C-316/00

The Community rules on the quality of water intended for human consumption — whether:

2. As stated in Article 1 thereof, the Direc- tive lays down the quality requirements for — used in a food production undertaking for the manufacture, processing, pres- ervation or marketing of products or 1 — Original language: Italian. substances intended for human con- 2 — OJ 1980 L 229, p. 11. sumption

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and for harmonisation; in respect of the pollu- tants referred to therein, Member States are thus required to lay down in their own legislation limits at least as strict as those contained in that table, with liberty to impose concentration limits which are even lower. — affecting the wholesomeness of the foodstuff in its finished form.'

7. Article 9 of the Directive allows States to make provision for derogations from the harmonised parameters in order to take account of 'situations arising from the nature and structure of the ground in the 4. Under Article 7(3) and (6) and area from which the supply in question Article 16 of the Directive, the parameters emanates' or 'exceptional meteorological in Table E represent minimum standards conditions'. However, the derogations may

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9. Under Article 19, Member States have a longer period, of five years from notifi- 13. Directive 98/83 entered into force on cation of the Directive, to ensure that the 25 December 1998. By Article 17 thereof, harmonised national parameters actually comply. For Ireland, therefore, that longer period expired on 18 July 1985. 3 — OJ 1998 L 330, p. 32.

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Member States were required to implement parameters in the regulations are not com- the directive by 25 December 2000. Under plied with. In particular it provides that: Article 14, however, the quality of water intended for human consumption must comply with the provisions of the directive by 25 December 2 0 0 3 , given that Article 16 provides for the repeal of Direc- tive 80/778 on that date. 'The health authority shall: (a) take all reasonable steps to warn users of the water supply where there is an unacceptable risk to public health, (b) in the case of a public water supply, prepare an action pro- gramme for the improvement of the quality of the water as soon as practicable, (c) in the case of a private water supply, notify The Irish provisions the person or persons responsible for the supply as soon as practicable of the meas- ures which should be taken for the improvement of the quality of the water.' 14. For the purpose of implementing Direc- tive 80/778, Ireland adopted the 'European Communities (Quality of Water Intended for Human Consumption) Regulations 1988' ('the 1988 Regulations'). 17. Finally, it should be noted that, since 1989, Ireland has published — through the Environmental Protection Agency ('EPA') — an annual report on the quality of water intended for human consumption 15. In particular, Article 4 of the 1988 (Official Drinking Water Report', referred Regulations gives health authorities the to hereafter as 'the annual EPA Report'). task of ensuring that water intended for human consumption satisfies the require- ments determined on the basis of the Community parameters. Under Article 7, those health authorities have the particular task of monitoring the quality of the water at the point where it is made available to users. Facts

21. By letter of 11 November 1999, the Irish authorities pointed to the impossibil- ity of achieving a decisive improvement in the quality of water distributed via the Group Water Schemes within a short space of time, while at the same time assuring the 19. Turning now to the present case, I note Commission of its own commitment to that this arose following a number of bringing all water intended for human complaints received by the Commission consumption into compliance with the through cases of drinking water contami- parameters laid down by the Directive. In nation. Having asked the Irish authorities that letter, and also in a subsequent letter of for a number of clarifications in that 18 January 2000 and a press release by the regard, the Commission sent Ireland a Irish Minister for the Environment of letter of formal notice on 30 October 1998, 27 March 2000, the authorities supplied citing non-compliance with microbiological information concerning measures already parameters 57 and 58 of Annex I to Direc- undertaken for that purpose.

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22. Not satisfied by the Irish reply, the The alleged infringement of the microbi- Commission brought the present action on ological parameters in public water mains 21 August 2000. During these proceedings, however, the Commission has limited its complaints, in the part concerning Group Water Schemes, to those networks supply- ing water 'as part of a commercial or public activity' and to Group Water Schemes supplying on average more than 10 m3 or serving more than 50 persons. 24. The Commission first asks the Court to declare that, by not ensuring in relation to certain public distribution networks for water that microbiological parameters 57 (total coliforms) and 58 (faecal coliforms), laid down in Annex I to Directive 80/778, were complied with, Ireland has infringed its obligations under the Treaty and under Articles 7(6) and 19 of Directive 80/778. Legal analysis

26. Ireland acknowledges the validity of tion should at least comply with the those figures, and moreover could not in requirements specified in Annex I. In turn, my view have done otherwise, given that it the latter provides, as indicated in para- itself drew up and published the figures, graph 3 above, that the concentration of even though it was not required to do so by both classes of coliforms, in the control any Community provisions and is thus one samples taken, should be zero. Whereas for of the few (three) Member States which total coliforms that zero value is qualified regularly prepares a full, official report on by the provision of a tolerance threshold, the state of water used for human con- whereby evidence of microbiological pol- sumption in the country. The Government lution in a number of samples less than 5% merely raises a number of objections, of the total does not constitute infringe- which are not however decisive, to the ment of the parameter in the Directive, interpretation which the Commission gives there is no provision of that kind for the to the figures and the deductions which it parameter of faecal coliforms, given the draws from them. Effectively, Ireland is seriousness of the pollution which they above all insisting that the directive does indicate. In respect of those coliforms, not impose an obligation as to the result to therefore, Member States are required to be achieved, but merely an obligation of ensure that 100% of the water samples are diligence, to be assessed in the light of the absolutely pure. principle of reasonableness and propor- tionality. In that connection, however, it argues that it devoted huge sums precisely to the financing of projects intended to improve the quality of drinking water, and that it launched a series of initiatives to provide incentives towards virtuous con- duct on the part of persons whose agricul- tural activities might constitute a source of pollution.

29. As for the initiatives which the Irish The alleged infringement of the microbio- Government states that it has put into logical parameters in the Group Water operation to promote the improvement of Schemes the quality of drinking water in rural areas, I would merely observe that, although appreciable, these initiatives are not capable of satisfying the obligation as to result which arises from the Directive, and nor can they be used in justification for its 31. The Commission, referring to the fig- infringement. As the Court of Justice has ures contained in the EPA Reports and the already held, a Member State cannot correspondence concerning a particular adduce in its defence the fact that it Group Water Scheme, further claims that continues to make every effort to imple- the maximum concentration parameters for ment the obligations arising under the total coliforms and faecal coliforms are not Community directive, since an action under complied with in many Group Water Article 226 EC requires only an objective Schemes either. Ireland thus infringed the finding of a failure by a Member State to obligations arising under Articles 7(6) and fulfil its obligations and not proof of any 19 of the Directive in relation to that form inertia or opposition on its part. 5 of supply also. As I have said, however, the Commission has limited its claim in these proceedings to those Group Water Schemes the water of which is 'supplied as part of a commercial or public activity' and to those which provide more than 10 m 3a day on average or serve more than 50 persons, considering that it thereby complies with the de minimis clause laid down by Direc- tive 98/83.

means of complex legal instruments (such and normal commercial undertakings for as trusts or companies with legal person- the distribution of water, inasmuch as the ality) which are thus clearly distinguishable latter supply water exclusively to their own from the water users, and which manage members and not to consumers as a whole, proper water distribution networks in those associated with the undertaking accordance with economic and legal exercise effective control over the trusts or models appropriate to a commercial under- legal persons which manage the networks, taking. Moreover, many Group Water and it is the general meeting of members Schemes do not even use private sources which fixes the annual contribution for the but take water supplies from the public management and maintenance of the net- mains for subsequent redistribution to work. Moreover, Ireland maintains, it consumers, also including public institu- cannot be said that, when supplying water tions and bodies which carry on commer- to less than 50 persons, the Group Water cial activities. In reality, the Commission Schemes operate 'as part of a commercial concludes, Group Water Schemes are estab- or public activity'; they therefore fall within lished and managed with the approval and the exemption laid down by Article 3(2) of under the control of the public authorities, Directive 98/83, already assimilated into which on top of everything else finance Irish legislation. In reality, the commercial them, because they can thereby fill the gaps supply of water by Group Water Schemes is which exist in the public system of water a random hypothesis; even if it were shown distribution. to be true, however, other provisions of Irish law — in this case those requiring persons managing premises open to the public to take further action where necess- ary to disinfect the water so as to ensure its suitability for human consumption — guarantee compliance with the standards laid down by the Directive.

38. It therefore needs to be established whether or not, above that threshold, the water used by the Group Water Schemes 36. I note in that respect that, unlike can be referred to as being for private use. Directive 98/83 which followed it, Direc- As has been seen, Ireland bases its positive tive 80/778 defines its material scope only answer to that question on the private in a very vague manner. That inevitably ownership of the sources and on the gave rise to difficulties of interpretation, structure of Group Water Schemes as which brought about an intervention by the associations or cooperatives. It argues that, Court of Justice in Commission v Belgium, on that evidence, what exists here is a cited above. On that occasion, the Court private use of water within the small had occasion to explain that the directive in community interested from time to time question 'applies only to water supplied for and not a supply for consumption, there human consumption and to water used in being no real distinction between supplier foodstuffs by a food production undertak- and those supplied. ing and that water from private sources of supply is excluded from its scope'. 7

39. It seems to me, however, that the Commission is right to regard the owner- ship structure as irrelevant, once it is established that one is dealing here with 37. In accordance with that judgment, the real distribution networks, that is to say subsequent Directive 98/83 therefore fixed systems having a distribution structure, a minimum threshold below which even if on a reduced scale, which allows Member States are authorised not to water produced from one or more sources demand the requirements laid down by to be supplied to a plurality of users. That

41. In conclusion, it seems to me that the Commission's action, in so far as it refers to repeated infringements of microbiological parameters 57 and 58 in a number of Group Water Schemes (other than those supplying on average less than 10 m 3a day or serving less than 50 persons, save where 40. In any case, even if the Court should the water is supplied in the context of a hold that, by reason of their nature and commercial or public activity) identified in restricted size, the Group Water Schemes the official reports on water intended for should prima facie be excluded from the human consumption and in correspon- scope of the Directive, that conclusion dence concerning the water situation in cannot in my view apply to those Schemes the Ballycroy area, should be upheld. which, far from constituting an indepen- dent network, are in reality a mere exten- sion of the normal public network of water mains, from which they 'acquire' the water which they distribute to their own users. It seems obvious to me that any exclusion from the scope of the Directive based on the size of the networks can relate only to independent physico-functional entities, The complaint concerning the non-binding composed of springs or other reserves of nature of the implementing national legis- water to which distribution infrastructure lation is attached. In cases of functional connec- tion between numerous interdependent and interconnected networks, such an entity cannot be represented by each intercon- nected subsection regarded on its own but, precisely, by all those sub-entities as a 42. The Commission further asks the Court whole: and thus, in the case of Ireland, to declare that, by the 1988 Regulations,

43. For its part, after reaffirming that Group Water Schemes do not all within the scope of the Directive, Ireland argues that, where there is failure to comply with the Community parameters, the health authorities referred to in the Local Govern- ment (Sanitary Services) Act 1962 may 45. Concerning, finally, the amendments to acquire the water networks. It is indeed the Irish legislation, and irrespective of provided that those authorities must their merits, I think it is not even necessary acquire the water installations of private to mention that, in accordance with settled water mains if a request to that effect is case-law of the Court of Justice, after the made by the majority of the owners of the expiry of the period laid down by the installations and the installations them- reasoned opinion, such amendments are

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entirely irrelevant for the purposes of the resolving the problem of insufficient water judgment under Article 226 EC. 9 quality.

46. In conclusion, I take the view that the 48. Without entering into the merits of Commission's action should be upheld in those observations, which, moreover, the relation to this complaint also. Commission examines and challenges ana- lytically, I would merely refer to the con- sistent case-law of the Court, according to which 'under the system laid down by Article 169 of the Treaty, the Commission has a discretion to bring an action for failure to fulfil obligations and it is not for the Court to assess whether it was appro- priate to exercise that discretion'. 10

50. In the light of the above considerations, I therefore propose that the Court should declare that:

(1) By not ensuring compliance with microbiological parameters 57 (total coliforms) and 58 (faecal coliforms) laid down in Annex I to Council Directive 80/778/EEC of 15 July 1980 relating to the quality of water intended for human consumption, in relation to a number of public water distribution networks and certain Group Water Schemes (other than those providing on average less than 10 m 3 a day or serving fewer than 50 persons, save where the water is supplied as part of a commercial or public activity) identified in the official reports on water intended for human consumption and in the correspondence concerning the water situation in the Ballycroy area, Ireland has failed to fulfil its obligations under Articles 7(6) and 19 of Directive 80/778 and under the Treaty.

(2) By failing to take account, when transposing Directive 80/778, of the binding nature of Annex I so far as Group Water Schemes are concerned, Ireland has failed to fulfil its obligations under Article 7(6) and 19 of Directive 80/778 and under the Treaty.

(3) Ireland is ordered to pay the costs.

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