Court of Justice 21-01-1992 ECLI:EU:C:1992:25

1. Failure to enact binding provisions to implement Directive 80/778

43. Directive 80/778 imposes obligations with various objectives. It imposes first of all the normal obligation under a directive to implement the directive by domestic provisions. That obligation is expressly laid down in Article 18 of the directive, which provides:

‘A Member State shall bring into force the laws, regulations and administrative provisions necessary to comply with this directive and its annexes within two years following its notification.’

In the case of legal obligations intended to bring about physical changes in the environment the adoption of legal provisions is not in itself sufficient to achieve the objectives sought.

44. The defendant makes numerous references to this point in its arguments. The Community legislature took account of this by imposing on Member States under Article 7(6) of the directive the duty to take all necessary steps ‘to ensure that water intended for human consumption at least meets the requirements specified in Annex I’ whilst allowing them under Article 19 of the directive a period of five years to ensure that the quality of water intended for human consumption complied with the directive.

45. The relevant period for the complaints concerning the failure to adopt binding legal provisions to implement the directive is therefore the two-year period laid down by Article 18 of the directive. For the purposes of the factual discrepancy between the quality requirements of the directive and the sampled water, reference must be made to the five-year period laid down by Article 19 of the directive.

46. The directive was adopted on 15 July 1980 and notified to the United Kingdom on 18 July 1980. The period for formal implementation of the directive therefore expired on 18 July 1982. The present Treaty infringement procedure commenced formally about five years later. The letter of formal notice was dated 11 August 1987. Two further years elapsed before the application was made to the Court.

47. If the pre-litigation correspondence is interpreted in the manner set out in my discussion of the admissibility of the application, the letter of formal notice and the reasoned opinion are to be understood as complaining of the non-implementation of the directive by binding legal provisions in general. In its application to the Court the Commission took account of the steps taken in the meantime to adopt the relevant provisions. The Water Supply (water quality) Regulations 1989 entered into force in England and Wales partly on 1 September 1989 and partly on 1 January 1990. Consequently, the Commission limited its claims to the absence of binding provisions applicable to Scotland and Northern Ireland. In addition it objected to the fact that the legislation that had been adopted applied only to water used for domestic purposes and not to water used in the food industry. The Commission's claim that it restricted the scope of the application by comparison with the pre-litigation procedure is therefore correct.

48. By comparison with the general complaint of non-implementation the application is first of all more limited in its material scope. The Commission considered that the provisions concerning water used for domestic purposes had been correctly enacted and that its complaint had been dealt with on that point. The inapplicability of the rules to water used in the food industry is only one of the matters to be resolved. The reason why this matter was not dealt with in the water legislation that was enacted may be that the legislative provisions necessary for the food industry are addressed to a different category of persons and in part involve less strict quality requirements (second indent of Article 2 and Article 3 of the directive).

49. Neither those considerations nor the fact mentioned by the defendant that water supplied to the food industry represents only 1 % of total water supplies justify the failure to implement the directive in this respect. Even the defendant's argument that water used for domestic purposes and water used in the food industry often come from the same sources does not lead to a different view since the defendant itself states that it is nonetheless possible for water supplied specifically for the food industry not to be subject to quality requirements conforming to the directive.

50. That a lacuna in the legislation existed is demonstrated by the subsequent enactment of the Food Safety Act 1990 which, as the Commission acknowledges, remedied the lacuna. Since the implementation period provided for by Article 18 of the directive expired on 18 July 1982 and the period laid down in the reasoned opinion on 14 June 1989, the Food Safety Act 1990 was undoubtedly enacted too late. It is clear that there was a Treaty infringement on this point.

51. In its application the Commission accepted that, apart from the restriction concerning water used in the food industry, the Water Supply Regulations 1989 correctly implemented the directive in England and Wales. By restricting its complaint to Scotland and Northern Ireland the Commission limited the geographical scope of its original complaint. The enactment of the relevant provisions for Scotland during the Court proceedings was clearly too late. It is therefore also clear that there was a Treaty infringement on account of inadequate or delayed implementation of the directive in Scotland and Northern Ireland.

2. Failure to comply with the nitrate parameter in certain regions of England

52. The Commission complains that in 28 water supply zones in England the maximum admissible concentration of nitrate (50 mg/1 according to parameter 20 of Annex I C of the directive) is exceeded. It claims that the United Kingdom has therefore infringed its obligations under the directive.

53. The findings of fact are not contested by the defendant. The parties merely disagree about the legal consequences of those findings. The Commission considers that the maximum admissible concentrations laid down by the directive are absolute limits, so that if the limits are exceeded there is automatically an infringement of the directive; the defendant, on the other hand, takes the view that the directive merely imposes the obligation to take all practicable steps. According to the defendant, there is no Treaty infringement where the Member State cannot keep within the parameters laid down by the directive despite taking all possible steps to do so. A Member State cannot, in its view, be held responsible for the conduct of third parties or the state of the physical environment which is outside of its control. The dispute between the parties raises the question whether Article 7, in conjunction with Article 19, of the directive imposes an obligation to achieve a result or merely an obligation to take certain action which may be satisfied even where the desired result is not achieved.

54. In the alternative the defendant argues in its defence that it may claim an extension of the implementation period under Article 20 of the directive. Article 20 allows the five-year period laid down in Article 19 for complying with the limits and guide levels contained in Annex I to be extended upon receipt of a special request.

55. Since the defendant did not submit any express request, it suggests to the Court that it is possible to re-classify a communication to the Commission concerning the unilateral grant of derogations from the directive under Article 9. Since that communication was itself not made until October 1985, that is to say after expiry of the five-year period laid down by Article 19 of the directive, the defendant seeks to rely on a legitimate expectation allowing recourse to Article 20 that is said to have arisen during the pre-litigation phase. The defendant argues that for two years the Commission raised no objection to the use of Article 9 to grant derogations; the defendant could therefore assume that it was entitled to grant the derogations and saw no need to make a formal application under Article 20 of the directive.

56. The first issue to be resolved in connection with the question of the high nitrate concentration is the legal nature of the obligations. I have already stated that the directive imposes different kinds of legal obligations. In this case the obligation is to achieve certain physical results, that is to say a specifically defined quality standard for water intended for human consumption. That obligation stems from Article 7, in conjunction with Article 19; for compliance with that obligation Member States were given in principle three years more than for the implementation of the directive. That fact alone points to the conclusion that the aim of the directive is to achieve a result defined by the directive.

57. Moreover, the preamble states as follows:

‘Whereas, in view of the importance for public health of water for human consumption, it is necessary to lay down quality standards with which such water must comply.’⁽¹⁴⁾

‘Whereas the values fixed for certain parameters must be equal to or lower than a maximum admissible concentration.’⁽¹⁵⁾

58. The first indent of Article 7(3) of the directive provides that:

‘The values to be fixed by the Member States must be less than or the same as values shown in the “maximum admissible concentration”.’⁽¹⁶⁾

59. The above wording points to an unconditional obligation.

60. That the directive itself makes provision for derogations in Articles 9, 10 and 20 leads, in the defendant's view, to the conclusion that the obligations in the directive to achieve certain results cannot be absolute. The defendant considers that in interpreting the provisions of the directive the Court should recognize, as it does for example in the case of Article 30 of the EEC Treaty, that there are inherent limits on the scope of the legal obligations.

61. In my view it may be said in reply to that submission that the very existence of derogating rules suggests that no further exceptions may be made beyond those expressly provided for. According to the consistent case-law of the Court and a general principle of law, exceptions are generally to be interpreted strictly. As regards the exceptions in Directive 80/778, the Court held in Case 228/87:⁽¹⁷⁾

‘Derogations from the directive are permitted only under the conditions provided for in Articles 9, 10 and 20 thereof. These provisions must be interpreted strictly.’

62. To that may be added the fact that Annex 1 itself modifies to some extent the absolute character of the maximum admissible concentrations laid down in that Annex in so far as the ‘comments’ qualify individual parameters. Article 7(5) of the directive indicates the importance of the comments in interpreting the values. This is not inconsistent with the unconditional nature of the maximum values since those values are expressly limited by the comments as part of the directive.

63. As regards the argument concerning inherent limitations, it must be pointed out that Articles 30, 36 and 59 of the EEC Treaty to which the defendant refers are provisions with constitutional status for the Community. In no way does it follow that principles applied for the purpose of interpreting those rules must also be used for interpreting secondary law. Since the Community legislature takes account of the different nature of legal provisions by providing for express exceptions, recourse to the criterion of inherent limitations in order to justify further exceptions is questionable.

64. In support of its view the defendant argues that, if the obligation to achieve certain results laid down by the directive were to be regarded as absolute, any case in which the maximum admissible concentration was exceeded by chance or force majeure would constitute an infringement of the directive. That that is not so is shown by Article 10 of the directive, which permits the maximum admissible concentrations to be exceeded for a limited period and under certain conditions in the event of emergencies. Article 9 of the directive makes provision for further unilateral derogations in the event of ‘exceptional meteorological conditions’. Moreover, it is not inconsistent with the nature of directives that a Member State should assume responsibility for circumstances over which it has no direct control.

65. If therefore the defendant was in principle obliged to ensure that the nitrate values were observed throughout its territory, there remains the question whether it may rely on one of the exceptions in the directive.

66. In this connection the exception provided for by Article 20 of the directive falls to be considered. Under that provision Member States may ‘submit a special request to the Commission for a longer period for complying with Annex 1’. It is common ground that the defendant submitted no express request.

67. The defendant argues that all substantive conditions for granting the derogation are fulfilled, so that it must nonetheless be able to rely on the provisions. In response to that argument it must be pointed out that the submission of the request is an essential procedural requirement which must be met in order to take advantage of the exception. The written request must set out the ‘difficulties experienced’ together with ‘an action program with an appropriate timetable to be undertaken for the improvement of the quality of water intended for human consumption’ (Article 20, second paragraph, of the directive). Only a request made in that form allows the Commission to carry out the required examination (Article 20(3)). Compliance with such formal requirements may be expected of a Member State, since the responsible authorities are informed about compliance with the necessary formalities.

68. It is, however, questionable whether the notification of the derogations granted unilaterally under Article 9 of the directive can be construed as a request under Article 20 of the directive. The defendant assumed that Article 9 of the directive constituted the relevant legal basis for the grant of derogations from the nitrate values. Indeed it had grounds for doing so since at the time neither the Commission nor the authorities of other Member States could agree whether Article 9 could be used in the event of nitrate values being exceeded. Following notification of the derogations granted for certain areas in the United Kingdom the Commission took two years to come to a view on the matter and to communicate it to the defendant.

69. Before the actual question of reclassification of the communication arises, it must be borne in mind that the communication under Article 9 was submitted to the Commission in October 1985. According to the Court's case-law, however, it would have been necessary for a request under Article 20 to have been submitted within the period laid down by Article 19 of the directive, that is to say before 19 July 1985. After expiry of that period derogations were possible only in the event of emergencies and under the conditions laid down by Article 10 of the directive.⁽¹⁸⁾ Strict compliance with the formal requirements is therefore also necessary in this connection.

70. The position might be different only if the Commission had created a legitimate expectation that it was waiving compliance with the formal requirements and time limits. The defendant's argument that the Commission consented to the use of Article 9 is to be understood in that sense.

71. Against that it may be argued that the United Kingdom had recourse to Article 9 and communicated the grant of derogations under Article 9 after the time limit of 18 July 1985. Moreover, there was uncertainty surrounding the correctness of that course of action. When the Commission finally informed the defendant of its view that derogations could not be granted under Article 9 in cases where the nitrate values were exceeded, the defendant revoked the derogations without objection.

72. There might possibly have been scope for pleading a legitimate expectation if the discussions between the parties concerning the applicability of Article 9 had taken place before19 June 1985. Under the circumstances the defendant's argument must be rejected. It must be concluded that there was a Treaty infringement on account of the nitrate values under parameter 20 of the directive being exceeded in 28 water supply zones.

3. Failure to comply with the lead parameter in certain regions of Scotland

73. The Commission contends that in certain water supply zones in Scotland the maximum concentration for lead is not complied with. The defendant, on the other hand, takes the view that the water in the 17 zones in question does comply with the lead requirements.

74. As regards the facts underlying the dispute, it appears from Annex 32 to the defence that of 204 flushed samples 9 (4%) had a lead content of 50 to 100 μg/l and 4 (2%) exceeded the 100 μg/l limit. At the time of the application four out of 151 samples lay within the range 50-100 μg/l and two above 100 µg/I. Further details concerning the result of the samples taken are given in the Report for the Hearing.

75. The question whether in such circumstances the requirements of the directive were met depends on the interpretation to be given to the ‘comments’ concerning the parameter for lead in Annex 1 to the directive. The parties disagree about the interpretation of those comments, which read as follows:

‘Where lead pipes are present, the lead content should not exceed 50 μg/l in a sample taken after flushing. If the sample is taken either directly or after flushing and the lead content either frequently or to an appreciable extent exceeds 100 µg/l, suitable measures must be taken to reduce the exposure to lead on the part of the consumer.’⁽¹⁹⁾

76. The Commission takes the view that notwithstanding that comment the limit for lead is to be understood as an absolute limit of 50 μg/l. It interprets parameter 51 for lead and the accompanying comment as follows: In the case of samples taken from flowing water or flushed water the absolute limit of 50 µg/1 must be observed. For direct samples, that is to say for samples which are taken immediately after water has been standing in lead pipes or tanks, the 100 µg/l limit applies; where that limit is exceeded suitable measures must be taken to reduce the exposure to lead on the part of the consumer.

77. The defendant, on the other hand, argues that the comment modifies the 50 µg/l maximum admissible concentration.

78. In keeping with the view expressed earlier that exceptions from the directive must flow from the directive itself, it is entirely conceivable that the comments may in individual cases give another meaning to the otherwise absolute limits. It therefore depends on the wording of the comment. The first sentence of the comment does not establish an absolute limit. It states that in the case of lead pipes the lead content should⁽²⁰⁾ not exceed 50 μg/l in a sample taken after flushing. The second sentence is even clearer. In the case of both alternatives, namely direct sampling or sampling after flushing, where the lead content either frequently or to an appreciable extent exceeds 100 pigli an obligation to act is imposed, namely to take suitable measures to reduce the exposure to lead on the part of the consumer. Neither the first sentence of the comment nor the second sentence nor the comment as a whole suggests an obligation to achieve a result.

79. The Commission's interpretation is contrary to the clear wording of the comment, since the obligation to take suitable measures where the lead content either frequently or to an appreciable extent exceeds 100 μg/l applies not only to direct samples but also (‘or’) to samples taken after flushing. In the case of-lead pipes, the 50 μg/l limit is therefore to be understood as a mere guide level, whereas an obligation to take action arises where the 100 μg/l is exceeded (but only where it is exceeded frequently or to an appreciable extent). Because these values expressly apply only in the case of lead pipes, the value of 50 μg/l in the ‘maximum admissible concentration’ column remains valid as an absolute limit but applies only in the case of pipes other than lead pipes.

80. On that understanding of the directive the defendant would only have infringed the directive if the samples had exceeded the lead content limit of 100 μg/l frequently or to an appreciable extent and the defendant had not adopted measures ‘to reduce the exposure to lead on the part of the consumer’.

81. In my view it is extremely doubtful whether it can be said that the 100 μg/l limit is exceeded frequently where it is exceeded in 2% of cases. From the arguments concerning the applicability of Article 20 in connection with the lead parameters it may be inferred — regardless of whether Article 20 may actually be relied upon — that the defendant has taken and continues to take measures to reduce exposure to lead. It does not appear therefore that the defendant has infringed parameter 51 of the directive.

82. It is therefore unnecessary to consider the question of the burden of proof and the various issues arising from Article 20. I therefore do so merely in the alternative.

83. The Commission takes the view that the defendant has not shown that it complied with the parameter in question. To do so it would be necessary to show the number of flushed samples taken per household in which lead pipes are present and the proportion of those samples which failed to comply with the 100 μg/l limit. In addition it would be necessary to indicate to what extent the limit was exceeded in each case. Only on the basis of such information could it be claimed that, where lead pipes are present, the lead content does not exceed the 100 μg/l limit frequently or to an appreciable extent.

84. The Commission's claims are based on a misunderstanding of the applicant's burden of proof in Treaty infringement proceedings. It is for the Commission to allege and prove that the parameters were not complied with when it institutes proceedings in respect of a Treaty infringement. As regards the claim regarding samples per household, reference may simply be made to Article 12(2) and Annex II to the directive, which lay down clearly the place and frequency of the samples. There can be no question of taking samples in each household.

85. Finally I would like to make a comment concerning the applicability of Article 20. In view of my remarks concerning the importance of the formal requirements and time limits, it is sufficient to point to the lateness of the request submitted in August 1985. The result of my examination of the complaint concerning failure to comply with the lead parameter is not affected by the comments set out in the alternative. No Treaty infringement can therefore be established.