Commission of the European Communities v Portuguese Republic (C-272/01)

Contents

Judgment of the Court (Second Chamber)15 July 2004^noteIn Case C-272/01,Commission of the European Communities, represented by M.T. Figueira and G. Valero Jordana, acting as Agents, with an address for service in Luxembourg,vPortuguese Republic, represented by L. Fernandes, M. Telles Romão and M. João Lois, acting as Agents,THE COURT (Second Chamber),composed of: C.W.A. Timmermans, President of the Chamber, C. Gulmann, J.-P. Puissochet, J.N. Cunha Rodrigues and N. Colneric (Rapporteur), Judges,Advocate General: P. Léger,Registrar: R. Grass,having regard to the Report of the Judge-Rapporteur,after hearing the Opinion of the Advocate General at the sitting on 23 October 2003,gives the following

Judgment

1By application lodged at the Court Registry on 10 July 2001, the Commission of the European Communities brought an action under Article 226 EC for a declaration that:— by failing to adopt all the measures necessary to ensure that the quality of bathing water conforms to the values laid down in Article 3 of Council Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing water (OJ 1976 L 31, p. 1) (hereinafter ‘the Directive’),— by failing to take samples at the minimum frequencies laid down in the Annex to the Directive, and— by failing to identify all the inland bathing areas in Portugal,the Portuguese Republic has failed to fulfil its obligations under Article 4(1), in conjunction with Articles 1(2) and 3 and the Annex to the Directive, and under Article 6(1) and (2) of the Directive, and that it be ordered to pay the costs.

2The Portuguese Republic contends that the Court should:— dismiss the action;— order the Commission to pay the costs.

Legal framework

Community legislation

3The first recital in the preamble to the Directive states that its purpose is to protect the environment and public health by reducing the pollution of bathing water and protecting such water against further deterioration. To that end, a series of physical, chemical and microbiological parameters applicable to bathing water are laid down in the Annex to the Directive, together with guidelines and mandatory values which are to be applied by Member States in setting the limit values for bathing water.

4Article 1(1) of the Directive provides that it ‘concerns the quality of bathing water, with the exception of water intended for therapeutic purposes and water used in swimming pools’.

5Article 1(2) of the Directive states:‘For the purposes of this Directive:(a) “bathing water” means all running or still fresh waters or parts thereof and sea water, in which:— bathing is explicitly authorised by the competent authorities of each Member State, or— bathing is not prohibited and is traditionally practised by a large number of bathers;(b) “bathing area” means any place where bathing water is found;(c) “bathing season” means the period during which a large number of bathers can be expected, in the light of local custom and any local rules which may exist concerning bathing and weather conditions.’

6Under Article 3(1) of the Directive, Member States are to set, for all bathing areas or for each individual bathing area, the values applicable to bathing water for the parameters given in the Annex. Article 3(2) provides that the values set pursuant to Article 3(1) are not to be less stringent than those given in column I of the Annex.

7By Article 4(1) of the Directive, Member States are to take all necessary measures to ensure that the quality of bathing water conforms to the limit values set in accordance with Article 3 within 10 years following notification of the Directive.

8As it envisaged that the application of the Directive might cause it certain problems, when it acceded to the European Communities the Portuguese Republic sought a derogation in relation to its transposition and application. It was granted that derogation until 1 January 1993 by virtue of Article 395 and Point 3 of Part III of Annex XXXVI to the Act concerning the Conditions of Accession of the Kingdom of Spain and the Portuguese Republic and the Adjustments to the Treaties (OJ 1985 L 302, p. 23).

9Under Article 5(1) of the Directive, for the purposes of Article 4, bathing water is to be deemed to conform to the relevant parameters if samples of that water, taken at the same sampling point and at the intervals specified in the Annex, show that it conforms to the parametric values for the quality of the water concerned in the case of the percentage of those samples laid down in Article 5(1).

10Article 6(1) of the Directive provides that the competent authorities in the Member States are to carry out sampling operations, the minimum frequency of which is laid down in the Annex. According to the first and third sentences of Article 6(2), samples are to be taken at places where the daily average density of bathers is highest, and sampling is to begin two weeks before the start of the bathing season.

11The first paragraph of Article 8 of the Directive states that it may be waived (a) in the case of certain parameters specified in the Annex because, inter alia, of exceptional weather or geographical conditions, and (b) when bathing water undergoes natural enrichment in certain substances causing a deviation from the values prescribed in the Annex. When a Member State waives the provisions of the Directive, the fourth paragraph of Article 8 requires it forthwith to notify the Commission thereof, stating its reasons and the periods anticipated.

12Article 13 of the Directive provides that Member States must, four years after notification of the Directive and at regular intervals thereafter, submit a comprehensive report to the Commission on their bathing water and the most significant characteristics thereof (hereinafter ‘the annual report’). That report has been required to be submitted annually since 1 January 1993, the date on which the amendment of Article 13 by Council Directive 91/692/EEC standardising and rationalising reports on the implementation of certain directives relating to the environment (OJ 1991 L 377, p. 48) came into force.

National legislation

13The Directive was transposed into Portuguese law by Decree-Law No 74/90 of 7 March 1990 (Diário da República I, Series No 55 of 7 March 1990). That decree-law was repealed and replaced by Decree-Law No 236/98 of 1 August 1998 [Diário da República I, Series A, No 176 of 1 August 1998), which lays down inter alia the values applicable to bathing water for the parameters specified in the Annex to the Directive.

14Under Article 3(24) of Decree-Law No 236/98, the Portuguese bathing season comprises, on the mainland, the period from 1 June to 30 September in each year, while in the Autonomous Region of the Azores the bathing season runs from 15 June to 15 September.

15The expression ‘large number of bathers’, used in the second indent of Article 1(2) (a) of the Directive, is defined in Article 3(12) of Decree-Law No 236/98 as corresponding to ‘approximately 100 bathers per day during the bathing season’.

Pre-litigation procedure

16As it took the view, first, that certain Portuguese bathing areas did not comply with the mandatory values laid down in the Directive and were not subject to adequate sampling operations and, secondly, that the Portuguese Republic had failed to identify all inland bathing areas, the Commission initiated the infringement procedure.

17Having served formal notice on the Portuguese Republic to submit its observations, the Commission issued a reasoned opinion on 11 December 1998, calling on that Member State to take the measures necessary to comply with it within two months of its notification. Since it was not satisfied with the answers given by the Portuguese authorities, the Commission brought the present action.

The action

18The Commission has raised three complaints against the Portuguese Republic. It is of the view that the Portuguese Republic has failed to comply with its obligations under the Directive, inasmuch as it has failed to:— comply with the quality standards laid down in the Directive;— identify all bathing areas, and— collect samples at the minimum frequency.

The first complaint: failure to comply with the mandatory limit values laid down in the Directive

Arguments of the parties

19The Commission alleges that the Portuguese Republic has allowed a significant number of bathing areas to exist where the water quality fails to meet the mandatory values laid down in the Directive. That is in breach of Article 4(1), in conjunction with Article 3, of the Directive.

20The Commission contends that the table set out at paragraph 2 of the Commission's report on the 1998 bathing season shows that the noncompliance rates were 10.5 % for coastal waters and 79.1 % for inland waters during that season.

21The compliance rates disclose a clear decline during the 1998 season in comparison with 1997, when the noncompliance rates were 9.8% and 66.7% for coastal and inland waters respectively.

22The Commission observes that the report prepared by the Portuguese authorities on the quality of bathing water during the 1999 bathing season shows that, despite some improvement, the position was not yet satisfactory in that 6.1 % of seawater and 21.6% of freshwater areas failed to comply with the mandatory values.

23The Commission also states that its first complaint is not based on the figures notified to it for the 2000 bathing season.

24The Portuguese Government contends that there was a significant and sustained improvement in Portugal until 1999. That improvement applied both to the adequacy of sampling operations and to the limit values.

25To counter the known difficulties in the problem areas which remained despite that significant improvement, the Portuguese authorities promoted a variety of corrective and preventive measures, which were notified to the Commission in response to the reasoned opinion. As regards the measures adopted, the Portuguese Government refers, by way of example, to the programme for monitoring cleanliness at bathing areas, mentioned in its letter of 30 April 1999, to the different improvement programmes in each bathing season for noncompliant areas, which included current or planned purification works and were annexed to each annual report on the application of the Directive, and to the programme of works intended to protect and improve the quality of bathing water.

26The Portuguese Government observes that the compliance rates of the coastal bathing zones have reached levels close to the European average of 90 %. In 1999, the compliance levels were almost 94 %.

27As regards inland bathing areas, the Portuguese Government challenges the figures given in the Commissions report for the 1998 bathing season. It claims that the percentage for noncompliance for that year was 54 % and not 79 %.

28The Portuguese Government is of the view that the inland bathing areas give rise to problems which it will be more complicated to resolve.

Findings of the Court

29According to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that Member State at the end of the period laid down in the reasoned opinion (see, inter alia, Case C-147/00 Commission v France [2001] ECR I-2387, paragraph 26).

30In the present case, the reasoned opinion gave the Portuguese Republic a two-month period from its notification to comply with it. That opinion was notified on 11 December 1998, and the period accordingly expired on 11 February 1999. It is therefore at the latter date that the question whether or not there was a failure to fulfil obligations must be determined.

31Although the precise parameters pertaining to the bathing water at that date are unknown, there is no doubt that the quality of that water did not conform to the mandatory values specified in the Annex to the Directive on the expiry of the period laid down in the reasoned opinion. Having regard to the reports on the quality of Portuguese bathing water during the previous and subsequent bathing seasons, the only possible conclusion is that there was such a failure to comply.

32The report on the quality of bathing water during the 1998 bathing season, prepared by the Portuguese authorities themselves, thus shows that the bathing water did not fully comply with the mandatory values laid down in the Annex to the Directive in the 1998 bathing season.

33It is not disputed that, despite a measure of improvement that is accepted by the Commission, Portuguese bathing water did not fully conform to the mandatory values laid down in the Annex to the Directive during the 1999 bathing season.

34As regards the measures and difficulties relied on by the Portuguese Government, it must be pointed out that Article 4(1) of the Directive requires Member States to ensure that certain results are achieved, inasmuch as the quality of bathing water must conform to the mandatory values laid down in the Directive. Apart from the derogations provided for, the Directive does not allow Member States to rely on particular circumstances to justify a failure to fulfil that obligation (see, inter alia, Case C-92/96 Commission v Spain [1998] ECR I-505, paragraph 28, and Case C-307/98 Commission v Belgium [2000] ECR I-3933, paragraph 49).

35The Portuguese Government does not rely on any derogation provided for under the Directive.

36The Commission's first complaint is accordingly well founded.

The second complaint: failure to identify all inland bathing areas

Arguments of the parties

37The Commission alleges that the Portuguese authorities have failed to identify all inland bathing areas, as defined in Article 1(2) of the Directive. It notes a difference between the number of inland bathing areas identified, namely 26 in 1998, and the number of river beaches referred to in an operational programme submitted to its staff by the Portuguese Republic with a view to obtaining Community funding, namely 91.

38The Portuguese Government claims that the upgrading programme for river beaches aimed to provide inland areas with new space for recreational and sporting activities and there is no doubt that it covered in that regard areas that were suitable for bathing. However, the Portuguese Government claims that that programme was intended at the same time to upgrade the river areas from an environmental and landscaping point of view. Many of those areas are unsuitable for bathing because of natural conditions.

39The Portuguese Government states that in the freshwater areas covered by that programme where bathing is not prohibited, it is not practised by a large number of bathers.

40The Portuguese Government submits that the number of bathers per day set by Decree-Law No 236/98 should not be considered as representing a test that is to be rigidly applied. It is instead an indicative number to be taken into account by the Portuguese authorities in achieving a higher level of monitoring of cleanliness, under conditions specified in that Decree-Law and in accordance with the Directive.

41In summary, the Portuguese Government states that the results of the application of the national legislation transposing the Directive are as follows:— where water is classified as bathing water, the Portuguese authorities explicitly authorise bathing when the quality of the water presents no risk to public health; the areas concerned are then included in the annual report on the quality of bathing water sent to the Commission;— where water is not classified as bathing water, but is traditionally used by a large number of bathers, its quality is monitored taking into account the parameters and sampling frequency laid down in the Directive; that water is classified as bathing water when its conformity with those parameters is established on the basis of at least one set of analytical results during the previous bathing season; if the values recorded fail to conform with the parameters of the Directive, bathing is explicitly prohibited; that water does not appear in the annual report on the quality of bathing water unless it is classified as such.

42On the basis of an analysis of the areas which are subject to the upgrading programme for river beaches, the Commission observes that the inland bathing areas are usually frequented by a smaller number of bathers each day than the limit set by the Portuguese authorities. Accordingly, those authorities still fail to identify all inland bathing areas.

Findings of the Court

43The obligations imposed on Member States under Articles 3 and 4 of the Directive apply to all bathing areas.

44According to Article 1(2)(b) of the Directive, a bathing area is any place where bathing water is found. It follows from Article 1(2)(a) that classification as bathing water presupposes that, in the type of water specified in that paragraph, bathing is either explicitly authorised by the competent authorities of each Member State or is not prohibited and is traditionally practised by a large number of bathers.

45The parties are essentially in dispute as to the classification of the river beaches, the number of which exceeds that of the areas designated as bathing areas.

46By its arguments, the Commission implicitly calls into question the compatibility of Decree-Law No 236/98 with the Directive, in so far as that Decree-Law defines a large number of bathers as approximately 100 bathers per day during the bathing season.

47However, during the pre-litigation procedure, the Commission did not accuse the Portuguese Republic of failing to transpose Article 1(2)(b) of the Directive correctly into national law in so far as that provision refers to a large number of bathers. The Commissions reasoned opinion and the application must be founded on the same grounds and pleas (see Case C-237/90 Commission v Germany [1992] ECR I-5973, paragraph 20).

48It follows that the Commission cannot argue in the present proceedings that river beaches frequented by a smaller number of bathers than the limit set under Decree-Law No 236/98, at which bathing is neither explicitly authorised nor prohibited, have not been identified as bathing areas within the meaning of the Directive.

49It is, admittedly, clear from the records of the Portuguese Government that river beaches are not classified as bathing areas unless the compliance of their parameters is confirmed by at least one set of analytical results during the previous bathing season, a condition which is not specified in the Directive.

50The Commission, however, has not contended that that practice applies to river beaches where the water is frequented by a large number of bathers, as defined in the Portuguese legislation.

51The Commission's second complaint must therefore be rejected.

The third complaint: failure to take samples at the minimum frequency laid down in the Directive

Arguments of the parties

52Relying on Article 6(1) and (2) of the Directive, the Commission alleges that, although the sampling frequency is 100% in both sea- and freshwater bathing areas, the Portuguese Republic carried out sampling operations in relation only to the identified bathing areas. In failing to comply with the minimum sampling frequency because the inland bathing water is inadequately identified, the Portuguese Republic has failed to fulfil its obligations under Article 6.

53The Portuguese Government claims that at no time during the pre-litigation procedure did the Commission allege that there was a failure to comply with the sampling frequency on the basis of the arguments referred to above, namely the inadequate identification of bathing water. The grounds stated in the reasoned opinion and those relied on in the application must be the same, failing which the action will be inadmissible. The Portuguese Government alleges that in the present case the Commission altered the subject-matter of the dispute by relying in the application on arguments which had not been raised in the pre-litigation procedure. The Commission seriously infringed the rights of the defence, which are a fundamental principle of the Community legal order.

54The Commission refers to paragraph 11(d) of its reasoned opinion, which states: ‘it therefore follows that the Directive must be applied to water at the river beaches, inasmuch as the fact that bathing is not encouraged there does not mean that it is prohibited, and those beaches must accordingly be classified as bathing areas under Article 1(2) (a) and (b) of the Directive. It also follows that the water concerned does not conform to the parameters laid down in the Directive’.

Findings of the Court

55As the third complaint alleges failure to comply with the minimum sampling frequency by reason of inadequate identification of inland bathing water and this judgment has rejected the second complaint relating to the allegation of inadequate identification, no more need be said than that the third complaint also cannot in any event be upheld.

56Having regard to all the foregoing considerations, it must be held that, by failing to adopt all the measures necessary to ensure that the quality of bathing water conforms to the mandatory limit values laid down under Article 3 of the Directive, the Portuguese Republic has failed to fulfil its obligations under Article 4(1) of the Directive, in conjunction with Article 3 and the Annex to that Directive.

57The remainder of the application must be dismissed.

Costs

58Under Article 69(3) of the Rules of Procedure, the Court may order that the costs be shared or that the parties bear their own costs where each party succeeds on some and fails on other heads. As the Commission and the Portuguese Republic have been partly unsuccessful, each party should bear its own costs.

Operative part

On those grounds,THE COURT (Second Chamber)hereby:

1.Declares that, by failing to take all the measures necessary to ensure that the quality of bathing water complies with the mandatory limit values laid down under Article 3 of Council Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing water, the Portuguese Republic has failed to fulfil its obligations under Article 4(1) of the Directive, in conjunction with Article 3 and the Annex to that Directive;

2.Dismisses the remainder of the application;

3.Orders each party to bear its own costs.

Delivered in open court in Luxembourg on 15 July 2004.