C-92/96

4. Under Article 4(1) of the directive, the Member States must take all necessary mea- sures 'to ensure that, within 10 years follow- ing the notification of this directive, the quality of bathing water conforms to the 2. According to the first recital in the pre- limit values set in accordance with Article 3'. amble to the directive, its object is, 'in order to protect the environment and public health, ... to reduce the pollution of bathing water and to protect such water against fur- ther deterioration'. For this purpose, Article 3(1) provides that the Member States must set the values applicable to bathing water (e. g. the content of certain bacteria) which must correspond to certain parameters given in the Annex. Some of these parameters are binding maximum values, others are given as guidelines. 2 5. Adherence to the limit values is moni- tored, pursuant to Article 6 of the directive, by means of sampling operations carried out by the competent authorities of the Member * Original language: German. 1 — OJ 1976 L 31, p. 1. States. The minimum frequency of these 2 — See Article 3(2) and (3) of the directive. operations is laid down in the Annex.

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6. According to the original version of concerning those reservations. The Kingdom Article 13 of the directive, the Member States of Spain replied in a letter of 13 November were at regular intervals to submit a compre- 1989. As the Commission found that the hensive report to the Commission on their observations in the letter were not such as to bathing water and the most significant char- refute its complaints, it delivered a reasoned acteristics thereof. Since 1993 3 the Member opinion on 27 November 1990 pursuant to States have been required to send the Com- Article 169 of the EC Treaty, granting Spain mission a report on the implementation of one month within which to remedy its fail- the directive every year. ure to fulfil the Treaty obligations in ques- tion. The Kingdom of Spain replied to the reasoned opinion by letter of 15 March 1991.

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directive, the Kingdom of Spain has failed B — Analysis to fulfil its obligations under Article 4 of the directive and under Articles 5 and 189 of the EC Treaty; and

13. By way of justification for its applica- — order the Kingdom of Spain to pay the tion, the Commission claims that the limit costs. values set pursuant to Article 3 of the direc- tive have not been adhered to in a consider- able number of bathing areas 5 in Spain. Thus in 1994 samples did not conform to the limit values set in 29% of cases. 6 According to the Commission, if the places for which the Spanish authorities had not provided infor- mation or where samples had not been taken at the prescribed intervals were included, this figure would rise to 36%. A similar result 11. In this connection the Commission would be obtained for the previous years. points out that its action relates to only one Here the Commission gives the correspond- of the complaints made by it in the pre- ing figures for 1991, 1992 and 1993. litigation procedure. Furthermore, it states that the action relates only to inshore bath- ing waters. 4 It does not therefore relate to sea bathing areas or to coastal waters.

14. The Spanish Government has not denied the accuracy of those figures. The Commis- sion correctly pointed this out in its reply. The Commission's figures relate to the years 12. The Kingdom of Spain contends that the 1991 to 1994, that is to say, a period follow- action should be dismissed and that the ing the expiry of the one-month time-limit Commission should be ordered to pay the given to the Kingdom of Spain in the rea- costs. soned opinion of 27 November 1990 to ter- minate the infringements alleged against it.

16. In my opinion, this question does not require further consideration by the Court. The Commission's figures do not affect the subject-matter of this action. In this case, the Court has to decide whether the Kingdom of Spain has fulfilled its obligations under Article 4 of the directive within the time- limit granted to it for that purpose by the Commission in its reasoned opinion of 27 November 1990. The figures given by the Commission for later years are significant in so far as they show that the alleged situation continued to exist even after the specified period. However, this is not in fact denied by the Spanish Government, subject to the jus- 15. In the reply the Commission produced tifying grounds relied upon which have the corresponding figures for 1995, accord- nothing to do with this particular issue. Fur- ing to which the proportion of samples thermore, the figures could be significant in which did not meet the limit values set was so far as they may permit conclusions to be more or less the same (30.3%) in 1995. drawn with regard to the period which is rel- However, the Commission points out that evant for the decision to be given in the case. because of the drought the Spanish authori- If the limit values in question were clearly ties did not take samples at 122 places where exceeded in all the years which have since sampling had been carried out in previous elapsed, it may well be assumed that the situ- years. 7 In the rejoinder and at the hearing ation was the same during the period to before the Court, the Spanish Government which this case relates. In that respect there argued that it was not permissible to use can be no objection whatever to this submis- those figures because the pre-litigation pro- sion, which the Commission could also have cedure did not relate to them. However, the made in the reply. 8 It should also be Commission argued that they could be used

19. In its defence, the Kingdom of Spain refers to the exceptional drought which has prevailed in Spain for five years. Although dry spells are not unusual in Spain, this has been an exceptionally severe drought which has frustrated every attempt to improve 18. The Spanish Government justifies the water quality. The resulting shortage of failure to fulfil its obligations on three water in watercourses has inevitably led to grounds. First, it contends that its alleged an increase in the concentration of harmful failure is attributable to a factor over which substances. The samples analysed cannot it has no control, namely the exceptional therefore be regarded as representative. In drought prevailing in Spain. Secondly, it those circumstances, it was a 'triumph', as seeks to rely on the general context of the the Spanish Government argued at the hear- directive, mentioning in this connection ing before the Court, that the percentage of primarily Council Directive 91/271/EEC samples which did not conform to the speci- of 21 May 1991 concerning urban waste fied limit values had remained constant over water treatment. 10 Finally, it contends that the years. If due allowance is made for the drought, the percentage of samples which conformed to those values was at least 82%, 9 — Case C-56/90 [1993] ECR I-4109, paragraphs 43 and 44. a figure considerably higher than the Com- 10 — OJ 1991 L 135, p. 40. munity average.

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20. The Spanish Government contends that 22. Finally, the Spanish Government con- this is a case of force majeure which permits tends that the samples relied upon by the the application of Article 5(2) of the direc- Commission relate to compliance with only tive. This provides that deviations from the two of the 19 parameters referred to by the values referred to in Article 3 are not to be directive. taken into consideration 'when they are the result of floods, other natural disasters or abnormal weather conditions'. In the Spanish Government's opinion, the weather condi- tions in question are of this 'abnormal' kind.

13 — See Joined Cases 154/78, 205/78, 206/78, 226/78 to 228/78, 11 — COM(96) 59 final. 263/78, 264/78, 31/79, 39/79, 83/79 and 85/79 Valsabbia 12 — Ibid, (footnote 11), paragraphs 4.2 and 5.8. and Others v Commission [1980] ECR 907, paragraph 140.

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25. Like the Commission, I consider that the 14 — This can be borne out by the people living near the Rhine exception laid down in Article 5(2) of the and the Moselle.

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submitted in 1994, 15 contained a proviso to 28. The crucial factor, however, is that there that effect, 16 is irrelevant as long as the pro- is something to be said, at first sight, for the posal has not become law. Commission's claim that the north of Spain was less affected by the drought. The Span- ish Government has not denied that many of the bathing areas which produced defective samples were in the north. Under these cir- cumstances, the Kingdom of Spain could have refuted the Commission's claim only by means of figures broken down according to individual regions. It would also have been necessary to show that the Spanish 26. Nevertheless, I consider that the Com- authorities had not been in a position, even mission's objections to the Spanish Govern- by making additional efforts, to ensure com- ment's point of view are justified. In my pliance with the directive for the bathing opinion, Spain has not proved that its alleged waters in question. This was not done, and failure to fulfil its obligations was caused in my view, therefore, the Kingdom of Spain entirely or mainly by the drought. cannot rely on Article 5(2) of the directive or on force majeure in general.

expressly set out in the directive, it is unnec- 31. Furthermore, the Spanish Government is essary to consider this point in further detail. wrong in claiming that the Commission Even if this were done, the conclusion would demands that Spanish bathing water should be the same as that which I reached above in be 100% in conformity with the require- relation to Article 5 of the directive. The ments laid down by the directive. At the Kingdom of Spain has not proved that this hearing, the Commission referred once again was a case of objective impossibility. to the wording of Article 5(1) of the direc- tive, which states that, for the purposes of Article 4, bathing water in a Member State is to be deemed to conform to the relevant parameters if (to take only one factor) 95% of the samples correspond to the binding maximum values. Therefore, the directive itself contains a provision which is advanta- geous to Member States in not prescribing 100% compliance with its requirements. At the hearing, the Spanish Government itself referred to the sixth recital in the preamble to the directive, which alludes to the above- mentioned provision. Furthermore, the sev- enth recital shows that even in its present 30. I think I can be brief with regard to the version the directive allows for considerable particular characteristics of bathing water in flexibility. That recital provides for deroga- the Mediterranean region and the Spanish tions (such as, for example, those referred to Government's point concerning flexibility in in Article 5(2)) 'to achieve a certain degree of regard to the interpretation of the directive. flexibility in the application of this directive'. The Commission observes, quite rightly, that the Kingdom of Spain, on its accession, vol- untarily undertook to fulfil the obligations arising from the directive with effect from 1 January 1986 and did not request extra time for giving effect to the directive. If the char- acteristics of the Spanish climate and envi- ronment had really necessitated any adjust- ment to the directive, it would have been the responsibility of the Kingdom of Spain to propose such an amendment during the accession negotiations or, at least, obtain a sufficient period for implementation. This was by no means impossible, as shown by 32. I am also of the opinion that in the the example of Portugal, 20 all the more so if present case the Commission (as it claims the statement made by the Spanish Govern- itself) is demanding from the Kingdom of ment during the hearing before the Court, Spain only the very least that can be that the drought began as early as 1985, is expected of a Member State on the basis of correct. the directive. The Commission's complaint relates to only two of the most important binding parameters. The present action is not concerned with the other parameters, 20 — See point 7 above. whether binding or only for guidance.

35. The Spanish Government considers that Influence of other measures Directive 91/271 is particularly important in this connection. It requires the Member States to ensure that municipalities of a cer- tain size are provided with collecting systems for urban waste water and that such water undergoes treatment before discharge into receiving waters. Some of these provisions state that the requirements laid down must be fulfilled by 31 December 2005. The Span- ish Government contends that there is a dis- 34. In its defence, the Spanish Government crepancy between those rules and Directive discussed in detail the Commission's com- 76/160. In its view, urban waste water is the munication of 21 February 1996 concerning main cause of the pollution of bathing water. the European Community water policy, Since Directive 91/271 allows a time-limit which has already been mentioned. 21 This expiring in 2005 for waste water, whereas document is unquestionably important for Directive 76/160 should have been imple- the future policy of the Community with mented in Spain by 1 January 1986, there has regard to water protection but, in my opin- been no coordination between the two. ion, is not relevant to the present action. Admittedly, the conclusion drawn by the Spanish Government from the communi- cation is that some of the existing measures in this area are outdated and the objectives pursued can be attained, perhaps even more effectively, by other means. However, it is clear from the communication that the present directive is to be retained. 2 2 More- over, in 1994 the Commission submitted a 36. As the Commission correctly observes, the Spanish Government's arguments cannot

succeed. It does not follow from Directive that many of the waters studied should no 91/271 that it was the intention of the legis- longer be regarded as 'bathing water' within lature to give the Member States an addi- the meaning of the directive. In that connec- tional period for implementing Directive tion, the Spanish Government adds that the 76/160. Therefore it cannot be assumed that definition of 'bathing water' in Article 1 of the later directive was intended to grant a the directive is unclear. This provision states 'period of grace' to Member States which that 'bathing water' includes water in which had not yet implemented the directive under 'bathing is not prohibited and is traditionally consideration here. Furthermore, there is no practised by a large number of bathers'. The conflict between the two directives, contrary Spanish Government argues, in the first to the Spanish Government's contention. place, that the lack of precision in the phrase Both serve the same purpose, that is to say, 'a large number of bathers' has led to diffi- the protection of water, but they take a dif- culty and confusion. Some areas are said to ferent approach. The directive under consid- have continued to be managed as bathing eration requires the Member States to ensure areas even though they have been abandoned that certain limit values for bathing -water are by users. Secondly, the fact that there is no not exceeded. If, to that end, it was necessary provision with regard to the consequences if to take action against pollution from urban bathing is prohibited, whether temporarily waste water, there was already an obligation or permanently, by the authorities, is said to to do so arising from the 1976 directive have led to uncertainty. According to the which is relevant to this case. In that connec- Spanish Government, the Commission pro- tion, nothing has been changed by Directive posal of 1994 is more specific is so far as it is 91/271. That interpretation in no way clear that, in the event of a permanent prohi- detracts from the latter directive, which also bition, the water in question would no applies, for example, where urban waste longer be bathing water. 24 water is discharged into water which is not 'bathing water'.

possibility cannot be ruled out that the fall in factual grounds alone, justify the failure to the number of bathers is attributable pre- fulfil its obligations. The Commission was cisely to the deterioration in the quality of right to observe that the number of places the water. If this were tolerated to the extent where samples were taken, or ought to have that a Member State would no longer have to been taken, in Spain has risen over the ensure that the limit values set were adhered years. 27 If the Spanish Government's alle- to for that water, it would be contrary to the gation were correct, the number would have meaning and purpose of the directive. The been expected to fall. The Spanish Govern- same applies to the question of what the ment has not been able to explain that con- consequences are of an official ban on bath- tradiction, which cannot in any case be said ing. It should be borne in mind that the to be due to the alleged difficulties involved directive is intended to protect not only in interpreting the definition in Article 1 of health, but also the environment. 25 If a the directive. Member State were permitted simply to pro- hibit bathing where water becomes increas- ingly polluted and to cease to treat that water as bathing water, only one of those objectives at best would be attained. There- fore that interpretation would be contrary to the objectives of the directive. There is no need to determine whether the situation in this respect would be substantially altered by the Commission's 1994 proposal for a new directive, as the Spanish Government seems to assume. 26

42. In the action brought by the Commis- sion against the United Kingdom for failure to fulfil its obligations, which was mentioned earlier, 28 the form of order sought by the In addition, I should like to thank those Commission was very similar to that in the who, although they play an important part, present case. In that judgment, the Court are hardly ever mentioned in judgments and chose a different wording without giving any opinions. First and foremost, I would like to reasons, although it does not appear that a mention the interpreters and translators difference in substance was intended. As the without whose work the Court could not wording chosen by the Court seems to me to deliver judgments at all. So far as the transla- have the virtue of elegance, I believe it tions are concerned, over the years I have should be used in the present case as well. followed the translation of my texts into French, for reasons which may easily be guessed. The quality of these translations, and of those into other languages which I have been able to compare, has always been Closing remarks impressive. Sometimes I have even had the impression that the translation sounded bet- ter than the German original. As I cannot name here all the individual translators to whom I owe a debt of gratitude, may I 43. This case is the last in which I deliver an express my heartfelt thanks to all of them opinion before the Court. Therefore I would through the head of the French Translation like to take this opportunity to express my Division, Mr J.-P. Vernier, whose patience I have on occasion severely tried. My thanks are also due to the members of the research 28 — See footnote 9. and documentation department and to the

(2) T h e K i n g d o m of Spain is o r d e r e d t o p a y t h e costs.

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