Opinion of the Advocate General — ECLI:EU:C:2001:384
Date: 2001-07-05
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;Approximation of laws;Waste
Procedure: Action for failure to fulfil obligations - successful
Origin: France

summary form, the legal and factual particulars on which those complaints are based. (21) 46. However, I must point out that first to complain of a lack of information was the Commission when it complained that the information forwarded by the French Government during the pre-litigation procedure had not helped it in its task of ascertaining whether all the waste referred to in the directives in question had effectively been covered by the management plans already drawn up by the French Republic. In particular, the Commission objected that the national provisions communicated to it referred to concepts of waste as laid down in French law, concepts whose material scope had not even been defined. Consequently, the Commission had not been able to make a comparison with the corresponding concepts embodied in the directives and, in particular, had not been able to ascertain whether and which categories of waste continued to be excluded from the national management plans, although covered by the Community legislation. That was why the choice was made to charge the French Republic with the incomplete material coverage of the plans, and to support the charge with arguments relating only to certain categories of waste, whilst expressing reservations as to whether they could be extended to other situations. 47. In my opinion the Commission's complaint is well founded, and not merely because there have been undeniable delays on the part of France in informing the Commission of the implementing provisions for Directives 75/442 and 91/689, some of which, as we shall see, were only communicated in the course of the present proceedings. The fact is that, in reality both in the reasoned opinion and in the application initiating the present proceedings, the reservations expressed by the Commission did not exhaust the grounds of the complaints made against the French Government, but rather, were intended, to serve a premiss for the Commission's choice to select, as proof of that infringement, just three categories of waste for which the particulars available made it possible to proceed with an adequate supply of information. Accordingly, the fact that the Commission, faced with information deemed inadequate when judged against the obligations imposed by the directives, (22) limited itself to expressing the fear that those three cases were not isolated in no way prejudices, in my opinion, the admissibility of these proceedings. 2. On the substance of the complaint: introduction 48. As already noted, in order to contest the incomplete nature of the material coverage of the management plans, in breach of Article 7(1) of Directive 75/442, as amended, and Article 6(1) of Directive 91/689, the Commission makes reference to three categories of waste: polychlorinated biphenyls (hereinafter PCBs), medical waste and special domestic waste. 49. In reply the French Government initially makes a point of a general nature. It maintains that it had complied with the provisions of the directives in question by specifying different categories of waste which fully cover all the waste referred to in the Community directives, even though the method chosen was somewhat idiosyncratic in that that Government proceeded as follows: - for certain waste, such as domestic and related waste and special industrial waste, a definition was supplied in a ministerial circular of 1 March 1994 (but submitted only in the course of the present proceedings) which also covered certain directives relating to the drawing up of regional or departmental management plans, - next, in more general terms, by Decree No 97-157 of 15 May 1997 on the classification of hazardous waste (décret relatif à la classification des déchets dangereux: JORF of 23 May 1997, p. 7764; hereinafter Decree No 97-157, also submitted only in the course of the proceedings) provision was made to establish a complete classification of hazardous waste, albeit in the form of a simple nomenclature of such waste (Annex II to Decree 97-157) and thus without any specific provision relating to its management. In this way, however, if I have understood correctly, the French Government claims to have established a specific point of reference for drawing up the management plans without any specific indications as regards hazardous waste so that such plans could be extended to all the waste specified by the directives in question. 50. The French Republic therefore concludes that there are no residual categories of waste not covered by the provisions of the management plans, with the result that the obligations imposed by the directives have been complied with in full. 51. The Commission limits itself to pointing out that the French Government has only now supplied it with a definition of certain categories of waste and, despite that information, the legislative technique chosen by the French Government does not enable the Commission to establish with any certainty whether the categories of waste referred to in the existing management plans effectively guarantee the coverage intended by the Community legislation. 52. Even leaving aside the serious delay in communicating the aforementioned French provisions, their content does not appear such as to allay the Commission's reservations. But apart from that, it seems to me that the technique chosen by the French Government for transposing the directives is open to question. As the Commission itself points out, the decision to implement the directives in question by a mere ministerial circular is rather perplexing, particularly in the light of the Court's settled case-law that the Member States, in transposing a directive, must establish in the area concerned a specific legislative framework that makes the national law compatible with the provisions of the directive (23) in terms that do not give rise to doubts or ambiguities not only as regards the contents of the relevant national legislation and its compliance with the directive, but also as regards its format value and its suitability to operate as an appropriate legal basis for regulating the area. Accordingly, a mere practice or administrative circular, for example, are not sufficient for the purposes of correctly transposing a directive since, unlike authentic legislative sources, they do not guarantee legal certainty, binding obligations and publicity. (24) 53. On the other hand, I also consider as unsatisfactory the method of transposition which consists in the adoption of a ministerial decree containing a mere nomenclature of hazardous waste to be used subsequently for the purpose of drawing up the management plans that make no explicit reference to that category of waste. That is because, as the Commission points out in its reply, it is precisely in the management plans that must be found all the information needed to specify the types of waste to which such plans apply so that the Commission can verify the completeness of their material coverage. (25) 54. That said, I will now deal specifically with the Commission's complaints about the three categories of waste. 3. Polychlorinated biphenyls (PCBs) 55. The Commission points out that 22 of the 26 French regions do not have a management plan for PCBs. The French Republic does not deny that that was the situation in October 1998, that is to say at the expiry of the time-limit indicated in the reasoned opinion. However, after noting that by November 1999 the number of regions without plans had fallen to 12, the French Government objects that the continued omission does not constitute an infringement of Directive 91/689 on the ground that these must be regarded as applicable to the regional plans which do not make explicit reference to PCBs should be regarded as covered by the provisions of Decree No 95-157 containing a complete list of hazardous waste. (26) However, in its opinion it would be pointless now to review the remaining regional management plans given that it is in the process of drawing up a national plan for the decontamination and/or disposal of equipment containing PCBs in compliance with Council Directive 96/59/EC of 16 September 1996 on the disposal of polychlorinated biphenyls and polychlorinated triphenyls (PCB/PCT) (OJ 1996 L 243, p. 31; hereinafter Directive 96/59). Pursuant to Article 11(1) of that directive, Member States must draw up programmes and plans for the decontamination, collection and/or disposal of equipment containing PCBs by 16 September 1999. 56. I could limit myself to noting that the French Government itself admits that, even today, not all regions have a management plan for PCBs and conclude from that fact alone, that the Commission's complaint concerning that category of waste should be regarded as well founded. However, for the sake of completeness, I will now briefly deal with the other arguments raised by the French Government. 57. As regards the argument that regional plans which make no explicit reference to PCBs are covered by the provisions of Decree No 97-157 containing a list of hazardous waste (including PCBs), I have already said that this legislative technique cannot be regarded as satisfactory because it is essentially limited to a general reference, whereas Article 7(1) of Directive 75/442 (referred to in Article 6(1) of Directive 91/689) requires that the management plans themselves provide quite detailed information in respect of hazardous and indeed all waste. 58. Next, as regards the alleged pointlessness of transposing Directive 91/689 following the adoption of Directive 96/59, I must point out along with the Commission that Directive 91/689 refers explicitly to PCBs and therefore they cannot be excluded when transposing that directive; that the two directives lay down separate time-limits for transposition and the Commission has still not received from the French Government any notification concerning the transposition of Directive 96/59; that Directive 96/59 does not authorise any derogation with regard to the transposition of Directive 91/689; that the fact that Article 11 of Directive 96/59 provides that the Member States must make provision for programmes and plans for the decontamination, collection and/or disposal of equipment containing PCBs cannot justify the lack of management plans for substances containing PCBs; and, finally, that in any case a delay in transposing a directive (Directive 91/689 should have been transposed by 27 June 1995) cannot be justified by relying on the work under way to implement a different directive (in the present case, Directive 96/59). 59. Accordingly, I consider the complaint on PCBs to be well founded. 4. Medical waste 60. According to the Commission, the French Government itself accepts that there are still five regions, among those that already have a waste management plan, whose plans do not cover medical waste. A further six regions are covered by regional schemes for the disposal of hospital waste which was the subject of a ministerial circular of 21 September 1990 calling on the regions to make provision for the disposal of hospital waste and supply general information regarding the methods and instruments to be employed for that purpose. However, the Commission notes that those schemes have still not been communicated to it by the French authorities and therefore it is not in a position to assess whether they comply with the requirements of the Community legislation, particularly as the same French authorities were supposed to have replaced the aforementioned schemes by plans. Furthermore, the Commission has strong reservations concerning the guarantees that can be offered by the ministerial circular as regards compliance with the requirements of Directive 75/442. Accordingly, it concludes that the French Republic has not fulfilled the obligations imposed on it by the directives in question even in the case of the six regions affected by the aforementioned schemes. 61. The French Government does not dispute the fact that in five regions there is still no management plan for the category of waste in question, but it again stresses, referring to the use of the phrase as soon as possible in Article 7(1) of Directive 75/442, that the expiry of the time-limit for transposing that directive does not entail a failure to comply with it. As regards the six regions covered by the regional schemes for the disposal of hospital waste, the French Government maintains that, under the terms of the abovementioned circular, those schemes are equivalent to management plans already drawn up for other regions in compliance with Article 7(1) of Directive 75/442 and Article 6(1) of Directive 91/689. In any event, and whilst acknowledging that it has not communicated those schemes within the prescribed time-limit, the French Government does not consider a complaint concerning the merits of the scheme admissible before the Commission has examined them. 62. I do not think that there is any need for me to dwell on the complaints concerning the first five regions as the French Government itself admits the delay, nor does it seem to me that such delay can be justified by reliance on the phrase as soon as possible in view of what I have already said on that matter (see above, points 33 to 39). However, as regards the six regions said to be covered by regional schemes for the disposal of hospital waste, I reiterate the reservations expressed earlier, and shared by the Commission, on recourse to a mere ministerial circular to provide the regions with instructions concerning the future adoption of those schemes. While accepting that such instructions do in fact exist, even though they have never been communicated to the Commission, I note that the circular in question contains no indication of the time-limits within which they are to be carried out; it merely provides that, should the region not be the most appropriate administrative unit, the regional prefects may decide, in cooperation with the departmental prefects, that preparatory work on the schemes in question be carried out, at least in part, at departmental level, which only provides further confirmation of the unsuitability of a circular for ensuring that directives are implemented in full. 63. Finally, as regards the French Government's objection to the Commission's complaint that the aforementioned schemes are not equivalent to the waste management plans as provided for in the Community directives in question, I simply note that the ministerial circular refers only to hospital wastes, whilst Annex I.A. of Directive 91/689 refers to broader categories of medical waste including (in addition to the specific mention of hospital wastes) other clinical wastes (point 1) and pharmaceuticals, medicines and veterinary compounds (point 2). Essentially, at least from the point of view of their range of material coverage, the schemes (if they exist) would not appear to have the same scope as the management plans referred to in Directive 91/689. 64. The Commission's complaint concerning the category of medical waste must therefore be regarded as well founded. 5. Special domestic waste 65. Finally, as regards special domestic waste, the Commission considers as unsatisfactory the method of transposition chosen by the French legislature which has provided that the category in question may be omitted from regional management plans and included in departmental plans or, alternatively, that special domestic waste may be included simultaneously in a regional plan and a departmental plan. The Commission notes that 18 departments still do not have management plans either at regional or departmental level. 66. In reply, the French Government contends that the present complaint is in part a repetition of the first complaint in that 15 of the aforementioned 18 departments were already referred to by the Commission to demonstrate the incomplete geographical coverage of the management plans. As for the remaining 3, namely the departments of l'Oise, l'Haute-Loire and le Puy de Dôme, the French Government notes that the draft management plan for the first department was adopted by the prefect on 19 October 1999 (and therefore, in any event, after the expiry of the time-limit laid down in the Commission's reasoned opinion of 5 August 1998), whilst the remaining plans were under review. However, once again the French Government justifies its own delay by reference to the phrase as soon as possible in Article 7(1) of Directive 75/442 and Article 6(1) of Directive 91/689. 67. There is no doubt, and the Commission itself acknowledges the fact, that the present complaint partially overlaps with the complaint about the incomplete geographical coverage of the management plans. However, that complaint remains valid for the three departments for which the French Government itself admits that no measures on special domestic waste have been adopted. Nor does these seem to me to be any reason to the justification once again put forward by the French Government in order to exclude the infringement, as I have already dealt at some length above (see paragraphs 33 to 39) with the meaning to be attributed to the phrase as soon as possible. 68. In conclusion, I consider that the Commission's second complaint should also be upheld seeing that the French Republic has made no provision to draw up waste management plans that provide complete material coverage. C - Non-inclusion of a specific chapter on packaging waste in the management plans already drawn up 69. Finally, the Commission complains that the waste management plans already drawn up by the French Republic do not contain a specific chapter on packaging waste, thereby infringing Article 14 of Directive 94/62 which should have been transposed by 30 June 1996 (see Article 22(1)). 70. The French Government objects that Article 2(d) of Decree No 96-1008 explicitly provides for the inclusion of the indication of measures on packaging waste in the management plans and that Article 12 of that decree requires management plans not complying with that provision to be reviewed within a period of three years. According to information supplied by the French Government, the process for reviewing the management plans is still under way. However, in the light of the measures already taken and the fact that Article 14 of Directive 94/62, referring to Article 7 of Directive 75/442, again uses the phrase as soon as possible, thereby making the time-limit for the transposition of the directive flexible, the French Republic contends that the directive has not been infringed. 71. I do not think that I have to spend much time on that point. Given that the French Government itself accepts that not all the waste management plans already drawn up contain a specific chapter on packaging waste, and in view of my earlier comments on the phrase as soon as possible (see paragraphs 33 to 39), I consider that the Commission's third complaint is also well founded. 72. In conclusion I propose that the Court declare that, by failing to draw up waste management plans for the whole of its territory or all its waste and by failing to include in all existing management plans a specific chapter on packaging waste, that the French Republic has failed to fulfil its obligations under the relevant Community directives. IV - Costs 73. Pursuant to 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. As the Commission has applied for costs and in view of what I have just said concerning the outcome of the proceedings, I consider that that application should be upheld. V - Conclusion 74. In the light of the above considerations, I propose that the Court declare as follows: (1) By failing to draw up waste management plans for the whole of its territory or all its waste and by failing to include in all existing management plans a specific chapter on packaging waste, the French Republic has failed to fulfil its obligations under Article 7(1) of Council Directive 75/442/EEC of 15 July 1975 on waste (as amended by Council Directive 91/156/EEC of 18 March 1991), Article 6(1) of Council Directive 91/689/EEC of 12 December 1991 on hazardous waste and Article 14 of European Parliament and Council Directive 94/62/EC of 20 December 1994 on packaging and packaging waste. (2) The French Republic shall pay the cost. 1: - Original language: Italian. 2: - Unofficial translation, as for the national provisions that follow. 3: - See, for example, Article 1(5) of Council Directive 98/93/EC of 14 December 1998 amending Directive 68/414/EEC imposing an obligation on Member States of the EEC to maintain minimum stocks of crude oil and/or petroleum products (OJ 1998 L 358. p. 100); third indent of Article 7(3) of European Parliament and Council Directive 1999/2/EC of 22 February 1999 on the approximation of the laws of the Member States concerning foods and food ingredients treated with ionising radiation (OJ 1999 L 66, p. 16); and Article 12 of European Parliament and Council Directive 2000/26/EC of 16 May 2000 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles and amending Council Directives 73/239/EEC and 88/357/EEC (Fourth motor insurance Directive) (OJ 2000 L 181, p. 65). 4: - See, for example, Article 1(2) of Commission Directive 1999/97/EC of 13 December 1999 amending Council Directive 95/21/EC concerning the enforcement, in respect of shipping using Community ports and sailing in the waters under the jurisdiction of the Member States, of international standards for ship safety, pollution prevention and shipboard living and working conditions (port State control) (OJ 1999 L 331, p. 67); and Article 12(4) of Council Directive 2000/29/EC of 8 May 2000 on protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community (OJ 2000 L 169, p. 1). 5: - See Article 10 of the Council's proposal for a directive on waste disposal (OJ 1974 C 142, p. 6). 6: - See, for example, Cases C-101/84 Commission v Italy [1985] ECR 2629, paragraph 16; C-217/88 Commission v Germany [1990] ECR I-2879, paragraph 33 and C-50/94 Greece v Commission [1996] ECR I-3331, paragraph 39, where further claims are made. 7: - See Cases C-461/99 Commission v Ireland; C-466/99 Commission v Italy; C-35/00 Commission v United Kingdom and C-132/00 Commission v Greece. 8: - See Case C-401/00 Commission v Luxembourg removed from the register by order of 13 June 2001, following discontinuance by the Commission. 9: - See Cases C-33/90 Commission v Italy [1991] ECR I-5987; C-45/91 Commission v Greece [1992] ECR I-2509 and C-387/97 Commission v Greece [2000] ECR I-5047. 10: - Case C-387/97 Commission v Greece, cited above, paragraph 95. 11: - Ibid. 12: - Case C-365/97 Commission v Italy [1999] ECR I-7773, paragraphs 69 and 70. 13: - Case C-45/91 Commission v Greece, cited above. 14: - Nor should it be forgotten, for the purposes of a better appreciation of the basis of the French argument concerning the alleged restrictive nature of the time-limits for the transposition of the directives in question, that the Court has consistently held that the governments of the Member States participate in the preparatory work for directives and must therefore be in a position to prepare within the period prescribed the legislative provisions necessary for their implementation (Case C-301/81 Commission v Belgium [1983] ECR 467, paragraph 11). 15: - The Court has ruled as considerable an infringement of those obligations that lasted for three years (see Case C-387/97 Commission v Greece, cited above, paragraphs 26 and 98, with reference to the period which had elapsed between the entry into force of the EU Treaty and the Commission's reasoned opinion). I note that the Court, in an equally strict ruling, held as insufficient the mere adoption of a general provision whereby a Member State entrusted to the regions the task of drawing up waste management plans, without those regions subsequently taking any concrete steps to adopt those plans within the time-limit prescribed for transposition (see Case C-33/90 Commission v Italy, cited above, paragraphs 22 to 25, with reference to the previous Article 6 of Directive 75/442 and Article 12(1) of Directive 78/319, now repealed). 16: - Case C-365/97 Commission v Italy, cited above, paragraph 70. 17: - Case C-45/91 Commission v Greece, cited above, paragraph 21, dealing specifically with the obligations to make provision for the waste management plans laid down in Article 6 of Directive 75/442, in its original version, and Article 12(1) of Directive 78/319; see also Case C-387/97 Commission v Greece, cited above, paragraph 70 and, in relation to the technical difficulties of implementing a directive, Case C-71/97 Commission v Spain [1998] ECR I-5991, paragraph 15. 18: - To that effect, see, for all, Case C-307/98 Commission v Belgium [2000] ECR I-3933, paragraph 54 in which further citations appear. 19: - Council Directive 1999/31/EC of 26 April 1999 on waste disposal (OJ 1999 L 182, p. 1; hereinafter Directive 99/31). 20: - See Case C-182/94 Commission v Italy [1995] ECR I-1465, paragraph 6. In the same vein, see Case C-152/98 Commission v Netherlands (not yet published in the ECR, paragraph 21), referring to a change of Community policy concerning measures to tackle water pollution introduced in directives subsequent to the directive which the Commission was complaining had not been transposed within the prescribed time-limits. 21: - Case C-52/90 Commission v Denmark [1992] ECR I-2187, paragraph 17, in which further citations appear. 22: - As regards the obligation to communicate the measures for transposing the directives in question, see Articles 7(2) and 16(1) of Directive 75/442, as amended, Article 2(2) of Directive 91/156 and Articles 8(1) and 10(1) and (3) of Directive 91/689. 23: - See, for example, Cases C-339/87 Commission v Netherlands [1990] ECR I-851, paragraph 25; C-59/89 Commission v Germany [1991] ECR I-2607, paragraph 28 and C-340/96 Commission v United Kingdom [1999] ECR I-2023, paragraph 27. 24: - Inter alia, see Case C-239/85 Commission v Belgium [1986] ECR 3645, paragraph 7; C-58/89 Commission v Germany [1991] ECR I-4983, paragraph 13; C-306/89 Commission v Greece [1991] ECR I-5863, paragraph 19 and C-96/95 Commission v Germany [1997] ECR I-1653, paragraph 38. 25: - I note that Article 7(1) of Directive 75/442 as amended provides that: ... the competent authorities shall be required to draw up waste management plans. Such plans shall relate in particular to: - the type, quality and origin of waste to be recovered or disposed of, - general technical requirements, - any special arrangements for particular wastes, - suitable disposal sites or installations. Such plans may, for example, cover: - the natural or legal persons empowered to carry out the management of waste, - the estimated costs of the recovery and disposal operations, - appropriate measures to encourage rationalisation of the collection, sorting and treatment of waste. 26: - That PCBs should be considered hazardous waste is beyond doubt seeing that they are explicitly referred to in Annex I.A., point 10, to Directive 91/689.