C — Conclusion
27. In view of the above observations I propose the following decision:
'It is declared that the Kingdom of Belgium has failed to fulfil its obligations under Directives 7 5 / 4 4 0 and 79/869 by failing t o provide the Commission with the infor- mation requested and by failing to adopt the measures needed to implement those directives within the time-limit laid d o w n .
T h e Kingdom of Belgium is ordered to pay the costs.'
8 — Sec Case 200/88, above.
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