Report for the Hearing in Case C-42/89

I — Facts and procedure

1. Legal background

1. Council Directive 80/778/EEC of 15 July 1980 relating to the quality of water intended for human consumption (Official Journal 1980 L 229, p. 11), provides, in Article 2, that ‘water intended for human consumption’ is to mean

‘... all water used for that purpose, either in its original state or after treatment, regardless of origin,

i) whether supplied for consumption, or

ii) whether Articles 7 and 8 of the directive lay down a certain number of requirements which must be satisfied as regards the quality of water intended for human consumption. Pursuant to Article 9(1), Member States may make provision for derogations from the directive in order to take account of situations arising from the nature and structure of the ground in the area from which the supply in question emanates, or situations arising from exceptional meteorological conditions. According to Article 9(3), in no case are those derogations to relate to toxic or microbiological factors or constitute a public-health hazard. In addition, the possibility of derogating from the directive is afforded in Article 10, which provides that in the event of emergencies the competent national authorities may allow the maximum admissible concentration indicated for the parameters shown in Annex I to the directive to be exceeded. Article 12(1) provides that Member States are to take all necessary steps to ensure regular monitoring of the quality of water intended for human consumption. Article 18 provides that they are to bring into force the laws, regulations and administrative provisions necessary to comply with the directive and its annexes within two years following its notification and that they are to inform the Commission thereof forthwith. Since the directive was notified on 18 July 1980, the abovementioned period expired on 18 July 1982. Furthermore, it follows from Article 19 that the Member States are to have taken the measures necessary to ensure that the quality of water intended for human consumption complies with the directive by 18 July 1985 at the latest. Pursuant to Article 20, they may, however, in exceptional cases and for geographically defined population groups, submit a special request to the Commission for a longer period for complying with that obligation. That request, for which grounds must be duly put forward, is to set out the difficulties experienced and propose an action programme with an appropriate timetable to be undertaken for the improvement of the quality of water intended for human consumption.

a) used in a food production undertaking for the manufacture, processing, preservation or marketing of products or substances intended for human consumption, and

b) affecting the wholesomeness of the foodstuff in its finished form’.

2. Background to the proceedings

By a letter of 4 August 1986, the Commission gave notice to the Belgian Government to submit within a period of two months its observations concerning two infringements which it had noted in the transposition into Belgian law of Directive 80/778. According to the Commission, one of those infringements results from a partial transposition of Article 9(l)(b) and (3) of the directive. The combined effect of those provisions prohibits Member States from providing for derogations from the system instituted by the directive in order to take account of situations arising from exceptional meteorological conditions if those derogations relate to toxic or microbiological factors or constitute a public-health hazard. The Commission points out that Article 5 of the Royal Decree of 27 April 1984 (Moniteur belge of 6.7.1984, p. 9860), subjects those derogations to conditions that are less strict than those laid down in the directive. In effect it suffices that the water supply cannot be assured in any other way and that the derogations permitted do not present any unacceptable risk to public health.

As regards the second infringement noted, the Commission states that following the expiry of the period laid down in Article 19 of the directive on 18 July 1985, it has received no information from which it could be concluded that the quality of water from the Gileppe dam, which supplies the town of Verviers, complies with the directive. It points out that the treatment plant for that water, the construction of which was notified to it in letters dated 22 February 1984 and 15 November 1985 from the Permanent Representation of Belgium, is not yet in operation. Moreover, the Commission states that the Kingdom of Belgium has not had recourse to the procedure set out in Article 20 of the directive which would enable it, as far as the consumers of Verviers are concerned, to submit a special request to the Commission for a longer period before the directive was to be applied.

On 15 December 1987, the Commission issued a further notice to the Belgian Government, in which another discrepancy between Belgian law and Community law was notified. It stated that the Royal Decree of 27 April 1984, by excluding from its area of application water drawn by private individuals for household use, did not comply with the provisions of Directive 80/778 and, in particular, with Articles 1 and 2 thereof. The further notice imposed a new time-limit of two months on the Belgian Government for the submission of its observations in respect of that additional infringement and the two infringements previously notified.

The Belgian Government replied to the two notices in a letter from its Permanent Representation, which the Commission received on 25 February 1988. In that letter it informed the Commission that, as regards Article 5 of the Royal Decree of 27 April 1984, a draft amendment intended to eliminate the discrepancy between that provision and Article 9 of the directive had been prepared, approved by the three regional executives and submitted to the Conseil d'État for its opinion on 18 December 1987. In respect of the Verviers water supply, it stated that construction of the water treatment plant and connected work had begun on 5 April 1984 and the commissioning of the plant was planned for the end of 1990. In that connection the Belgian Government referred to Article 20 of the directive and requested a delay in the application of the directive until 1 January 1991 for the consumers served by the Verviers water supply. Finally, with regard to Article 1 of the Royal Decree which excludes from protection as to the quality of water distributed by a supply water drawn by private individuals for their household use, it maintained that that exception was to be deduced by implication from the contents of the directive which, in its view, was not applicable either, for obvious reasons, to such a case.

Since the Commission considered that the Belgian Government's reply was unsatisfactory and that not all the measures necessary for the implementation of the directive had yet been taken, it issued a reasoned opinion on 16 May 1988 giving the Belgian Government a period of two months from the date of the notification to comply therewith, pursuant to the second paragraph of Article 169 of the EEC Treaty.

In a letter from the Secretary of State for the Environment and Social Emancipation dated 17 January 1989, the Belgian Government requested additional time to comply with its obligations under Annex I to the directive in respect of water supplied in one part of Verviers. In that letter it reiterated that the work for carrying out water purification would be completed before 1 January 1991 and indicated that the delay was caused by disagreements between the regions on the determination of the public works which should be paid for by the State in application of the Special Law on Institutional Reform of 8 August 1980.

Since the Commission considered that that request did not fulfil the conditions set out in Article 20 of the directive because no action programme including a timetable was attached and furthermore a request made pursuant to that article was not admissible if submitted after the expiry of the period laid down in Article 19, it rejected the request and brought the present proceedings against the Member State for failure to fulfil its obligations.

The Commission's application was lodged at the Court Registry on 20 February 1989.

The written procedure followed the normal course. Upon hearing the Report of the Judge-Rapporteur and the view of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.

II — Conclusions of the parties

The Commission claims that the Court should:

i) declare that the Kingdom of Belgium has failed to fulfil its obligations under the Treaty by not adopting within the prescribed period all the measures necessary to comply with Council Directive 80/778 of 15 July 1980 relating to the quality of water intended for human consumption, in particular Articles 1, 2, 9, 18, 19 and 20 thereof;

ii) order the Kingdom of Belgium to pay the costs.

The Belgian Government has not denied the alleged infringements.

III — Pleas in law and arguments of the parties

1. The Commission claims first that the exception provided for in Article 1 of the Royal Decree of 27 April 1984 for water drawn by private individuals for household use is not compatible with Directive 80/778. It emphasizes that the scope of the directive is described generally in Article 1 as ‘standards for water intended for human consumption’ and under Article 2 that water is defined as ‘all water used for that purpose ... regardless of origin’. In addition, the Commission states that it follows from the first recital in the preamble to the directive that the quality standards with which water intended for human consumption must comply are to be laid down in the interest of public health. In its opinion, that interest is identical whether it is a question of water drawn by private individuals for their own needs or water intended for human consumption. Furthermore, it considers that that conclusion is not affected by the fact that, according to Article 12 of the directive, all water intended for human consumption is to be regularly monitored at the point where it is made available to the user. In that respect the Commission takes issue with the Belgian Government's argument in the pre-litigation procedure to the effect that that monitoring only applies to public abstraction of water because it would be pointless in respect of private abstraction. It considers that the provision in the abovementioned article concerning monitoring is not of such importance that it can determine the scope of the directive contrary to the express provisions of Articles 1 and 2. The Commission claims, secondly, that Article 5 of the Royal Decree of 27 April 1984 is not compatible with the directive inasmuch as that provision does not take into account Article 9(3) of the directive which provides that in situations arising from exceptional meteorological conditions the maximum admissible concentrations that may be exceeded are in no case to relate to toxic or microbiological factors. With regard to the quality of the water in the artificial lake of La Gileppe, the Commission maintains that this does not fulfil the requirements set out in the directive and in the Royal Decree of 27 April 1984. On the basis of the letter from the Permanent Representation of Belgium of 17 January 1988, it points out that the situation described therein, in particular the fact that the quality of the water in Verviers will not improve until the commissioning of the purification plant planned for the end of 1990, is incompatible with Article 19 of the directive, pursuant to which the quality of water intended for human consumption must comply with the directive by 18 July 1985 at the latest. Moreover, the Commission considers that the request formulated by the Belgian Government in the abovementioned letter concerning the postponement of the application of the directive to the consumers of Verviers cannot be regarded as a ‘special request’ within the meaning of Article 20 of the directive, because it does not meet the conditions set out therein. Besides the fact that that request was made nearly eight years after the directive was notified, it did not set out the difficulties experienced and did not propose an action programme including a timetable. The Belgian Government states first of all that the Royal Decree of 27 April 1984 was annulled by Judgment No 31587 of the Conseil d'État of Belgium, delivered on 14 December 1988. It further states that it is the task of the regions to adopt the measures necessary to transpose Directive 80/778 into the Belgian legal system because, since 1 January 1989, competence in that area lies with the regions. The Flemish Region has meanwhile transposed the directive by the ‘Besluit van de Vlaamse Executieve houdende Vaststelling van een technische reglementering inzake drinkwater’ (Decree of the Flemish Executive establishing technical rules concerning drinking water) of 15 March 1989, which will shortly be published. The Belgian Government wishes to inform the Court that the exception contained in Article 1 of the Royal Decree that has been annulled, concerning water drawn for household use, has not been included in the Flemish Executive's decree mentioned above, and that that decree has in addition eliminated the discrepancy between Article 5 of the said Royal Decree and Article 9(3) of the directive. The Walloon Region and the Brussels Region will shortly be adopting analogous measures with a view to implementing the directive and as soon as those measures have been adopted the Belgium Government will not fail to notify the Court. Finally, in respect of the quality of water in Verviers, the Belgian Government emphasizes that the Walloon Region is putting into effect the decisions previously adopted with a view to improving the situation, so that from 31 December 1990 the quality of water will comply with the standards of the directive. In that connection it specifies the amount of money allocated to the work in hand and informs the Court that, as a result of the temporary measures taken, 75% of the population already has water available which satisfies the requirements set out in the directive. It concludes, nevertheless, that it is impossible for technical reasons to complete the planned work at a faster pace.

J. C. Moitinho de Almeida

Judge-Rapporteur

1 Language of the case: Dutch.