C-340/96

COMMISSION ν UNITED KINGDOM

OPINION OF ADVOCATE GENERAL MISCHO delivered on 15 September 1998

1. The Commission complains that the United following its notification, and forthwith to Kingdom has failed, as regards England and inform the Commission thereof. In addition, Wales, to fulfil its obligations under Council under Article 19, they must take the neces­ Directive 80/778/EEC of 15 July 1980 relating sary measures to ensure that the quality of to the quality of water intended for human water intended for human consumption com­ consumption ('the Directive'). 1 The term plies with the Directive within five years of 'water intended for human consumption' its notification. As regards the United means water supplied for consumption or Kingdom, those time-limits expired on 18 July taken from private wells or water used in or 1982 and 18 July 1985 respectively. affecting food production (Article 2).

4. Member States are permitted, however, to make provision for derogations in order to 2. The Member States are required to fix take account of situations arising from the values applicable to water, which must be less nature and structure of the ground in the area than or the same as those shown in the 'Maxi­ from which the supply in question emanates mum admissible concentration' column in and situations arising from exceptional meteor­ Annex I (Article 7(1)). They must take the ological conditions (Article 9). In the event steps necessary to ensure that water intended of emergencies, the competent national author­ for human consumption at least meets the ities may, for a limited period of time and up requirements specified in Annex I (Article to a maximum value to be determined by 7(6)). them, allow the maximum admissible concen­ tration to be exceeded (Article 10).

6. Section 68(1 )(a) of the Water Industry Act 1991 requires water companies to supply only water which is 'wholesome' at the time of supply, where that water is intended for human (a) Where a water company is in breach of consumption. 'Wholesomeness' is defined in its primary obligation to supply whole- the Water Supply (Water Quality) Regula- some water, the Secretary of State must tions 1989, as amended, in particular by the make a provisional or final enforcement Water Supply (Water Quality) (Amendment) order (section 18) unless the company Regulations 1991 and the Private Water Sup- concerned has provided him with an plies Regulations. The parameters established appropriate undertaking (section 19). by those provisions incorporate those laid down by the Directive and, in some cases, impose more stringent requirements. According to the United Kingdom Govern- ment, the obligation laid down by the Water Industry Act 1991 to supply wholesome water is an absolute one. It is not a defence for a (b) Where the Secretary of State chooses to water company to show that it has done make a final enforcement order, that order everything practicable or possible to supply must make 'such provision as is requisite wholesome water. Furthermore, according to for the purpose of securing compliance' section 37 of the Act, water companies are (section 18(1) and (5)(a)). under a duty to maintain supplies of water sufficient to ensure that they can meet all their obligations under Part III of the Act, including the obligation under section 68 to supply water which is wholesome. (c) An enforcement order may be revoked at any time (section 18(5)(c)).

(e) In addition, where a water company has (h) The Secretary of State may apply to the failed to comply with an enforcement courts to make a special administration order, the Secretary of State may seek an order, inter alia, where there has been a injunction from the courts requiring com­ serious breach of the secondary obliga­ pliance (section 22(4)). tion to comply with an enforcement order (section 24(1) and (2)). Where the breach is serious enough to make it inappropriate for the company to continue to hold its appointment, the court may order that its functions should be transferred to another (f) The Secretary of State is not required to company (section 23(1) and (2)). make an enforcement order where the relevant water company has given, and is complying with, an undertaking to take all such steps as it appears to him for the time being (undertakings are kept under continuous review) to be appropriate for The scope of the action and the arguments the company to take for the purpose of of the parties securing or facilitating compliance with the requirements of the Directive (section 19(l)(b)).

9. It should be noted at the outset that the object of the present action is not restricted to a declaration by the Court that, as at the (g) The requirement to comply with an under­ date when the action was brought, the water taking is a separate statutory requirement quality throughout England and Wales and gives rise to an independent legal did not meet the criteria laid down by the obligation — described as a secondary Directive. obligation in the proceedings before the Court — over and above the primary 2 obligation to supply wholesome water. Failure to comply with an undertaking itself gives rise to an obligation on the part of the Secretary of State to make 10. As is apparent from the Commission's application, it is requesting the Court to rule 2 — See the wording of the defence (English version). that,

11. The defendant emphasises the signifi- cance, for the purposes of discharging the burden of proof, of the precise terms of the order sought in the application. According to 16. Thus, the Commission points out, by way the defendant, it is apparent from the form of of example, that in 1995, in the Thames region, order sought that the Commission is 4.3 million people out of a total population of requesting the Court to rule not only that the 7.3 million were supplied with water con- water supplied for human consumption failed taminated by the pesticide isoproturon. The at the material time to fulfil the quality stan- Commission calculates from the figures pro- dards laid down by the Directive but also vided by the defendant that in 1995 20% of that that failure results from the mechanism the population of England and Wales received set up by the United Kingdom authorities to water which did not comply with the stand- enforce the Directive and, in particular, from ard for pesticides. their acceptance of undertakings given by water companies.

18. According to the Commission, there is a 22. First, it asserts that the Commission's striking contrast between enforcement orders arguments fail to distinguish between the pri­ and undertakings. The latter contain no obli­ mary obligation incumbent on a Member State gation to achieve any specific results; instead, in such circumstances, namely the duty to they merely require certain works to be car­ ensure that water supplied to the consumer ried out. Moreover, they enable water com­ conforms, on the due date, to the standards panies to seek amendment both of the target prescribed, and its secondary obligation, which dates and of the technical specifications of the is to take all necessary steps, in the event of works required to secure compliance with the non-compliance with the primary obligation, Directive. Such companies can therefore easily to remedy the situation as rapidly as possible. go for years without applying the standards laid down by Community law.

23. The United Kingdom does not deny that it has failed to fulfil its primary obligation; it considers, however, that it has discharged its secondary obligation. It proceeds to point out 19. The Commission further considers that, that the Water Industry Act 1991 also imposes by accepting undertakings, the authorities a primary obligation on the water companies, refrain in practice from having recourse to requiring them to supply water which meets enforcement orders. In its view, such a coop­ the standards laid down by the Directive. erative attitude towards the water companies That obligation subsists at all times and in all would have been acceptable during the first circumstances — even, therefore, after an few years when the Directive was to be imple­ undertaking has been accepted. mented, in the mid-1980s, but is wholly inap­ propriate ten years later.

26. The United Kingdom Government fur- Directive, the United Kingdom Government ther observes that, in the event of failure by a maintains that it in fact affords a certain flex- water company to fulfil its primary obliga- ibility enabling undertakings to be adapted to tion to supply water meeting the requisite technological progress, in that they can be standards, the competent authorities are modified as more effective solutions to a com- required to make an enforcement order against pany's problems become available. that company unless it offers an undertaking to carry out the works needed in order to comply with that obligation. Once it is accepted, an undertaking is binding on the company. 30. As regards enforcement orders, the United Kingdom Government does not deny that, in practice, the authorities resort to making such an order only in the event of breach of an 27. Those authorities are under a duty to undertaking. refuse such an undertaking if they consider that it does not constitute the most rapid means of achieving the objective of supplying water which meets the standards laid down by the Directive. The legality of a decision by them to accept an undertaking is subject to 31. It points out in that regard that the Water judicial review. Industry Act 1991 is based on the premiss that it is the company concerned which is best placed to assess the precise nature and timetable of the works needing to be carried out in order to comply with the Directive. It is logical, therefore, to afford it the possibility 28. According to the defendant, it cannot of making a proposal in that regard by offering therefore be claimed that the system of under- the authorities an undertaking. takings affords the national authorities a means of allowing water companies easily to evade, at least temporarily, their obligation to achieve the objectives provided for by the Directive.

The system of undertakings

37. As is confirmed by the case-law of the Court, the very nature of a directive, as defined in Article 189 of the Treaty, is necessarily 35. What are we to make of the arguments in such that, in the absence of express provisions the present case? in the directive, the Member States are free to choose the appropriate ways and means of achieving the objective pursued by it. 3

36. My opinion can be summarised in the following four remarks, which will be devel­ 38. It may therefore be concluded that it is oped below: open to a Member State, in its discretion, to choose to have recourse to a system based on cooperation on the part of the companies concerned rather than on coercion. This fully reflects the intention of the Community leg­ — for the purposes of implementing direc­ islature in the present case, since the tives, Member States are free to choose the methods used, but those methods must produce results within the time-limits pre­ 3 — See, for example, Case 14/83 Von Cohort and Kamann ν Land scribed; Nordrhein-Westfalen [1984] ECR 1891.

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Directive lays down the standards to be met 43. It must be stated, therefore, that the as regards the quality of water supplied for system of undertakings appears, in reality, to human consumption but does not require the constitute an alternative to the system of Member States to adopt any specific method enforcement orders provided for under the in order to achieve that result. same statute.

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GOMMISSION ν UNITED KINGDOM

albeit one to which conditions are attached, replaced, de facto, by the contents of the which is unilaterally applied by a Member undertaking. State.

51. The United Kingdom is, in fact, effect­ 48. It cannot be claimed that that system falls ively seeking to contend that, by operating within the ambit of any of the special deroga­ the system of undertakings, it has taken the tions provided for in Articles 9 or 10 of the only practicable measures to bring about, Directive; nor does it fulfil the conditions with the minimum of delay, the achievement attaching to the more general derogation pro­ of the objectives of the Directive, given the vided for in Article 20 (see points 4 and 5 situation prevailing in the water supply net­ above). Consequently, it does not comply work and having regard to the incidence of with the provisions of the Directive. fresh pollution by pesticides and the possi­ bility of detecting pollution which could not have been discovered by the methods pre­ viously employed.

49. The United Kingdom Government denies, however, that the system of undertakings can be regarded as granting the water companies a derogation from the requirement of the Directive, since, even after an undertaking has 52. Even though that reasoning may be cor­ been accepted, and regardless of its contents, rect — and I am personally inclined to think the water company concerned remains at all that it is — , it was up to the United Kingdom times subject to its primary obligation to Government to request the Commission to supply water which is 'wholesome', that is to propose to the Council the extension or annul­ say, which conforms to the requirements of ment of the time-limit provided for in Article the Directive. 19 of the Directive pending the adoption of a 'more realistic' directive.

55. The present case involves, in reality, defect- 'The directive therefore requires Member ive transposition of the Directive, resulting States to ensure that certain results are achieved from the very scheme of the legislation enacted and, except within the limits of the deroga- in the United Kingdom. The effect of the tions laid down, they may not rely on special transposition of the objectives laid down by circumstances 6 in order to justify a failure to the Directive, which has in itself been cor- discharge that obligation. rectly carried out, is counterbalanced by the possibility, very frequently resorted to, of obtaining, in circumstances not covered by the Directive, a deferral of the deadline for respecting the parameters, by means of under- takings negotiated with the competent national authority. It follows that the defendant's claim that it took all practicable steps to secure compliance cannot justify, except within the limits of the derogations expressly Uid down, its failure to comply with the requirement to ensure that water intended for human consumption at 56. Thus, the legislation enacted in the United least meets the requirements of Annex I of Kingdom in itself constitutes evidence of the the directive.' existence of the infringement, and there is no need for the Commission to adduce any addi- tional proof. It is, admittedly, undeniable that the water companies have run up against con- siderable problems. However, it is equally undeniable that there is an indissoluble link between the system of undertakings, which It went on to state: necessarily involves, each time it is applied, a deferral of the deadline for complying with the wholesomeness standards, and the fact that those standards are not always met.

63. Lastly, the Commission may grant dero­ gations of up to six years for certain geo­ graphically defined areas (Article 15).

59. The Commission considers, however, that the system provided for in the new directive involves far stricter conditions for its applica­ tion than those governing the giving of under­ takings pursuant to the Water Industry Act 64. It is clear, therefore, that, even as matters 1991, and that the two systems are not currently stand, neither the Commission nor comparable. the Council regards it as possible for all the quality objectives which were to have been complied with by 1985 to be achieved for many years to come. It may therefore be thought surprising that the Commission should nevertheless have brought this action.

60. In my view, there can be no doubt that that proposal for a directive, with regard to which the Council has adopted a common 9 position dated 19 December 1997, is designed to show that implementation of the Directive 65. Only the Commission can judge, how­ has been dogged by major problems in many ever, whether it is appropriate to make an of the Member States. application. Furthermore, as is shown by the case-law of the Court, 'the Member States are bound to comply with all their obligations 8 — Proposal dated 4 January 1995, COM(94) 612. under an existing directive. That applies even 9 — OJ 1998 C 91, p. 1. when the adoption of a proposal for a new

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directive in the same field is envisaged (see 69. The United Kingdom further states that the judgment in Case 220/83 Commission ν the issues raised by the present action were France [1986] ECR 3663). In any event the considered by its national courts in the case binding force of a directive may not be chal­ of R. ν Secretary of State for the Environ­ lenged as long as it has not been abrogated or ment, ex parte Friends of the Earth Ltd. Those 10 amended.' courts concluded that the manner of pro­ ceeding decided on by the competent national authorities constituted the most appropriate method of implementing the Directive.

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COMMISSION ν UNITED KINGDOM

73. However, the Commission correctly never raised in the course of the pre-litigation counters that submission by pointing out that procedure. the criticism levelled at the United Kingdom is not that it penalises infringements of the rules deriving from Community law less strictly than comparable infringements under national law.

77. The Commission considers, for its part, that this plea supports the complaint, consist­ ently maintained by it throughout the pro­ ceedings, that, by accepting undertakings, the 74. I would add that the fact that the system United Kingdom has failed to fulfil its obliga­ of undertakings has proved effective in the tion to secure compliance by water compa­ context of, for example, application of the nies with the provisions of the Directive. That United Kingdom competition rules does not plea has not therefore been raised out of time. justify the conclusion that it is acceptable in the context of implementation of the Direc­ tive in issue.

'The provisions of the Directive on the quality 81. Since the Commission had previously of drinking water are clearly intended, in the alleged defective application of the Directive sense of the case-law of the Court, to create without making any reference to that issue, rights for individuals. Unlike the usual run of which, as has been noted, is not mentioned in cases which have come before the Court the the Directive itself, the defendant was justi­ problem in the present case is not one of an fied in thinking that the scope of the Com­ absence of binding measures or of a specific mission's complaints did not extend beyond legal framework. By the Water Industry Act the ambit of the national legislation specifi­ 1991 and the regulations made thereunder the cally enacted for the purposes of implementing United Kingdom has implemented the Direc­ it. tive ih a sufficiently clear and precise way to allow individuals to ascertain the full extent of their rights. However, under the system of undertakings they are, it seems, prevented from asserting these rights against a water company before the national courts where an undertaking from the company to the enforce­ 82. I therefore conclude that the purpose of ment authorities has been accepted and is still the pre-litigation procedure as defined by the in force.' case-law of the Court, which is intended, in particular, to indicate to the Member State concerned the information needed for the preparation of its defence and to enable it to take the steps needed in order to comply with its obligations, 1 2 would not be achieved if the Commission were permitted to put forward 85. The defendant states in response to this detailed issues of such a nature and of such that consumers are entitled to apply for judi­ moment at the stage of the application. cial review of the legality of the authorities' decision to accept an undertaking. Moreover, if a consumer surfers damage resulting from poor water quality, he may bring an action 12 — See, for example, Case 229/87 Commission ν Greece [1988] ECR 6347. for compensation under the Consumer

87. It follows, therefore, that the issue is con­ fined to the fact that an individual cannot obtain an injunction against a water company where an undertaking has been accepted and is subsisting. This, according to the Commis­ 91. The sole issue here is the general prin­ sion, is 'of course contrary to the principle of ciple that, where the Community authorities guaranteeing the full application or effective­ have, by directive, imposed on Member States ness of Community law, as established by the the obligation to pursue a particular course of case-law of the Court — see, in particular, conduct, the useful effect of such an act would [the] judgment of 19 June 1990 [in] Factor- be weakened if individuals were prevented tame and Others [1990] ECR I-2433'. from relying on it before their national courts, and if the latter were prevented from taking it into consideration as an element of Com­ 13 — Council Directive 85/374/EEC of 25 July 1985 on the munity law in order to rule whether the approximation of the laws, regulations and administrative national authorities, in exercising the choice provisions of the Member States concerning liability for defective products (OJ 1985 L 210, p. 29). open to them as to the form and methods for

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implementation, have conducted themselves 95. The essential issue in the present case is in accordance with that directive. 4 the failure to achieve quality objectives resulting from the acceptance of undertakings which defer the achievement of those objec­ tives to a later date.

93. In my view, the Commission is right to regard as an unsatisfactory remedy the right 97. The fact that an action challenging an to bring an action for damages pursuant to undertaking can be brought only against the the Consumer Protection Act 1987, which Secretary of State, and not against a water transposed Directive 85/374. A remedy which company, does not substantially alter the situ­ is limited to a right to obtain compensation ation. In the context of undertakings, there where failure to comply with the applicable exists a close link between the competent standards has caused damage does not fulfil authority and the water company — the latter the criteria laid down by the Court. has even been regarded by the High Court 15 as an emanation of the former, following the decision in Foster and Others 1 6 — and annul­ ment of a decision to accept an undertaking gives rise to immediate consequences for the water company.

94. O n the other hand, the right of a con­ sumer to bring proceedings contesting a deci­ sion by the Secretary of State to accept an undertaking (an example of which is provided by the United Kingdom in the annexes to its 98. Consequently, I consider that the Com­ defence) is in my view sufficient to warrant mission's complaint concerning the absence the conclusion that the rights of individuals of legal remedies for individuals is inadmis­ are adequately protected. sible and, in the alternative, unfounded.

14 — See, in particular, Case C-72/95 Kraaijeveld and Others ν Gedeputeerde Staten van Zuid-Holland [1996] ECR I-5403, 15 — Griffin ν South West Water Services Ltd [1995] IRLR 15. paragraph 56. 16 — Case C-188/89 Foster and Others [1990] ECR I-3313.

(2) b y failing, thereby, t o e n s u r e t h a t t h e q u a l i t y of w a t e r s u p p l i e d in several p a r t s of t h e U n i t e d K i n g d o m c o n f o r m s t o t h e r e q u i r e m e n t s of t h a t directive, in t h a t m a x i m u m admissible c o n c e n t r a t i o n s for several p a r a m e t e r s in t h e D i r e c t i v e are exceeded,

t h e U n i t e d K i n g d o m has failed t o fulfil its obligations u n d e r t h e Treaty.

102. I further p r o p o s e t h a t t h e C o u r t s h o u l d o r d e r t h e U n i t e d K i n g d o m t o p a y t h e . costs.

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