C-147/00

3 — 'Bathing water' means all running or still fresh waters or parts thereof and seawater, in which bathing is explicitly 3. The aim of the directive is, according to authorised by the competent authorities of each member State, or bathing is not prohibited and is traditionally the first recital of the preamble and Arti- practised by a large number of bathers (Article 1(2)(a) of the directive). 4 — See my Opinion in Case C-307/98 Commission v Belgium [2000] ECR I-3933. 1 — Original language: Spanish. 5 — 'Bathing area' means any place where bathing water is 2 — OJ 1976 L 31, p. 1 found (Article 1(2)(b) of the directive).

I - 2388

COMMISSION V FRANCE

cle 3. For France, that period expired on B. French legislation 10 December 1985.

9. The French Republic communicated to the Commission, as measures transposing the directive into national law, Decree 6. Article 6(1) of the directive provides that No 91-980 of 20 September 1991 amend- the competent authorities in the Member ing Decree No 81/324 of 7 April 1981 States are to carry out sampling operations laying down the hygiene and safety rules the minimum frequency of which is laid applicable to swimming pools and specified down in the annex. bathing places. 8The decree was brought into force by Ministerial Order of 29 November 1991. 9

7. Finally, every year the Member States are to submit to the Commission a report on their bathing water and the most significant characteristics thereof, according to the amended wording of Article 13 of the II — Facts directive. 6

(1) Article 4(1) of the directive in that it did not adopt, within the period of 10 years, all the necessary measures to B. Proceeding No A/98/2196 ensure that the quality of bathing water conformed to the requisite standards; 15. The Commission concluded from the abovementioned annual reports that the French authorities had not carried out sampling operations for the 'total coliform' parameter. By, first, formal notice of (2) Article 6(1) in that the French autho- 11 November 1998 and, subsequently, a rities carried out sampling operations reasoned opinion of 6 August 1999, the at less than the minimum frequency Commission alleged that the French laid down in the annex to the directive. Republic had not carried out sampling operations for the aforementioned para- meter. The Commission gave the French Republic two months from its notification in which to comply therewith.

the French authorities transmitted to the confirmation of continuing non-compli- Commission circulars issued by the Direc- ance with a clear and unconditional obliga- tion Générale de la Santé—Direction de tion laid down in the directive. l'Eau ('DGS/DE') Nos 99/311 and 99/312 on 31 May 1999, which provide for several measures intended to ensure that the French Republic complies with its Com- munity obligations. Nevertheless, the Com- mission considered it necessary to take 20. In its defence, the French Government further steps in the infringement procedure admits that, indeed, in 1995, 1996 and and on 17 April 2000 brought the present 1997, certain bathing areas did not comply action. with the quality standards laid down by the directive. It points out, however, that in the consolidated report drawn up by the Com- mission for 1998 the levels of compliance of French bathing waters improved and will 18. The circular issued by the Direction continue to do so as a result of the Générale de la Santé—Direction de l'Ad- implementation of circulars DGS/DE of ministration Générale du Personnel et du 31 May 1999 and DGS/DAGPB of 7 June Budget ( ' c i r c u l a r DGS/DAGPB') 2000. That being the case, it concludes that No 2000/312 of 7 June 2000, which is it is not certain that, when the time-limit intended to ensure that the French Republic prescribed by the first reasoned opinion complies with its obligations under the expired (5 October 1998), the infringement directive, was subsequently adopted. complained of by the Commission was still in existence and asks the Court to find that the infringement has not been established.

23. This complaint must be examined on the basis of an undisputed fact: in 1995, 1996 and 1997 certain French bathing areas did not comply with the quality standards required by the directive. 11 The French Government has acknowledged as much. The purpose of the proceedings is thus limited to determining whether the 25. Since the Commission has proved that, infringement continued to exist on 5 Octo- when it issued the reasoned opinion, France ber 1998, the date on which the two-month had not put an end to the infringement, the period prescribed in the reasoned opinion burden of proof is reversed and it is for the expired. That is the date to be taken Member State against which the infringe- account of when appraising whether the ment is alleged which must prove that the infringement complained of by the Com- situation changed or, where appropriate, mission took place. 12 that it adopted the relevant measures before the expiry of the prescribed period.

27. In my view, the consolidated report have been an appropriate means of demon- drawn up by the Commission for 1998 strating to the Commission and, subse- does not discharge that burden since it quently, to the Court, that as at 5 October merely states that during that year the level 1998 it had attained the results required by of compliance improved by comparison the directive. with the previous years. Nothing in the report in question (appended to the defence) supports the claim that as at 5 October 1998, in contrast with the previous situation, French bathing waters were in conformity with the quality stan- dards laid down in the directive. 30. The foregoing considerations allow me to conclude that the French Republic has failed to fulfil its obligations under Arti- cle 4(1) of the directive by failing to adopt, within 10 years following the notification of the directive, all the necessary measures 28. Such hypothetical improvement in the to ensure that the quality of bathing water quality of the bathing waters as might conformed to the requirements of the follow from the implementation of circu- directive. lars DGS/DE and DGS/DAGPB supports still less such a claim. The directive required Member States to attain specific results 14 in addition to the obligation to implement the necessary measures to bring the quality of bathing waters into confor- mity with the limit values set down in it, 15 with the exception of the derogations provided for by the directive, 16 which are B. Insufficient number of sampling opera- not relevant here. tions

32. The French Government acknowledges taken in bathing waters in coastal areas, as that, although in certain areas sampling is shown in its consolidated report for during 1995 to 1997 was not in compliance 1998, which the French Government with the directive, during that period the appended as annex I to its defence. percentage improved progressively and constantly. It adds that, so far as coastal waters are concerned, the implementation of the measures contained in circulars DGS/ DE and DGS/DAGPB, which provide for greater frequency in sampling operations, 35. The alleged failure to fulfil the obliga- will result in full compliance with the tions under Article 6(1), in conjunction directive, which had in any event already with Annex I to the directive, is thus been achieved before the expiry of the restricted to the frequency of sampling of period prescribed in the reasoned opinion. inland bathing waters and the parameters So far as concerns the sampling methods, it employed. claims that, following the implementation of the aforementioned circulars, non-com- pliance with the directive could not have extended beyond the abovementioned time- limit because, from May 1999, the para- meters for calculating conformity of bath- 36. It should be borne in mind that the ing waters were brought into line with directive imposed on the Member States those required by the Commission. not only the obligation to transpose it into national law but also to attain certain specific results. It prescribed for fulfilment of the first obligation a period of 2 years (Article 12(1)) and, for the second, another period of 10 years (Article 4(1)). By adopt- ing circulars DGS/DE of 31 May 1999, the 33. In its reply, the Commission points out French authorities have fulfilled the first that reference to a hypothetical improve- obligation, but not necessarily the second. ment in sampling is insufficient and that it The defendant Government has not demon- may reasonably be presumed that the strated that the methods laid down in the infringement continued because there is directive were being applied when the no information relating to 1999. Further- reasoned opinion was issued. more, although the number of sampling operations in coastal areas was sufficient in 1998, the level of non-compliance in respect of inland areas was 4.4%.

it is for the defaulting State to demonstrate of the improvement in monitoring means that it has put an end to the infringement or and methods. to explain the reasons for the infringement continuing. However, despite claiming a steady approach to the minimum frequency required by the directive, the French Gov- ernment has not proved 18 that, before the period prescribed in the reasoned opinion 40. No particular dialectical effort is expired, it had put an end to the infringe- required to find that the Commission is ment to which it admits. Moreover, the right in this regard. The French Govern- hypothetical improvements which might ment itself acknowledges that the obliga- derive from the implementation of circulars tion to measure the 'total coliform' para- DGS/DE and DGS/DAGPB cannot be meter is binding, so that its abandonment regarded as having the probative value must be regarded as an infringement of which the French Government claims. Articles 3, 4, 5 and 6 of the directive.

38. Finally, the French Republic has failed to fulfil its obligations under Article 6(1) of 41. Member States may fix more stringent the directive inasmuch as it carried out measures than those laid down in the sampling operations with less frequency directive (Article 7(2)), but they may not than the minimum laid down in the annex replace the obligations it lays down with to the directive. more efficient ones. That was the view taken by the French Government itself when it ordered, in Circular DGS/DAGPB, that with effect from the 2000 bathing season, the 'total coliform' parameter should once again be applied.

(a) by failing to adopt, within 10 years following the notification of the directive, all the measures necessary to ensure the quality of bathing water conformed to the requirements laid down in it;

(b) by failing to carry out sampling operations in line with the minimum frequency laid down in the Annex to the directive in respect of bathing waters; and

(c) by failing to carry out sampling operations for the 'total coliform' parameter, the French Republic has failed to fulfil its obligations under Articles 3, 4, 5 and 6 of and the annex to Council Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing water.

I - 2396