C-198/97

COMMISSION V GERMANY

OPINION OF ADVOCATE GENERAL JACOBS delivered on 26 January 1999 *

1. In this case the Commission seeks a 3. The Annex to the Directive lists a series declaration that the Federal Republic of of physical, chemical and microbiological Germany has failed to fulfil its obligations parameters applicable to bathing water. under Article 4(1) and Article 6(1) of Article 3 of the Directive provides: Council Directive 76/160/EEC of 8 Decem- ber 1975 concerning the quality of bathing water. 1 The Commission claims that Ger- many has infringed the Directive by failing to adopt in the old Länder the necessary provisions to ensure that the quality of bathing water is in conformity with the '1. Member States shall set, for all bathing values laid down under Article 3 within a areas or for each individual bathing area, period of 10 years following notification of the values applicable to bathing water for the Directive and by failing to comply with the parameters given in the Annex. the minimum sampling frequency laid down in the Annex to the Directive.

In the case of the parameters for which no values are given in the Annex, Member States may decide not to fix any values pursuant to the first subparagraph, until such time as figures have been determined. 2. The Directive seeks to protect the quality of bathing water in the Community, with the exception of water intended for thera- peutic purposes and water used in swim- ming pools. 2 Bathing water means all running or still fresh waters or parts thereof and sea water in which bathing is explicitly 2. The values set pursuant to paragraph 1 authorised by the competent authorities of may not be less stringent than those given each Member State, or is not prohibited in column I of the Annex. and is traditionally practised by a large number of bathers.

— the water does not deviate from the parametric values in question by more 5. Article 5 of the Directive provides: than 50%, except for microbiological parameters, pH and dissolved oxygen;

'1. For the purposes of Article 4, bathing water shall be deemed to conform to the relevant parameters:

— consecutive water samples taken at statistically suitable intervals do not if samples of that water, taken at the same deviate from the relevant parametric sampling point and at the intervals speci- values.

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2. Deviations from the values referred to in Where a Member State waives the provi- Article 3 shall not be taken into considera- sions of this Directive, it shall forthwith tion in the calculation of the percentage notify the Commission thereof, stating its referred to in paragraph 1 when they are reasons and the periods anticipated.' the result of floods, other natural disasters or abnormal weather conditions.'

OPINION OF MR JACOBS — CASE C-198/97

11. The Court considered an identical plea on which those decisions are based must by Germany in its recent judgment in therefore be available to the members of another case brought against Germany by the college. It is not, however, necessary for the Commission. 3There the Court noted the college itself formally to decide on the that the principle of collegiality, by which wording of the acts which give effect to the functioning of the Commission was those decisions and put them in final form. governed, was based on the equal partici­ pation of the Commissioners in the adop­ tion of decisions; this implied that decisions should be the subject of collective delibera­ tion and that all the members of the college In this case it is not disputed that the of Commissioners should bear collective members of the college had available to responsibility at political level for such them all the information they considered decisions. It added however that the formal would assist them for the purposes of requirements for effective compliance with adopting the decision when the college the principle of collegiality varied accord­ decided, on 31 July 1991, to issue the ing to the nature and legal effects of the acts reasoned opinion, and approved, on adopted. Contrasting the effect of a deci­ 13 December 1994, the proposal to bring sion adopted for the purpose of ensuring the present action. observance of the competition rules, the Court noted that a reasoned opinion did not determine conclusively the rights and duties of a Member State or afford that State guarantees concerning the compat­ In those circumstances, it must be held that ibility of a given line of conduct with the the Commission complied with the rules Treaty. Its effect was merely to confer upon relating to the principle of collegiality when the Commission the right, but not the duty, it issued the reasoned opinion with regard to commence proceedings before the Court. to the Federal Republic of Germany and Nor did the decision to commence proceed­ brought the present action.' 4 ings before the Court per se alter the legal position in question. The Court concluded:

in question identify the alleged infringe- continued subsequently or are practices ment only in the most summary way. which occurred after the opinions had been However the documents were those of a given but were of the same kind as those to kind customarily presented to the Commis- which the opinions referred and constituted sion in accordance with its standard prac- the same conduct.' 5 According to the tice, and that practice must be taken to report concerning the 1995 season, 11.9% have been approved by the Court in the of the 446 sea water bathing zones did not abovementioned judgment. satisfy those values. Moreover, 6.5% of bathing zones had not been subject to satisfactory inspections. In the case of the 1 822 fresh water bathing zones 10.3% did not satisfy the mandatory values and 42.5% had not been subject to adequate 13. It follows that the objection to the testing. admissibility of the application must be rejected.

those areas as not being in conformity with nity database. In response the German the Directive. In its reply the Commission Government, while conceding that one of notes that the Community database men- the bathing areas was correctly classified as tions 207 bathing areas in the old Länder not conforming to the Directive (Itzehoe), (rather than 180) as not being in confor- maintains its claim that the remaining 13 mity with the Directive: three additional areas were wrongly classified and states bathing areas in Baden Württemberg and that it has now requested correction of the 24 for lower Saxony. In its rejoinder the database by letter of 25 August 1998. It German Government explains that the also puts forward arguments to dispel additional 27 areas were classified among doubts expressed by the Commission con- the 591 areas considered to be insufficiently cerning five of the areas. tested in the report on the 1995 bathing season and were transferred to the category of areas not conforming only in the 1996 report.

(ii) Areas for which all practicable mea- sures are said to have been taken

(a) Arguments concerning the 180 bathing areas classified on the Community database as not conforming to the limit values of the Directive in the 1995 season 18. In its defence the German Government contends further that in the case of 85 of the remaining areas there is no breach of Article 4(1) of the Directive. There can be no breach of that provision, in the German Government's view, where a Member State has taken all measures which can be (i) Areas alleged to have been wrongly demanded of it in accordance with the classified principle of proportionality.

multiple infringements or insufficient sam- which will destroy their habitat). Finally, pling were recorded for 10 of the areas for for a seventh area (Hausen, Donau beim which Germany claims a single infringe- Campingplatz) the German Government ment. Moreover, the Commission disputes initially contended that the principal cause Germany's view that a single recorded of the infringement was connected with excess does not infringe the Directive since geographical factors and that the area Article 4(1) imposes on Member States an therefore qualified as a permitted deroga- obligation to attain a result. In its rejoinder tion under Article 8(a). However, it subse- the German Government acknowledges quently abandoned that argument in its that there were multiple infringements in response to the Commission's answer to a one case (Stein Neustein) but observes that question put by the Court. in the case of the other nine there were no infringements in 1992 to 1994 and 1996. Thus in the case of 45 areas there was an infringement only in the case of 1995. The German Government considers that that cannot be considered to be a breach of the Directive since it took all measures which were necessary and reasonable. The Com- mission's view would mean that there had to be 100% compliance. Article 5(1) pro- vides a degree of flexibility and is to be seen as a specific expression of the proportion- ality principle. Germany is in practice prevented from relying on Article 5(1) since the bathing season comprises only 15 to 17 weeks per year. Testing each 14 days means a maximum of nine samples per season. A single excess would mean a departure of more than 10%.

origin should disappear. The Commission The Commission replies that the fact that adds that it would be open to Germany to the infringements became immaterial in the prohibit bathing and remove the areas from case of six of the 32 areas because they lost the list of bathing areas. The German their status as bathing areas in 1996 or Government replies that the fact that three 1997 and that the situation was remedied bathing areas met the standards of the in 26 others in 1996 does not remove the Directive in 1997 had nothing to do with infringement. The date for the determina- further measures taken by the German tion of the existence of a Treaty infringe- authorities — the purification plants in ment is in principle the date fixed in the those areas entered into service in 1991 Commission's reasoned opinion. Where and 1994. While it is true in the case of a infringements continue the dispute can be fourth area that the sewage facilities were extended to facts which occurred after the modernised in 1996, the German Govern- issue of the reasoned opinion. For that ment shares the view of the Länder autho- reason the application takes account of the rities that the fact that the limit values were 1995 season, which Germany does not met in 1997 was attributable instead to contest. However, later seasons are variations in the bird population — in not covered by the application and are 1998 the limits were once again not met. not therefore to be taken into account. As regards the remaining two areas, the purification plants on the German side have been improved and represent state of the art technology. There is nothing further that can be done. The excesses are not however so serious in the case of the six areas to justify a total prohibition of bathing.

24. In my view it is clear that the Commis- sion is entitled to the declaration sought on this point. It is first of all common ground that Germany failed to meet the limit values laid down by the Directive in the 25. It is therefore clear that 116 bathing case of 84 areas (the 81 areas originally areas in the former German Länder contra- mentioned by Germany plus Stein Neus- vened the limit values laid down. That tein, Itzehoe and Hausen, Donau beim would of itself be sufficient to support a Campingplatz). To be added to those 84 finding that Germany has failed to fulfil its areas are the 32 bathing areas for which obligations, without examining the remain- infringements were recorded in 1995 and ing — disputed — areas. As the Commis- earlier years but which subsequently lost sion observes, it is no defence to an action their status as bathing areas or for which under Article 169 of the Treaty for a the situation was subsequently remedied. Member State to argue that the infringe- Although the subject-matter of the dispute ments which it has committed are minor is determined by the pre-litigation proce- ones or are not significant. The Court has dure, the Commission is, as I have men- consistently held that an action under tioned, 6 entitled in the case of continuing Article 169 'is objective in nature and the infringements to extend the subject-matter bringing of such an action before the Court of the dispute to facts which occur after the is a matter for the Commission in its entire date on which the reasoned opinion is discretion'. 7 In any event it seems to me delivered. Accordingly, whereas the Com- that the Commission would have had mission's reasoned opinion of 22 June ample justification in instituting the pro- 1994, concerning the quality of bathing

The only derogations from the obligation incumbent upon Member States to bring their bathing waters into conformity with the requirements of the directive are those

28. I am not convinced by Germany's 8 — Case C-56/90 [1993] ECR I-4109, paragraphs 42 to 44 of argument that, owing to the shortness of the judgment. See also Case C-92/96 Commission ν Spain [19981 ECR I-505, paragraphs 28 and 29. its bathing seasons, the Directive in effect

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OPINION OF MR JACOBS — CASE C-198/97

Conclusion

31. Accordingly the Court should in my opinion:

(1) declare that the Federal Republic of Germany has failed to fulfil its obligations under Article 4(1) and Article 6(1) of Council Directive 76/160/ EEC of 8 December 1975 concerning the quality of bathing water

(i) by failing to adopt in the old Länder the necessary provisions to ensure that the quality of bathing water is in conformity with the values laid down under Article 3 within a period of 10 years following notification of the directive, and