C-236/99

COMMISSION V BELGIUM

OPINION OF ADVOCATE GENERAL JACOBS delivered on 16 March 2000 *

1. The main issue in this case is whether the (ii) The Commission should have granted Belgian State's failure to implement Coun- an extension of the time-limit for cil Directive 91/271/EEC of 21 May 1991 implementation set in the Directive. concerning urban waste water treatment 1 Alternatively, the Commission should (hereafter 'the Directive') is excusable on have exercised its discretion under grounds of force majeure. Article 226 so as to take no action in this case.

2. The Commission seeks a declaration (iii) The Commission failed to give reasons pursuant to Article 226 EC that the King- for its (implicit) decision to refuse an dom of Belgium has failed to fulfil its extension of the time-limit for imple- obligations under the Directive by commu- mentation of the Directive. nicating to it a programme for implemen- tation which does not comply with the provisions of the Directive, in particular Article 17, as regards the Région de Brux- elles-Capitale. The Kingdom of Belgium accepts that it has not implemented the Directive within the time-limits laid down therein, but it makes three submissions in defence. The relevant provisions of the Directive

3. Council Directive 91/271/EEC provides a set of general rules for the collection, treatment and discharge of urban waste (i) The failure to implement Directive water, and for the treatment and discharge 91/271 is excusable due to force of waste water from certain industrial majeure. sectors. According to Article 1, the Direc- tive aims to protect the environment from the adverse effects of such waste water * Original language: English. discharges. To that end, the Directive 1 — OJ 1991 L 135, p. 40. Subsequently amended by Commis- sion Directive 98/15/EC of 27 February 1998, OJ 1998 imposes on the Member States a duty to L 67, p. 29. provide systems for collection and treat-

7. The time-limits for implementation of 5. Special rules for environmentally sensi- the Directive are to be found in various tive areas are set out in Article 5. The provisions of the Directive. In fact, the Member States must designate, at the latest relevant provisions are Article 3(1), Arti- by 31 December 1993, environmentally cle 4(1) and, in particular, Article 5(2). sensitive areas in accordance with the Article 3(1) and Article 4(1) provide gen- criteria laid down in Annex II to the eral time-limits for the establishment of Directive. Urban waste water which is collecting systems and treatment of urban discharged into those sensitive areas must waste water. Depending on the size of the be subject to a more stringent treatment agglomeration in question, the time-limit is than that required by Article 4. Discharges either 31 December 2000 or 31 December 2005. Article 3(1) and Article 5(2) provide a special time-limit for urban waste water 2 — Urban waste water is defined in Article 2(1) as 'domestic waste water or the mixture of domestic waste water with from agglomerations of more than 10 000 industrial waste water and/or run-off rain water'. p.e. which is discharged into sensitive areas 3 — An agglomeration is defined in Article 2(4) as 'an area where the population and/or economic activities are suffi- designated in accordance with Article 5(1). ciently concentrated for urban waste water to be collected and conducted to an urban waste water-treatment plant or The Member States were to ensure by to a final discharge point'. 31 December 1998 at the latest that those 4 — One p.e. is defined in Article 2(6) as 'the organic biode- gradable load having a five-day biochemical oxygen agglomerations were provided with collect- demand (BOD5) of 60 g of oxygen per day'. ing systems and that the waste water from 5 — Secondary treatment is defined in Article 2(8) as 'treatment of urban waste water by a process generally involving those agglomerations was subject to a more biological treatment with a secondary settlement or other stringent treatment than that described in process in which the requirements established in Table 1 of Annex I are respected'. Article 4.

9. Under Article 17 of the Directive the Member States were to establish pro- grammes for the implementation of the Directive by 31 December 1993 and com- municate those programmes to the Com- mission by 30 June 1994. Finally, Arti- cle 19 fixes 30 June 1993 as the date by which the provisions of the Directive were 11. The waste water from the city of to be transposed into the laws of the Brussels is discharged into the basin of the Member States. river Senne. A section of that basin, cover- ing most of the Region's territory, has been designated by the Belgian authorities as a sensitive area under Article 5(1) of the Directive. As the population of that area exceeds 10 000 population equivalent, the facilities for collection and treatment of waste water should, in accordance with Facts Articles 3(1) and 5(2), have been in place by the end of 1998. The Commission submits that Belgium has failed in its obligations under the Directive by commu- nicating to it a programme for implemen- 10. The Belgian Région de Bruxelles-Capi- tation which did not comply with that tale (hereafter 'the Region') communicated time-limit. its programme for the implementation of Directive 91/271/EEC to the Commission on 28 May 1996. That programme was 6 — It may be noted that the Court cannot take account of measures taken by a Member State after the expiry of the also communicated to the Commission by period for compliance laid down in the reasoned opinion. the Belgian State authorities on 3 July See Case 291/84 Commission v Netherlands [1987] ECR 3483, paragraph 15 of the judgment, Case 240/86 Commis- 1996. The programme envisaged the con- sion v Greece [1988] ECR 1835, paragraph 14 and Case C-71/97 Commission v Spain [1998] ECR I-5991, para- struction of two new water-treatment graph 18.

13. Having received no reply to its letter, the Commission issued a reasoned opinion on 17 December 1998 calling on the King- dom of Belgium to take the necessary measures to comply with the opinion 16. First, in what circumstances, as a within two months. By letters dated 25 Jan- matter of Community law, is the failure to uary 1999 and 17 March 1999 the King- implement a directive excusable on grounds dom of Belgium informed the Commission of force majeure? Force majeure is a legal of steps which were being taken to award notion which exists, in different linguistic the building contracts for the construction guises and with certain variations, in the of the two water-treatment plants in the legal systems of many of the Member Region. The Commission found those States. It has the effect of relieving a person replies unsatisfactory, and it proceeded to from a legal obligation or liability if, lodge this case with the Court on 23 June essentially, an unforeseeable change of 1999. circumstances has made it impossible to

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COMMISSION V BELGIUM

fulfil the obligation. 7 The Court has never avoided even if all due care had been ruled explicitly that force majeure is a exercised. 10 The application of those con- general principle of Community law, and it ditions is intimately linked with the facts of is doubtful whether one can deduce such a each individual case. Force majeure is by its principle, applicable to all areas of Com- very nature a flexible doctrine, which is munity law, from the existing case-law. 8 more concerned with equitable outcomes than with precisely defined conditions. 11

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OPINION OF MR JACOBS — CASE C-236/99

19. While the agricultural case-law is con- in fact be necessary for an administration cerned with the relationship between indi- showing a normal degree of diligence to vidual traders and public authorities, Arti- replace the equipment destroyed and to cle 226 actions, such as the present, are collect and prepare the data. The Italian concerned with the obligations owed by the Government cannot therefore rely on that Member States towards the European event to justify its continuing failure to Community. These are different legal con- comply with its obligations years later.' texts, which are necessarily subject to different rules. The application of the notion of force majeure is likely to be stricter in the latter than in the former context. 21. While the Court, by that statement, appeared willing to accept that force majeure might be a valid excuse for failing to implement a directive within the pre- scribed time-limit, it did not define pre- cisely what constitutes force majeure. 15 20. What, then, is the scope of force Subsequent cases about Member States' majeure in the context of Member States' failure to implement Community directives failure to implement Community direc- do not define the scope of force majeure tives? In Commission v Italy 13 the Italian either. State had failed to provide the Commission with statistical data about road transport as required by certain directives. Italy was able to prove that all the relevant files in its transport ministry had been destroyed as a result of a terrorist bomb attack, and in its pleadings to the Court, the Commission 22. It is none the less clear that the notion conceded that that amounted to force of force majeure is, in this context, very majeure. In those circumstances, the Court narrowly circumscribed. Indeed, force ruled: 14 majeure has never been pleaded success- fully by a Member State to excuse its failure to implement a directive within the pre- scribed time-limit. In general directives must be implemented on time even if that proves extremely difficult.

too short, the Member State must take fulfil its obligations, and not with questions appropriate initiatives within the Commu- of subjective fault or negligence. 19 nity in order to obtain the necessary extension. 16 The Court has often held that a Member State cannot rely on technical, financial or administrative difficulties to excuse its failure to fulfil Community law obligations. 17 The same applies to provi- sions, practices or circumstances related to the Member State's own internal legal 25. A failure to implement a directive is, system. 18 A Member State cannot, there- therefore, excusable only in very excep- fore, rely on difficulties caused by the tional circumstances. A plea of force federal nature of its constitutional order majeure might at most be accepted if, as a to excuse such a failure. The fact that the result of unforeseeable circumstances, fulfilment of a particular Community law which were extraneous to and beyond the obligation is the responsibility of a semi- control of the Member State, that State was autonomous local body, such as the Belgian faced with insurmountable difficulties pre- Region, rather than of the central state venting it from implementing the directive. administration, does not exonerate the Moreover, such difficulties would excuse Member State from its obligation towards the failure to implement only for as long as the Community. it would take a normally diligent adminis- tration to overcome them. Those condi- tions are likely to be applied very strictly in practice. The circumstances in which a Member State may plead force majeure are, as noted above, narrower than the circumstances in which a trader can plead this notion in the context of agricultural law.

2 7 . The Belgian G o v e r n m e n t has tive. The difficulties faced by the Region, explained, both in its written pleadings however serious and regrettable, do not and at the hearing, that a process of amount to force majeure for the purposes constitutional devolution, or régionalisa- of Article 226 proceedings. They were tion, has taken place in Belgium over the clearly not the result of unpredictable and last thirty years. While many constitutional extraneous circumstances, such as the issues were resolved by legislation in 1980, bomb attack in the case of Commission v the status of the Region remained uncertain Italy mentioned above. 20 The Region's and contested by the different linguistic failure to implement Directive 91/271/ groups which make up the Belgian popula- EEC was rather the predictable outcome tion. Indeed, it was not until 1988 that the of a purely internal problem. status of that region was finally resolved by legislation.

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COMMISSION V BELGIUM

32. The Belgian State argues, essentially, Directive. That argument appears to have that it could not assist the Region because been abandoned, and for good reason. As doing so would upset the delicate balance pointed out by the Commission, the word- of power between the various federal ing of Article 8 allows extension only of the bodies in Belgium, and seriously undermine general time-limits set in Article 4. The its efforts to maintain Belgium as one special time-limit laid down in Articles 3(1) peaceful legal entity. That argument does and 5(2) for sensitive areas designated in not withstand scrutiny. The need of the accordance with Article 5(1) of the Direc- Belgian State to maintain a balance of tive cannot be extended in that way. 21 power so as to uphold peaceful relations Moreover, the letter sent by the Region to between different groups is an entirely the Commission on 28 May 1996 does not internal and predictable problem which appear to comply with the formal require- cannot amount to force majeure. ments laid down in Article 8.

33. I conclude on that basis that the King- dom of Belgium's failure to implement Directive 91/271/EEC was not excusable on grounds of force majeure. 36. Secondly, Belgium argues that the Commission should have sought, from the Council, an amendment of the Directive granting it an extension of the time-limits laid down in Articles 3(1) and 5(2). It refers thereby to the Commission's duty of coop- eration laid down in Article 10 EC. Extension of the time-limit

34. The Kingdom of Belgium's second argument in defence is that the Commission should have granted, or sought from the Council, an extension of the time-limit for implementation set in Directive 91/271/ 37. This argument also is unfounded. EEC. This argument has two strands. While the Commission has a discretionary power to propose amendments to direc- tives, including a power to request exten- sion of time-limits, it would only be under a duty to take such a step in the most exceptional circumstances. The difficulties 35. First, Belgium initially argued that the Commission should have granted an exten- sion on the basis of Article 8 of the 21 — See, for a similar issue, Case C-42/89, cited in note 17.

42. Belgium points out that the Region explicitly requested an extension in its letter of 28 May 1996, and that its reasons 39. That argument cannot be upheld. The for doing so were set out in a report Commission enjoys a wide discretion under annexed to this letter. The Commission Article 226 and may decide against which did not reply to that request until, in its infringements of Community law it will letter of 30 September 1999, it noted in initiate infringement proceedings. 22 It was, general terms that the Commission could therefore, open to the Commission to delay, not grant any extension of the time-limit, or completely abstain from, taking action or abstain from initiating infringement against Belgium in this case. It is settled proceedings, since this would endanger case-law that it is not for the Court to the uniformity of Community law. decide whether the Commission's discre- tion has been 'wisely exercised' 23 or to consider what objectives are being pursued in an action brought under Article 226. 2 4

43. There is some force in Belgium's criti- 22 — See, for example, Case 7/68 Commission v Italy [1968] cism of the Commission's conduct. It ECR 423, at p. 428 of the judgment, and Case 416/85 Commission v United Kingdom [1988] ECR 3127, para- would, in my view, have been preferable graph 9. as a matter of good administration if the 23 — Case C-200/88 Commission v Greece [1990] ECR I-4299, paragraph 9 of the judgment. Commission had replied earlier and given 24 — See Case 416/85, cited in note 22. fuller reasons for its decision not to meet

(2) order the Kingdom of Belgium to bear the costs.

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