Avis juridique important

Judgment of the Court of 13 December 1991. - Commission of the European Communities v Italian Republic. - Failure of a Member State to fulfil its obligations - Directives - Waste - Toxic and dangerous waste - Obligation to forward information to the Commission - Failure to do so. - Case C-33/90. European Court reports 1991 Page I-05987

Summary Parties Grounds Decision on costs Operative part

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1. Member States - Obligations - Task of supervision entrusted to the Commission - Duty of the Member States - Cooperation with inquiries relating to the application of directives

(EEC Treaty, Arts 5 and 155)

2. Member States - Obligations - Implementation of directives - Failure to implement - Justification based on the possibility of attributing failure to decentralized authorities - Not permissible

(EEC Treaty, Art. 169)

1. Member States are under a duty, by virtue of Article 5 of the EEC Treaty, to facilitate the achievement of the Commission' s tasks, which consist in particular, pursuant to Article 155 of the EEC Treaty, in ensuring that the provisions of the Treaty and the measures taken by the institutions pursuant thereto are applied. The failure by a Member State to reply to questions put by the Commission under its powers to supervise the application of a directive, without even explaining that failure, as it is obliged to do at least under its duty of genuine cooperation, constitutes a failure by that Member State to fulfil its obligations.

2. A Member State cannot plead conditions existing within its own legal system in order to justify its failure to comply with obligations and time-limits resulting from Community directives. It alone is responsible towards the Community under Article 169 for compliance with obligations arising under Community law, irrespective of the use which it has made of the freedom to allocate areas of internal legal competence. That is why, in the case where a directive imposes an obligation on Member States to designate the authorities responsible for its implementation and places specific obligations on those authorities, such as the obligation to draw up plans and keep them up to date, the fact that a Member State, after designating such authorities, refrains from taking the measures necessary to ensure that those authorities meet their obligations constitutes a failure within the meaning of Article 169 of the EEC Treaty.

In Case C-33/90,

Commission of the European Communities, represented initially by Sergio Fabro, subsequently by Guido Berardis and later by Lucio Gussetti, all members of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Roberto Hayder, a representative of the Commission' s Legal Service, Wagner Centre, Kirchberg,

applicant,

v

Italian Republic, represented by Professor Luigi Ferrari Bravo, Head of the Servizio del Contenzioso Diplomatico at the Ministry of Foreign Affairs, acting as Agent, assisted by Pier Giorgio Ferri, Avvocato dello Stato, with an address for service in Luxembourg at the Italian Embassy, 5 Rue Marie-Adélaïde,

defendant,

APPLICATION for a declaration under Article 169 of the EEC Treaty that by not adopting the measures necessary for ensuring the planning, organization and supervision of waste disposal in the Campania Region, by failing to draw up plans for the disposal of toxic and dangerous waste and by not forwarding those plans to the Commission, the Italian Republic has failed to fulfil its obligations under Article 5 of the EEC Treaty, Articles 5 and 6 of Council Directive 75/442/EEC of 15 July 1975 on waste (Official Journal 1975 L 194, p. 39) and Articles 6 and 12 of Council Directive 78/319/EEC of 20 March 1978 on toxic and dangerous waste (Official Journal 1978 L 84, p. 43),

THE COURT,

composed of: O. Due, President, R. Joliet, F.A. Schockweiler and F. Grévisse (Presidents of Chambers), G.F. Mancini, J.C. Moitinho de Almeida, G.C. Rodríguez Iglesias, M. Zuleeg and J.L. Murray, Judges,

Advocate General: M. Darmon,

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 9 October 1991, at which the Italian Republic was represented by Francesco Guicciardi, Avvocato dello Stato,

after hearing the Opinion of the Advocate General at the sitting on 5 November 1991,

gives the following

Judgment

1 By application lodged at the Registry of the Court of Justice on 31 January 1990, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that the Italian Republic had failed to comply with a number of its obligations under Council Directive 75/442/EEC of 15 July 1975 on waste (Official Journal 1975 L 194, p. 39) ("the directive on waste"), Council Directive 78/319/EEC of 20 March 1978 on toxic and dangerous waste (Official Journal 1978 L 84, p. 43) ("the directive on toxic and dangerous waste") and Article 5 of the EEC Treaty.

2 In those directives, the Council provided for the approximation of national legislation governing the disposal of certain types of waste. The preambles to the directives make it clear that they are pursuing two separate objectives. In the first place, they are designed to eliminate barriers to intra-Community trade and unequal conditions of competition resulting from disparities in national provisions on waste. Secondly, they are intended to protect human health and safeguard the environment against harmful effects caused by the disposal of certain types of waste.

3 For the purpose of realizing those objectives, the directives require the Member States to adopt a number of measures.

4 First of all, Member States are required to establish or designate "the competent ... authorities to be responsible, in a given zone, for the planning, organization, authorization and supervision of waste disposal operations". That obligation is set out in Article 5 of the directive on waste and substantially reproduced in Article 6 of the directive on toxic and dangerous waste.

5 Those competent authorities must then draw up plans for waste disposal relating, in particular, to the type and quantity of waste to be disposed of, the methods of disposal and suitable disposal sites. Those obligations follow from Article 6 of the directive on waste and from Article 12(1) of the directive on toxic and dangerous waste.

6 In order to enable the Commission to determine whether Member States have been correctly carrying out their obligations, the latter are also required to forward the above plans to the Commission, along with reports every three years on the disposal of toxic and dangerous waste. Those obligations to provide information are set out in particular in Articles 12(2) and 16 of the directive on toxic and dangerous waste.

7 The Commission' s attention was drawn to a number of problems connected with the disposal of waste in the Campania Region of Italy. By a letter of 29 June 1987, in which it referred expressly to the above directives, the Commission requested the Italian Government to clarify the matter. In particular, the Commission asked it to supply information on the production of waste in Campania, on the disposal measures adopted in that region and on the existence of an agreement with the United States concerning the importation of waste into Campania.

8 In the absence of a reply by the Italian Government to that request, the Commission sent to it a letter of formal notice on 20 June 1988.

9 In that letter, the Commission pointed out that by not replying to its request for information, Italy had failed to fulfil its obligations under the first paragraph of Article 5 of the EEC Treaty. It added that by failing to ensure that the above directives were implemented in Campania, Italy had also failed to fulfil its obligations under Articles 5 and 6 of the directive on waste and under Articles 6 and 12 of the directive on toxic and dangerous waste.

10 As no reply was received to that letter of formal notice, the Commission delivered a reasoned opinion on 23 May 1989, to which the Italian Government also failed to reply.

11 The Commission took the view that that Government had failed to meet its obligations and for that reason decided to bring the present application.

12 During the written procedure, however, the Commission, in reply to a question put by the Court, indicated that it would no longer be seeking any order with regard to the breach of Article 5 of the directive on waste and Article 6 of the directive on toxic and dangerous waste. The Commission took the view that by Article 6 of Decree No 915 of the President of the Republic of 10 September 1982 (Gazzetta Ufficiale (Official Gazette) No 343 of 15 December 1982, p. 9071, hereinafter referred to as "the Presidential Decree"), the Italian Republic had designated the regions as the competent authorities for drawing up the plans required under those articles of the directives. The Commission added that the Court had already ruled in its judgment in Case C-48/89 Commission v Italy [1990] ECR I-2425 that Italy had failed to fulfil its obligations under Article 12(2) of the directive on toxic and dangerous waste, that is to say, the obligation to forward those plans, and that there was accordingly no need for the Court to rule a second time on that issue.

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

Procedure

14 The Italian Government first of all objects that there is a discrepancy between the complaints raised by the Commission in its letter of formal notice, which dealt only with the absence of a reply to the letter of 29 June 1987, and the allegations of failures in the present application.

15 That objection cannot be accepted. It is sufficient to point out that both the letter of formal notice and the reasoned opinion refer (as does the application itself) not only to the breach of Article 5 of the EEC Treaty, but also to the breach of Articles 5 and 6 of the directive on waste as well as that of Articles 6 and 12 of the directive on toxic and dangerous waste. The Italian Republic was therefore in a position to be aware at the outset of the preliminary administrative phase that the Commission' s criticism related not only to the absence of a reply to its letter but also to the implementation of the directives themselves. That Member State consequently had ample time in which to clarify its position or, if necessary, to comply with its obligations.

Breach of the first paragraph of Article 5 of the EEC Treaty

16 The Commission takes the view that the Italian Government' s failure to reply to its letter of 29 June 1987 amounts to a breach of the first paragraph of Article 5 of the EEC Treaty.

17 The Italian Republic replies that it was not under any obligation to supply the Commission with the information requested. In its opinion, the only obligations to provide information which the above directives impose on Member States are those set out in Article 12 of the directive on waste and in Articles 12(2) and 16 of the directive on toxic and dangerous waste. The information requested by the Commission, it claims, falls outside the scope of those provisions.

19 During the investigation conducted by the Commission prior to the procedure which resulted in the bringing of this application, the Italian Government failed to provide it with numerous details on the production, treatment and importation of waste in the Campania Region and on the measures there taken at regional or communal level, despite the fact that Italian legislation had designated that region as the competent authority for implementing the above directives. In so far as it concerned the disposal of waste covered by the directive on waste and the directive on toxic and dangerous waste and the competent authority for disposal operations, that request for information came within the scope of the Commission' s powers of supervision.

21 It must for those reasons be held that by not replying to the questions put by the Commission in its letter of 29 June 1987, the Italian Republic has failed to fulfil its obligations under the first paragraph of Article 5 of the EEC Treaty.

Breach of Article 6 of the directive on waste and Article 12(1) of the directive on toxic and dangerous waste

26 It should be pointed out in this regard that, despite being expressly requested by the Court to do so, the Italian Republic failed to provide evidence that the Campania Region had drawn up, prior to the expiry of the period laid down in the reasoned opinion, the plans referred to in Article 6 of the directive on waste and in Article 12(1) of the directive on toxic and dangerous waste. It also failed to set out the specific measures which it had adopted within that period in order that such plans could effectively be drawn up in Campania.

27 It must for that reason be held that since the Campania Region has not drawn up plans covering in particular the type and quantity of waste to be disposed of, the general technical requirements, suitable disposal sites and any special arrangements for particular wastes, and has not drawn up and kept up to date plans for the disposal of toxic and dangerous waste, the Italian Republic has failed to fulfil its obligations under Article 6 of Council Directive 75/442 of 15 July 1975 on waste and under Article 12(1) of Council Directive 78/319 of 20 March 1978 on toxic and dangerous waste.

Costs

28 Under Article 69(2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. As the Italian 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 reply to the questions put by the Commission in its letter of 29 June 1987, the Italian Republic has failed to fulfil its obligations under the first paragraph of Article 5 of the EEC Treaty;

2. Declares that since the Campania Region has not drawn up plans covering in particular the type and quantity of waste to be disposed of, the general technical provisions, appropriate disposal sites and any special arrangements for particular wastes, and has not drawn up and kept up to date plans for the disposal of toxic and dangerous waste, the Italian Republic has failed to fulfil its obligations under Article 6 of Council Directive 75/442/EEC of 15 July 1975 on waste and under Article 12(1) of Council Directive 78/319/EEC of 20 March 1978 on toxic and dangerous waste;

3. Orders the Italian Republic to pay the costs.