C-122/02

Case C-122/02 Commission of the European Communities v Kingdom of Belgium «(Failure of a Member State to fulfil obligations – Failure to transpose Directive 98/83/EC)» Opinion of Advocate General Geelhoed delivered on 10 October 2002 I - 0000      Judgment of the Court (First Chamber), 16 January 2003 I - 0000      Summary of the Judgment Actions for failure to fulfil obligations – Examination of merits by the Court – Situation to be taken into consideration – Situation at the end of the period laid down in the reasoned opinion (Art. 226 EC) JUDGMENT OF THE COURT (First Chamber) 16 January 2003 (1) ((Failure of a Member State to fulfil its obligations – Failure to transpose Directive 98/83/EC)) In Case C-122/02, Commission of the European Communities , represented by G. Valero Jordana and J. Adda, acting as Agents, with an address for service in Luxembourg, applicant, v Kingdom of Belgium, represented by A. Snoecx, acting as Agent, defendant, APPLICATION for a declaration that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply fully with Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human consumption (OJ 1998 L 330, p. 32) or, at any rate, by failing fully to inform the Commission thereof, the Kingdom of Belgium has failed to fulfil its obligations under that directive, THE COURT (First Chamber),, composed of: M. Wathelet, President of the Chamber, P. Jann and A. Rosas (Rapporteur), Judges, Advocate General: L.A. Geelhoed, Registrar: R. Grass, having regard to the report of the Judge-Rapporteur, after hearing the Opinion of the Advocate General at the sitting on 10 October 2002, gives the following Judgment By application lodged at the Court Registry on 5 April 2002, the Commission of the European Communities brought an action under Article 226 EC for a declaration that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply fully with Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human consumption (OJ 1998 L 330, p. 32; the Directive) or, at any rate, by failing fully to inform the Commission thereof, the Kingdom of Belgium has failed to fulfil its obligations under that directive. Legal context Article 17 of the Directive provides that Member States are to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive within two years of its entry into force and that they are forthwith to inform the Commission thereof. Article 18 states that the Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Communities . Since the Directive was published on 5 December 1998, it entered into force on 25 December 1998 and the period for transposition expired on 25 December 2000. Pre-litigation procedure Taking the view that the Directive had not been transposed within the period prescribed, the Commission initiated the procedure provided for in Article 226 EC. On 18 July 2001, having given the Kingdom of Belgium formal notice to submit its observations, the Commission issued a reasoned opinion calling on that Member State to take the necessary measures to comply with the reasoned opinion within two months of its notification. By letters of 10 October 2001 and 21 February 2002, the Belgian Permanent Representation to the European Union forwarded to the Commission the following legislation transposing, or intended to transpose, the Directive: ─ the Royal Decree of 14 January 2002 on the quality of water intended for human consumption which is packaged or which is used in food processing establishments in the manufacture and/or commercial preparation of food products; ─ the Order of the Government of the Region of Metropolitan Brussels of 24 January 2002 relating to the quality of water distributed through a supply network, published in the Moniteur belge of 21 February 2002; ─ a preliminary draft of the decree of the Flemish Region relating to water intended for human consumption, which was in the process of being adopted; ─ a preliminary draft of the decree of the Walloon Region relating to the quality of water intended for human consumption, which was in the process of being adopted. Taking the view that Belgium had not taken all the measures necessary to transpose the Directive, the Commission brought the present action. The failure to fulfil obligations The Commission states that the documents forwarded for the Flemish and Walloon Regions are merely preliminary drafts. It concludes that the Kingdom of Belgium has not yet adopted the necessary provisions to transpose the Directive. The Kingdom of Belgium explains that, as regards transposition of the Directive at the level of the Federal Belgian Government, the Royal Decree of 14 January 2002 was published in the Moniteur belge of 19 March 2002. As regards transposition at the level of the Flemish and Walloon Regions, the Kingdom of Belgium sets out the situation in respect of adoption of the measures to transpose the Directive: ─ as regards the Walloon Region, the Council of State has given an opinion on the draft transposing decree, which will shortly be submitted to the Walloon Government for approval; ─ as regards the Flemish Region, the measures to transpose the Directive consist of: ─ a decree on water intended for human consumption, adopted on 8 May 2002 by the Flemish Parliament and decreed and promulgated on 24 May 2002 by the Flemish Government; the legislative text has been sent to the Moniteur belge for publication in the very near future; ─ a draft order of the Flemish Government regulating the quality of water intended for human consumption; the legislative text has been agreed to in principle by the Flemish Government and is expected to receive its final approval in the very near future. The Kingdom of Belgium does not dispute that not all the measures necessary to transpose the Directive have been taken, and states that the Commission and the Court will be informed of the progress made in the transposition of the Directive. It is settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion, and that the Court cannot take account of any subsequent changes (see, inter alia , Case C-133/94 Commission v Belgium [1996] ECR I-2323, paragraph 17). In the present case, no legislation transposing the Directive into the Belgian legal system had been adopted on the expiry of the period prescribed in the reasoned opinion. Since the Directive was not fully transposed within the prescribed period, the Commission's action must be considered well founded. It must therefore be held that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply fully with the Directive, the Kingdom of Belgium has failed to fulfil its obligations under that directive. Costs Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has applied for costs and the Kingdom of Belgium has been unsuccessful, the latter must be ordered to pay the costs. On those grounds, THE COURT (First Chamber), hereby: 1. Declares that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply fully with Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human consumption, the Kingdom of Belgium has failed to fulfil its obligations under that directive; 2. Orders the Kingdom of Belgium to pay the costs. Wathelet Jann Rosas Delivered in open court in Luxembourg on 16 January 2003. R. Grass M. Wathelet Registrar President of the First Chamber – Language of the case: French.