Law Report: Beaches fall below EC standard: Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (Case C-56/90) - European Court of Justice, 14 July 1993.

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The Independent Online
In failing to take all necessary measures to ensure that the quality of bathing water in the bathing areas of Blackpool and adjacent to Southport conformed to the limit values set in accordance with article 3 of Council Directive 76/160/EEC of 8 December 1975, the UK was in breach of its obligations under article 4 of the directive and articles 5 and 189 of the EEC Treaty.

The European Court of Justice so declared in an action brought by the Commission under article 169 of the EEC Treaty.

The directive applied to all bathing water except water intended for therapeutic purposes or water in swimming pools. 'Bathing water' was defined in article 1(2)(a) as meaning all running or still fresh waters, or parts thereof, and sea water in which bathing was not prohibited and was traditionally practiced by a large number of bathers.

Articles 2 and 3 required member states to set the values applicable to bathing water for the physical, chemical and microbiological parameters indicated in the annex thereto. Minimum standards of stringency were set out in the annex.

Under article 4(1), the quality of bathing water had to conform to the values set in accordance with article 3 within a period of 10 years following notification of the directive to the member state concerned. In the UK's case, the 10-year period expired on 31 December 1985.

The UK did not deny that the quality of bathing water in Blackpool and adjacent to Southport was still not in conformity with the directive. But it argued, inter alia, that the definition of bathing water in article 1(2)(a) of the directive was too imprecise to enable member states to identify the waters falling within its scope; and that the directive merely required members states to take all practicable steps to comply with the limit values set in accordance with article 3.

THE COURT held that article 1(2)(a) was to be interpreted in the light of the directive's underlying objectives, which included the protection of the environment and public health and the improvement of living conditions. Those objectives would not be attained if the waters of bathing resorts, though equipped with facilities such as changing huts, toilets, markers indicating bathing areas, and lifeguard supervision, could nevertheless be excluded from the directive's scope simply because the number of bathers was below a certain threshold.

Such facilities constituted evidence that the bathing area was frequented by a large number of bathers whose health had to be protected. The bathing areas of Blackpool and Southport had for a long time been bathing resorts meeting those criteria and should accordingly have been considered bathing areas within the meaning of the directive.

The directive required member states to take steps to ensure that certain results were attained within a specified period and, apart from the derogations expressly provided for in articles 4(3), 5(2) and 8, they could not rely on particular circumstances to justify a failure to fulfil the obligation. Consequently, the UK's argument that it took all practicable steps to comply with the limit values could not afford a further ground, in addition to the permitted derogations, justifying the failure to fulfil the obligation to bring the waters at issue into conformity at least with the annex to the directive.

Even assuming that absolute physical impossibility to carry out the obligations imposed by the directive might justify failure to fulfil them, the UK had not succeeded in establishing the existence of such impossibility in this case.