JUDGMENT OF 2. 2. 1982 — CASE 72/81 JUDGMENT OF THE COURT

In Case 72/81

THE COURT composed of: J. Menens de Wilmars, President, G. Bosco, A. Touffait and O. Due (Presidents of Chambers), P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe, T. Koopmans, U. Everling, A. Chloros and F. Grévisse, Judges, Advocate General: F. Capotorti Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of the procedure, the claims, submissions and arguments of the parties may be summarized as follows:

I — Facts and written procedure

The aim of Council Directive 76/160/EEC of 8 December 1975 is to organize at Community level surveillance of bathing water. It is concerned with fresh water and sea water in which bathing is explicitly authorized, or is not prohibited and is traditionally practised, with the exception of water intended for therapeutic purposes and water used in swimming pools.

Article 12 of the directive provides that Member States are to bring into force the laws, regulations and administrative provisions necessary to comply with the directive within two years of its notification. The directive was notified to the Kingdom of Belgium on 10 December 1975 so that the period expired on 10 December 1977.

Having found that at the above-mentioned date “the provisions adapting national law had not been adopted” and that “in any event it had not received any official information to that effect” the Commission initiated the procedure provided for in Article 169 of the EEC Treaty against the Kingdom of Belgium for failure to fulfil its obligations under the Treaty.

By a letter dated 9 January 1979 it invited the Belgian Government to submit its observations pursuant to the first paragraph of Article 169 of the Treaty.

By a letter dated 13 July 1979 the Belgian Government informed the Commission essentially that the existing laws and regulations already enabled certain provisions of the directive to be applied but that full implementation was encountering difficulties arising from “the continuing uncertainty as to the precise nature of the devolution of the powers which will result from the institutional reforms undertaken in our country” and “the considerable arrears of work which have accumulated in the Parliament”.

On 23 July 1979 the Commission delivered the reasoned opinion provided for in the first paragraph of Article 169 of the Treaty and invited the Kingdom of Belgium to take the measures necessary to comply therewith within a period of two months from its notification.

In its letter of 14 November 1979 the Belgian Government answered that “although Belgium has not so far incorporated those directives into its laws” that failure “is an indirect effect of the fundamental reforms of the institutions in progress in Belgium at the present time” and it requested an additional period of one year.

Having found that more than a year after the date of the letter the provisions of national law on the implementation of the directive had not yet been adopted and since it had received no further communication from the Belgian authorities on the subject the Commission brought the present proceedings on 6 April 1981.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any preparatory inquiry. It nevertheless invited the Commission to explain at the hearing the position in regard to the implementation of the directive in the other Member States.

II — Conclusions of the parties

The Commission claims that the Court should:

1) Declare that by failing to adopt within the prescribed period the provisions needed in order to comply with Council Directive 76/160 of 8 December 1975 concerning the quality of bathing water, the Kingdom of Belgium has failed to fulfil one of its obligations under the Treaty;

2) Order the Kingdom of Belgium to pay the costs.

The Kingdom of Belgium has not presented any formal conclusions.

III — Submissions and arguments of the parties

The Commission argues that according to established case-law of the Court a Member State cannot justify the non-implementation of a directive on grounds relating to national provisions on practices or particular circumstances at national level. Compliance with the provisions of the Treaty or of secondary law may not therefore depend on the difficulties which a Member State encounters, as in the present case, as a result of the alteration in the distribution of powers between central government and the regional or local authorities.

The Belgian Government observes that the directive in question has already been the subject of measures implementing it in part. The delay in its complete implementation is the result of the actual process of fundamental reforms of the institutions of the country at present in progress. It is not possible to dissociate this unavoidable delay regarding the application of the Community rules from the constitutional changes themselves. The Community authorities should therefore take account of the exceptional situation with which the Belgian Government is confronted.

IV — Oral procedure

The parties presented oral argument at the sitting on 12 November 1981.

The Advocate General delivered his opinion at the sitting on 2 December 1981.

Decision

1. By application lodged at the Court Registry on 6 April 1981 the Commission of the European Communities brought an action for a declaration under Article 169 of the EEC Treaty that by failing to adopt within the prescribed period the provisions needed in order to comply with Council Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing water (Official Journal L 31, 5 February 1976, p. 1), the Kingdom of Belgium has failed to fulfil its obligations under the third paragraph of Article 189 of the Treaty.

2. Article 12 of the directive provides that Member States are to bring into force the measures needed to comply therewith within two years of its notification; that period expired in this case on 10 December 1977.

3. The Belgian Government does not deny that it has not fulfilled that obligation. Although the Belgian Government asked the Court “to take note that the directive in question has already been the subject of measures implementing it in part”, it is clear from the particulars subsequently given by that Government that the measures which it has adopted are not designed to implement Council Directive 76/160/EEC.

4. Essentially, the Belgian Government justifies its failure by the fact that important institutional reforms concerning the redistribution of powers and responsibilities between the national and regional institutions are in progress, especially in the area covered by the directive in question. So long as the new institutions are not yet in a position to exercise their powers it will not be possible, according to the Belgian Government, to implement the directive.

5. Although those circumstances may explain the difficulty in applying the directive they do not expunge the failure of the Kingdom of Belgium to fulfil its obligations. According to established case-law of the Court a Member State may not plead provisions, practices or circumstances in its internal legal system to justify failure to comply with obligations under Community directives.

6. It should also be pointed out that, in order that the exceptional situation referred to by his government should be taken into account, the Belgian Minister for Public Health and the Environment, in answer to the reasoned opinion provided for in the first paragraph of Article 169 of the Treat), requested the Commission on 14 November 1979 to grant to the Kingdom of Belgium an additional period of one year to adopt the measures of national law needed to implement the directives. These measures ought to have entered into force in December 1977, and in fact it was only on. 6 April 1981 that the Commission brought the matter before the Court under the second paragraph of Article 169 of the Treaty.

7. It must therefore be held that by not adopting within the prescribed period the provisions needed to comply with Council Directive 76/160/EEC of 8 December 1975, the Kingdom of Belgium has failed to fulfil its obligations under the Treaty.

Costs

8. Article 69 (2) of the Rules of Procedure provides that the unsuccessful party shall be ordered to pay the costs if they have been asked for. Since the defendant has been unsuccessful, it must be ordered to pay the costs.

On those grounds, THE COURT hereby:

1 Declares that by not adopting within the prescribed period the provisions needed to comply with Council Directive 76/16C/EEC of 8 December 1975 concerning the quality of bathing water (Official Journal L 31 of 5 February 1976, p. 1), the Kingdom of Belgium has failed to fulfil its obligations under the Treaty;

2 Orders the Kingdom of Belgium to pay the costs.