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the values appearing in column G as 9. Article 6(1) in conjunction with the guidelines. annex requires the competent authorities of the Member States to carry out a minimum of two sampling operations per month in order to check for the presence of 8 types of substances. For 13 other sub- stances, compliance with the parameters need be checked only where an investi- 6. Article 4(1) of the directive imposes on gation carried out in the bathing area Member States the obligation to take all reveals their possible presence or gives necessary measures to ensure that, within reason to believe that there is deterioration 10 years following the notification of the in water quality. directive, the quality of bathing water conforms to the limit values set in accord- ance with Article 3.

10. Article 8 contains the legal basis for possible waivers of the directive, namely:

7. Article 5(1) provides that for the pur- poses of Article 4, bathing water shall be deemed to conform to the relevant para- meters if samples of that water, taken at the (1) in the case of certain parameters same sampling point and at the intervals marked (0) in the annex, because of specified in the annex, show that it con- exceptional weather or geographical forms to the parametric values for the conditions; and quality of the water concerned, in the case of 95%, 90% or 80% of the samples in the cases described in that provision, and if, in the case of the 5%, 10% or 20% of the samples which do not comply with the (2) when bathing water undergoes natural parametric values, they meet certain con- enrichment in certain substances caus- ditions laid down in the third and fourth ing a deviation from the values pre- indents of Article 5(1). scribed in the annex.

14. The Commission complains that Den- mark infringed Article 4(1) of the directive, on the grounds that the quality of bathing water did not comply with the limit values 18. In that regard the Commission is right laid down in Article 3 of the directive. to state that this case is no different, as regards the factual circumstances and the procedure it followed, from previous cases relating to implementing of the same direc- tive. 4 15. It states in that regard that the quality of that water did not comply with the requirements of the directive in each of the years 1995 to 2000. The Commission restricts its action, however, to the years 1995 to 1998. 19. The following table, provided by the applicant, shows the level of compliance for the years 1995-2000.

16. In that context the Danish Government 4 — Case C-56/90 Commission v United Kingdom [1993] ECR I-4109; Case C-92/96 Commission v Spain [19981 ECR claims that in its reasoned opinion the I-505; Case C-198/97 Commission v Germany [1999] ECR I-3257; Case C-307/98 Commission v Belgium [2000] ECR I-3933; Case C-147/00 Commission v France [2001] ECR I-2387; Case C-368/00 Commission v Sweden [2001] ECR I-4605 and Case C-427/00 Commission v United Kingdom 3 — OJ 1991 I. 377, p. 48. [2001] ECR I-8535.

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Compliance with the mandatory values, expressed as a percentage Year Sea water Fresh water

1995 91.1 82.9 1996 97.2 88.5 1997 95.4 87.5 1998 94.3 90.3 1999 92.7 93.8 2000 95.8 92.2

1996 99.3 90.3

1997 98.8 91.1

1998 98.8 92.1

1999 98.4 94.7

2000 98.7 94.8

25. The defendant considers that it is since out of a total of 1 300 bathing resorts necessary to adjust the figures put forward results which failed to meet the standards by the Commission in order to take into were recorded in only 130 resorts during account three occurrences of deviations the period 1995-1998, and of those 130 which it describes as 'accidental', errors in only 8 resorts recorded more than one data transmission and bathing bans intro- deviation during that period, namely six duced during the season. resorts on two years and two resorts on three years.

30. The directive should therefore be inter- preted in the light of the de minimis principle. The defendant by no means denies that there is no general de minimis principle within the area of secondary legislation and is not seeking a declaration of such a general principle from the Court. 33. What is to be thought of this view? It considers however that in the specific case of a directive which it would be impossible to implement without the de minimis rule it is necessary to apply that principle.

35. The regulations are therefore very It is apparent that the differences between strict, although it is important not to lose the figures submitted by the two parties sight of the fact that for certain substances, result from divergent understandings of the such as 'faecal coliform', the margin laid scope of the obligations imposed by the down by Article 5 is 20%. At any event, it directive. is undeniably clear from the case-law, and in particular the judgment cited above, that the obligations laid down in the directive are indeed as I have just described.

Is it necessary to assess the state of the water every year?

39. First, the defendant challenges the way 36. In particular, it is clear that the Court in which the Commission acted, on the did not intend to allow room for the grounds that it is necessary to assess the application of any de minimis principle cleanliness of bathing water over several within the framework of the interpretation years and not on the basis of figures which of the directive. are valid for only one year. Such a method of calculation serves to give a distorted statistical picture of the quality of bathing water in Denmark and is by no means supported by the directive.

37. It is clear from the foregoing that the infringement concerning bathing water 40. The Commission contends in this quality claimed by the Commission is regard that it is expressly stated in established, since the defendant does not Article 13 of the directive that it is necess-

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41. It is undeniable that the fact that the directive requires Member States to send the Commission a report each year on the implementation of the directive for the 44. In that regard the defendant argues that current year proves that it is necessary to except for 9 cases all of the deviations from assess the situation with regard to bathing the thresholds laid down by the directive water every year. That conclusion is con- which the Commission took into account firmed, moreover, by the objective of the are due to unpredictable natural causes. It directive. Protection of public health is at mentions bird excreta in particular: this issue in the present case and that consider- may be concentrated in a few litres of ation cannot accommodate long periods bathing water sampled in a given area and during which the authorities of the States occurs suddenly and unpredictably. It is are entitled to wait before taking action. In appropriate to stress in particular that such particular, it would be unacceptable for phenomena do not occur regularly in the several bathing seasons to pass before a same areas but are distributed differently Member State, finally convinced that a each year. bathing area did not comply with the directive, took the necessary measures.

45. Denmark does not rebut the Commis- 42. Consideration of the case-law leads, sion's statement that it is necessary to show moreover to the same conclusion since, in caution when designating bathing areas in paragraph 34 of Commission v Germany, regions where there is an abundance of cited above, the Court expressly held that if wildlife. It states, however, that even such a values were exceeded only once in only one cautious approach does not necessarily season that constituted an infringement of have the effect of reducing the number of the directive. accidental deviations.

49. The Commission, however, contends that the directive contains no basis for making adjustments for accidental devi- 53. The directive provides in Article 8, cited above, that it may be waived under exceptional weather or geographical con- 5 — See, for example. Case C-56/90 Commission v United ditions or when bathing water undergoes Kingdom, cited above. natural enrichment in certain substances

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coming from the soil causing a deviation 57. The defendant's arguments, however, from the values prescribed in the annex. raise the question whether it is appropriate Moreover, Article 5(2) provides that devi- to include in the interpretation or appli- ations are not to be taken into consider- cation of the directive a further margin in ation when they are the result of floods, order to take into account the impact of other natural disasters or abnormal animal excreta. weather conditions.

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60. It is true, as I have shown above, thai areas at risk of that type of pollution and to the tolerance threshold is generally 95%. pay them particular attention without hav- which allows in reality only a single sample ing to resort to a disproportionate number that does not comply. The question arises, of samples. The Danish Government itself therefore, whether as part of the revision ol states that in such areas it automatically the directive, which was mentioned at the takes 20 samples a season. hearing, the Community institutions should not consider raising that margin of toler- ance in cases where there is no other source of pollution apart from bird excreta. That will depend perhaps on the view one takes of the significance of the dangers to the 64. Measures can therefore be adopted, health of bathers represented by such once distorted samples have been taken, excreta. to prevent the Member State concerned from finding itself in breach of the direc- tive.

61. Be that as it may, the phenomenon in question cannot be classified as a case of force majeure, which according to the case-law 6 is a circumstance which a 65. The defendant however expresses vari- Member State can plead to justify its failure ous criticisms of the remedy of increasing to comply with its obligations. the number of samples. It contends that that method cannot be effective because it involves high costs and is out of proportion to the results to be expected from it.

62. The fact that samples of bathing water are distorted by animal excreta does not constitute an unpredictable and insur- mountable obstacle to compliance with 66. According to settled case-law,7 such the rules laid down in the directive. arguments do not, however, justify failure on the part of a Member State to comply with the provisions of a directive.

impact on water quality and any improve- 71. The Commission disputes that reason- ment recorded will be only statistical. ing, arguing that a Member State may not evade its obligations under the directive by imposing a temporary ban on bathing because the bathing water does not comply with the requirements of the directive. If a Member State wants a bathing area not to be subject to the obligations under the directive the exclusion should be definitive and permanent. 68. Although it is indisputable that the simple fact of increasing the frequency of sampling will not in itself improve water quality, it should be pointed out that, as we have seen, the increase makes it possible to determine the permanence or frequency of the pollution and thus enables the compet- ent authorities to take the necessary decisions more quickly if the pollution has become too frequent to be tolerated. Does the breach continue even if a bathing ban is imposed?

72. It is true that the Commission's view appears to follow the case-law of the Court 69. In that case the national authorities in so far as we read in paragraph 33 of should impose bathing bans in the affected Commission v Germany, cited above, that areas if pollution caused exclusively by the fact that areas have lost their status as animals persists and it is therefore not bathing areas or that measures have been possible to take action with regard to the taken to remedy the infringement does not cause of the pollution. cure it.

73. However, as the Danish Government 70. The defendant explains in that regard rightly observes, 'it is physically impossible that that is exactly what it did in a certain to, react before a deviation from the limit number of cases. It infers from this that values is recorded or the sources of the areas which have been the subject of a ban pollution identified. The deciding factor should not be included among those where must therefore be whether Member States the requirements of the directive are not take all the necessary measures once the met. deviation is established'.

75. Moreover, and above all, Article 1 of the directive expressly provides that the directive applies to bathing water, that is to say water in which bathing 'is explicitly authorised by the competent authorities of 78. I do not find anything either in the each Member State or is not prohibited and directive or in case-law to support the is traditionally practised by a large number Commission's view that only a definitive of bathers'. It could not be stated more ban will meet the requirements of the clearly that it does not apply to water in directive. The directive does not draw any which bathing is prohibited. distinction between bans, whether defini- tive or temporary. Moreover, the prospect of the possibility of reopening is likely to encourage the competent authorities to take the necessary measures to ensure the area complies with the requirements. The rule that any ban should be permanent, however, would be a disincentive for the 76. The conclusion to be drawn therefore is authorities to seek to remedy the deviations that where a Member State bans bathing in that had been established. The Commission a specified area, even if it is only during the is careful to point out, moreover, in what season, that area is not to be taken into circumstances which are relevant as regards consideration for the purposes of assessing the objectives of the directive such drastic implementation of the directive in that bans should be imposed. Member State. 8

77. That conclusion is, moreover, borne out by the objective of the directive. The 79. Lastly, the argument the Commission directive seeks to ensure that Member seeks to draw from Commission v Belgium is unconvincing.9 In that case the Court 8 — The same applies where a source of pollution other than bird excreta has heen found and measures to end the pollution have heen taken during the season. 9 — Case C-307/98 Commission v Belgium (2000] ECR I-3933.

81. The Commission states that in seven bathing areas the minimum sampling fre- 86. Since that was essentially the case as quency, as stipulated in Article 6(1) in regards the first complaint, it must be conjunction with the annex to the directive, stated that the defendant has for the most was not met during the period 1995 to part been unsuccessful in its pleas and must 1998. therefore be ordered to pay the costs.

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Conclusion

87. In the light of the foregoing I propose that the Court should:

— declare that, by failing to adopt the measures necessary to ensure the quality of bathing water everywhere complies with the limit values laid down in Directive 76/160/EEC concerning the quality of bathing water and by failing to carry out sampling operations in line with the minimum frequency laid down in that directive, the Kingdom of Denmark has failed to fulfil its obligations under Article 4(1) and Article 6(1) of that directive;