Case C-194/01

Commission of the European Communities

v

Republic of Austria

(Failure to fulfil obligations – Directive 75/442/EEC – Definition of waste – European Waste Catalogue – Directive 91/689/EEC – List of hazardous waste)

Summary of the Judgment

1. Actions for failure to fulfil obligations – Proof of the failure – Burden of proof on the Commission – Presumptions – Not permissible

(Art. 226 EC)

2. Acts of the institutions – Directives – Implementation by the Member States – Need for complete transposition – Existence of national rules rendering transposition by specific legislative or regulatory measures superfluous – Whether permissible – Conditions

3. Actions for failure to fulfil obligations – Disregard of obligations under a decision or a directive – Pleas in defence – Plea questioning the lawfulness of the decision or directive – Not admissible

(Art. 230 EC)

1. In an action for failure to fulfil obligations it is for the Commission to prove the allegation that the obligation has not been fulfilled. It is the Commission which must provide the Court with the evidence necessary for the Court to establish that the obligation has not been fulfilled, and it may not rely on any presumption.

The Commission does not comply with that obligation if, in the case of a national system of waste classification that is compatible with that laid down by the Community legislation, it confines itself to pointing out differences between the two systems in order to complain that the Member State has implemented that legislation incorrectly, without showing that the differences established are such as to harm the interests of the operators concerned and affect the principle of legal certainty.

(see paras 34, 47-48)

2. Each of the Member States to which a directive is addressed is obliged to adopt, in its national legal system, all the measures necessary to ensure that the directive is fully effective, in accordance with the objective it pursues.

The obligation to ensure the full effectiveness of the directive, in accordance with its objective, cannot be interpreted as meaning that the Member States are released from adopting transposing measures where they consider that their national provisions are better than the Community provisions concerned and that the national provisions are therefore better able to ensure that the objective pursued by the directive is achieved. The existence of national rules may render transposition by specific legislative or regulatory measures superfluous only if those rules actually ensure the full application of the directive by the national authorities and, where the relevant provision of the directive seeks to create rights for individuals, the legal situation arising from those national rules is sufficiently precise and clear and the persons concerned are in a position to know the full extent of their rights and obligations and, where appropriate, to rely on them before the national courts.

(see paras 38-39)

3. A Member State cannot properly plead the unlawfulness of a directive or decision addressed to it as a defence in an action for a declaration that it has failed to fulfil its obligations arising out of its failure to implement that decision or comply with that directive.

(see para. 41)

JUDGMENT OF THE COURT (Fifth Chamber) 29 April 2004 (1)

(Failure of a Member State to fulfil its obligations – Directive 75/442/EEC – Concept of waste – European Waste Catalogue – Directive 91/689/EEC – List of hazardous waste)

In Case C-194/01,

applicant,

v

defendant,

APPLICATION for a declaration that the Republic of Austria has failed to fulfil its obligations under Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), as amended by Council Directive 91/156/EEC of 18 March 1991 (OJ 1991 L 78, p. 32), and under Council Directive 91/689/EEC of 12 December 1991 on hazardous waste (OJ 1991 L 377, p. 20), as amended by Council Directive 94/31/EC of 27 June 1994 (OJ 1994 L 168, p. 28),

THE COURT (Fifth Chamber),,

composed of: P. Jann, acting for the President of the Fifth Chamber, A. Rosas (Rapporteur) and S. von Bahr, Judges,

Advocate General: P. Léger,

after hearing oral argument from the parties at the hearing on 14 May 2003, at which the Commission was represented by G. zur Hausen and the Republic of Austria by E. Riedl, F. Mochty and E. Wolfslehner, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 25 September 2003,

gives the following

‘any substance or object in the categories set out in Annex I which the holder discards or intends or is required to discard.

The Commission, acting in accordance with the procedure laid down in Article 18, will draw up, not later than 1 April 1993, a list of wastes belonging to the categories listed in Annex I. This list will be periodically reviewed and, if necessary, revised by the same procedure’.

‘1.

2.

3.However, the inclusion of a material in the EWC does not mean that the material is a waste in all circumstances. The entry is only relevant when the definition of waste has been satisfied.

4.

5.

6.

7.

8.‘1.

2.

3.

4.‘… movable objects

1.

2.Classification and treatment as waste in the public interest may also be required where payment may be obtained for a movable object.’

‘As from 1 July 2000 waste covered by the decision concerning a list of hazardous waste on the basis of Article 1(4) of [Directive 91/689] is regarded as hazardous. The Federal Ministry of the Environment, Youth and the Family will publish this list in the Bundesgesetzblatt before 1 July 2000.’

Arguments of the parties

Findings of the Court

Arguments of the parties

Findings of the Court

On those grounds,

THE COURT (Fifth Chamber)

hereby:

Jann

Rosas

von Bahr

Delivered in open court in Luxembourg on 29 April 2004.

R. Grass

V. Skouris

Registrar

President