C-278/01

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tive in favour of the Kingdom of Spain, the conformed to the limit values set in quality of Spanish bathing water should accordance with Article 3 of the Directive, have conformed to the limit values set by the Kingdom of Spain had failed to fulfil its the Directive as from 1 January 1986. obligations under Article 4 thereof.

II — The Court's judgment in Case C-92/96 Commission v Spain III — The written procedure and the forms of order sought by the parties

6. In its judgment of 12 February 1998, 4 the Court held that, by failing to take all necessary measures to ensure that the 7. In its application, the Commission quality of inshore bathing waters in Spain alleges that the quality of inshore bathing waters in Spain does not always attain the standards set in the Directive. It has 4 — Case C-92/96 Commission v Spain [1998] ECR I-505. produced the following table in that regard:

Year Number of areas C(I) (%) NF (%) NC (%) NB (%)

NB: Percentage of bathing areas at which bathing was prohibited during the entire season.

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8. It observes, furthermore, that the Span- day of delay from the date on which ish Government has reduced the number of judgment is delivered in the present case inshore bathing areas over the years. until such time as the judgment in Com- mission v Spain is complied with.

— declare that, by not taking the necess- 5 — OJ 1996 C 242, p. 6. ary measures to ensure that the quality 6 — OJ 1997 C 63, p. 2. of inshore bathing water in Spanish

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territory conforms to the limit values — in the alternative, refuse to impose a set in accordance with Article 3 of the daily penalty payment; Directive, notwithstanding its obli- gations under Article 4 of the Directive, the Kingdom of Spain has not complied with the judgment in Case C-92/96 Commission v Spain and has accord- — in the further alternative, impose a ingly failed to fulfil its obligations daily penalty payment not exceeding under Article 228 EC; EUR 11 400;

— in any case, order the Commission to — order the Kingdom of Spain to pay to pay the costs. the Commission, into its 'European Community own resources' account, a penalty payment of EUR 45 600 per day of delay in adopting the measures necessary to comply with the judgment in Case C-92/96 Commission v Spain, from the date on which judgment is IV — Analysis delivered in this case until the date on which the judgment in Commission v Spain is implemented;

A — The failure to comply with the Court's judgment in Case C-92/96 Com- mission v Spain

18. Secondly, it should be noted that the 21. Plainly, the defendant could hardly relevant date for determining whether a have done otherwise. It follows undeniably Member State has, or has not, failed to from the figures put forward by the Com- fulfil its obligations is that of the expiry of mission that during the 2000 bathing the period specified in the reasoned season a certain proportion, of the order opinion. Thus, the first sentence of the of 20%, of the bathing areas in question second subparagraph of Article 228(2) EC did not conform to the criteria laid down in states expressly that the Commission may the Directive. It was in the month of bring a case before the Court 'if the September of that year that the time-limit Member State concerned fails to take the of two months set in the reasoned opinion necessary measures to comply with the of 27 July 2000 expired. Court's judgment within the time-limit laid down by the Commission'. That point is important in the present case, as the parties have both raised a number of issues of fact relating to the position after that date.

23. It is therefore unnecessary, at this point ent to bring infringement proceedings and of my analysis, to deal with the question of when to do so. the consequences of prohibiting bathing or removing areas from the list for the pur- poses of assessing the extent to which bathing areas conform to the criteria laid down in the annex to the Directive. I have, moreover, had occasion to address certain aspects of that question already. 8 26. It none the less remains the case, according to the defendant, that actions for failure to comply with a judgment possess certain special characteristics in this respect. The Treaty, in particular Article 228 EC, on the basis of which such actions are brought, does not specify any period within which a judgment of the 24. Should it none the less be concluded at Court requires to be complied with by a this early stage that the Commission has Member State. established a failure to comply with the judgment of the Court? That would be to misconstrue the defendant's position. The latter argues, in effect, that the Commission has not allowed it a sufficient period of time in which to comply with its obli- gations. It follows that the Court cannot find that there has been a breach of them. 27. It is therefore appropriate to refer to the Court's case-law, which states that a Member State is entitled to a reasonable time in which to comply with a judgment of the Court. That was not, it says, the case in the present matter.

31. That case-law 1 0provides that the 34. In that regard, the parties have adopted importance of immediate and uniform diametrically opposed positions in relation application of Community law means that to the two criteria established under case- the process of compliance with the Court's law, namely the immediate character of the judgment must be initiated at once and Member State's initiation of the process of completed as soon as possible. The use of complying with the judgment, on the one the word 'possible' shows that some time hand, and the taking of measures to com- may pass before a failure to comply with plete that process as quickly as possible, on the judgment is clearly established, at least the other. as regards the outcome of measures under- taken.

35. Thus, the Commission is of the view 32. The fact that the case-law refers to the that the action taken by the defendant is process being completed 'as soon as poss- clearly inadequate from both points of ible' simply represents an application of the view. It states in that regard that the first principle that 'no one is required to do the responses provided by the Spanish auth- orities, in the months following the Court's judgment, were far from providing, as the 10 — See Case C-387/97 Commission v Greece [2000] ECR defendant claims, an exhaustive schedule I-5047, paragraph 82, and the cases cited there. and detailed plan of actions to be under-

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taken, including the financial aspects of the begin to take action more quickly than the latter. On the contrary, the data supplied to Spanish authorities did, and that they had the Commission were incomplete or out of in fact waited to receive the reasoned date for a number of regions in the country. opinion before actually initiating com- In particular, one would look in vain for a pliance with the judgment. detailed plan of action.

38. The Commission also notes that, after the reasoned opinion was sent to the Spanish authorities in July 2000, it took 40. Moreover, the figures provided by the the latter only two months to send the Commission itself show that there was an Commission a comprehensive plan, setting improvement, however slight, in the quality out in detail all the action to be undertaken. of the bathing water in question between According to the Commission, that short 1998 and 1999, as the compliance rate period shows that it was entirely possible to passed from 73 to 76.5%. That was the

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period immediately following the Court's judgment could not be said to be 'as soon judgment. Those figures tend therefore to as possible', as case-law requires. contradict any allegation of inactivity on the part of the Spanish authorities during that time.

COMMISSION v SPAIN

disagreement between the parties, as it different. It might thus be unduly formal- depends on the treatment of bathing pro- istic to dismiss the action on the grounds hibitions. As mentioned above, that ques- that the failure, which becomes evermore tion is not very important at this stage, as undeniable with the passage of time, would the figures attained are in any event inad- not yet have been evident when the time- equate. limit set in the reasoned opinion expired.

48. That argument might appear at first sight to be excessively formalistic, particu- larly in the circumstances of the present case. It is not denied that all the standards 51. But that would be the result of the set by the Directive have still not yet been Commission's argument that the defendant attained and the judgment thus remains to had available to it not only the years from be complied with. It therefore appears that, 1998 to 2000, but also the subsequent had the Commission delayed bringing pro- ceedings, as the Spanish Government claims by implication that it should have 12 — See, for example, Case C-362/90 Commission v Italy done, the result would have been no [1992] ECR I-2353, paragraph 10.

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52. The case-law 13 cited by the Commis- sion at the hearing concerning the account taken by the Court of matters arising after the expiry of the period laid down in the reasoned opinion does not lead to a dif- ferent conclusion. In those cases, the Court 55. It is true, as indeed the Commission held that facts occurring after the period points out, that the obligation to comply were similar to those referred to in the with the Court's judgment and that of reasoned opinion and, accordingly, implementing the Directive are substan- amounted to the same conduct. It was tially the same. It none the less remains the therefore a question of linking proven facts case that they are not entirely comparable. occurring before the time-limit with That applies particularly to the period for matters arising after it had expired. complying with the relevant obligations. The period for implementing the Directive is laid down under it, and has, in the present case, long since expired.

53. By contrast, the approach proposed by the Commission in the present case repre- sents the direct opposite. It amounts in effect to placing reliance on matters occur- ring after the time-limit to prove the 56. By contrast, the period for complying breach, whereas the breach was required with the Court's judgment did not start to to have arisen before the time-limit had run before the judgment was notified, and expired. its expiry assumes the passage of a reason- able period of time, within the meaning of the Court's case-law referred to above. The 13 — Case 42/82 Commission v France [1983] ECR 1013 and reasonableness of the period depends on Case 113/86 Commission v Italy [1988) ECR 607. the measures remaining to be taken by the I - 14154

58. In that regard, the defendant raises a number of arguments in support of its submission that the Commission should have allowed it a longer period of time. 61. However, the Commission disputes that version of the facts, claiming that the situation in Spain is comparable to that of other Member States such as Greece or Italy. The defendant responds, without challenge on the Commission's part, that 59. It notes first of all the unusual length of those Member States have designated a the period laid down in the Directive itself considerably lower number of bathing for its implementation by the Member areas 14 than Spain 15 and that only some States. That period may be explained by of them were of a comparable standard to the fact that the Community legislature those in Spain. itself recognised the considerable dif- ficulties that would arise in meeting the criteria laid down in the Directive and that 14 — According to Spain, Greece had designated 5 areas and only 46 Italian areas were comparable to the Spanish only long-term action would succeed in areas. fulfilling them. 15 — In 1998, Spain had designated 215 areas.

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63. The defendant is correct to draw atten- tion to those aspects of the present case. It 65. The same applies, moreover, to another should be borne in mind, as the case-law case cited by the Commission at the mentioned above shows, that the question hearing. 19 That involved the position of is one of establishing whether the Member the United Kingdom which was also the State has been allowed a reasonable time in subject of an action for non-compliance which to comply with its obligations. That with a judgment of the Court and included can only be decided in the light of its actual a request for an order imposing a penalty situation at the expiry of the period laid payment. It is interesting in that regard to down in the reasoned opinion. note that in those proceedings the Com- mission allowed a period of six and a half years to pass before issuing a reasoned opinion. Furthermore, the problem arising in the United Kingdom was limited to a discrete area and might therefore appear to be of a scale smaller than that which arises in the present case. 64. In that regard, a comparison between this case and other proceedings for failure to fulfil obligations is instructive, although 16 — Case 131/84 Commission v Italy [198J] ECR 3531. without, of course, any legal significance. 17 — Case C-334/94 Commission v France [1996] ECR I-1307. Thus, in cases which only require legislative 18 — Case C-387/97 Commission v Greece, cited above. 19—Case C-85/01 Commission v United Kingdom (removed amendments to be made, the time elapsing from the Register).

66. In any event, there are other factors 68. The above clearly shows that in some pointing to the particular difficulty of cases a period considerably greater than the implementing the Directive, a difficulty two and a half years allowed to the which I have already had occasion to refer defendant by the Commission is, even in to in my Opinion in Case C-226/01 Com- the latter's own opinion, objectively necess- mission v Denmark and which is, more- ary in order to comply with the Directive. over, confirmed by the number of infringe- None of the points raised by the Commis- ment proceedings relating to that direc- sion suggests that that is not the case here. tive. 20 It does not suggest that the works under- taken before the judgment in 1998 were sufficiently wide-ranging to prevent prob- lems of this kind recurring and that com- pliance with the remaining obligations would thus be able to progress rapidly. Nor does it claim that the defendant was not faced with diffuse sources of pollution or with water flows from agricultural land in the present matter. On the contrary, it does not challenge the defendant's sub- missions which refer clearly and in detail to 67. A particularly revealing point is dis- such circumstances. closed by the reports of the Commission itself, which have been cited by the defend- ant. It is apparent from Annex 1 to the report on the quality of bathing water for the 2000 season that the Commission explains the fact that, more than 20 years after the adoption of the Directive, some 69. It must be stated that the Commission's bathing areas have not complied for several arguments have failed to demonstrate that years with the prescribed values laid down the Member State in the present case has in it, by noting that it is difficult, especially been allowed a reasonable period in which where less significant and more diffuse to comply with the Court's judgment. It has sources of pollution are involved, to detect thus not shown that on the expiry of the these problems and to remedy them. It even period set in the reasoned opinion it was adds that in the majority of these cases immediately clear that the defendant had several bathing seasons are required to failed to comply with its obligations. detect the true source or the cycle of pollution. In some cases, the situation can only be resolved by the adoption of long- term improvement programmes relating to agricultural practices. 70. It should be noted that this type of 20 — Case C-56/90 Commission v United Kingdom [1993] ECR situation should be treated as exceptional. I-4109; Case C-92/96 Commission v Spain, cited above; Case C-198/97 Commission v Germany, cited above; Case It is linked to the factual background to the C-307/98 Commission v Belgium [2000] ECR I-3933; case, which is characterised, on the one Case C-147/00 Commission v France [2001] ECR I-2387; Case C-368/00 Commission v Sweden [2001] ECR I-4605; hand, by special factors relating to the Case C-427/00 Commission v United Kingdom [2001] implementation of the Directive and, on the ECR I-8535; Case C-226/01 Commission v Denmark, cited above. other, by what must, in the context, be

B — The principles relating to the setting of a penalty payment and its amount 75. For the Commission, the possibility or impossibility of complying with the judg- 72. In this context, the defendant claims, ment immediately is not a relevant matter, firstly, that a daily penalty payment is not having regard in particular to the fact that an appropriate mechanism for ensuring the imposition of the penalty occurred compliance with the judgment having some years after the obligation arose which regard to the actual circumstances of the it is sought to implement, namely that of case. The purpose of a penalty payment is complying with the Court's first judgment. not simply to penalise a Member State, but to encourage it to comply immediately. In the present case, the Member State required to establish what the problems were, which it had already done, to develop action plans, which it had also done, to implement 76. It adds that, ultimately, the question of them and to consider the results at the end whether the penalty payment is appropriate of each annual bathing season. depends only on whether or not the breach continues. If that is the case, the payment of a penalty represents the most appropriate means of ensuring that the breach is terminated. That is all the more so if one takes into account the fact that, in order to 73. It follows that the Member State would put an end to the breach of the Directive, be faced with irreducible timescales, in the the Kingdom of Spain must take certain

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specific measures, such as the control of 79. The defendant also submits that the diffuse pollution and illegal discharges of imposition of a daily penalty payment is waste, and the construction of purification inappropriate in the present case because stations for wastewater, which require to findings of compliance with the standards be undertaken throughout the year. set in the Directive are made annually, at the end of each bathing season. It follows that the penalty payment would of necess- ity be due over a long period.

78. In the present case, the latest data provided to the Court by the parties show that the standards set in the Directive have still not been attained in all Spanish inshore bathing waters. The breach is therefore a 81. Indeed, the Directive itself makes it continuing one, and thus so the need clear that findings in relation to the state of persists to require the Member State to bathing areas are to be made annually. 21 remedy it as quickly as possible. That periodicity represents an integral part Admittedly, the penalty payment will not of the obligations arising under the Direc- enable the judgment to be complied with tive and a Member State is not entitled to more quickly, as that depends on a whole assume, before those findings are made, series of works to be undertaken by the that it is already in compliance with the Member State or the regional or local Directive and that a penalty payment will authorities. It nevertheless remains the case no longer be due. that the penalty payment is a means of dissuading the national authorities from 21 — Cf. Article 13 of the Ditective, as amended by Article 3 of slackening their efforts, for example in Council Directive 91/692/EEC of 23 December 1991 favour of other priorities, thereby delaying standardising and rationalising reports on the implemen- tation of certain directives relating to the environment compliance with the Court's judgment. (OJ 1991 L 377, p. 48).

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86. In any event, it should be noted that in Case C-387/97 Commission v Greece, cited 83. The Commission argued at the hearing above, the Court held that the amount of that those problems are not insurmount- the penalty payment must be 'appropriate able. A Member State could make an to the circumstances'. As mentioned above, application to the Commission, supported those are characterised by the annual by the necessary evidence, showing that it nature of the finding as to compliance, had made progress in implementing its while the penalty payment proposed by the obligations and that the amount of the Commission is a daily one, and by the fact penalty payment should be reduced. Were that the implementation by a Member State the Commission to refuse the application, of its obligations of necessity will be or to set a new amount which the Member gradual, while the penalty payment is set State considered still to be too high, that at a fixed amount. would be subject to review by the Court by way of an application for declaration of failure to act or for annulment, according to the circumstances.

87. Those aspects of the present case have significant practical consequences. Thus, even if, at the end of a given bathing season, it is found that the bathing waters 84. That argument is unconvincing. It is to in Spain are almost in compliance with the say the least doubtful that the parties are requirements of the Directive, the penalty entitled to apply the Court's decision on the payment proposed by the Commission will amount of the penalty payment in that continue to be due in its entirety, for every way. day until the next annual finding is made.

93. I therefore consider that the Court 90. It follows from the above, in my should require the defendant to pay an opinion, that the Court should not impose annual sum calculated by reference to the a periodic penalty payment on the defend- number of areas still not complying with ant of the kind proposed by the Commis- the standards set in the Directive. If the sion. The Court should thus consider approach taken by the Court in Case whether a penalty payment calculated by C-387/97 Commission v Greece is adopted, reference to other parameters should be and the Commission's suggestion is taken imposed, having regard to the fact — as a useful reference point, it will be noted accepted, it should be recalled, only as an that it considered a daily sum of EUR 45 alternative hypothesis — that an infringe- 600 to be appropriate where almost 20% ment is established and that it persists. of bathing areas did not comply with the criteria laid down in the Directive.

22 — As mentioned above, in 1998 Spain had designated a total of 215 bathing areas. 23 — Paragraph 89.

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94. That information enables a sum to be would then be EUR 562 500 multiplied by calculated which reasonably reflects the 10. If at the end of the following bathing annual value which 1% of non-compliant season, for 2005, it is found that 95% of bathing areas represents. If 20% of the areas comply, this will mean that 5% do areas correspond to EUR 45 600 per day, not. The amount due will not be more than one can establish what 1% a year actually EUR 562 500 multiplied by five. Ulti- corresponds to. mately, when it appears that all areas comply, the amount will be nil.

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claims, however, that if the minimum 103. The defendant claims, on the other coefficient of 1 were applied in the present hand, that the Commission has failed to matter, there would be no difference have regard to the fact that almost four between a case where calculation of the fifths of the areas were already in com- penalty payment by the Commission was pliance. Furthermore, it should have taken undertaken a year after the judgment and into consideration the time that has elapsed the current case, where three years and since the judgment and not since the time three months have elapsed between the when the Directive should have been Court's judgment and the Commission's implemented. Lastly, it has overlooked the decision to bring proceedings. fact that, because of the date of its acces- sion, the defendant had not benefited from a period of 10 years in which to implement the Directive, unlike other Member States.

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105. Lastly, as regards the defendant's designated as such. Some of the areas argument contending that it did not benefit which were wrongly removed did not from an additional period for implementing comply with the requirements laid down the Directive, the Commission's response in the annex to the Directive. that it could have requested such a period, as Portugal did, is hardly satisfactory. Although it is true that the Kingdom of Spain was entitled to make such a request, it cannot be said with certainty that it would have been granted.

108. The defendant vehemently disputes that submission.

106. That said, I am of the view that the other arguments raised by the Commission, in particular the importance of the provi- sions in question for public health, a 109. I have already observed that this criterion that was moreover applied by question was of no relevance in establishing the Court in Commission v Greece, 24 cited whether an infringement has occurred. The above, justify setting a factor of 4 relating same applies in the context of assessing the to the seriousness of the breach. penalty payment because the Commission itself records that it was calculated on the basis of the figures appearing in its annual reports, which disregard areas that have been removed from the list.

107. Before I conclude, reference should briefly be made to the dispute that can only be termed bitter between the Commission and the defendant on the question of the 110. One may nevertheless wonder to what removal of a number of bathing areas from extent the question could be of importance the list. The Commission claims in its for the implementation of its obligations by application that the compliance figures in a Member State. That could be the case its annual reports should be adjusted down- where the degree of compliance with the wards to reflect the unjustified removal of Directive attained by the bathing areas was some bathing areas from the list of areas challenged because the Commission took the view that the result had only been achieved by means of the unjustified 24 — Paragraph 94. removal of areas from the list.

113. The dispute relates to the con- sequences of such a removal and the detailed rules applying to it. 117. Admittedly, it could be said that a solution of this nature, which is compatible with the protection of health, is not, by contrast, necessarily compatible with the objective of the protection of the environ- ment which also underlies the Directive. However, that objective should be seen in 114. As regards the consequences of the context of the scope of the Directive: it removal, two situations should be distin- cannot be relied upon to extend the latter's guished. The first is where a State fails to field of application further than the provi- prohibit bathing in the area in question at sions of the Directive expressly require. It the same time. In that case, the area has should be noted in that regard that under been wrongly removed from the list. The settled case-law a provision whose wording requirements of the Directive must con- is entirely clear cannot be subject to inter- tinue to apply. A Member State cannot pretation. withdraw an area from their purview with- out undermining the public health objective of the Directive. The harmonious develop- ment of the internal market, to which the recitals in the preamble to the Directive also refer, would be compromised as well, since the conditions of competition 118. As to the detailed rules relating to between bathing areas in the different removal, the question arises in particular of States would be distorted. where the relevant onus of proof lies. In

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