Commission of the European Communities v Kingdom of the Netherlands (97/81)

Contents

In Case 97/81Commission of the European Communities, represented by its Legal Adviser, Robert Caspar Fischer, acting as Agent, assisted by Auke Haagsma. a member of its Legal Department, with an address for service in Luxembourg at the office of Oreste Montako, a member of its Legal Department, Jean Monnet Building, Kirchberg,vKingdom of the Netherlands, represented by Adriaan Bos, Assistant Legal Adviser at the Ministry of Foreign Affairs, acting as Agent, with an address for service in Luxembourg at the Embassy of the Kingdom of the Netherlands, 5 Rue C. M. Spoo,THE COURTcomposed of: J. Menens de Wilmars, President, G. Bosco and A. Touffait (Presidents of Chambers), Lord Mackenzie Stuart, A. O'Keeffe, T. Koopmans and U. Everling, Judges,Advocate General: F. CapotortiRegistrar: J. A. Pompe, Deputy Registrargives the following

Judgment

Facts and Issues

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

I —Summary of the facts

1.Council Directive No 75/440/EEC of 16 June 1975 concerning the quality required of surface water intended for the abstraction of drinking water in the Member States (Official Journal 1975, L 194, p. 26) provides that Member States are to take certain measures to reduce the pollution of surface water intended for the abstraction of drinking water and to protect surface water against subsequent deterioration. To that end, the directive lays down parameters for the physical, chemical and microbiological characteristics of different categories of surface water and provides that Member States shall set, for all sampling points or for each individual sampling point, the values applicable to surface water as regards those parameters. Member States are obliged to take all necessary measures to ensure that surface water conforms to the values thus set, to draw up a systematic plan of action including a timetable for the improvement of surface water and to achieve considerable improvements under the national programmes over the next ten years. Surface water having physical, chemical and microbiological characteristics falling short of certain limit values may not be used for the abstraction of drinking water. The directive provides for samples to be taken in accordance with rules laid down by the directive.Article 10 of the directive provides as follows :“Member States shall bring into force the laws, regulations and administrative provisions needed in order to comply with this directive within two years of its notification. They shall forthwith inform the Commission thereof”.Notification of the directive to the Netherlands took place on 18 June 1975. Thus the period specified in Article 10 expired on 18 June 1977.

2.By letters of 23 September 1975 and 25 March 1977 the Commission requested the Netherlands Government to inform the Commission of the measures taken by the Netherlands to implement the directive.In reply to those letters the Netherlands Permanent Representation to the European Communities forwarded, under cover of a letter of 2 November 1977, a letter from the Ministerie van Verkeer en Waterstaat [Ministry of Transport, Water Control and Construction] of the Netherlands and from the Ministerie van Volksgezondheid en Milieuhvgiene [Ministry of Health and the Environment] dated 12 October 1977 giving the reply of those two ministries to the aforementioned letters from the Commission.The two ministries explained in that letter that existing Netherlands legislation controlling the quality of surface water was based on a decentralized system established by the Wet Verontreiniging Oppervlaktewateren [Law relating to pollution of surface water] under which responsibility for the quality of certain waters was delegated to decentralized authorities (provinces, “Waterschappen” [Water Boards] or “Zuiveringsschappen” [Waste and Surface Water Purification Boards] and that central government did not have the power directly to impose rules on the activities of those subordinate authorities.A proposed amendment to the law was being prepared, in particular with a view to the implementation of Council Directive No 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community, as well as of the directive at issue. That amendment would inter alia enable national standards to be laid down relating to the discharge of certain substances and to ensure that water not directly subject to government control satisfied the requirements laid down in the directive.It was also necessary to enact provisions prohibiting the use for the abstraction of drinking water of surface water not satisfying the requirements of the directive, which would be effected by an amendment to the Waterleidingwet [Law relating to the distribution of water] and by the implementing decree adopted pursuant to that law.The Netherlands Government annexed to that letter a report outlining a studv of the qualit\of surface water carried out at national level and comparing the results of the measurements of parameters at present operated with the values laid down in the directive. The two ministries stated that it was apparent from the report that the measuring programme covered many but not all of the parameters laid down in the directive. In respect of certain parameters, moreover, the values were being exceeded. Since the present programme was incomplete no definite conclusions could be drawn from it.The two ministries concluded their letter of 21 October 1977 by stating that they were prepared to supply the Commission with anv further information which it might require.

3.By letter of 9 January 1979 the Commission informed the Netherlands Government that it was of the opinion that the Kingdom of the Netherlands had failed to fulfil its obligations under the directive since the Netherlands authorities had still not adopted the measures needed to give effect to the directive under their internal law and since, notwithstanding the provisions ot Article 10 of the directive, the Commission had not yet received any communication regarding such measures. The Commission therefore invited the Netherlands Government, pursuant to Article 169 ot the EEC Treaty, to submit its observations on the matter within two months.The Netherlands Government replied to that letter by a letter dated 19 April 197 from its Permanent Representation to the European Communities.Under cover of that letter is sent to the Commission a copy ot the law relating of the pollution of surface water stating that that law provided various means lor ensuring the quality of surface water and certain details of those means were given in the letter.The Netherlands Government also drew attention to the significance of the prospective multiennial programmes which, under the terms of the law, were drawn up every five years for the purposes of the campaign against water pollution and which contained in their annexes the norms laid down by the directive. A copy of that document was annexed to the letter.The Netherlands Government stated in addition that the implementation of all the legislative and administrative provisions was however often not enough to combat the adverse effects of the pollution of transfrontier waters, in particular as regards ammonia.The Commission had already been previously informed of the proposed extension of the measuring programme to all catchment points of surface water intended for the abstraction of drinking water as well as its extension to include all the parameters contained in the directive. Practical effect was being given to that programme.The Commission had also been informed of the proposed amendment to the law relating to the pollution of surface water. The fact that mention was made of the directive in the preamble to as well as in the explanatory statement accompanying that proposed law did not, however, mean that the directive could not be implemented in the Netherlands without adaptation of the law. Giving a broad interpretation to the provisions of Article 10 of the directive, the Netherlands Government nevertheless deemed it preferable to incorporate in the law itself the administrative instruments enabling the harmonized policy envisaged in the directive to be pursued.The Netherlands Government also annexed to its letter a copy of the proposed amendment to the law on the distribution of water stating that that amendment designed to ensure that that law complied with the directive.The Netherlands Government concluded its letter by stating that it believed it had demonstrated by the contents of the letter that, it was in practice already implementing the directive at issue on the basis of existing legislation. It added that it was prepared to supply the Commission with any further information which it might require.

4.By letter of 27 July 1979 the Commission delivered to the Netherlands Government a reasoned opinion within the meaning of Article 169 of the EEC Treaty stating that the Kingdom of the Netherlands had failed to fulfil an obligation imposed on it by the directive by not adopting the laws, regulations and administrative provisions needed to comply with its terms.The Commission stated in its reasoned opinion that the Kingdom of the Netherlands had not informed the Commission of the measures taken to comply with the directive and thai the Commission must therefore assume that the Kingdom of the Netherlands had not yet taken such measures. The provisions of the existing legislation to which the Netherlands Permanent Representation had referred in its letter of 19 April 1979 did not constitute implementation of the directive for the purposes of Article 12. The Commission had still not been informed that the proposed amendments to that legislation had been enacted.In its reply to that reasoned opinion, by a letter of 30 November 1979 from its Permanent Representation to the European Communities, the Netherlands Government reaffirmed that the law relating to the pollution of surface water, in its present form, already provided mechanisms making it possible to pursue a policy aimed at meeting or continuing to observe the quality requirements which surface water intended for the abstraction of drinking water must satisfy. Although, for the purpose of implementing the directive, it was necessary to amend the law relating to the pollution of surface water in order to create a legal instrument by which general and binding instructions might be issued to all the authorities responsible for the quality of water, that did not mean, contrar) to the belief of the Commission, that it was impossible for the Netherlands to implement the directive without such adaptation. The amendments which were being made to the existing legislation on the subject were considered desirable in order to give to the parameters laid down in the directive formal status and to be able to issue binding directions. The Netherlands was already implementing the directive by means of existing legislative instruments. In that letter, the Netherlands Government supplied details of the existing legislation and added that it was prepared to engage in further consultations with the Commission.Bv letter of 24 March 1981 the Permanent Representation of the Kingdom of the Netherlands to the European Communities informed the Commission as to the stage reached in the legislative procedure relating to the aforementioned amendments to the relevant Netherlands legislation.

II —Conclusions and written procedure

1.By an application registered at the Court on 24 April 1981, the Commission brought an action against the Kingdom of the Netherlands claiming that the Court should:Declare that the Kingdom of the Netherlands, by not adopting within the period prescribed the laws, regulations and administrative provisions needed in order to complv with the requirements of Council Directive No 75/443/EEC of 16 June 1973, has failed to fulfil an obligation imposed upon it by the Treaty;Order the Kingdom of the Netherlands to pay the costs.The Government of the Kingdom of the Netherlands contends that the Court should:Dismiss the application as unfounded;Order the Commission to pay the costs.

2.At the conclusion of the written procedure, which followed the normal course, the Court, upon hearing the views of the Advocate General, decided to request the Commission to reply in writing to a number of questions and decided to invite the Government of the Netherlands to submit in writing its observations on those replies.The Court, upon hearing the views of the Advocate General, decided to open the oral procedure without any preparatory inquiry.

III —Submissions and arguments of the parties put forward during the written procedure

1.The Commission contends in its application that the Netherlands Government did not deny, in its reply to the Commission or in its subsequent letters, that the directive required an amendment to the legislation in force in the Netherlands. It was apparent from the contents of those letters that that amendment to its legislation had still not been enacted and that therefore, contrary to Article 10 of the directive, the Netherlands still had not adopted all the laws, regulations and administrative provisions needed in order to implement the directive.The statement, contained in the letter of 30 November 1979, that the Netherlands was implementing the directive, through administrative channels, by means of existing legislative provisions, as well as by means of guidelines at the practical level, is contradicted by certain statements also contained in that letter to the effect that it was “necessary to adapt that law for the purposes of implementing the directive”. That notion also conflicts with the viewpoint expressed by the Netherlands Government in the reply of 12 October 1977 by the two ministries concerned.The need for certain laws, regulations or administrative provisions also emerges clearly from a comparison of the directive with the existing legislation. It is not however necessary at this stage systematically to examine the differences between the Netherlands legislation and the directive but the Commission expressly reserves the right to present further argument on this point if that should prove necessary during the course of the procedure.In the Commission's view, the Netherlands Government wishes to give the impression that the quality of the production of drinking water in the Netherlands is in fact broadly the same as that prescribed by the directive without, however, denying that this situation derives only to an insufficient degree from the powers, rules and the mandatory standards and task-descriptions stipulated in the directive. What is important in the present case is not the practical result brought about by the policy pursued by the government and by the various subordinate authorities in the Netherlands but the fact that the Netherlands legislation does not make provision for all the instruments prescribed in the directive.

2.In its defence the Netherlands Government points out that the Commission did not repond to the observations submitted on the reasoned opinion as to the manner in which the directive was already being implemented and that the Commission did not state which provisions of the directive have not been implemented in the Netherlands.The Netherlands Government had already forwarded to the Commission, under cover of the letter of 12 October 1977 from the two ministries concerned, a repon concerning the quality of surface water intended for the abstraction of drinking water indicating by which authorities measurements had been carried out, and ai which measuring points. and also the parameters used and the frequency of measurement. It was clear from that report that the mandatory and guide values of the directive had been used to determine the quality of water and that it was only in the case of ammonia that the values had been exceeded in respect of the period from 1971 to 1975.The favourable trend constituted by a decrease in the presence and concentration of the substances subject to measurement is continuing. The recordings made at sampling points since then show that the values laid down by the directive are not being exceeded. The Netherlands Government announced its intention to forward to the Commission and to the Court a report on the quality of water intended for the abstraction of drinking water in respect of 1979 and 1980 and that report was in fact lodged at the Court Registry on 10 July 1981. The Netherlands Government has also annexed to its defence the repon drawn up bv the Rijkwaterstaat [National Water Authority] and the authorities responsible for public health and for the supply of drinking water, on an inquiry into the quality of national water in respect of the third quarter of 1980. Those factors adequately demonstrate that the objectives of the directive had been achieved in the Netherlands.The draft law amending the law relating to the pollution of surface water was considered desirable for the purpose of creating a uniform scheme in the context of a system under which managerial responsibility for the quality of water rested with decentralized administrative authorities and under which central government did not have the power to regulate directly the management by those subordinate authorities as regards the grant of authorizations or the laying down of quality standards for surface water. Moreover, an amendment to the law relating to the distribution of water is intended to create provisions making it possible to prohibit the abstraction of drinking water from surface water which does not satisfy the requirements of the directive.In effect, the objectives of the directive are being given effect in the practical administration carried out by the subordinate authorities. Those authorities, which are obliged to put into effect the terms of the directive, are aided in their management by all the instruments put at their disposal by the law relating to the pollution of surface water, in particular prohibitions, declarations of inadequacy, the provisions governing authorizations, the levying of a tax and the components of the general improvement policy. To achieve the objectives of the directive in the Netherlands it was not necessary to adapt the law, since existing legislation confers, on even authority responsible for the quality of water, the necessary instruments for pursuing a policy aimed at ensuring that the quality of water satisfies requirements which are essential for its recognized use or function. It is not possible to conclude from the existence of a draft amendment to the law, intended to supplement the existing provisions, that the directive had not been implemented. The legislative amendment is designed to impose more stringent rules than those laid down in the directive. The instruments to be created within the framework of the law relating to the pollution of surface water are, moreover, based on Council Directive No 7b/464/EEC of 4 May 1976 which is subsequent in time to the directive at issue and places that directive in a general context.Bv their nature, the provisions of the directive at issue are primarily addressed to the national authorities. The Member States are free to choose the form and methods of implementing the directive. The Commission has not shown that the Netherlands did not have at its disposal the instruments needed for implementing the directive. The directive has hitherto been adequately implemented in the Netherlands.

3.In its reply the Commission maintains that the Netherlands Government fails to realize the true scope of the application and is basing itself on misconceptions as regards the nature of directives in general and of the directive at issue in particular.The duty to inform the Commission under Article 10 of the directive, on which the application is based, is for the Commission an indispensable instrument in its usk of supervising the implementation of directives and constitutes a specific instance of the general duty, imposed on Member States by Article 5 of the EEC Treaty, of facilitating the achievement of the Commission's tasks. a general communication stating that, for the purpose of its implementation the directive was the subject of a certain legislative amendment or that its implementation was already effected within the context of existing legislation, may not be considered as sufficient.As with many other directives, under the terms of the system laid down by Article 10 of the directive, the supervision by the Commission of the correct implementation of the directive is generally carried out in two stages.During the first stage, which involves a general and formal examination, the Commission verifies whether the Member States have informed it of the provisions, whether existing or newly enacted, which they consider to be necessary for the implementation of the directive, and whether those provisions have entered into force within the prescribed period. During the second stage which involves a close and lengthy examination and a scrupulous comparison of the national provisions with the various provisions of the directive, the Commission verifies, on the basis of information supplied by the Member States pursuant to Article 10 of the directive, whether the Member States have satisfactorily implemented the provisions of the directive.The duty to supply information and the supervision, in two stages, of the implementation of the directive entails consequences as regards the procedure laid down in Article 169 of the EEC Treaty in the event of failure by a Member State to fulfil its obligations. An incomplete or delayed communication of the implementing provisions constitutes a failure to comply with the terms of the second sentence of Article 10 of the directive which is sufficient of itself to justify the initiation of the procedure laid down in Article 169 of the EEC Treaty. Failure to comply with the second sentence of Article 10 of the directive also gives rise to the presumption that the Member State has not complied with its obligation to bringing into force the necessary provisions as laid down in the first sentence of Article 10. Where the Member State has informed the Commission of the implementing measures which it considered necessary but did not bring them into force within the prescribed period the Member State is not entitled to rebut that presumption by evidence to the contran, thus contradicting the previous communication to the Commission.On the basis of that presumption the Commission may also incorporate, in the default procedure which it initiates, a failure to fulfil the obligation to bring into force the provisions referred to in the first sentence of Article 10, on the basis that the Member State had not brought into force within the prescribed period all the necessary implementing measures. There is no need for the Commission to state or demonstrate that the Member State has failed to comply with certain specific obligations laid down in the directive. Verification in regard to such matters takes place during the second stage of the procedure. In any event it is sufficient for the Commission to show that at least one of the provisions of the directive had not been implemented or had been implemented incorrectly.The Commission brought this action during the first stage of its supervision of the implementation of the directive since, as it is stated in its application, and that statement has not been contradicted, the Netherlands had not communicated to it, within the prescribed period and pursuant to the second sentence of Article 10, the implementing measures adopted. Both parties admit that the Netherlands has not complied with that provision of the directive. The Commission has confined the present case to the fact that the Netherlands had not brought into force, within the prescribed period, all the laws, regulations and administrative provisions necessary. On that narrow issue, the burden of proof on the Commission is clearly much less onerous and, in addition, the aforementioned presumption applies.The presumption of belated or incomplete implementation is confirmed bv the letter of the Netherlands Government dated 2 November 1977 which shows that the Netherlands Government was. at that time, convinced that the implementation ot the directive required the enactment of a certain number of provisions, indicated in outline. That letter therefore did not constitute the information stipulated by the second sentence of Article 10.Whilst the more detailed information, contained in subsequent letters from the Netherlands Government, on the means available under existing Netherlands legislation constituted valuable material for the purpose of verifying the correct implementation of the directive during the second stage of the Commission's examination, it is of no significance in the present case which is concerned with the first stage of that examination.The Netherlands Government stated for the first time, in its defence, explicitly and unequivocally, that the directive had been implemented in the Netherlands. Such a viewpoint is unacceptable since it repudiates the earlier attitude adopted by the Netherlands and undermines the confidence with which that attitude had inspired the Commission. The Commission continues therefore to rely on the presumption that the Netherlands has not adopted all the implementing measures and it need not reply in detail to all the arguments put forward by the Netherlands Government as regards the present state of the implementation of the directive.In any event, the presumption that the directive has not been fully implemented, has not been rebutted by the Netherlands Government even if it were accepted that that possibility was open to the Government. For that purpose, it would have to demonstrate, in respect of each provision of the directive, that equivalent mandatory provisions already exist in Netherlands law and its defence does not contain any such demonstration.Moreover, even supposing that no such presumption existed, the Commission has clearly shown that the Netherlands has not brought into force, within the prescribed period, all the necessary implementing provisions. Merely to bring into force some of the provisions of the directive is not sufficient to comply with Article 10. It is clear that the implementation of the obligations contained in the directive requires a certain number of laws, regulations and administrative provisions and that such implementation could not be left to the discretion of the various authorities responsible for the quality of water. The Member States must adopt the implementing measures needed to incorporate in their legal systems the terms of the directive and they are not at liberty to exempt themselves from the obligation to enact mandatory implementing rules by maintaining that the directive itself is directly binding on their authorities and that the practical result sought by the directive can be achieved in practice. The various points contained in the letter of the Netherlands Government dated 2 November 1977 show sufficiently clearly that the implementation of the directive in the Netherlands was governed, at least in pan, by means of non-mandatory provisions and that the existing legislation does not lay down all the measures prescribed by the directive.

4.In its rejoinder the Netherlands Government denies that it is agreed between the parties that the Netherlands is in breach of its duty in regard to the information to be given to the Commission by virtue of the second sentence of Article IC of the directive.It is necessary to make a distinction between, on the one hand, information supplied by way of a general information procedure such as that instituted by the Council on 5 March 1973 concerning legal measures relating to the protection of the environment (Official Journal, C 9, 15. 3. 1973) under which all those measures designed for the protection and improvement of the environment were brought to the knowledge of the Commission, and, on the other hand, information concerning the implementation of the directive.The directive is not merely binding on central government but also on the other administrative authorities responsible for ensuring the quality of water and it can in fact be implemented by those authorities. Among the rules issued by the provinces there are provisions relating to authorizations, to planning and to the taking of samples etc., which require the approval of the State whose influence is thus ensured. The Netherlands Government has shown from the information supplied that it was not necessary, merely in order to implement the directive, to enact amending legislation.The Netherlands Government acknowledges that the general information contained in its letter of 2 November 1977 concerning the new laws, regulations and administrative provisions, supplied in accordance with the Council Agreement of 5 March 1973, became intermingled with the information supplied concerning the implementation of the directive. However, in its letter of 19 April 1979 it had supplied more detailed information relating to the svstem of Netherlands legislation and stressed the fact that the existing law relating to the pollution of surface water alreadv provided the means needed for implementing the directive. The Netherlands Government considers that it has satisfied, albeit after a certain delay, its obligation in regard to the information to be given to the Commission and reserves the right to submit further observations during the course of the second stage relating to the allegation that the implementation of the directive has been inadequate.

IV —Answers to the questions put by the Court

In reply to questions put by the Court at the close of the written procedure, The Commission stated in particular that the legislative framework now existing in the Netherlands for the implementation of the directive was still incomplete since, as indicated in the explanatory memorandum to the draft law amending the Waterleidingwet, no provisions yet existed prescribing the measures needed to ensure that surface water used for the abstraction of drinking water conformed with specific values for the parameters referred to in the annex to the directive, and the prohibition, stipulated in the directive, of the use for the abstraction of drinking water of surface water not complying with the conditions laid down for that purpose in the directive, had not yet been imposed. No implementing provisions existed concerning the determination of the applicable limit values (Article 3) intended to ensure that surface water conformed with the prescribed criteria (Article 4) or regarding the assessment of the results of the measures (Article 5), nor were there any provisions implementing Article 4 (3) of the directive.The Netherlands Government observed that the law amending the Wet Verontreiniging Oppervlaktewateren [Law relating to pollution of surface water] had entered into force on 1 January 19S2 and notice of that fact had been given to the Commission by letter of 14 January 1982. Therefore, in view of the present state of the Netherlands legislation, there was no reason to proceed with the action.

V —Oral procedure

At the sitting on 2 March 1982 oral argument was presented for the Commission by Auke Haagsma, a member of its Legal Department, and for the Government of the Kingdom of the Netherlands, represented by Adriaan Bos, Assistant Legal Adviser, Ministry for Foreign Affairs.The Advocate General delivered his opinion at the sitting on 31 March 1982.

Decision

1By application received at the Court Registry on 24 April 19H1 the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that, by not adopting within the period prescribed the laws, regulations and administrative provisions needed in order to comply with Council Directive No 75/440/EEC of 16 June 1975 concerning the quality required of surface water intended for the abstraction of drinking water in the Member States (Official Journal 1975, L 194, p. 26) the Kingdom of the Netherlands had failed to fulfil its obligations under the Treaty.

2Bv virtue of that directive, which was adopted pursuant to Articles 100 and 235 of the EEC Treaty, the Member States are obliged, in particular, to set, for all sampling points or for each individual sampling point, the values applicable to surface water for the physical, chemical and microbiological parameters laid down in the directive, to take the necessary measures to ensure that surface water conforms with those values and to earn' out sampling operations in accordance with the detailed rules laid down in the directive. Surface water the characteristics of which fall short of certain limit values may not be used for the abstraction of drinking water, except in certain cases where exceptions are justified, which must be referred to the Commission for consideration.

3Article 10 of the directive provides that the 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, a period which expired on 18 June 1977, and forthwith to inform the Commission thereof.

4The Commission considers that the Netherlands Government has failed to fulfil its obligation to provide information pursuant to the abovementioned provision. In view of that failure the Commission considers that it is entitled to presume, during the first phase of its verification of the implementation of the directive, which is confined to establishing in general whether the necessary implementing measures have been brought into force within the prescribed period, without any detailed examination of such measures, that the defendant has failed to fulfil the obligation to implement the necessary measures.

5The subject-matter of these proceedings is not, however, failure to comply with a duty to provide information but failure to fulfil the obligation to bring into force the laws, regulations and administrative provisions needed to ensure compliance with the directive.

6It should be emphasized that, in proceedings under Article 169 of the EEC Treaty for failure to fulfil an obligation, it is incumbent upon the Commission to prove the allegation that the obligation has not been fulfilled. It is the Commission's responsibility to place before the Court the information needed to enable the Court to establish that the obligation has not been fulfilled, and in so doing the Commission may not rely on any presumption.

7It should nevertheless also be emphasized that the Member States are obliged, by virtue of Article 5 of the EEC Treaty, to facilitate the achievement of the Commission's tasks which, under Article 155 of the EEC Treaty, consist in particular of ensuring that the provisions of the Treaty and the measures adopted by the institutions pursuant thereto are applied. It is for those reasons that Article 12 of the directive in question, like other directives, imposes upon the Member States an obligation to provide information.

8The information which the Member States are thus obliged to supply to the Commission must be clear and precise. It must indicate unequivocally the laws, regulations and administrative provisions by means of which the Member State considers that it has satisfied the various requirements imposed on it by the directive. In the absence of such information, the Commission is not in a position to ascertain whether the Member State has effectively- and completely implemented the directive. The failure of a Member State to fulfil that obligation, whether by providing no information at all or by providing insufficiently clear and precise information, may of itself justify recourse to the procedure under Article 169 of the EEC Treaty in order to establish the failure to fulfil the obligation.

9In view of the purpose of this action and in order to examine whether it is well founded, those provisions must be compared with the laws, regulations and administrative provisions existing in the Netherlands by means of which the Netherlands Government considers it has implemented the directive.

10In that respect, it must be recorded that in reply to a question put by the Court at the close of the written procedure, the Commission stated that, as appears from the explanatory memorandum to the draft Netherlands law amending the Waterleidingwet [Law relating to the distribution of water] at the present time no provisions exist in the Netherlands prescribing the measures necessary to ensure that surface water used for the abstraction of drinking water conforms with specified values for the parameters mentioned in the annex to the directive, nor are there any provisions prohibiting the use, for the abstraction of drinking water of surface water not conforming with the conditions laid down for that purpose in the directive. The Netherlands Government did not deny that fact either in its observations on the Commission's reply or during the oral procedure and it has adduced no evidence from which it might be inferred that such provisions already exist in the Netherlands.

11The Netherlands Government referred to the fact that the supervision of the quality of water is carried out in the Netherlands within the framework of a decentralized system. The regional and local authorities are directly bound by the provisions of the directive and they implement it in the practical management of water quality, under the control of the national authorities.

12It is true that each Member State is free to delegate powers to its domestic authorities as it considers fit and to implement the directive by means of measures adopted by regional or local authorities. That does not however release it from the obligation to give effect to the provisions of the directive bv means of national provisions of a binding nature. The directive in question, adopted inter alia pursuant to Article 100 of the EEC Treaty, is intended to approximate the applicable laws, regulations and administrative provisions in the Member States. Mere administrative practices, which by their verv nature may be altered at the whim of the administration, may not be considered as constituting the proper fulfilment of the obligation deriving from that directive.

13None of the matters put forward by the Netherlands Government justifies the conclusion that provisions of a binding nature have actually been adopted either bv the national authorities or by regional or local authorities in order to set for all sampling points or for each of them the values applicable to surface water for all the parameters indicated in the annex to the directive, in order to ensure that the quality of surface water conforms with the values thus determined and in order to prohibit the use, for the abstraction of drinking water of water not conforming with the characteristics laid down in the directive. In particular, the prospective muliiennial programme to which the Netherlands Government referred in its correspondence with the Commission prior to the commencement of these proceedings, affirming that that programme adopted the rules contained in the directive, constituted, at that time, nothing more than a set of guidelines for those responsible for the supervision of water quality and had no legally binding force. That programme could not therefore be considered as sufficient for the purpose of implementation of the directive.

14In its observations on the Commission's reply to the questions put by the Court before the oral procedure, and also during the oral procedure, the Netherlands Government again referred to an amendment of the Wet Verontreiniging Oppervlaktewateren [Law relating to the pollution of surface water], which entered into force on 1 January 1982, claiming that by virtue of that amendment the prospective muliiennial programme would enable the directive to be fully implemented. At the hearing, the Commission, whilst not departing from its views, declared that that amendment to the law would, if supplemented by certain administrative measures, make it possible for the directive to be implemented properly. In that regard it must be pointed out, without its being necessary to consider whether, merely be reason of that amendment, the failure to fulfil the obligation might have been wholly remedied, that the measures needed to ensure full implementation of the directive were not adopted within the prescribed periods and in any case did not exist when this action was brought.

15It follows from the foregoing that the Kingdom of the Netherlands did not adopt within the prescribed periods the provisions needed to ensure the full implementation of the directive in question and must be declared to have failed to fulfil its obligations under the Treaty.

Costs

16Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs, if they have been asked for in the successful party's pleading. As the defendant has failed in its submissions, it must be ordered to pay the costs.

Operative part

On those grounds,THE COURThereby:

1.Declares that by not bringing into force within the periods prescribed the provisions needed to ensure the full implementation of Council Directive No 75/440/EEC of 16 June 1975 concerning the quality required of surface water intended for the abstraction of drinking water in the Member States, the Kingdom of the Netherlands has failed to fulfil its obligations under the EEC Treaty;

2.Orders the Kingdom of the Netherlands to pay the costs.

Delivered in open court in Luxembourg on 25 May 1982.