CELEX: 62001CJ0174
Failure by a Member State to fulfil obligations
Waste management
First indent of Article 11(1) of Directive 96/59/EC on the disposal of polychlorinated biphenyls and polychlorinated terphenyls (PCB/PCT)

By application lodged at the Court Registry on 23 April 2001, the Commission of the European Communities brought an action
under Article 226 EC for a declaration that, by failing to draw up plans for the decontamination and/or disposal of inventoried
equipment and the polychlorinated biphenyls contained therein, in accordance with the requirements of Article 11 of Council
Directive 96/59/EC of 16 September 1996 on the disposal of polychlorinated biphenyls and polychlorinated terphenyls (PCB/PCT)
(OJ 1996 L 243, p. 31,
the Directive), the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive.
Legal background
The Directive
Article 1 of the Directive provides: The purpose of this directive is to approximate the laws of the Member States on the controlled disposal of PCBs, the decontamination
or disposal of equipment containing PCBs and/or the disposal of used PCBs in order to eliminate them completely on the basis
of the provisions of this directive.
Article 3 of the Directive provides: Without prejudice to their international obligations, Member States shall take the necessary measures to ensure that used
PCBs are disposed of and PCBs and equipment containing PCBs are decontaminated or disposed of as soon as possible. For the
equipment and the PCBs contained therein, which are subject to inventory in accordance with Article 4(1), decontamination
and/or disposal shall be effected at the latest by the end of 2010.
Article 4(1) to (3) of the Directive provides:
1.
In order to comply with Article 3, Member States shall ensure that inventories are compiled of equipment with PCB volumes
of more than 5 dm
, and shall send summaries of such inventories to the Commission at the latest three years after the adoption of this directive.
In the case of power capacitors, the threshold of 5 dm
shall be understood as including all the separate elements of a combined set.
2.
Equipment in respect of which it is reasonable to assume that the fluids contain between 0.05% and 0.005% by weight of PCBs
may be inventoried without the data required in the third and fourth indents of paragraph 3, and may be labelled as
PCBs contaminated < 0.05%. They shall be decontaminated or disposed of in accordance with Article 9(2).
3.
The inventories shall comprise the following:
─
the names and addresses of the holders,
─
the location and description of the equipment,
─
the quantity of PCBs contained in the equipment,
─
the dates and types of treatment or replacement carried out or envisaged,
─
the dates of declaration. If a Member State has already compiled a similar inventory, a new one shall not be required. Inventories shall be regularly
updated.
Article 11 of the Directive provides:
1.
Member States shall, within three years of the adoption of this directive, draw up:
─
plans for the decontamination and/or disposal of inventoried equipment and the PCBs contained therein;
─
outlines for the collection and subsequent disposal of equipment which is not subject to inventory in accordance with Article 4(1),
as referred to in Article 6(3).
2.
Member States shall communicate these plans and outlines to the Commission without delay.
According to the 10th recital in the preamble to the Directive,
... it is essential to know what quantities of PCBs exist in order to be able to match disposal capacity to needs; ... it
is therefore necessary to label equipment containing PCBs and to compile inventories of such equipment and
such inventories must be regularly updated.
The 16th recital states that
... the number of PCB disposal and decontamination plants is small and their capacity limited and the disposal and/or decontamination
of the PCBs inventoried must therefore be properly planned.
The national provisions
The Directive was transposed into Luxembourg law by means of the Grand-Ducal Regulation of 24 February 1998 on the disposal
of polychlorinated biphenyls and polychlorinated terphenyls (PCB/PCT) and on the seventh amendment of Annex 1 to the amended
Law of 11 March 1981 on the marketing and use of certain dangerous substances and preparations (
Mémorial
A 1998, p. 400,
the implementing regulation).
Article 3 of the implementing regulation provides:
1.
The use of used PCBs, with the exception of the compounds referred to in the last indent of Article 2(a), is prohibited. The
disposal of such PCBs must be effected as soon as possible and no later than six months after the entry into force of this
regulation.
2.
The use of equipment which contains PCBs, with the exception of the compounds referred to in the last indent of Article 2(a),
is prohibited. The disposal of such equipment must be effected as soon as possible and no later than six months after the
entry into force of this regulation.
3.
Equipment with volumes of more than 5 dm
, in relation to which it is reasonable to assume that the fluids contain more than 0.005% by weight of PCBs, and the PCBs
contained therein, must be inventoried pursuant to Article 4. In the case of power capacitors, the threshold of 5 dm
includes all the separate elements of a combined set. Their use shall continue to be authorised until:
─
31 December 2005, if they contain in excess of 0.5% by weight of PCBs;
─
31 December 2010, if they are assumed to contain no more than 0.05% by weight of PCBs. Disposal or decontamination must be effected at the latest before expiry of the respective time-limits specified above.
Pre-litigation procedure
By letter of 3 January 2000, the Luxembourg authorities sent the Commission an inventory and various legislative texts annexed
to a summary entitled
Notification to the Commission of the procedures for the implementation of Directive 96/59/EC in the Grand Duchy of Luxembourg. Paragraphs 3 and 4 of the summary concern, respectively, the
programme for PCB disposal in Luxembourg and the
collection and disposal of equipment which is not subject to inventory.
Having concluded, on the basis of the documentation supplied, that the Grand Duchy of Luxembourg had failed to comply with
its obligations under Articles 3, 4 and 11 of the Directive, the Commission initiated proceedings for failure to fulfil obligations.
After having sent the Grand Duchy of Luxembourg a letter of formal notice asking it to submit its observations, the Commission,
by letter of 25 July 2000, sent it a reasoned opinion asking it to take the measures necessary for compliance within a period
of two months.
In the light of the new information provided by the Luxembourg Government in response to that reasoned opinion, the Commission
decided to bring the present action, limiting it, however, to the sole complaint of the lack of plans for the decontamination
and/or disposal of the inventoried equipment and the PCBs contained therein required by the first indent of Article 11(1)
of the Directive.
The action
Arguments of the parties
The Commission submits that the programmes for disposal of PCBs adopted by the Grand Duchy of Luxembourg prior to adoption
of the Directive cannot be taken into consideration because they are based on an inventory carried out in 1984 which does
not fulfil the obligations resulting from Article 4 of the Directive since, as is clear from the documentation supplied by
the Luxembourg authorities themselves, it records only equipment using pure PCBs.
According to the Commission, the implementing regulation does not constitute a plan for the purposes of the first indent of
Article 11(1) of the Directive, read in conjunction with the 10th and 16th recitals in the preamble thereto, since it was
enacted prior to the adoption of an inventory satisfying the requirements of Article 4 of the Directive and is limited to
setting time-limits for the use of equipment containing PCBs, without specifying the methods for the disposal or decontamination
of that equipment.
The Luxembourg Government disputes the alleged failure to fulfil its obligations. It submits, first, that, under the second
subparagraph of Article 4(3) of the Directive, the Member States are released from the obligation to compile an inventory
of equipment containing a PCB volume of more than 5 dm
if they have already done so. The Grand Duchy of Luxembourg drew up plans for the disposal of PCBs from 1986 on the basis
of the first inventory compiled in 1984. Those measures, implemented prior to the adoption of the Directive, made it possible
to dispose of 99.9% of the inventoried PCBs.
According to the Luxembourg Government, since the inventories compiled prior to the entry into force of the Directive are
similar to those required by Article 4(3) of the Directive, the plans for disposal of the equipment recorded in those inventories
comply with the obligations arising from the first indent of Article 11(1) of the Directive, even though those plans predate
the entry into force of the Directive.
The Luxembourg Government submits, second, that the implementing regulation lays down time-limits for the use of equipment
containing PCBs inventoried in accordance with the provisions of the Directive. In that regard, the Luxembourg Government
maintains that the time-limit laid down by that regulation for the disposal of equipment with a PCB concentration exceeding
0.05% was even brought forward to a date five years earlier than that prescribed by the Directive. It adds that, in any event,
those time-limits have been included in a more detailed chapter, concerning the disposal of PCBs, of the National Waste Management
Plan, which was adopted on 15 December 2000 and communicated to the Commission on 15 January 2001.
Findings of the Court
First of all, it should be pointed out that it is settled case-law that the question whether a Member State has failed to
fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period
laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see,
inter alia
, Case C-148/00
Commission
v
Italy
[2001] ECR I-9823, paragraph 7, and Case C-177/01
Commission
v
France
[2002] ECR I-5137, paragraph 13).
It should be noted that the National Waste Management Plan, adopted on 15 December 2000, was adopted by the Grand Duchy of
Luxembourg and communicated to the Commission only after expiry of the time-limit prescribed by the reasoned opinion and therefore
cannot be taken into consideration for the purposes of assessing whether there has been a failure to fulfil obligations.
As regards the measures adopted by the Grand Duchy of Luxembourg prior to adoption of the Directive, it should be observed
that, according to Article 1 of that directive, its main purpose is
to approximate the laws of the Member States on the controlled disposal of PCBs, the decontamination or disposal of equipment
containing PCBs ... in order to eliminate them completely. In order to attain that objective, the Member States must compile inventories of equipment containing PCBs.
In that regard, Article 4(1) of the Directive provides that inventories of all equipment with PCB volumes of more than 5 dm
must be compiled. Article 4(2) states that equipment in respect of which it is reasonable to assume that the fluids contain
between 0.05% and 0.005% by weight of PCBs may be inventoried without the data required by the third and fourth indents of
the first subparagraph of Article 4(3). The first subparagraph of Article 4(3) of the Directive specifies the content of the
inventories. Finally, the second subparagraph of Article 4(3) of the Directive provides that, if a Member State has already
compiled an inventory with a content similar to that specified in the first subparagraph of that article, a new inventory
is not required.
Thus, the possibility that a new inventory might not be required because a Member State has already compiled one presupposes
that that inventory complies with Article 4 of the Directive.
In order to comply with the first indent of Article 11(1) of the Directive, the Member States must draw up plans for the decontamination
and/or disposal of inventoried equipment and the PCBs contained therein, in accordance with Article 4 of the Directive.
Moreover, the first indent of Article 11(1) of the Directive, read in conjunction with the 10th and 16th recitals in the preamble
thereto, indicates that the drawing up of the plan required by that article obliges the Member States to compare the amount
of inventoried equipment and quantities of PCBs contained therein which must be disposed of or decontaminated with the disposal
or decontamination facilities available for that purpose. The plan must also enable the Member States to define the types
of treatment for the various categories of equipment and the PCBs contained therein.
There is no doubt, therefore, that in order to satisfy fully the obligations arising from the first indent of Article 11(1)
of the Directive, the plan drawn up must be specific and in conformity with the system for the disposal of PCBs laid down
by the Directive as a whole (see, to that effect, Joined Cases C-232/95 and C-233/95
Commission
v
Greece
[1998] ECR I-3343, paragraphs 34 to 36, and Case C-207/97
Commission
v
Belgium
[1999] ECR I-275, paragraph 39).
In that regard, it must be held, first, that the inventory compiled and the programmes developed by the Grand Duchy of Luxembourg
prior to the entry into force of the Directive are incomplete. As the Luxembourg Government conceded in its defence, they
cover only the disposal of pure PCBs. The pre-litigation procedure shows that, following the reasoned opinion, the Grand Duchy
of Luxembourg had to compile a new inventory in order to comply with the provisions of Article 4 of the Directive, which means
that, in any event, that Member State had to adopt a new decontamination and/or disposal plan on the basis of that new inventory
in order to comply with the requirements of the first indent of Article 11(1) of the Directive.
Second, as regards the implementing regulation, it is sufficient to state that, notwithstanding the incorporation of the provisions
of the Directive into the text of that regulation and the fixing, in Article 3 of that regulation, of time-limits for the
disposal of PCBs, its provisions cannot be regarded as a plan for the purposes of the first indent of Article 11(1) of the
Directive, since they make no provision for the assessment of the disposal and decontamination facilities available in the
national territory and since the time-limits laid down by those provisions are not based on a comparison of the amount of
equipment to be treated with the actual treatment facilities.
Accordingly, it must be found that, irrespective of their actual effectiveness, the implementing regulation and all the measures
taken by the Grand Duchy of Luxembourg prior to adoption of the Directive do not fully satisfy the obligations arising from
the first indent of Article 11(1) of the Directive.
Consequently, the action brought by the Commission is well founded.
It must therefore be held that, by failing to draw up plans for the decontamination and/or disposal of inventoried equipment
and the PCBs contained therein, in accordance with the requirements of the first indent of Article 11(1) of the Directive,
the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive.
Costs
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 in the successful party's pleadings. Since the Commission has applied for costs to be awarded against the Grand
Duchy of Luxembourg and the latter has been unsuccessful, the Grand Duchy of Luxembourg must be ordered to pay the costs.
On those grounds,
THE COURT (Fifth Chamber)
hereby:
1.
Declares that, by failing to draw up plans for the decontamination and/or disposal of inventoried equipment and the polychlorinated
biphenyls contained therein, in accordance with the requirements of the first indent of Article 11(1) of Council Directive
96/59/EC of 16 September 1996 on the disposal of polychlorinated biphenyls and polychlorinated terphenyls (PCB/PCT), the Grand
Duchy of Luxembourg has failed to fulfil its obligations under that directive;
2.
Orders the Grand Duchy of Luxembourg to pay the costs.
Edward
La Pergola
Jann
von Bahr
Rosas
Delivered in open court in Luxembourg on 5 December 2002.
R. Grass
M. Wathelet
Registrar
President of the Fifth Chamber
–
Language of the case: French.