Avis juridique important

Judgment of the Court of 7 April 1992. - Commission of the European Communities v Hellenic Republic. - Failure of a Member State to fulfil its obligations - Directive - Toxic and dangerous waste. - Case C-45/91. European Court reports 1992 Page I-02509

Summary Parties Grounds Decision on costs Operative part

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Member States ° Obligations ° Implementation of directives ° Failure ° Justification ° Not permissible

(EEC Treaty, Art. 169)

A Member State may not plead domestic difficulties, such as difficulties of implementation which emerge at the stage when a Community measure is put into effect, to justify a failure to comply with obligations and time-limits laid down by Community law.

In Case C-45/91,

Commission of the European Communities, represented by Marie Condou Durande, of its Legal Service, acting as Agent, with an address for service in Luxembourg at the office of Roberto Hayder, a representative of its Legal Service, Wagner Centre, Kirchberg

applicant,

v

Hellenic Republic, represented initially by Evi Skandalou, of the Athens Bar, a member of the European Communities Department of the Ministry of Foreign Affairs, subsequently by Vasileios Kontolaimos, Deputy State Legal Adviser, acting as Agents, with an address for service in Luxembourg at the Greek Embassy, 117 Val Sainte-Croix,

defendant,

APPLICATION for a declaration under Article 169 of the EEC Treaty that by failing to take the necessary measures to ensure that solid waste, and toxic and dangerous waste are disposed of without endangering human health and without harming the environment, as provided for in Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), in particular Articles 4 and 6 thereof, and in Council Directive 78/319/EEC of 20 March 1978 on toxic and dangerous waste (OJ 1978 L 84, p. 43), in particular Articles 5 and 12 thereof, the Hellenic Republic has failed to fulfil its obligations under the EEC Treaty,

THE COURT,

composed of: O. Due, President, R. Joliet, F. Grévisse and P.J.G. Kapteyn, (Presidents of Chambers), C.N. Kakouris, J.C. Moitinho de Almeida, G.C. Rodríguez Iglesias, M. Diez de Velasco and M. Zuleeg, Judges,

Advocate General: F.G. Jacobs,

Registrar: H.A. Ruehl, Principal Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 29 January 1992

after hearing the Opinion of the Advocate General at the sitting on 26 February 1992,

gives the following

Judgment

1 By application lodged at the Court Registry on 28 January 1991, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that the Hellenic Republic had failed to fulfil certain of its obligations under Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39, hereinafter "the waste directive") and in particular Articles 4 and 6 thereof, and under Council Directive 78/319/EEC of 20 March 1978 on toxic and dangerous waste (OJ 1978 L 84, p. 43, hereinafter "the toxic and dangerous waste directive"), in particular Articles 5 and 12 thereof.

2 By the abovementioned directives the Council prescribed harmonization of national laws with regard to the disposal of certain waste. As is apparent from their recitals, those directives are intended in particular to ensure protection of human health and the environment against the harmful effects caused by the collection, carriage, treatment, storage and tipping of that waste.

3 In order to ensure that those objectives are achieved, those directives require Member States to adopt certain provisions.

4 First of all, the Member States are to take the measures necessary to ensure that the waste, and inter alia toxic and dangerous waste, is disposed of without endangering human health and without harming the environment, and in particular without risk to water, air, soil, plants or animals, without causing a nuisance through noise or odours, and without adversely affecting the countryside or places of special interest. That obligation is set out in Article 4 of the waste directive and Article 5 of the toxic and dangerous waste directive. Article 5 of the toxic and dangerous waste directive states in addition that the Member States are to take the necessary steps to prohibit the uncontrolled abandonment, discharge, tipping and carriage of toxic and dangerous waste.

5 The Member States are then to designate the competent authorities to be responsible in particular for organizing operations for the disposal of waste and of toxic and dangerous waste. That obligation is laid down in Article 5 of the waste directive and in Article 6 of the toxic and dangerous waste directive.

6 Those authorities are to draw up plans or programmes for the disposal of waste, in particular with regard to the types and quantities of waste to be disposed of, the methods of disposal and the suitable disposal sites. Those obligations result from Article 6 of the waste directive and Article 12(1) of the dangerous and toxic waste directive.

7 Finally, Article 7 of the waste directive requires Member States to take the necessary measures to ensure that any holder of waste sees to its disposal.

8 Pursuant to Article 13 of the waste directive and Article 21 of the toxic and dangerous waste directive, those two directives were to be implemented within a period of 24 months from their notification. In accordance with Article 145 of the Act of Accession, they entered into force in Greece on 1 January 1981.

9 Having become aware of problems posed by the disposal of waste in the Nomos (district) of Chania in Crete (Greece), the Commission, in a letter of 27 January 1988 referring in particular to the waste directive, asked the Greek Government to explain that situation. The Commission asked the Greek Government mainly for information regarding the existence of a rubbish tip at the mouth of the river Kouroupitos.

10 The Greek Government replied on 15 March 1988 and stated that it was going to put an end to the operation of that rubbish tip and create new disposal sites. However, it stated that until the necessary work on the infrastructure for those new sites had been completed, the waste from the district of Chania would continue to be discharged on the rubbish tip by the Kouroupitos until August 1988.

11 Since the Commission considered that reply to be unsatisfactory, it sent the Hellenic Republic a letter of formal notice on 26 April 1989. In that letter it stated that, contrary to Article 4 of the waste directive and Article 5 of the toxic and dangerous waste, Greece had not, in its view, taken any measures to ensure that the waste in question be disposed of without endangering human health and without harming the environment. It also stated that Greece had still not drawn up either the waste disposal plan prescribed by Article 6 of the waste directive or the programme required by Article 12 of the toxic and dangerous waste directive. It added that Greece had not taken any measure regarding the disposal of waste as required by Article 7 of the waste directive. It concluded that Greece had failed to fulfil its obligations under Articles 4, 5, 6, 7 and 13 of the waste directive and Articles 5, 6, 12 and 21 of the toxic and dangerous waste directive.

12 The Greek authorities replied on 4 August 1989 and referred to the opposition by the population of Chania to the plan to create new sites for the burial of waste. They also stated that the authorities in Chania envisaged the creation in the medium term of waste burial sites in smaller towns and, in the long term, the incineration and recycling of refuse.

13 The Commission issued a reasoned opinion dated 5 March 1990. In it the Commission stated its view that, having regard to the reply of 4 August 1989, the Greek authorities had not fulfilled their obligations under the Treaty since they were still in the process of preparing the necessary measures to comply with the directives in question in the area concerned. The Greek authorities did not reply to that reasoned opinion.

14 The Commission then decided to commence this action.

15 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the procedure and the pleas and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

The inadmissibility of the complaint regarding the infringement of the toxic and dangerous waste directive

16 At the hearing the Greek Government contended that the Commission' s letter of 27 January 1988 made no reference to the toxic and dangerous waste directive and that the action was therefore inadmissible in so far as it concerned the failure to comply with that directive.

17 It must first be observed that Article 42(2) of the Rules of Procedure of the Court permits new pleas in law to be raised in the course of proceedings only where they are based on matters of law or of fact which come to light in the course of the procedure. That is not the case with the letter of 27 January 1988.

18 In any event, the Greek Government' s argument is unfounded. The letter of 27 January 1988 merely invited the Greek Government to inform the Commission of its view regarding the matters stated in the complaint submitted by certain individuals. That letter in no way constituted a letter of formal notice within the meaning of the first paragraph of Article 169 of the Treaty. The letter giving formal notice, namely that of 26 April 1989, refers to the infringement of both the toxic and dangerous waste directive and the waste directive.

Substance

19 The Commission considers that no measure has been taken by the Greek authorities to ensure that waste from the Chania area is disposed of without endangering human health and without harming the environment. It also considers that the competent authorities have not taken any steps to implement a proper plan which would lead to the programmed, correct management of waste in the area. It makes the same criticisms with regard to the toxic and dangerous waste of the area, in respect of which the Greek authorities have furthermore not taken any appropriate measures or provided for a programme for its disposal.

22 It must therefore be declared that by failing to take the measures necessary to ensure that in the area of Chania waste and toxic and dangerous waste are disposed of without endangering human health and without harming the environment, and by failing to draw up for that area plans for the disposal of waste and of toxic and dangerous waste, the Hellenic Republic has failed to fulfil its obligations under Articles 4 and 6 of Council Directive 75/442/EEC of 15 July 1975 on waste, and Articles 5 and 12 of Council Directive 78/319/EEC of 20 March 1978 on toxic and dangerous waste.

Costs

23 Under Article 69(3) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Hellenic Republic has failed in its submissions, it must be ordered to pay the costs.

On those grounds,

THE COURT

hereby:

1. Declares that by failing to take the measures necessary to ensure that in the area of Chania waste and toxic and dangerous waste are disposed of without endangering human health and without harming the environment, and by failing to draw up for that area plans for the disposal of waste and of toxic and dangerous waste, the Hellenic Republic has failed to fulfil its obligations under Articles 4 and 6 of Council Directive 75/442/EEC of 15 July 1975 on waste, and Articles 5 and 12 of Council Directive 78/319/EEC of 20 March 1978 on toxic and dangerous waste;

2. Orders the Hellenic Republic to pay the costs.