Opinion of the Advocate General — ECLI:EU:C:2018:922
Date: 2018-11-15
Language of the case: Czech
Subject matter: Environment
Procedure: Action for failure to fulfil obligations - unfounded
Origin: Czechia

summary of the pleas in law and main arguments submitted, the Commission’s position is presented as follows. 32. The Commission maintains, first, that the TPS-NOLO (Geobal) which had been shipped from the Czech Republic to Poland and which originated from hazardous waste of a waste disposal site (the tailing ponds at Ostramo) is stored at another waste disposal site on Czech territory and is classified as waste tarry residues arising from refining, distillation and any pyrolytic treatment of organic materials. The substance is furthermore considered by the Polish authorities to be waste within the meaning of Annex IV to the Waste Shipment Regulation. 33. Second, as the Czech Republic contests the classification of that substance as waste by relying on the registration of the substance under the REACH Regulation, a classification issue within the meaning of Article 28(1) of the Waste Shipment Regulation has arisen. That provision foresees that the substance accordingly be treated as waste. 34. However, third, according to the Commission, the REACH Regulation does not in any way guarantee that use of a substance does not have any damaging effects on the environment or human health, or that a substance automatically ceases to be waste. In the absence of a national decision confirming that a substance has ceased being waste, it is not possible to consider the registration under the REACH Regulation valid, in line with Article 2(2) of that regulation. 35. Last, since the substance in question was shipped over borders without notification, that shipment must be considered illegal within the meaning of Article 2(35)(a) of the Waste Shipment Regulation. In that case, the competent authorities of the Member State of dispatch are informed of the shipment in order to ensure the take-back of the substance in question, in accordance with Article 24(2) of the Waste Shipment Regulation. The Czech Republic has refused to do so. A registration under the REACH Regulation which guarantees in Article 3 the free circulation of substances, mixtures or articles does not alter that obligation, as waste is expressly excluded from the scope of application of the REACH Regulation. 36. The Czech Government, on the other hand, argues that the substance was not, at the time relevant for the present proceedings, waste within the meaning of Article 3(1) of the Waste Framework Directive as it is registered under the REACH Regulation and is used as a fuel. Furthermore, that government submits that the Commission cannot rely on Article 28(1) of the Waste Shipment Regulation. If Article 28(1) could be applied wilfully by a Member State, without there being any objective indication that a substance is indeed waste, this would constitute a serious violation of the free movement of goods. Member States could, for example, interfere with the import of food products from other Member States. 37. The Czech Government essentially argues that the Commission has failed to prove that the shipment in question was a shipment of waste within the meaning of the Waste Shipment Regulation and that it therefore did not constitute an illegal shipment for the purposes of that regulation. The Czech Government therefore considers the Commission’s action manifestly unfounded. 38. Nevertheless it is common ground between the parties that a shipment of TPS-NOLO (Geobal) from the Czech Republic to Poland has taken place. 39. Given the lack of clarity of the Commission’s application, the admissibility of that application must first be assessed. B. Admissibility 40. The Czech Republic has not raised a plea of inadmissibility. The Court may, however, on its own motion examine whether the conditions laid down in Article 258 TFEU for bringing an action for failure to fulfil obligations are satisfied, and whether the claim put forward fulfils the relevant procedural requirements. (6) 41. It is clear from Article 120 of the Rules of Procedure of the Court of Justice, and from the case-law relating to that provision, that an application must state the subject matter of the proceedings and a summary of the pleas in law on which the application is based, and that that statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the application. It follows that the essential points of law and of fact on which such an action is based must be indicated coherently and intelligibly in the application itself. (7) The complaints must be set out unambiguously so that the Court does not rule ultra petita or indeed fail to rule on one of them. (8) 42. In particular, the Commission’s action must contain a coherent and detailed statement of the reasons which have led it to conclude that the Member State in question has failed to fulfil one of its obligations under the Treaties. (9) Moreover, the explanation of the claim must be consistent with the form of order sought. (10) 43. In the present case, the Commission asks the Court to rule that by refusing to ensure the take-back to the Czech Republic of TPS-NOLO (Geobal) which had been shipped from the Czech Republic to Katowice in Poland, the Czech Republic has failed to fulfil its obligations under Article 24(2) and Article 28(1) of the Waste Shipment Regulation. 44. However, it is not clear from the submissions made in the body of the Commission’s application, or from the Commission’s replies to the Court’s questions at the hearing, on which grounds the Commission bases its claim. (11) The obligations following from the two provisions named in the previous paragraph are not coherently defined. 45. The Commission on the one hand seems to argue that the Waste Shipment Regulation establishes an absolute and categorical obligation on Member States to ensure the take-back of certain shipments that another Member State considers containing waste. Such an obligation, it argues, persists irrespective of the circumstances of a case, and whether or not a substance or object is, in fact, waste. The Member State subject to the obligation in that case could not put forward any defence to avoid taking back the disputed shipment. 46. At the same time, the Commission seems to imply that the obligation to take back a shipment does not exist when a substance or object is not, in fact, waste. Thus the Commission devotes large parts of its application to establishing that the substance in question is, in fact, waste, thereby seemingly introducing the notion of an obligation conditioned on the substance in question being, in fact, waste. 47. Those arguments, in my view, cannot be reconciled. 48. Somehow it seems that the Commission has conflated two alternative arguments into one single line of argument. That is possibly why the arguments presented appear confused and incoherent. 49. The unusual manner in which the application was drafted further adds to the confusion. Instead of presenting its case, the Commission rather seems to present a reply to the Czech Republic’s arguments in response to the reasoned opinion. This makes it very difficult for the Court to discern the arguments of the Commission in the present case as the reader has to reconstruct the case from those counter-arguments. 50. In that connection, it is appropriate to point out that the EU judicature cannot take the place of the applicant, or his lawyer, by trying to identify those arguments of an application it might regard as supporting the party’s claims. (12) 51. Moreover, I am perplexed that the Commission seems to ask the Court to declare the existence of an infringement that may in the future turn out to be no infringement at all. I am not sure if there is any scope for this sort of conditional pro tempore infringement in the procedure set out in Article 258 TFEU. (13) In any case, if the Commission is indeed seeking to advance the argument of such an infringement, it has failed to substantiate its argument with the reasons that led it to conclude that an infringement existed. 52. What is more, the lack of clarity in the Commission’s claim has affected the Czech Republic’s reply to that claim. As the Commission did not clearly define the obligations incumbent on Member States under Articles 24(2) and 28(1) of the Waste Shipment Regulation, the Czech Republic was not put in a position to respond in an extensive manner. 53. In those circumstances, I take the view that the Court does not have sufficient information to enable it to assess the infringement of EU law imputed to the Czech Republic and thus to determine whether there is a breach of obligations as alleged by the Commission. (14) 54. Having said that, I can see why the Commission probably encountered difficulties in providing the reasons underlying its claim in a coherent manner. Especially with regard to Article 28 of the Waste Shipment Regulation, it seems difficult to reconcile the wording of the different paragraphs of that provision with, for one thing, the remainder of that regulation and, indeed, the interpretative principles at play. 55. Nonetheless, I conclude that the action must be dismissed as inadmissible. V. Conclusion 56. In light of the foregoing considerations, I propose that the Court: – dismiss the action as inadmissible; – order the European Commission to pay the costs. 1 Original language: English. 2 Regulation of the European Parliament and of the Council of 14 June 2006 on shipments of waste (OJ 2006 L 190, p. 1). 3 Directive of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives (OJ 2008 L 312, p. 3). 4 Directive of the European Parliament and of the Council of 5 April 2006 on waste (OJ 2006 L 114, p. 9). 5 Regulation of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ 2006 L 396, p. 1). 6 See judgment of 15 November 2012, Commission v PortugalCommission v PortugalCommission v Portugal, C‑34/11, EU:C:2012:712, paragraph 42 and the case-law cited. See also judgments of 2 June 2016, Commission v NetherlandsCommission v NetherlandsCommission v Netherlands, C‑233/14, EU:C:2016:396, paragraph 33; of 26 January 2012, Commission v SloveniaCommission v SloveniaCommission v Slovenia, C‑185/11, not published, EU:C:2012:43, paragraphs 28 to 30 and the case-law cited; and of 26 April 2007, Commission v FinlandCommission v FinlandCommission v Finland, C‑195/04, EU:C:2007:248, paragraph 21 and the case-law cited. 7 Judgment of 2 June 2016, Commission v NetherlandsCommission v NetherlandsCommission v Netherlands, C‑233/14, EU:C:2016:396, paragraph 32 and the case-law cited. See also C‑178/00, paragraph 6, and judgment of 26 April 2007, Commission v FinlandCommission v FinlandCommission v Finland, C‑195/04, EU:C:2007:248, paragraph 22 and the case-law cited. 8 Judgment of 2 June 2016, Commission v NetherlandsCommission v NetherlandsCommission v Netherlands, C‑233/14, EU:C:2016:396, paragraph 34 and the case-law cited. 9 See judgment of 2 June 2016, Commission v NetherlandsCommission v NetherlandsCommission v Netherlands, C‑233/14, EU:C:2016:396, paragraph 35 and the case-law cited. 10 See judgments of 14 October 2004, Commission v SpainCommission v SpainCommission v Spain, C‑55/03, not published, EU:C:2004:628, paragraphs 28 and 29, and of 26 January 2012, Commission v SloveniaCommission v SloveniaCommission v Slovenia, C‑185/11, not published, EU:C:2012:43, paragraphs 30 to 33. 11 Cf. judgment of 26 April 2007, Commission v FinlandCommission v FinlandCommission v Finland, C‑195/04, EU:C:2007:248, paragraphs 28 to 30. 12 See, to that effect, the Opinion of Advocate General Léger in Italy v CommissionItaly v CommissionItaly v Commission, C‑178/00, EU:C:2002:541, point 9 and the case-law cited. 13 See, by analogy, order of 13 September 2000, Commission v NetherlandsCommission v NetherlandsCommission v Netherlands, C‑341/97, EU:C:2000:434, paragraphs 9 to 10 and 18 to 21, and judgment of 3 December 2009, Commission v GermanyCommission v GermanyCommission v Germany, C‑424/07, EU:C:2009:749, paragraphs 25 to 31. 14 See judgment of 26 April 2007, Commission v FinlandCommission v FinlandCommission v Finland, C‑195/04, EU:C:2007:248, paragraph 32 and the case-law cited.