Drinking water and the EEC Directive

Important rulings on the meaning of the 1980 Directive on drinking water quality have been made by the European Court of Justice. The case directly concerned Belgium, and an authorised English translation of the judgement is not yet available, but it is clear that the result will require the UK Government to reconsider the position of private water supplied under the Directive. The Court has also made some rulings on the costs of complying with environmental Directives which will make uncomfortable reading for those in public administration.

Commission v Kingdom of Belgium (Case C-42/89, Judgement of the European Court of Justice, 5 July 1990) arose from infringement proceedings brought by the European Commission under Article 169 of the EEC Treaty. These alleged that Belgium was in breach of the 1980 Directive on several grounds.

One of the principal claims was that the Belgian legislation which implemented the Directive had expressly excluded from its scope private water supplies consisting of water taken by private persons for their household use. The commission argued that no such limitation was permissible since the Directive applied "water intended for human consumption", and according to Article 2 of the Directive this was defined to mean water used for that purpose, "either in its original state or after treatment, regardless of origin." Private supplies were therefore covered by the Directive.

The European Court rejected the Commission's argument. The Court noted that the definition in Article 2 went on to include the phrase "whether supplied for consumption or whether used in a food production undertaking." As the Advocate General noted in his Opinion on the case on 14 December 1989, the wording here could be taken as merely providing two examples of types of water for human consumption, or they could be seen as providing a restrictive qualification on the water covered by the Directive.

Both the Advocate General and the Court eventually concluded that the Directive could only apply to water which was either supplied for consumption or used in food production, and that neither of these would encompass water drawn from a private source. The Court was helped in that interpretation by the requirement in Article 12 that water intended for human consumption must be monitored" at the point where it is made available to the user", and this implied that the Directive applied only to water supplied for human consumption. Again, the monitoring provisions of Annex II of the Directive clearly applied only to water supplied for consumption.

The decision will require some reassessment of current UK policy. In its 1982 circular on the Directive, the Department of the Environment stated that it applied to both private and public supplies of water for human consumption, and local authorities were granted specific enforcement and remedial powers in respect of private supplies under section 57 of the Water Act 1989. The thrust of the European Court's ruling is likely to be broadly welcomed by the Government, which has already expressed its unhappiness with the application of the Directive to private supplies (ENDS Report 184, p 24).

Unfortunately, however, when it comes to defining precisely which types of private supplies should fall outside the scope of the Directive, the Court's judgement is less than clear. The critical sentence used the phrase "l'eau provenant de captages prives", which appears to be a fairly broad notion, and might encompass private supplies on estates serving a number of households, to take one example.

The Opinion of the Advocate General goes on to note that a table in Annex IIB of the Directive, which defines minimum sampling frequencies, only begins at a minimum population of 500, hinting at even wider exclusions from the scope of the Directive, or at least at some poor drafting. Given these uncertainties, probably the safest conclusion at this stage is to restrict the ambit of the judgement to the exclusion which was the subject of the case. The terms of the Belgian legislation referred only to water taken by private persons for the use of their own household.

The second key element of the Court's decision is likely to be greeted with rather less enthusiasm in Government circles. A separate ground of infringement referred to a specific water supply in a small town of Verviers which failed to meet the concentration limit for lead specified in the Directive.

According to the Belgian Government, a treatment plant costing 1.5 million francs was being built to remedy the problem. Works had begun in 1984, and were planned to be completed by the end of 1990. In the light of this programme, the Government had applied to the Commission in 1989 for a special derogation in Verviers under Article 20 of the directive.

However, the Court confirmed the Commission's view that Article 20 must be interpreted as permitting such derogations to be made only within five years of the Directive's notification. That period was now well past, and only the more restricted derogation powers under Article 10 were now available.

The Court also expressed little sympathy for the practical and financial problems invoked by the Belgian Government. Existing case law of the Court has already held that internal administrative problems were no excuse for a Member State's failure to comply with a Directive within the time limit specified. According to the Court, these principles were to apply equally to any financial difficulties which Member States had to surmount in taking the appropriate compliance measures.

In the UK context, this strict doctrine must colour the approach taken to the question of enforcement of standards under the Water Act 1989, and in particular the meaning of the broad duties under section 7 which govern the way the Secretary of State may exercise his enforcement powers against water and sewerage undertakers.

Section 7 obliges that Secretary of State to use his powers in a manner that will best ensure both that the functions of undertakers are properly carried out, and - without prejudice to the first goal - that they are able to finance the proper carrying out of those functions.

The extent to which the wording of this duty places the economic interests of undertakers at a premium and restricts the use of the enforcement powers remains to be decided by the courts. Bit in the light of the decision in Commission v Belgium, it appears that where a breach of an EEC Directive is at issue, the economic costs of compliance cannot as a general rule be allowed to inhibit the Secretary of State from taking any necessary remedial measures, unless he wishes to risk infringement proceedings himself.

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