ECLI:EU:C:2026:321

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OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 16 April 2026 (1)

Case C‑154/25

European Commission

French Republic

( Infringement procedure – Directive (EU) 2020/2184 – Quality of water intended for human consumption – Exceedance of the parametric value for nitrate – Remedial action to terminate the infringement – Other remedial action – Legislative changes during the pre-litigation procedure )

I. Introduction

1. By the present action, the Commission seeks a finding that France infringed the third Drinking Water Directive (2) in a total of 107 drinking water supply units as a result of excessive nitrate levels in drinking water.

2. A parametric value of 50 mg/l for nitrate in drinking water has been in application since the first Drinking Water Directive, (3) or in other words since 1985. That corresponds to the guideline value (4) published by the World Health Organisation (WHO) since 1993.

3. According to the WHO, the most common sources of nitrate in water include agricultural activities (inorganic fertilisers and manure), wastewater treatment, nitrogenous waste products as well as discharges from industrial processes and motor vehicles. (5) The WHO identifies a particular risk to human health in the fact that nitrate (NO3) is converted into nitrite (NO2), which can result in methaemoglobinaemia (a condition where the oxidation of red blood cells impairs their ability to transport oxygen). Bottle-fed infants under six months of age are particularly susceptible to that risk. According to the WHO, there is moreover a risk of negative effects on the thyroid in the case of pregnant women and infants, and a potential link between cancer risk and endogenous nitrosation as a result of high intake of nitrate and nitrosatable compounds. (6)

4. The exceedance of the parametric value is an established fact; the dispute between the parties relates to whether, in certain cases, France demonstrated that the exceedance had been terminated in good time, and whether the response to the infringements was sufficient.

5. Moreover, the Commission initiated that procedure while the second Drinking Water Directive (7) was still in force, and the letter of formal notice pursuant to Article 258(1) TFEU was therefore based on that earlier legislation. The admissibility of the action, which is based on the third Drinking Water Directive, is thus in question.

II. Legal framework

6. Pursuant to Article 24(1) of the third Drinking Water Directive, the Directive was to be transposed by 12 January 2023.

7. The Commission however initiated the pre-litigation procedure on the basis of the second Drinking Water Directive, which had at the time of its adoption superseded the first Drinking Water Directive.

8. Since 15 July 1985, each successive Directive has stipulated that the nitrate content of drinking water – the subject of the first plea in law – must not exceed the parametric value of 50 mg/l. (8) The provisions of the second and third Directives do however differ in certain other respects.

A. Third Drinking Water Directive

9. The Commission bases its second and third pleas in law on Article 14(2) and (3) of the third Drinking Water Directive. Article 14 of that directive specifies the action that must be taken by Member States in the event of a failure to meet parametric values:

‘2. If, despite the measures taken to meet the obligations imposed in Article 4(1), water intended for human consumption does not meet the parametric values set in accordance with Article 5, and without prejudice to Article 6(2), the Member State concerned shall ensure that the necessary remedial action is taken as soon as possible to restore the quality of that water and shall give priority to its enforcement, having regard to, inter alia, the extent to which the relevant parametric value has been exceeded and the associated potential danger to human health.

…

3. Regardless of whether any failure to comply with the parametric values has occurred, Member States shall ensure that any supply of water intended for human consumption which constitutes a potential danger to human health is prohibited or the use of such water restricted and that any other remedial action that is necessary to protect human health is taken.

Member States shall consider a failure to meet the minimum requirements for parametric values set out in Parts A and B of Annex I as a potential danger to human health, except where the competent authority considers the non-compliance with the parametric value to be trivial.

4. In the cases described in paragraphs 2 and 3, where the non-compliance with the parametric values is considered to be a potential danger to human health, Member States shall as soon as possible take all of the following measures:

(a) notify all affected consumers of the potential danger to human health and its cause, of the exceedance of a parametric value and of the remedial actions taken, including prohibition or restriction of use or other action;

(b) give, and regularly update, the necessary advice to consumers on conditions of consumption and use of the water, taking particular account of population groups with increased water-related health risks; and

(c) inform consumers once it has been established that there is no longer a potential danger to human health and inform them that the service has returned to normal.

5. The competent authorities or other relevant bodies shall decide what action under paragraph 3 is to be taken, bearing in mind the risks to human health which would be caused by an interruption of the supply or a restriction in the use of water intended for human consumption.’

10. Although the derogations provided for under Article 9 of the second Drinking Water Directive were omitted from the third Drinking Water Directive, Article 26 of that directive provided for the continued application of derogations that had already been granted:

‘Derogations granted by Member States in accordance with Article 9(1) of [the second Drinking Water Directive] that are still applicable on 12 January 2023 shall remain applicable until the end of their duration. They may be renewed in accordance with Article 15 of that directive only where a second derogation has not yet been granted. The right to ask the Commission for a third derogation in accordance with Article 9(2) of [the second Drinking Water Directive] shall remain applicable for second derogations that are still applicable on 12 January 2021.’

B. Second Drinking Water Directive

11. Some of the provisions of Article 14 of the third Drinking Water Directive mentioned above had appeared in Article 8 of the second Drinking Water Directive:

‘2. [Largely identical to Article 14(2) of the third Drinking Water Directive.]

3. [First sentence largely identical to the first subparagraph of Article 14(3) of the third Drinking Water Directive.] In such cases consumers shall be informed promptly thereof and given the necessary advice.

4. [Largely identical to Article 14(5) of the third Drinking Water Directive.]’

12. Article 9 of the second Drinking Water Directive regulated the granting of derogations from the parametric values:

‘1. Member States may provide for derogations from the parametric values set out in Annex I, Part B, or set in accordance with Article 5(3), up to a maximum value to be determined by them, provided no derogation constitutes a potential danger to human health and provided that the supply of water intended for human consumption in the area concerned cannot otherwise be maintained by any other reasonable means. Derogations shall be limited to as short a time as possible and shall not exceed three years, towards the end of which a review shall be conducted to determine whether sufficient progress has been made. Where a Member State intends to grant a second derogation, it shall communicate the review, along with the grounds for its decision on the second derogation, to the Commission. No such second derogation shall exceed three years.

2. In exceptional circumstances, a Member State may ask the Commission for a third derogation for a period not exceeding three years. The Commission shall take a decision on any such request within three months.’

III. Pre-litigation procedure and form of order sought

13. On 30 October 2020, the Commission forwarded to France a letter of formal notice pursuant to Article 258(1) TFEU with a request for observations concerning an alleged infringement of Article 4(1) of, in conjunction with Annex I to, the second Drinking Water Directive as well as Article 8(2), (3) and (7) of that directive on the grounds of pollution of drinking water with nitrate in various municipalities across six regions.

14. The Commission’s reasoned opinion dated 15 February 2023 was however based on Article 4(1) of, in conjunction with Annex I to, the third Drinking Water Directive, as well as Article 14(2) and (3) of that directive. In that opinion, the Commission set France a deadline of 15 April 2023 for termination of the alleged infringements.

15. On 21 February 2025, the Commission brought the present action, seeking the following:

(1) a finding that the French Republic,

– by failing to take the necessary action to ensure that water intended for human consumption met the minimum requirements in relation to the parametric value for nitrate in the 107 drinking water supply units listed in the application,

– by failing to take remedial action as soon as possible to restore the quality of water for human consumption in those 107 drinking water supply units, and failing to give priority to its enforcement, having regard to, inter alia, the extent to which the relevant parametric values had been exceeded and the associated potential danger to human health, and

– by failing to restrict the use of water intended for human consumption in the event of a long-term exceedance of the parametric value for nitrate, failing to take any other remedial action necessary to protect human health, and failing to inform consumers sufficiently,

infringed its obligations under Article 4(1) of, in conjunction with Part B of Annex I to, the third Drinking Water Directive, and Article 14(2)(3) of that directive;

(2) an order for the French Republic to pay the costs.

16. The French Republic contends that the Court should dismiss the action and order the European Commission to pay the costs.

17. The parties made known their views in writing and orally at the hearing of 4 February 2026.

IV. Legal assessment

18. The Commission invokes three pleas in law. First, it alleges that France infringed Article 4(1) of, in conjunction with Part B of Annex I to, the third Drinking Water Directive in 107 drinking water supply units by failing to take the necessary action to ensure that water intended for human consumption met the minimum requirements in relation to the parametric value of 50 mg/l for nitrate. Second, it alleges that that Member State failed to take remedial action as soon as possible to restore the quality of water for human consumption and failed to give priority to its enforcement, which constituted an infringement of Article 14(2). Third, it alleges that France infringed Article 14(3) by failing to restrict the use of water intended for human consumption in the event of a long-term exceedance of the parametric value for nitrate, failing to take any other remedial action necessary to protect human health, and failing to inform consumers sufficiently.

A. Admissibility of the action as a whole

19. The Commission based its letter of formal notice under Article 258(1) TFEU on the second Drinking Water Directive, but based its reasoned opinion on the third Drinking Water Directive, the transposition deadline for which had expired in the interim. To begin with, therefore, the Court must examine of its own motion the admissibility of the present action. (9)

20. The claims as stated in the application cannot in principle be extended beyond the infringements alleged in the letter of formal notice. The proper conduct of the pre-litigation procedure constitutes an essential guarantee required by the Treaty not only in order to protect the rights of the Member State concerned, but also to ensure that any contentious procedure will have a clearly defined legal dispute as its subject matter. (10) Nevertheless, the Commission has standing to seek, by means of its action, a declaration that a Member State has failed to fulfil obligations which were created in the original version of an EU measure, subsequently amended or repealed, and which were maintained in force under the provisions of a new EU measure. (11)

21. The admissibility of the first two pleas in law is thus not open to question, since the Commission bases them on provisions of the third Drinking Water Directive which correspond to substantively identical provisions of the second Drinking Water Directive.

22. Conversely, the subject matter of the dispute cannot be extended to obligations arising under new provisions which do not correspond to those arising under the original version of the measure concerned, for otherwise it would constitute a breach of the essential procedural requirements of infringement proceedings. (12)

23. There are however differences between the provisions of the second and third Drinking Water Directives which form the basis for the third plea in law.

24. The first two pleas in law are therefore admissible, but I will investigate more closely the admissibility of the third plea in law according to its merits (see Section D below).

B. Compliance with the parametric value for nitrate (first plea in law)

25. In its first plea in law, the Commission complains that the parametric value of 50 mg/l for nitrate pursuant to Article 4(1) of, and Part B of Annex I to, the third Drinking Water Directive was exceeded in 107 drinking water supply units (listed in Annex A.8 to the application).

26. Pursuant to Article 4(1) of, in conjunction with Part B of Annex I to, the third Drinking Water Directive, the Member States are obliged to comply with a parametric value of 50 mg/l as regards the maximum permissible concentration of nitrate in drinking water. The parties agree that that establishes an obligation to achieve a particular result. (13)

27. France fully acknowledges the infringement in relation to 65 of those drinking water supply units.

28. France has informed the Court that compliance with the parametric value has been achieved in 34 of the other drinking water supply units in the interim. It does not however dispute the fact that the action must be assessed by reference to the situation at the end of the period laid down in the Commission’s reasoned opinion, (14) or in other words 15 April 2023, and that the parametric value was not yet met in those supply units at that point in time.

29. It follows that the only remaining point of dispute is whether the parametric value for nitrate was met in eight drinking water supply units. That issue is examined below.

1. Chevregny drinking water supply unit (002000143), Aisne, Hauts-de-France

30. There are 185 consumers connected to the distribution network of the Chevregny drinking water supply unit (002000143) in the Aisne Department of the Hauts-de-France Region. According to France’s submissions (which are uncontested), the parametric value was last found to have been exceeded on 19 October 2022. However, the six measurements taken between 3 November 2022 and 6 April 2023 were all below the parametric value, as have been all measurements since then. France therefore takes the view that that drinking water supply unit complied with the parametric value on 15 April 2023.

31. In its response, the Commission contended that any measurements available at the end of the period laid down in the reasoned opinion would not yet have demonstrated long-term compliance with the parametric value. It relies for that purpose on a judgment according to which a singular instance of compliance with parametric values does not call into question more generally the ongoing nature of the infringement complained of if later measurements show that those values continued to be exceeded after the end of the period laid down in the reasoned opinion. (15) As France correctly points out, however, that argument is irrelevant in relation to the Chevregny drinking water supply unit, since the data available show that the parametric value was no longer exceeded there after the end of the period laid down in the reasoned opinion.

32. At the oral hearing, however, the Commission put forward the argument that the exceedance of the parametric value for nitrate could only be recognised as having been terminated on a long-lasting basis with reference to an entire year’s worth of measurements, and that the level of nitrate pollution in drinking water depended in particular on agricultural activities and weather conditions.

33. As a basic principle, those arguments are convincing and are not contested by France. Both weather conditions and agricultural activities are characterised by annual cycles which may result in higher nitrate levels in drinking water sources at certain times of the year. If no other evidence is produced, the quality of drinking water must be monitored for at least one year in order to determine whether the cause of the excessive nitrate levels has in fact been remedied.

34. However, that argument does not relate to the termination of the infringement as such, but merely to the evidence of its termination.

35. Although the Drinking Water Directive imposes an obligation to achieve results in terms of compliance with the parametric values, that obligation is not worded in such a way as to require the Member States to produce evidence of compliance over the past year at any point in time.

36. An infringement is, however, terminated once the Member State has remedied the cause of the exceedance. For example, drinking water from another, less polluted source could be used, or technical measures taken to remove the nitrate. If those measures are sufficiently effective, compliance with the parametric values will be achieved from that point onwards, and the Member State would have met its obligations in full.

37. That fulfilment of obligations is not affected in the event that the Member State cannot yet provide comprehensive proof thereof at the end of the period laid down in the reasoned opinion. In cases where consumers are connected to a new source, it should not be necessary – with a view to substantiating that fulfilment of obligations – to produce evidence that the parametric value has been complied with over the course of a full consecutive annual cycle; instead, evidence of the connection to a new source and the past quality of that source should be sufficient.

38. If, however, the absence of other evidence makes it necessary to produce measurements for a full consecutive year, it must be possible to introduce that evidence in court proceedings with a view to rebutting the Commission’s complaints.

39. As regards exceedance of a parametric value, the Court has in the past recognised evidence produced by the Commission in relation to the situation after the end of the period laid down in the reasoned opinion. According to the Court, those later exceedances demonstrated first that not all of the action necessary for termination of the infringement had been taken at the end of the period laid down in the reasoned opinion, and second that the Member State had persistently failed (‘défaut persistant’) to take the action necessary to terminate the infringement. (16) In order to demonstrate systematic and consistent infringements of that kind, the Commission can produce evidence that relates to the situation after the period laid down in the reasoned opinion. (17)

40. If the Commission can produce evidence of that kind to demonstrate infringements, however, the Member State affected must also be able to do so in order to exonerate itself. That is required by the principle of equality of arms, which is a corollary of the very concept of a fair trial guaranteed in particular by Article 47 of the Charter of Fundamental Rights of the European Union, (18) and which aims to ensure a balance between the parties to the proceedings. (19) It implies that each party, including Member States and institutions (20) must be afforded a reasonable opportunity to present their case, including their evidence, under conditions that do not place them at a substantial disadvantage vis-à-vis their opponent. (21)

41. In proceedings under Article 258 TFEU, the admissibility of evidence originating from the period after expiry of the time limit set in the reasoned opinion does not however have any effect on the relevant date for the purpose of establishing an infringement, since information from subsequent periods is only used as a basis for conclusions about the situation on that date.

42. In the case of the Chevregny drinking water supply unit, it follows in any event from the fact that compliance with the parametric value was achieved from 3 November 2022 onwards that the cause of the exceedance of the parametric value for nitrate had been remedied in that supply unit at the end of the period laid down in the reasoned opinion.

2. Wanquetin drinking water supply unit (062000861), Pas-de-Calais, Hauts-de-France

43. There are 727 consumers connected to the distribution network of the Wanquetin drinking water supply unit (062000861) in the Pas-de-Calais Department of the Hauts-de-France Region. Three successive measurements prior to 14 April 2023 fell below the parametric value, but that value was exceeded again on 5 June 2023, 5 October 2023 and 18 December 2023.

44. That drinking water supply unit thus provides an example of compliance with the parametric value which was of a temporary nature only, and which it would be inappropriate to use as a basis for demonstrating that France had permanently remedied the cause of the exceedances at the end of the period laid down in the reasoned opinion.

45. For that reason, it should be found that the first plea in law is valid in relation to the Wanquetin drinking water supply unit.

3. Arconcey drinking water supply unit (021000666), Côte-d’Or, Bourgogne-Franche-Comté

46. There are 223 consumers connected to the distribution network of the Arconcey drinking water supply unit (021000666) in the Côte-d’Or Department of the Bourgogne-Franche-Comté Region. According to France’s submissions, the parametric value was last found to have been exceeded on 9 February 2023. Previous measurements had peaked between 60 and 70 mg/l of nitrate over a period of several years. The measurements were however well below the parametric value from 12 April 2023 onwards (generally between 30 and 40 mg/l). That is likely to be attributable to the fact that that supply unit was connected to a different drinking water distribution network in March 2023.

47. The measurements therefore confirm that the cause of the exceedance of the parametric value for nitrate had been permanently remedied in the Arconcey drinking water supply unit at the end of the period laid down in the reasoned opinion.

4. Charencey drinking water supply unit (021000834), Côte-d’Or, Bourgogne-Franche-Comté

48. There are 36 consumers connected to the distribution network of the Charencey drinking water supply unit (021000834) in the Côte-d’Or Department of the Bourgogne-Franche-Comté Region. According to France’s submissions, since 8 December 2022 the measurements have been well below the parametric value (generally below 20 mg/l). That is likely to be because the supply unit was connected to a different drinking water distribution network in January 2023. Before that date, measurements occasionally showed major exceedances of the parametric value.

49. In that case too, the more recent measurements confirm that the cause of the exceedance of the parametric value for nitrate had been permanently remedied in the Charencey drinking water supply unit at the end of the period laid down in the reasoned opinion.

5. Saint-Seine-l’Abbaye drinking water supply unit (021001229), Côte-d’Or, Bourgogne-Franche-Comté

50. There are 307 consumers connected to the distribution network of the Saint-Seine-l’Abbaye drinking water supply unit (021001229) in the Côte-d’Or Department of the Bourgogne-Franche-Comté Region. According to France’s submissions, since 6 March 2023 the measurements have been below the parametric value, trending downwards.

51. The more recent measurements therefore confirm that the cause of the exceedance of the parametric value for nitrate had also been permanently remedied in the Saint-Seine-l’Abbaye drinking water supply unit at the end of the period laid down in the reasoned opinion.

6. Turcey drinking water supply unit (021001767), Côte-d’Or, Bourgogne-Franche-Comté

52. There are 177 consumers connected to the distribution network of the Turcey drinking water supply unit (021001767) in the Côte-d’Or Department of the Bourgogne-Franche-Comté Region. According to France’s submissions, the measurements between 2 January and 25 September 2023 were below the parametric value, but that value was exceeded by some distance on 29 November 2023, and exceeded again on 24 January 2024. Measurements have remained below the parametric value ever since.

53. The aforesaid exceedances demonstrate that the cause of the exceedance of the parametric value for nitrate had not yet been permanently remedied in the Turcey drinking water supply unit at the end of the period laid down in the reasoned opinion.

7. Charmes drinking water supply unit (052001856), Haute-Marne, Grand Est

54. There are 148 consumers connected to the distribution network of the Charmes drinking water supply unit (052001856) in the Haute-Marne Department of the Grand Est Region. The parametric value was last found to have been exceeded on 28 October 2022. Since then, measurements have remained below that value, and have recently trended downwards.

55. On the basis of those measurements, it may be concluded that the cause of the exceedance of the parametric value for nitrate in the Charmes drinking water supply unit had been remedied at the end of the period laid down in the reasoned opinion.

8. Fays drinking water supply unit (052000917), Haute-Marne, Grand Est

56. There are 65 consumers connected to the distribution network of the Fays drinking water supply unit (052000917) in the Haute-Marne Department of the Grand Est Region. Measurements have been below but close to the parametric value since 10 February 2023, with the exception of one exceedance on 28 August 2023.

57. The aforesaid exceedance, as well as the fact that the measurements have remained close to the parametric value, demonstrate that the cause of the exceedance of the parametric value for nitrate had not yet been remedied in the Fays drinking water supply unit at the end of the period laid down in the reasoned opinion.

9. Interim conclusion

58. France has thus infringed its obligations under Article 4(1) of, in conjunction with Part B of Annex I to, the third Drinking Water Directive by failing to take the necessary action to ensure that water for human consumption complies with the minimum requirements as regards the parametric value of 50 mg/l for nitrate in the 107 drinking water supply units listed in Annex A.8 to the application, with the exception of the Chevregny, Arconcey, Charencey, Saint-Seine-l’Abbaye and Charmes supply units.

C. Remedial action to restore the quality of drinking water (second plea in law)

59. In its second plea in law, the Commission asserts that France infringed Article 14(2) of the third Drinking Water Directive in respect of the 107 drinking water supply units listed in Annex A.8 to the application.

60. According to the first subparagraph of Article 14(2) of the third Drinking Water Directive, the necessary remedial action shall be taken as soon as possible to restore the quality of water for human consumption if that water does not meet the parametric values of Part B of Annex I. Priority is also to be given to the enforcement of that action, having regard to, inter alia, the extent to which the relevant parametric value has been exceeded and the associated potential danger to human health.

61. As in the case of Article 4(1) of, in conjunction with Part B of Annex I to, the third Drinking Water Directive, that obligation imposes an obligation on the Member States to achieve results (22) in terms of guaranteeing compliance with the parametric values. It is accompanied by an obligation to take urgent action, because the measures under Article 14(2) are to be taken ‘as soon as possible’ and given ‘priority’. (23)

62. The Commission argues that that obligation has been breached if only on the grounds that the exceedances in the supply units lasted between 6 and 36 years.

1. Admissibility of the plea in law in relation to the five drinking water supply units where the parametric value is no longer being exceeded

63. France takes the view that there was no infringement of Article 14(2) of the third Drinking Water Directive in the eight supply units where (in its opinion) an exceedance of the parametric value for nitrate could not be established on the relevant date.

64. However, that argument must be rejected, irrespective of the outcome of the examination of the first plea in law. Although France was no longer obliged to take other remedial action at the end of the period laid down in the reasoned opinion in the five supply units where the infringement had been terminated, the Court is not thereby precluded from a finding that France failed to take the action required for that outcome as soon as possible or to give priority to its enforcement.

65. That is most clearly demonstrated by the Chevregny drinking water supply unit, since according to the Commission’s submissions (which are not contested by France), the parametric value was exceeded there between 1997 and 2022, or in other words for a period of 25 years. It is plain to see that action to terminate that infringement was not taken as soon as possible, and that enforcement of that action was not given priority.

66. It is true that, as regards the award of public procurement contracts, the Court has held that actions by the Commission are inadmissible if, when the period prescribed in the reasoned opinion expired, the award of the contracts or the contracts at issue had already exhausted all their effects. (24) A similar conclusion might be reached in the case of the supply units where the infringement had already been terminated by the relevant date. (25)

67. In my opinion, however, the jurisprudence mentioned above represents an exception to the principle that the Commission, in the context of infringement proceedings, does not have to show that there is a specific interest in bringing an action. (26) That principle does not mean that an interest in bringing an action is unnecessary, but merely that that interest is presumed in infringement proceedings. The presumption is however rebuttable in exceptional circumstances, as in the aforementioned cases concerning public procurement.

68. Nevertheless, in the case at hand there continues to be sufficient interest in a finding that France did not take the remedial action as soon as possible and giving priority to its enforcement in all 107 units.

69. First, France contests the infringement in relation to all 107 supply units. For that reason alone, the Commission has a legitimate interest in having the Court rule on that difference of opinion, including in respect of the five units where the infringement has already been brought to an end. (27)

70. Second, in the case at hand there is also an interest in seeking a finding that an infringement has occurred because the action concerns many similar cases where such a breach is ongoing. That illustrates that there is a certain risk of repetition, which may justify an interest in bringing the action. (28)

71. Third, a ruling against France in relation to the five supply units in the case at hand might be significant should it prove necessary, at some point in the future, to impose a penalty payment and/or a lump sum to be paid under the second sentence of Article 260(2) TFEU on the grounds of failing to take the necessary measures to comply with the judgment. Such a finding would indicate that the effective prevention of future repetition of similar infringements of EU law requires the adoption of a dissuasive measure, (29) because it would emphasise the importance of the present infringement.

72. The second plea in law is thus admissible in relation to all 107 drinking water supply units listed in Annex A.8 to the application.

2. Merits of the plea in law

73. As to the merits, France takes the view that the remedial action was not delayed because the exceedances lasted less than 10 years in 52 supply units.

74. It is unnecessary at this point to address the question of whether France has thereby implicitly recognised an infringement in the remaining supply units, since the argument misjudges the consequences of the time frame and procedural framework for remedial action imposed in particular by Article 9 of the second Drinking Water Directive.

75. Article 9(1) of the second Drinking Water Directive allowed the Member States to provide for derogations not exceeding three years from the parametric values set out in Part B of Annex I, provided that the derogations did not constitute a potential danger to human health and provided that the supply of drinking water in the area concerned could not otherwise be maintained by any other reasonable means. A second derogation not exceeding three years was permitted under that provision provided that it was notified to the Commission by the Member State. Under the first sentence of Article 9(2), in exceptional circumstances a Member State was permitted to ask the Commission for a third derogation for a period not exceeding three years, and the Commission then had to take a decision on any such request. Under Article 9(3), the Member State had to specify certain details when granting a derogation. Article 9(4) did however provide for a streamlined procedure for granting derogations not exceeding 30 days.

76. Generally speaking, those provisions are relevant to the case at hand, since the transposition deadline for the third Drinking Water Directive only expired on 12 January 2023, or in other words, shortly before the reasoned opinion of 15 February 2023, and pursuant to Article 26(2) of that directive, derogations granted on the basis of the second Drinking Water Directive remained valid at that point in time.

77. First, the grace periods would only have been applicable on that basis if France had made use of them. France is not however asserting the use of any derogations in the present proceedings. Yet without application of the derogations, it is impossible to agree that remedial action was taken as soon as possible and that its enforcement was given priority, given that the delays lasted several years, and given that no information was provided during that time about action already taken.

78. Second, the provisions on derogations demonstrate that in the legislator’s opinion, the causes of an exceedance should typically be remedied within three years. The granting of a second three-year derogation would have involved notifying the Commission, allowing it to check whether the requirements for a derogation had been met and to enforce compliance with the requirements by way of infringement proceedings. A third three-year derogation could only have been granted in exceptional circumstances, provided that the Commission recognised them as such.

79. Third, it is debatable whether the requirements for granting a derogation could be met in the event of an exceedance of the parametric value for nitrate. France acknowledges that an exceedance of the parametric value for nitrate constitutes a risk to the health of infants under six months of age and pregnant women. As a result, the exceedance posed a potential danger to human health. It might be posited as a result that exceedances of that kind ought to be remedied within a significantly shorter period of time than the three years granted for a derogation.

80. In principle, that also renders null and void France’s submissions concerning the margin of judgment which – according to France – follows from the fact that under Article 14(2) of the third Drinking Water Directive, the Member States, when giving priority to remedial action, shall have regard to, inter alia, the extent to which the relevant parametric value has been exceeded and the associated potential danger to human health, since that margin of judgment should not significantly lengthen the deadline for remedial action, thereby allowing the provisions governing derogations under Article 9 of the second Drinking Water Directive to be circumvented.

81. It should further be pointed out that in many cases the length of the exceedances implies a complete lack of consideration for their scope or the capacity of the affected supply units. It is true that many of the supply units are small and have only a few hundred consumers, or in some cases fewer than one hundred. Action to remedy an exceedance in such small units might place a considerable economic burden on them, especially if the costs are passed onto a small number of consumers. Yet the exceedances were particularly lengthy in many of the larger units, where over one thousand or even several thousand consumers were affected. For example, the parametric value has been exceeded for 26 years in the largest unit (Berck-sur-Mer (062000460), Pas-de-Calais Department, Hauts de France Region, 20,611 consumers). Eight other units with over one thousand consumers where the exceedances have lasted for more than 20 years are also listed in Annex A.8 to the application. (30) It is far from apparent that remedial action has been given priority in those cases, or that an overall balancing of interests has taken place.

82. It follows that France infringed the first sentence of Article 14(2) of the third Drinking Water Directive, in the 107 drinking water supply units listed in Annex A.8 to the application, by failing to take remedial action as soon as possible to restore the quality of water intended for human consumption and failing to give priority to its enforcement, having regard to, inter alia, the extent to which the relevant parametric value had been exceeded and the associated potential danger to human health.

D. Other remedial actions necessary to protect human health (third plea in law)

83. In its third plea in law, the Commission complains that France failed to restrict the use of water intended for human consumption which permanently exceeded the parametric value for nitrate, failed to take any other remedial action necessary to protect human health, and failed to notify consumers sufficiently.

84. Although that plea in law, unlike the two others, does not explicitly refer to all 107 drinking water supply units that are the subject of the present proceedings, it follows from the reasoning for this plea in law that the Commission intends it to relate to all of those units.

85. With regard to that plea in law as well, France takes the view that there is no longer any infringement in the case of the units for which an exceedance was no longer identifiable at the end of the period laid down in the reasoned opinion. However, that argument is once again to be rejected on the grounds set out above. (31)

86. The first question to address is the extent to which the Commission’s submissions regarding that plea in law are admissible; after that, the merits of the plea in law can be investigated.

1. Admissibility

87. Questions about admissibility arise on the basis of the differences between the second and third Drinking Water Directives, since the Commission relied on the second Directive when initiating the pre-litigation procedure in its letter of formal notice dated 30 October 2020, but on the third Directive in its reasoned opinion and in particular in its application.

88. As noted above, (32) in infringement proceedings initiated by the Commission on the basis of the original version of an EU measure, subsequently amended or repealed, but continued in reliance on the new EU measure, the Commission can only rely on the obligations maintained in force under the provisions of the new measure.

89. As regards the admissibility of the Commission’s submissions, it is important to note in that connection that the second subparagraph of Article 14(3) (see (a)) and Article 14(4) (see (c)) of the third Drinking Water Directive were not included in the second Directive. What is more, a subtle alteration to the first subparagraph of Article 14(3) is worthy of consideration (see (b)).

(a) Second subparagraph of Article 14(3) of the third Drinking Water Directive

90. The Commission explicitly bases the third plea in law on both subparagraphs of Article 14(3) of the third Drinking Water Directive. According to the first subparagraph thereof, regardless of whether any failure to comply with the parametric values has occurred, Member States shall ensure that any supply of water intended for human consumption which constitutes a potential danger to human health is prohibited or the use of such water restricted, and that any other remedial action that is necessary to protect human health is taken. The second subparagraph states that Member States shall consider a failure to meet the minimum requirements for parametric values set out in Parts A and B of Annex I as a potential danger to human health, except where the competent authority considers the non-compliance with the parametric value to be trivial.

91. Yet only the first subparagraph was (for the most part (33)) included in the second Drinking Water Directive in the form of Article 8(3), which the Commission relied upon in its letter of formal notice when initiating the pre-litigation procedure.

92. The presumption under the second subparagraph of Article 14(3) of the third Drinking Water Directive – that non-compliance with the minimum requirements for parametric values is to be regarded as a potential danger to human health – is however absent from the corresponding provisions of the second Drinking Water Directive. Instead, the 27th recital of the second Directive stated that, in the event of non-compliance with a parameter that has an indicator function, the Member State concerned must consider whether that non-compliance poses any risk to human health.

93. In the present proceedings, therefore, the Commission cannot rely on the presumption that the exceedance of the parametric value for nitrate poses a potential danger to human health. Its submissions in that respect are inadmissible.

94. Conversely, there is in principle no reason why France should not rely on the fact that, pursuant to the second subparagraph of Article 14(3) of the third Drinking Water Directive, a potential danger to human health can be ruled out if the competent authority considers the non-compliance with the parametric value to be trivial. France cannot be deprived of that means of defence which has been introduced in the interim solely on the grounds that the Commission sent the letter of formal notice at too early a date. However, the leeway granted in that connection should not extend further than the powers of consideration originally granted to the Member States under the 27th recital.

(b) Options for action under the first subparagraph of Article 14(3) of the third Drinking Water Directive

95. Although a cursory examination might suggest that the first subparagraph of Article 14(3) of the third Drinking Water Directive was already included in the second Directive as Article 8(3), its application in the case at hand also highlights a problem of admissibility, since the two provisions are largely identical only in the German and Greek versions, and there are subtle differences between the first subparagraph of Article 14(3) of the third Drinking Water Directive and the first sentence of Article 8(3) of the second Directive in all of the other language versions. The Commission relies – at least implicitly – on the amended (or third) Directive.

96. The first sentence of Article 8(3) of the second Directive provided three options for action in the event of a potential danger to human health: (1) a prohibition on the supply of water, (2) a restriction on use, and (3) such other action as is necessary to protect human health. As continued to be the case in the German and Greek versions of the first subparagraph of Article 14(3) of the third Directive, ‘or’ was used as the conjunction connecting all three of those options. The competent authorities were thus able to choose one of the three options.

97. All of the other language versions of the first subparagraph of Article 14(3) of the third Drinking Water Directive however provide for (either) supply to be prohibited or use to be restricted, and (additionally) any other action that is necessary to be taken. The scope of discretion is consequently reduced from three options to two (prohibition or restriction), with other action potentially being necessary in addition.

98. Although the Commission marked up that change from ‘or’ to ‘and’ in its proposal, it did not provide any explanation for it. (34) The German and Greek translations of the proposal retained the ‘or’ used in the original, however.

99. Although it seems likely – irrespective of those differences between the language versions – that the EU legislator, especially in Article 14(5) of the third Drinking Water Directive, intended that the Member States should continue to have a choice between all three options for action, that question can ultimately remain open in the present proceedings, since it is once again the case that the Commission can only base its complaints on the new provisions to the extent that they maintain in force the previous ones.

100. The Commission’s argument that France, in the event of a potential danger to human health, ought to have chosen between a prohibition on supply and a restriction on use is thus inadmissible in the case at hand. Instead, France can rely on the argument that all three options are in principle available to the competent authorities.

101. Questions can also be asked about the admissibility of the Commission’s submissions regarding the explanation of the obligation to provide information in the event that the parametric value for nitrate is exceeded, as regulated by Article 14(4) of the third Drinking Water Directive. By way of contrast, the second sentence of Article 8(3) of the second Directive stated merely that consumers, in the cases currently regulated by the first subparagraph of Article 14(3) of the third Drinking Water Directive, should be informed promptly and given the necessary advice. Moreover, Article 8(7) required Member States to ensure that, where remedial action was taken, consumers were notified, except where the competent authorities considered the non-compliance with the parametric value to be trivial.

102. Article 14(4) of the third Drinking Water Directive maintains in force the obligation imposed in the second sentence of Article 8(3) and Article 8(7) of the second Directive to provide consumers, where the non-compliance with the parametric values is considered to be a potential risk to human health, with the corresponding information and advice and to notify them of remedial actions taken.

103. When determining the scope of that information and advice, however, the Member States had greater discretion under the second sentence of Article 8(3) of the second Directive than under Article 14(4) of the third Drinking Water Directive. In the present proceedings, that fact should be taken into consideration when assessing whether France met its obligations to provide information.

104. What is more, the Commission cannot require France to provide more information or advice than would be necessary under Article 14(4) of the third Directive, even if the circumstances of the case mean that additional information or advice might be necessary under the second sentence of Article 8(3) of the second Directive. At the relevant point in time, France was – and still is at the present time – only subject to the requirements under Article 14(4). (35)

(d) Interim conclusion

105. It follows that the Commission’s submissions regarding the third plea in law are inadmissible in so far as they rely on Article 14(3) and (4) of the third Drinking Water Directive as an amended version of Article 8(3) of the second Directive. That applies to the presumption under the second subparagraph of Article 14(3) of the third Directive that an exceedance of the parametric value for nitrate poses a potential danger to human health, the amendment to the first subparagraph of Article 14(3) regarding the various options for action and the more detailed obligations to provide information under Article 14(4).

2. Merits – consideration of the first subparagraph of Article 14(3) of the third Drinking Water Directive

106. In order to prove the merits of the third plea in law, or in other words an infringement of the first subparagraph of Article 14(3) of the third Drinking Water Directive, the Commission must therefore start by demonstrating that the exceedance of the parametric value for nitrate poses a potential danger to human health. Only on that basis is it possible to judge whether France has taken the necessary remedial action.

(a) Potential danger to human health

107. Although the Commission cannot rely on the presumption of a potential danger under the second subparagraph of Article 14(3) of the third Drinking Water Directive, that issue is of comparatively little importance in the case at hand.

108. That is because France recognises that an exceedance of the parametric value for nitrate poses a danger to the health of pregnant women and infants under six months of age; that constitutes a potential danger to human health.

109. However, the parties disagree as to whether there are any further potential risks to human health. The Commission invokes the precautionary principle in that connection, but that principle does not support the presumption of potential dangers unless it is further fleshed out.

110. The Commission does precisely that with regard to the risk of cancer, which is referred to by the WHO in a document cited by both parties. (36) In a report brought into the proceedings by France, the French agency Anses (37) also concludes that there is a positive correlation between nitrate levels in drinking water and the risk of colorectal cancer, and also a suspected correlation with ovarian and kidney cancers. (38) It follows that France’s rejection of cancer risks as a potential danger to human health is inconsistent, and it should therefore be rejected. It is instead the case that those cancer risks pose a further potential danger to human health.

(b) Remedial action

111. The question therefore arises whether France took the remedial action that was necessary pursuant to the first subparagraph of Article 14(3) of the third Drinking Water Directive on the grounds of the potential danger to the health of pregnant women and infants and on the grounds of the cancer risks.

112. As noted above, France cannot in principle be criticised in the case at hand on the grounds that the competent authorities made a choice between the three types of remedial action provided for under Article 8(3) of the second Drinking Water Directive: (1) a prohibition on the supply of water for human consumption, (2) a restriction on its use, and (3) such other action as is necessary.

113. In the Commission’s opinion, restrictions or even prohibitions ought to have been imposed in all of the drinking water supply units affected by the exceedances on the grounds of the potential danger to human health.

114. There appears to be no possibility that a prohibition on the supply of tap water due to nitrate pollution might be justifiable in the cases at hand, however. As France correctly notes, such a prohibition is out of the question, if only because the supply of water – even if that water has high nitrate levels – is both necessary and possibly without risk for purposes other than human consumption, for example personal hygiene, cleaning or watering gardens.

115. A restriction on the use of tap water for human consumption might be conceivable, but the effectiveness of a such a restriction might be doubtful given that enforcement in private households would be unworkable in practice. It is conceivable that checks could be carried out in restaurants and cafeterias, however. What is more, issuing an official order of that kind would highlight the magnitude of the potential danger to human health to a greater extent than simply informing the public about it. At the very least, therefore, a restriction on use should be considered as an option.

116. The main alternative to a restriction on use is simply informing consumers; the information provided does not necessarily have to comply with the requirements of Article 14(4) of the third Drinking Water Directive, but the inclusion of certain details appears necessary, and those details would also need to be communicated in the event of a restriction on use.

117. That applies in particular to the exceedance of the parametric value as such, and to the resulting potential dangers to human health. Information regarding both of those matters is imperative in order to allow consumers to respond appropriately.

118. What is more, the Member States were already obliged under the second sentence of Article 8(3) of the second Drinking Water Directive to give ‘advice’. At the very least, therefore, they had to issue recommendations to consumers on how they should use the polluted tap water in the light of the potential dangers.

119. Article 8(7) of the second Directive also required that consumers be notified where remedial action was taken, except where the competent authorities considered the non-compliance with the parametric values to be trivial. Since France at any rate recognises that the exceedance of the parametric value for nitrate poses a potential danger to the health of pregnant women and infants, it would be contradictory if the competent authorities were to have considered the exceedance to be trivial. As a consequence, information should also have been provided about remedial action.

120. An alternative supply of clean water is an additional measure that could at the very least be considered. Providing a supply of bottled water appears a particularly practicable solution in that connection. That would be beneficial for the affected parties and might also encourage them to comply with any restriction on use that was imposed; typically, however, consumers are likely to be in a position to procure their own supply of bottled water for drinking when purchasing their groceries. At the same time, the concern is that the cost and effort of providing such a supply would be disproportionate to the benefits, particularly in the smaller supply units. As a basic principle, therefore, there does not appear to be an imperative need under EU law to provide an alternative supply of clean water in the event of an exceedance of the parametric value for nitrate. The opposite may be true in individual circumstances owing to particular indigence or restricted mobility, but that would have to be demonstrated accordingly in order to establish an obligation.

121. According to Article 14(5) of the third Drinking Water Directive (Article 8(4) of the second Drinking Water Directive), the action to be taken is to be decided on by the competent authorities or other relevant bodies. Those latter were therefore obliged to choose between restricting the use of polluted tap water and merely informing consumers. At the same time, they were also obliged to take into account the dangers that would be posed to human health by restricting the use of water for human consumption.

122. The Commission ought therefore to have identified the reasons why the competent authorities or other relevant bodies failed to impose restrictions or provide information, and to have demonstrated why that reasoning was flawed.

123. The Commission notes the information provided by France in the form of tables in the appendix to its reply to the letter of formal notice (39) listing in detail the action taken for each drinking water supply unit, and contends in general terms that that information does not take into account the potential dangers of an exceedance of the parametric value for nitrate; information provided to the public ought to contain explanations regarding the potential implications of that exceedance for human health.

124. It follows from the tables in the appendix to France’s reply to the letter of formal notice, however, that the use of water for consumption by pregnant women and infants was prohibited or at least advised against in almost all of the affected drinking water supply units.

125. According to the information in those tables, there were only three units (listed in Annex A.8 to the application) where warnings were not issued to those population groups. Those units were Cohons (052001829), Charmes (052001856) and Fays (052000917 (5200106 in Annex A.8 to the application)), all of which are located in the Haute-Marne Department of the Grand Est Region.

126. A case-by-case assessment would need to be carried out to determine whether the restrictions and information concerning the danger to pregnant women and infants sufficed in the remaining instances, but the Commission failed to carry out any such assessment.

127. Yet there is no evidence that the French authorities made any mention of cancer risks to consumers, or even addressed the issue at all. France also makes no concrete reference to those risks in the present proceedings. As a result, it should be assumed that the competent authorities did not take the necessary action in relation to that potential danger to human health.

128. France has thus infringed its obligations under the first subparagraph of Article 14(3) of the third Drinking Water Directive by failing to issue the necessary warnings and advice with regard to the potential danger to the health of pregnant women and infants in the Cohons, Charmes and Fays supply units, and also with regard to the cancer risk to all consumers in all of the supply units listed in Annex A.8 to the application.

129. That plea in law should be rejected as to the remainder.

V. Costs

130. Pursuant to Article 138(3) of the Rules of Procedure, the parties are to bear their own costs where – as is the case here – each party succeeds on some and fails on other heads.

VI. Conclusion

131. I therefore propose that the Court give the following ruling:

(1) The French Republic has

(a) failed to fulfil its obligations under Article 4(1) and Part B of Annex I to Directive (EU) 2020/2184 of the European Parliament and of the Council of 16 December 2020 on the quality of water intended for human consumption, in the 107 drinking water units listed in Annex A.8 to the Commission’s application, with the exception of the supply units Chevregny, Arconcey, Charencey, Saint-Seine-l’Abbaye and Charmes, by failing to take the necessary action to ensure compliance with the minimum requirements in relation to the parametric value of 50 mg/l for nitrate in water for human consumption,

(b) failed to fulfil its obligations under Article 14(2) of Directive 2020/2184, in the 107 drinking water supply units listed in Annex A.8 to the application, by failing to take remedial action as soon as possible to restore the quality of water intended for human consumption and failing to give priority to its enforcement, having regard to, inter alia, the extent to which the relevant parametric value had been exceeded and the associated potential danger to human health, and

(c) failed to fulfil its obligations under the first subparagraph of Article 14(3) of Directive 2020/2184, by failing to issue the necessary warnings and advice with regard to the potential danger to the health of pregnant women and infants in the Cohons, Charmes and Fays supply units, and also with regard to the cancer risk to all consumers in all of the supply units listed in Annex A.8 to the application.

(2) The action is dismissed as to the remainder.

(3) The European Commission and the French Republic shall each bear their own costs.

1 Original language: German.

2 Directive (EU) 2020/2184 of the European Parliament and of the Council of 16 December 2020 on the quality of water intended for human consumption (OJ 2000 L 435, p. 1).

3 Council Directive 80/778/EEC of 15 July 1980 relating to the quality of water intended for human consumption (OJ 1980 L 229, p. 11).

4 WHO, History of Guideline Development – Nitrate and nitrite.

5 WHO, Nitrate and Nitrite in Drinking-water, 2016 (WHO/FWC/WSH/16.52, p. 1).

6 WHO, Nitrate and Nitrite in Drinking-water, 2016 (WHO/FWC/WSH/16.52, p. 11 et seq.).

7 Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human consumption (OJ 1998 L 330, 5.12.1998, p. 32).

8 Article 4(1)(b), Article 5(1) and Part C of Annex I, row 20 of the first Drinking Water Directive, Article 4(1)(b), Article 5(1) and Part B of Annex I to the second Drinking Water Directive as well as Article 4(1)(b), Article 5(1) and Part B of Annex I to the third Drinking Water Directive.

9 See judgment of 24 May 2011, Commission v Portugal (C‑52/08, EU:C:2011:337, paragraph 39).

10 Judgment of 9 November 1999, Commission v Italy (C‑365/97, EU:C:1999:544, paragraph 35 and 36).

11 Judgments of 24 May 2011, Commission v Portugal (C‑52/08, EU:C:2011:337, paragraph 42), and of 9 November 1999, Commission v Italy (C‑365/97, EU:C:1999:544, paragraph 36).

12 Judgments of 14 May 2020, Commission v United Kingdom (VAT – Regime applicable to terminal markets) (C‑276/19, EU:C:2020:368, paragraph 39); of 24 May 2011, Commission v Portugal (C‑52/08, EU:C:2011:337, paragraph 42); and of 10 September 2009, Commission v Greece (C‑416/07, EU:C:2009:528, paragraph 28).

13 As regards the Drinking Water Directives which were previously in force, for example, see the judgments of 25 January 2024, Commission v Ireland (Trihalomethanes in drinking water) (C‑481/22, EU:C:2024:85, paragraph 65), and of 14 November 2002, Commission v Ireland (C‑316/00, EU:C:2002:657, paragraph 37).

14 Judgments of 25 January 2024, Commission v Ireland (Trihalomethanes in drinking water) (C‑481/22, EU:C:2024:85, paragraph 43), and of 7 September 2023, Commission v Italy (Limit values – Arsenic and fluorides) (C‑197/22, EU:C:2023:642, paragraph 51).

15 Judgment of 7 September 2023, Commission v Italy (Limit values – Arsenic and fluorides) (C‑197/22, EU:C:2023:642, paragraph 65).

16 Judgments of 25 January 2024, Commission v Ireland (Trihalomethanes in drinking water) (C‑481/22, EU:C:2024:85, paragraph 81); of 7 September 2023, Commission v Italy (Limit values – Arsenic and fluorides) (C‑197/22, EU:C:2023:642, paragraph 55); and of 22 June 2022, Commission v Slovakia (Protection of the capercaillie) (C‑661/20, EU:C:2022:496, paragraphs 94 to 97).

17 Judgments of 5 April 2017, Commission v Bulgaria (C‑488/15, EU:C:2017:267, paragraph 42), and of 26 April 2005, Commission v Ireland (C‑494/01, EU:C:2005:250, paragraph 37).

18 Judgment of 12 July 2022, Nord Stream 2 v Parliament and Council (C‑348/20 P, EU:C:2022:548, paragraph 128).

19 See judgments of 28 July 2016, Ordre des barreaux francophones et germanophone and Others (C‑543/14, EU:C:2016:605, paragraph 40), and of 26 June 2007, Ordre des barreaux francophones et germanophone and Others (C‑305/05, EU:C:2007:383, paragraph 31).

20 To that effect, judgments of 10 September 2020, Romania v Commission (C‑498/19 P, EU:C:2020:686, paragraph 75); of 21 September 2010, Sweden and Others v API and Commission (C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 89); and of 2 December 2009, Commission v Ireland and Others (C‑89/08 P, EU:C:2009:742, paragraph 53).

21 See judgments of 12 July 2022, Nord Stream 2 v Parliament and Council (C‑348/20 P, EU:C:2022:548, paragraph 128); of 16 May 2017, Berlioz Investment Fund (C‑682/15, EU:C:2017:373, paragraph 96); and of 28 July 2016, Ordre des barreaux francophones et germanophone and Others (C‑543/14, EU:C:2016:605, paragraph 40).

22 Judgment of 7 September 2023, Commission v Italy (Limit values – Arsenic and fluorides) (C‑197/22, EU:C:2023:642, paragraph 95).

23 Judgments of 25 January 2024, Commission v Ireland (Trihalomethanes in drinking water) (C‑481/22, EU:C:2024:85, paragraph 108), and of 7 September 2023, Commission v Italy (Limit values – Arsenic and fluorides) (C‑197/22, EU:C:2023:642, paragraph 96).

24 Judgments of 11 October 2007, Commission v Greece (C‑237/05, EU:C:2007:592, paragraph 29), and of 31 March 1992, Commission v Italy (C‑362/90, EU:C:1992:158, paragraphs 11 and 13).

25 See point 58 above.

26 Judgments of 18 November 2020, Commission v Germany (VAT refund – invoices) (C‑371/19, EU:C:2020:936, paragraph 45); of 10 April 2003, Commission v Germany (C‑20/01 and C‑28/01, EU:C:2003:220, paragraph 29); and of 4 April 1974, Commission v France (167/73, EU:C:1974:35, paragraph 15).

27 See judgment of 10 March 1987, Commission v Italy (199/85, EU:C:1987:115, paragraph 8 and 9).

28 Judgments of 6 September 2018, Bank Mellat v Council (C‑430/16 P, EU:C:2018:668, paragraph 64); of 7 June 2007, Wunenburger v Commission (C‑362/05 P, EU:C:2007:322, paragraph 50); and of 6 March 1979, Simmenthal v Commission (92/78, EU:C:1979:53, paragraph 32).

29 See judgments of 27 March 2025, Commission v Italy (Urban waste-water treatment) (C‑515/23, EU:C:2025:209, paragraph 93); of 17 November 2011, Commission v Italy (C‑496/09, EU:C:2011:740, paragraph 89); and of 9 December 2008, Commission v France (C‑121/07, EU:C:2008:695, paragraph 69).

30 Verton (062000461), Pas-de-Calais, Hauts-de-France: 1 947 consumers, 26 years, Wavignies (060001115), Oise, Hauts-de-France: 1 200 consumers, 25 years, CCSSOM Sector Villiers Conflans (051001447), Marne, Grand Est: 1 861 consumers, 36 years, Pars-lès-Romilly-Gélannes Reseau (010000235), Aube, Grand Est: 3 122 consumers, 15 years, Marigny-Saint-Flavy Reseau (010000239), Aube, Grand Est: 4 032 consumers, 25 years, Villiers-Saint-Georges (077001446), Seine-et-Marne, Île-de-France: 1 214 consumers, 28 years, Méréville (091000168), Essonne, Île-de-France: 3 271 consumers, 21 years, Argent-sur-Sauldre (018000133), Cher, Centre-Val de Loire: 2 285 consumers, 25 years, and Dammarie (028000808), Eure-et-Loir, Centre-Val de Loire: 1 551 consumers, 24 years.

31 See points 63 to 70 above.

32 See point 20 above.

33 See points 95 et seq. below for further details.

34 Article 12 of the proposal for a Directive of the European Parliament and of the Council on the quality of water intended for human consumption (recast), COM(2017) 753 final.

35 See point 94 above.

36 See point 3 above.

37 Agence nationale de sécurité sanitaire de l’alimentation, de l’environnement et du travail (National Agency for Food, Environmental and Occupational Health and Safety, France).

38 Évaluation des risques liés à la consommation de nitrates et nitrites (July 2022), p. 194.

39 Annex A.2 to the application contains several of the appendices to the reply to the letter of formal notice. The second appendix (p. 138 to 152) contains a detailed list of measures by the health authorities, and the third appendix (p. 153 to 169) refers to the information and advice that was provided.

Opinion of Advocate General Kokott delivered on 16 April 2026.###

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