CELEX: 61993CJ0255
Failure to fulfil obligations
Containers of liquids for human consumption
Transposition of a directive into national law

Grounds
1 By application lodged at the Court Registry on 26 April 1993, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that, by failing to draw up and communicate within the prescribed period the programmes laid down by Article 3 of Council Directive 85/339/EEC of 27 June 1985 on containers of liquids for human consumption (OJ 1985 L 176, p. 18, "the directive") for the reduction of the tonnage and/or volume of containers of liquids for human consumption in household waste to be finally disposed of, the French Republic has failed to fulfil its obligations under that provision and the EEC Treaty.
2 Article 3(1) of the directive requires the Member States to draw up programmes for reducing the tonnage and/or volume of containers of liquids for human consumption in household waste to be finally disposed of. Article 3(2) states that the first programmes are to cover the period commencing on 1 January 1987 and are to be communicated to the Commission before that date. Article 3(3) provides that they are then to be "revised and updated regularly, at least every four years, taking into account in particular technical progress and changing economic circumstances".
3 Pursuant to Article 4(1), within the framework of those programmes, the Member States are, either by legislative or administrative means or by voluntary agreements, to take measures designed inter alia to facilitate the refilling and/or recycling of containers of liquids for human consumption, develop consumer education in that area, promote the collection and processing of non-refillable containers, and also to maintain and, where possible, increase the proportion of refilled and/or recycled containers. In accordance with Article 5, the Member States are to take steps to inform consumers of the fact that the containers are refillable and of the amount of the deposit.
4 Finally, Article 7 requires the Member States to notify the Commission of all the laws, regulations and administrative provisions enacted and of all the voluntary agreements referred to in Article 4(1) and entered into for the purposes of implementing the directive.
5 Article 8 prescribes a period of 24 months from notification for the Member States to take the steps necessary to comply with the directive.
6 The directive was notified to the French Government on 3 July 1985. Since the programmes referred to in Article 3 were not communicated to it, the Commission sent a letter on 22 July 1987 inviting the French Government to submit its observations in accordance with Article 169 of the Treaty.
7 The French authorities answered that letter before action in a letter of 22 September 1987, stating that programmes for reducing the tonnage and volume of containers of liquids for human consumption were under negotiation with the business circles concerned. By letter of 16 March 1988 the French Government sent the Commission draft voluntary agreements. The agreements were concluded on 9 May 1988 between the public authorities and representatives of the businesses concerned and communicated to the Commission on 12 August 1988. There were six agreements, each relating to a different type of container: glass, plastic, steel, aluminium, board and returnable glass.
8 On 4 November 1988, the Commission asked the French authorities whether the draft agreements notified on 16 March 1988 had since been signed. The question went unanswered.
9 On 2 October 1989 the Commission sent the French Government a reasoned opinion pursuant to Article 169 of the Treaty, complaining that the Government had not notified it of the programmes referred to in Article 3 of the directive. According to the reasoning in that opinion, neither the steps mentioned in the letter of 22 September 1987 nor the draft agreements matched the definition of programme given in that provision.
10 The French authorities maintained in their reply of 26 October 1989 that the voluntary agreements notified were indeed the programmes required by the directive, whereupon the Commission decided to bring this action.
Admissibility
11 The principal submission of the French Government is that the action is inadmissible for two reasons. First, the alleged failure to fulfil obligations ceased before the reasoned opinion was sent on 2 October 1989. Secondly, by not making its complaints against the voluntary agreements clear until the stage of the application to the Court, the Commission had extended the subject-matter of the dispute as set out in the letter before action and the reasoned opinion.
12 Those two pleas in law must be rejected.
13 The validity of the first depends on the answer to the question whether the steps taken and communicated on 12 August 1988 by the French authorities to the Commission constitute programmes within the meaning of Article 3 of the directive. That question in fact relates to the substance of the case.
14 The second plea is unfounded. The failure to fulfil obligations described in the application consists of failing to draw up and communicate the programmes laid down by Article 3 of the directive, two charges which are the same as those set out in the letter of 22 July 1987 and the reasoned opinion.
15 The action is therefore admissible.
Substance
16 In its application the Commission first of all maintains that the directive draws a distinction between "measures" and "programmes". "Measures", for the purposes of Article 4(1) of the directive, are to be taken by the Member State "within the framework of the programmes referred to in Article 3 ...". Confirmation of that distinction is provided by the fact that there are two different systems of notification, one applicable to programmes and laid down in Article 3(2), and the other relating to measures and set out in Article 7.
17 According to the Commission, the voluntary agreements communicated by the French Republic at most constitute measures within the meaning of Article 4(1). Unlike programmes drawn up pursuant to Article 3, those agreements do not contain an undertaking by the public authorities, or a quantified statement of the objectives pursued, or a time-table or a list of the steps proposed in order to attain them.
18 The French Republic, on the other hand, considers that it has satisfied its obligation to draw up programmes within the meaning of Article 3 of the directive by entering into voluntary agreements which meet the requirements of the directive and are therefore capable of playing a part in attaining its objectives.
19 First, it states that all those voluntary agreements contain undertakings given by the public authorities. Secondly, contrary to the Commission' s assertion, the directive does not require the reduction objectives to be quantified. Thirdly, since the voluntary agreements require the competent authorities to draw up a report every year on the basis of which a monitoring committee is to decide on actions to be taken and on guidelines, if appropriate, they indirectly impose a duty to provide for time-tables in each area.
20 For the purposes of the decision in this case, it is necessary to consider whether the voluntary agreements relied on by the French Republic are to be regarded as reduction programmes referred to in Article 3.
21 First of all, contrary to what is submitted by the Commission, the directive does not require the Member States to give unilateral undertakings.
22 In any event, it is apparent that all the voluntary agreements communicated to the Commission contain undertakings given by all the signatories and hence also by the French public authorities. In the glass containers sector, the public authorities make their contribution in various ways, such as by encouraging recovery, giving technical assistance to local authorities and setting up a statistical survey. In the plastic containers sector, the public authorities undertake to facilitate the exchange of information and the coordination of research and work between local authorities and industry, and also the grant of State aids provided for in that area. In the steel, aluminium and board containers sectors, they commit themselves to facilitating to the greatest possible extent relations with local authorities, and in particular to encouraging investment projects involving recycling operations and to facilitating especially the grant of State aids. Finally, in the returnable glass containers sector, the public authorities are to ensure in particular that instructions on the use of returnable containers in private institutions are renewed and complied with.
23 In those circumstances, the voluntary agreements at issue cannot be regarded as not constituting reduction programmes for the purposes of the directive solely on the ground that they do not contain undertakings by the public authorities.
24 The situation is however quite different as regards the complaint relating to the lack of specification in quantitative terms of the objectives to be attained and the lack of a precise time-table.
25 As the Advocate General states in paragraph 19 of his Opinion, while the directive leaves it to the Member States to set concrete objectives for reducing the tonnage and/or volume of containers according to their own priorities and at their own pace, it requires them, in order to attain those objectives, to draw up programmes before 1 January 1987, and then to revise and update them at least every four years. In that respect, it is important that the Member States should notify the Commission in good time, and before the end of 1986, of their undertaking to attain those objectives and of the measures, expressed in quantitative terms, which they intend to adopt or carry out, where appropriate in conjunction with business and industrial circles in the sectors concerned. It is only in the light of those specific figures and time-tables that the Commission can then assess whether the measures envisaged in pursuance of Article 4 actually contribute to the implementation of the programmes designed to attain the objectives of the directive.
26 In the present case it must be held that only the agreement on glass sets out precise, quantified objectives, the other agreements merely laying down general provisions without stating any figures. In those circumstances, the requirements of Article 3 cannot be regarded as satisfied. Those requirements concern all the containers mentioned in Article 2, namely containers made of glass, metal, plastic, paper or any other material.
27 As regards the obligation to draw up a time-table for completion of the programmes, it should be noted that the application of at least five of the six agreements in question was limited to a period of 30 months with effect from 10 May 1988, the date on which they were signed, and that they are not automatically renewable, while the sixth, which relates to glass, may not be extended beyond 31 December 1992. There is nothing, consequently, to guarantee that the agreements will be regularly revised and updated regularly, at least every four years, in accordance with Article 3(3) of the directive.
28 It follows that the agreements at issue must be regarded as not possessing the characteristics of the programmes referred to in Article 3 of the directive and it must accordingly be held that, by failing to draw up within the prescribed period the programmes laid down by Article 3 of Council Directive 85/339 for the reduction of the tonnage and/or volume of containers of liquids for human consumption in household waste to be finally disposed of, the French Republic has failed to fulfil its obligations under that provision and the EEC Treaty.
29 On the other hand, and contrary to the claim formulated by the Commission, the Court need not consider the failure to fulfil obligations consisting of the non-communication to the Commission of the programmes in question, given that it was precisely those programmes which the French Republic did not adopt within the prescribed period.
30 It must therefore be held that, by failing to draw up within the prescribed period the programmes laid down by Article 3 of Council Directive 85/339 for the reduction of the tonnage and/or volume of containers of liquids for human consumption in household waste to be finally disposed of, the French Republic has failed to fulfil its obligations under that provision and the EEC Treaty.
Decision on costs
Costs
31 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs, if they have been applied for. Since the French Republic has been unsuccessful, it must be ordered to pay the costs.
Operative part
On those grounds,
THE COURT
hereby:
1. Declares that, by failing to draw up within the prescribed period the programmes laid down by Article 3 of Council Directive 85/339/EEC of 27 June 1985 on containers of liquids for human consumption for the reduction of the tonnage and/or volume of containers of liquids for human consumption in household waste to be finally disposed of, the French Republic has failed to fulfil its obligations under that provision and the EEC Treaty;
2. Orders the French Republic to pay the costs.