Opinion of the Advocate General — ECLI:EU:C:1999:181
Date: 1999-04-20
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;Approximation of laws;Waste
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded;Action for failure to fulfil obligations - decision unnecessary
Origin: Italy

summary of the complaints. 
18. It considers that the letter of formal 
notice set out the Italian Government's 
alleged failure to fulfil its obligations in a 
sufficiently precise manner since it referred 
to the pollution caused by the uncontrolled 
discharges of waste from areas upstream of 
the San Rocco valley and the failure to take 
the action necessary to plan, organise and 
monitor waste disposal operations within 
the meaning of Directive 75/442/EEC. 
Furthermore, the Commission notes that 
it had already asked the Italian Govern­
ment to submit observations on the envir­
onmental situation in the San Rocco valley 
by a letter of 15 December 1988. Finally, it 
is evident from the reply to the letter of 
formal notice that the Italian Government 
had been able to exercise its right of 
defence to the full since it argued its case 
point by point and did not claim that the 
complaints were of a general nature. 
19. Even if it were not possible to infer 
from the fact that the Italian Government 
argued its case point by point that the 
complaint set out in the letter of formal 
complaint was sufficiently precise, as the 
Commission does, I nevertheless consider 
that in this case the letter of formal notice 
displayed in full the degree of precision 
required by the case-law appositely cited by 
the Commission. The identification of a 
failure to fulfil obligations, as noted above 
by the Commission, and the contention 
that that state of affairs might constitute an 
infringement of Articles 4, 5, 6, 7 and 10 of 
Directive 75/442/EEC must be considered 3 — It cites, in that respect, the judgment in Case 274/83 
Commission v Italy [1985] ECR 1077. 
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OPINION OF MR MISCHO — CASE C-365/97 
as sufficient to enable the Member State 
concerned to present its defence. 
20. Consequently, I conclude that the first 
ground of inadmissibility must be rejected. 
Second ground of inadmissibility 
21. The defendant argues, as the second 
ground, that there is an unacceptable 
difference between the reasoned opinion 
and the application. The complaints made 
in the reasoned opinion of 5 July 1996 
concern only the original version of Direc­
tive 75/442/EEC, whereas the application 
also refers to the provisions of Directive 
75/442/EEC, as amended by Directive 
91/156/EC. 
22. The Commission notes that the alleged 
failure of the Italian Republic to fulfil its 
obligations refers to a situation of fact — 
that is to say the pollution of the San Rocco 
valley by waste — which constitutes a 
manifest infringement of the directive both 
in its original and amended version. 
Although the obligations originally 
imposed on Member States by the directive 
have essentially remained unchanged, they 
have become more detailed and more 
stringent. The obligations laid down in 
Articles 4, 5, 7 and 1Ö of Directive 75/442/ 
EEC have been confirmed fully by Directive 
91/156/EC and therefore the environmental 
situation in the San Rocco valley must a 
fortiori be considered to be contrary to the 
new provisions. In the view of the Com­
mission the fact that the applicable rules 
have been amended during the course of 
the procedures does not mean that it may 
be inferred that the Commission has mod­
ified its complaints against the Italian 
Governments. 
23. In support of its argument the Com­
mission refers to the judgment in the case of 
Commission v Greece, 4 in which the Court 
ruled that '[a]lthough ... the Commission's 
reasoned opinion and the application to the 
Court must be based on the same com­
plaints, that requirement cannot go so far 
as to make it necessary that in every event 
the national provisions mentioned in the 
reasoned opinion and in the application 
should be completely identical. Where a 
change in the legislation occurred between 
those two phases in the procedure, it is 
sufficient that the system established by the 
legislation contested in the pre-litigation 
procedure has as a whole been maintained 
by the new measures which were adopted 
by the Member State '. That argument can 
be extended mutatis mutandis where it is 
the Community rule that has been subject 
to amendments. 
24. The Italian Government counters that 
argument by stating that the difference 
between the reasoned opinion and the 
application cannot be justified by referring 
to the amendment to the directive during 
the course of the proceedings, since the 
4 — Judgment in Case C-105/91 Commission v Greece [1992] 
ECR I-5871. 
I - 7784 
COMMISSION V ITALY 
amendment was made more than three 
years before the reasoned opinion was sent. 
Therefore, when drawing up its reasoned 
opinion the Commission could not ignore 
the fact that the original text of Directive 
75/442/EEC had not been in force since 
1 April 1993. 
25. Furthermore, the defendant contends 
that the wording of the reasoned opinion, 
inasmuch as it refers solely to the provi­
sions of the original directive, suggests an 
implicit but clear identification of the time 
at which the alleged infringement occurred 
in that it concerns only alleged offences 
prior to 1 April 1993. 
26. Before commenting on this plea of 
inadmissibility I consider it necessary to 
look again at the sequence of events 
relating to the pre- litigation procedure 
and the manner in which the Commission 
cited the provisions which it alleges have 
been infringed. 
27. The letter of formal notice was sent on 
26 June 1990. 
28. Directive 91/156/EC amending (but not 
replacing) Directive 75/442/EEC was 
adopted on 18 March 1991. The Member 
States had to comply with it not later than 
1 April 1993. 
29. The reasoned opinion was dated 5 July 
1996. In its conclusion it cites the articles 
which are alleged to have been infringed in 
accordance with their old numbering, a 
procedure which is certainly not correct. 
30. Nevertheless, and I consider this to be 
very significant, the introduction to the 
reasoned opinion refers specifically to the 
fact that the directive has been amended. In 
the sixth paragraph of point I (whose 
preceding paragraphs set out the obliga­
tions under the old articles) the reasoned 
opinion states as follows: 
'Directive 75/442/EEC was amended by 
Council Directive 91/156/EC of 18 March 
1991 and the time-limit for its transposi­
tion was set for 1 April 1993. However, the 
provisions of Articles 4, 5, 7 and 10 of 
Directive 75/442/EEC are substantially 
reproduced in Articles 4, 6, 7, 10 and 13 
of Directive 91/156/EC.' 
31. As regards the application, the Com­
mission refers in the conclusion to the 
numbers of the old articles and on each 
occasion adds, in brackets, the number 
which that provision has in the amended 
version of the directive with the clarifica-
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OPINION OF MR MISCHO — CASE C-365/97 
tion 'which substantially reproduces the 
provisions thereof.' 
32. It is evident that, strictly in accordance 
with the law, the Commission should have 
referred to the new numbers of the articles 
both in the conclusion of the reasoned 
opinion and that of the application even if 
that also meant adding the old numbers in 
brackets. 
33. However, is it possible to conclude 
from this that the action is inadmissible ? I 
think not. 
34. An initial argument against a very strict 
approach lies in the fact that we are not 
dealing with two directives, one of which 
has superseded another, but with the same 
directive, certain provisions of which have 
been replaced by provisions that are largely 
identical. 
35. Second, the similarity between the old 
and the new provisions has been estab­
lished with precision in the introduction to 
the reasoned opinion. 
36. Third, it should be noted that the new 
provisions are no less stringent than the 
old. Therefore, the Italian Republic is not 
alleged to have committed acts which 
would have been open to criticism under 
the old version of the directive but not 
under the new version. 
37. Finally, it should be noted that, 
although the case-law of the Court 5 relat­
ing to the requirement that the complaints 
referred to in the reasoned opinion and 
those referred to in the application should 
be the same is strict, it is not excessively 
formalistic. It might rather be described as 
functional. The aim of that case-law is to 
safeguard respect of the right of defence of 
the Member State in question and, in 
particular, to ensure that it has an oppor­
tunity in the pre-litigation procedure to 
submit observations on all the complaints 
which are finally set out in the application. 
38. Without wishing to go as far as extend­
ing by analogy the line of argument regard­
ing amendments to national provisions 
which the Court followed in the case of 
Commission v Greece, cited above, to the 
problem of amendments to Community 
rules during the course of a procedure, as 
the Commission proposes, I nevertheless 
consider that it demonstrates the Court's 
intention not to take an excessively forma­
listic approach to such matters. 
39. Finally, since, in the view of the Com­
mission, Directive 91/156/EC simply 
5 — See, in particular, the judgments in Case 309/84 Commis­
sion v Italy [1986] ECR 599, in Case C-306/91 Commission 
v Italy [1993] ECR I - 2133 and in Case C-296/92 Commis­
sion v Italy [1994] ECR I -1. 
I - 7786 
COMMISSION V ITALY 
strengthened certain provisions of Directive 
75/442/EEC, it goes without saying that the 
obligations imposed on the Member States 
under the original version of the directive 
still apply under the amended version of 
that directive. At no time did the obliga­
tions that Italian Government allegedly 
failed to fulfil cease to be imposed on it. 
40. Consequently, the simultaneous refer­
ence to the old articles and the new articles, 
together with the addition of the words 
'which substantially reproduces the provi­
sions thereof' means that the Commission 
considers that the provisions to which it 
refers are the same in content. 
41. In the alternative, it must be regarded 
as reflecting the Commission's intention to 
restrict each complaint to the corpus com­
munis of the two successive versions of 
each provision. 
42. Therefore, it is sufficient for the Court 
to express the infringement solely in terms 
of its corpus communis when upholding a 
given complaint. 
43. Therefore, I propose that the Italian 
Government's argument that the action 
may not apply to offences alleged to have 
occurred after 1 April 1993, the date on 
which the amendments to the Directive 
entered into force, should be rejected as 
unfounded. 
Third ground of inadmissibility 
44. The Italian Government claims that the 
Commission based its action on the results 
of new inspections which it made after it 
had received the Italian Government's letter 
of 21 April 1997. It claims that in those 
circumstances the Commission should have 
started the pre-litigation procedure again 
instead of bringing the action. 
45. The Commission points out that the 
new inspections do not constitute new 
complaints against the Italian Republic. 
On the contrary, those inspections were 
carried out with the sole aim of determin­
ing whether or not the measures commu­
nicated by the Italian Government in 
response to the reasoned opinion could 
actually restore the environmental situation 
in the San Rocco valley in accordance with 
Community law. However, the Commis­
sion noted that the abovementioned mea­
sures could not change the state of degra­
dation in the valley concerned. 
46. The Italian Government responds by 
saying that the Commission's argument 
that the new inspections do not constitute 
new complaints is not sufficient to dismiss 
the objection of inadmissibility. The 
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OPINION OF MR MISCHO — CASE C-365/97 
requirement that the reasoned opinion and 
the action must be absolutely identical does 
not apply solely to the subject-matter of the 
dispute but also to the grounds and the 
pleas relied on. The Commission itself 
acknowledges in its reply that it based its 
action partly on the Naples municipal 
council resolution of 10 March 1997. 
47. However, I consider that the arguments 
put forward by the defendant in respect of 
that ground are unconvincing. Neither the 
inspections carried out by the Commission 
nor the fact that it refers to the above-
mentioned municipal council resolution 
may be considered as constituting new 
pleas or new grounds. They simply consti­
tute factors which led the Commission to 
conclude that the failure to fulfil obliga­
tions alleged in the reasoned opinion con­
tinued to exist despite the expiry of the 
two-month time limit and notwithstanding 
the promises of action made by the Italian 
authorities in response to the reasoned 
opinion. 
48. Consequently, this ground of inadmis­
sibility must be rejected as unfounded. 
Fourth ground of inadmissibility 
49. In its rejoinder the Italian Government 
claims that the Commission improperly 
incorporated new facts and a new or 
different wording of the complaints into 
its reply: 
— by asserting that persons subject to the 
supervision provided for in Article 10 
of Directive 7/442/EEC were among 
those responsible for the creation of the 
fly tip in the San Rocco valley; 
— by asserting that the waste abandoned 
in the tip had created certain risks and 
caused successive damage to the water, 
soil, air, animals and plants, and the 
countryside; 
— by alleging that the Italian Government 
had failed to fulfil, in respect of the fly 
tip, its obligation to restore the envir­
onment in a manner consistent with 
Community law. 
50. As regards the first indent, I must point 
out that the Commission by no means 
claims that those persons set up the fly tip, 
simply that they used it. In its application 
the Commission alleges that Article 10 of 
the directive has been infringed on the 
ground that 'the waste continues to be 
discharged in the valley in question'. Since 
I - 7788 
COMMISSION V ITALY 
the tip at issue also lies in the San Rocco 
valley that factor must be considered as 
forming an integral part of the alleged 
infringement of Article 10 of Directive 
75/442/EEC. 
51. As regards the second indent, it is 
sufficient to note that in point of fact the 
contested assertion constitutes nothing 
more than a paraphrase of Article 4 of 
Directive 75/442/EEC. Since the infringe­
ment of that provision is also alleged in the 
application, the Commission's assertion 
must be regarded as referring to it. 
52. Finally, as regards the third indent, it 
should be noted that the Commission's 
allegation is not a new complaint which 
was not set out in the application. Subject 
to the analysis of the validity of the 
complaints, it must also be regarded as a 
factor in the alleged failure to fulfil obliga­
tions under Article 4 of Directive 75/442/ 
EEC as construed by the Commission. 
53. On the basis of the foregoing consid­
erations, I therefore propose that the Court 
should find that the action is admissible. 
Substance of the action 
54. Before I can analyse the Commission's 
complaints, I must examine two arguments 
put forward by the Italian Government, 
one of which seeks to contest the validity of 
the action in its entirety and the other the 
legal characterisation of some of the alleged 
offences cited by the Commission. 
May the Commission verify that a directive 
has been applied in specific instances? 
55. First, the Italian Government claims 
that in this case the Commission sought to 
protect the environment directly. However, 
it contends that 'the Commission's task 
pursuant to Article 169 of the Treaty must 
be restricted to monitoring the transposi­
tion into national law of the directive and 
the legislative and administrative provi­
sions which the Member States have 
adopted to that end.' Therefore, the Com­
mission's action has no basis in the Treaty. 
56. Furthermore, the Italian Government 
claims that an action for failure to comply 
with obligations under the Treaty pursuant 
to Article 169 of the Treaty must relate to a 
significant part of the national territory. In 
this case the Commission has targeted a 
small locality which is not an administra­
tive district created by national law for the 
performance of administrative functions· 
I - 7789 
OPINION OF MR MISCHO — CASE C-365/97 
relating to waste and which constitutes a 
tiny proportion of the vast territory of the 
municipality of Naples. 
57. The Commission contests that argu­
ment by maintaining that it is not simply 
required to ensure that directives are trans­
posed into each domestic legal system but 
also to verify that the objectives pursued by 
such objectives are actually and properly 
achieved in the Member States, which are 
consequently under a genuine obligation as 
to the result to be achieved. 
58. As regards the Italian Government's 
argument that the territory covered by the 
San Rocco valley is too small to warrant an 
action against the Italian Republic for 
failure to comply with obligations under 
the Treaty, the Commission first points out 
that Article 169 of the Treaty does not lay 
down a minimum territorial threshold and 
second refers to the judgment in the Case 
C-45/91 Commission v Greece 6 in which 
the Court found that that State had failed 
to fulfil its obligations in respect of the 
disposal of waste in the Chania region of 
the island of Crete and, in particular, in 
respect of the existence of a tip at the 
mouth of a river. 
59. The Commission adds that the fact that 
the area in which the infringement took 
place is not an administrative district is 
irrelevant. A Member State may not plead 
practical arrangements or situations of its 
domestic legal system to justify its failure to 
fulfil obligations laid down by a directive. 
60. What should be made of these oppos­
ing arguments? I cannot conceal the fact 
that I do have a certain amount of under­
standing for the Italian Government's reac­
tion. Moreover, the Commission itself 
acknowledges in its reply that 'it is incon­
ceivable that the Commission has a genuine 
obligation to intervene wherever the objec­
tives laid down by rules on the environment 
are not implemented', but it adds that 'it is 
beyond question that the Commission may 
bring an action for failure to fulfil obliga­
tions wherever it considers that it is in the 
Community's interest to allege that a 
Member State has failed to fulfil its obliga­
tions'. 
61. In my view the Commission should, in 
general, leave it to the competent national 
authorities to ensure that a directive is 
actually implemented throughout a parti­
cular country once it has been properly 
transposed. Where infringements of 
national law stemming from the directive 
are established, the public prosecutor's 
office must take the necessary measures to 
ensure that they are punished by the courts. 
Individuals may lodge complaints or bring 
actions for damages if they consider that 
they have sustained damage as a result of 
the infringement of provisions of national 
law laid down pursuant to the directive. 
Where necessary the Court will interpret 6 — Judgment in Case C-45/91 Commission v Greece [1992] 
ECR 1-2509. 
I - 7790 
COMMISSION V ITALY 
the provisions of the directive at the request 
of the national court. 
62. The fact none the less remains that the 
first indent of Article 155 of the EC Treaty 
assigns the Commission the general task of 
ensuring that the provisions of the Treaty 
and the measures taken by the institutions 
pursuant thereto are applied. Furthermore, 
Article 189 provides that '[a] directive shall 
be binding, as to the result to be achieved, 
upon each Member State'. Therefore, 
where it appears that a directive has been 
transposed solely in terms of legislation and 
that the Member State is not ensuring, with 
the necessary diligence, that it is complied 
with, the Commission cannot be denied the 
right to bring an action for failure to 
comply with obligations under the Treaty. 
63. Such a situation would certainly exist if 
the Commission established a series of 
cases of non-application of a directive 
spread over a certain period. 
64. However, what should its attitude be 
towards an isolated infringement ? It would 
be necessary for it to be an obvious and 
particularly striking case and for the efforts 
made by the Commission to induce the 
Member State to act to have been unsuc­
cessful. There is no doubt that the fly tip in 
Crete which formed the subject-matter of 
the judgment in the Case C-45/91 Com­
mission v Greece, cited above, fell within 
that category. 
65. Similarly, the fact that a competent 
authority granted consent for the construc­
tion of a new block with a heat output of 
500 megawatts at a thermal power station 
without carrying out the preliminary envir­
onmental impact assessment required by a 
directive also justified, in principle, the 
Commission bringing an action for failure 
to fulfil obligations under the Treaty. That 
case prompted the Court to state that 
'Given its role as guardian of the Treaty, 
the Commission alone is ... competent to 
decide whether it is appropriate to bring 
proceedings against a Member State for 
failure to fulfil its obligations and to 
determine the conduct or omission attribu­
table to the Member State concerned on the 
basis of which those proceedings should be 
brought. It may therefore ask the Court to 
find that, in not having achieved, in a 
specific case, the result intended by the 
directive, a Member State has failed to fulfil 
its obligations.' 7 
66. The situation which forms the subject-
matter of this case is described as follows in 
the Italian Government's defence: 'The San 
Rocco valley lies in the hinterland of the 
urban 8 agglomeration of the municipality 
of Naples. That valley is shaped like a 
canyon. It forms a deep incision in the 
ground which follows a winding course and 
is about six kilometres long. The difference 
in level between the bottom of the valley 
and the line of the ridge varies from 20 to 
30 metres. A watercourse flows along the 
bottom of the valley and is fed not by 
springs but solely by rainwater 9 which 
7 — Judgment in Case C-431/92 Commission v Germany [1995] 
ECR 1-2189, at paragraph 22. Emphasis added. 
8 — Emphasis added. 
9 — Emphasis added. 
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OPINION OF MR MISCHO — CASE C-365/97 
flows in from a catchment area of approxi­
mately 10 km2. At the end of the valley the 
watercourse does not run into another 
watercourse but descends entirely into the 
mouth of the sewage system of the munici­
pality of Naples.' 
67. The presence within a large agglomera­
tion of a fly tip and a river made up 
essentially of water from the pipes of 
hospitals and private dwellings constitutes 
a situation to which the Commission quite 
understandably felt bound to respond. 
68. It is still necessary that the alleged 
offences fall within the scope of the direc­
tive which has been invoked. The Italian 
Government maintains that this is only 
partly the case. 
Do all the alleged offences fall under the 
directive ? 
69. The Italian Republic and the Commis­
sion disagree as to whether further waste 
within the meaning of the Directive was 
discharged into the valley in addition to the 
objects discharged in the fly tip whose 
existence is not contested. 
70. The Commission refers to the fact that 
the Italian authorities acknowledged that 
the biological and chemical materials from 
polyclinic No 2 had been discharged there 
at the time the reasoned opinion was sent. 
71. The Italian Government confirms that 
the Commission's allegations are based 
solely on information provided by the 
Italian Government itself in the letter that 
it sent to the Commission on 28 January 
1992. That information was taken from a 
report drawn up by the 'Nucleo Operativo 
Ecologico dei Carabinieri' (the Carabinieri 
Ecological Operations Group, hereinafter 
'the NOE'). 10 However, that report did not 
identify any pollution from waste other 
than from fly tipping. On the other hand, it 
did reveal that 'discharges from hospitals, a 
clinic and other installations flow together 
towards the watercourse in the valley'. 
Therefore, there is no discharge of solid 
or liquid substances that constitute waste 
since the use of the term 'flow together' 
clearly indicates that the discharges are of 
waste water which are excluded from the 
scope of the directive. The Italian Govern­
ment adds that the serious environmental 
problems which have affected the San 
Rocco valley, some of which continue to 
do so, are caused not only by discharges of 
water but also by phenomena relating to 
the degradation of groundwater which are 
also excluded from the scope of the direc­
tive. Furthermore, the claim that the 
Naples municipal council resolution of 
10 March 1997 demonstrates that the 
measures announced by the Ministry of 
the Environment were insufficient is also 
incorrect since that resolution simply con­
10 — This is a special body responsible for investigating and 
identifying infringements or environmental law. 
I - 7792 
COMMISSION V ITALY 
firms the NOE report without adding any­
thing to it. 
72. In the view of the Italian Government 
the only factor establishing a link between 
the environmental situation in the San 
Rocco valley and the application on the 
ground of the directive lies in the fact that a 
fly tip was set up in the area of the valley. 
However, with regard to the fly tip, the 
offence is attributable to individuals who 
have acted contrary to the national provi­
sions implementing the directive. Those 
provisions were applied specifically as a 
result of the sequestration measures refer­
red to above. The defendant claims that the 
sequestration 'prevents the addition of any 
new waste to the tip and the removal or 
treatment of any waste already taken to 
that tip.' 
73. It should be noted that the Commission 
merely points out that 'the biological and 
chemical materials polluting the valley may 
definitely not be equated with waste water' 
but adduces no evidence enabling doubt to 
be cast on the Italian Government's con­
tention that there is no waste in liquid form 
but simply discharges of waste water, 
which are excluded from the scope of the 
directive. 
74. What does the relevant legislation tell 
us in that respect ? 
75. Amended Article 2 of Directive 75/442/ 
EEC, which is identical to Article 2 of the 
original version in that respect, provides 
that 'waste waters, with the exception of 
waste in liquid form' must be excluded 
from the scope of the directive. 
76. Article 2 of Council Directive of 
21 May 1991 concerning urban waste­
water treatment (91/271/EEC) 1 1 provides 
that for the purpose of that directive: 
' 1 . "urban waste water" means domestic 
waste water or the mixture of domestic 
waste water with industrial waste 
water12 and/or run-off rain water; 
2. "domestic waste water" means waste 
water from residential settlements and 
services which originates predomi­
nantly from the human metabolism 
and from household activities; 
3. '"industrial waste water" means any 
waste water which is discharged from 
premises used for carrying on any trade 
11 —OJ 1991 L 135, p. 40. 
12 — Emphasis added. 
I - 7793 
OPINION OF MR MISCHO — CASE C-365/97 
or industry, other than domestic waste 
water and run-off rain water'. 
77. Article 3 of that directive states as 
follows: 
' 1 . Member States shall ensure that all 
agglomerations are provided with collect­
ing systems for urban waste water, 
— at the latest by 31 December 2000 for 
those with a population equivalent 
(p.e.) of more than 15 000, 
and 
— at the latest by 31 December 2005 for 
those with a p.e. of between 2 000 and 
15 000. 
For urban waste water discharging into 
receiving waters which are considered 
"sensitive areas" as defined under Arti­
cle 5, Member States shall ensure that 
collection systems are provided at the latest 
by 31 December 1998 for agglomerations 
of more than 10 000 p.e.'. 
78. It follows from that provision that even 
in respect of mixtures of 'domestic waste 
water with industrial waste water' the 
Member States are not required to set up 
collection systems until 31 December 1998, 
that is to say after the transmission of the 
reasoned opinion. That is probably the 
reason why the Commission did not rely on 
that directive. 
79. It is true that, according to the case-law 
of the Court,13 where the Commission has 
produced sufficient evidence to show the 
failure to fulfil obligations, the Member 
State in question is not entitled merely to 
deny its existence but must contest sub­
stantively and in detail the information 
produced and the consequences thereof, 
failing which the allegations made by the 
Commission must be held to be established. 
80. However, those conditions are not 
satisfied in this case since the Commission 
has not produced sufficient evidence to 
show that the polyclinic discharged 'waste 
13 — Judgment in Case 272/86 Commission v Greece [1988] 
ECR 4875. 
I - 7794 
COMMISSION V ITALY 
in liquid form' and not simply 'urban waste 
water'. 
81. Quite the opposite, since the Commis­
sion implicitly acknowledged that waste 
water was involved by conceding at 
point 11 of its application that 'the water 
discharged by polyclinic No 2 will hence­
forth be consigned to the municipality's 
sewage system once and for all'. 
82. Admittedly, it would be tempting to 
invoke 'the great danger posed to the 
communities along the river', to which the 
letter from the Ministry of the Environment 
of 28 January 1992 refers, in order to infer 
that more than mere discharges of waste 
water were involved. However, there is no 
doubt that, even if it collects only domestic 
waste water, the San Rocco valley conse­
quently constitutes a type of open sewer 
that necessarily poses a danger to the 
population. Moreover, I do not consider 
that the discharges may be reclassified 
according to their degree of noxiousness. 
The classification of waste water, or indeed 
waste, turns entirely on the nature of the 
discharges in question. 
83. In that respect it would have been right 
to expect the Commission to submit to the 
Court documents containing a precise and 
incontestable description of the chemical 
substances contained in the discharges in 
question. I am well aware that a problem 
arises between the task of supervision 
which Article 155 assigns to the Commis­
sion and the limited means at its disposal to 
accomplish that task. However, such lack 
of means cannot be relied on in order to 
exempt the Commission from the burden of 
proof incumbent on it in an action against a 
Member State for failure to fulfil obliga­
tions under the Treaty. 
84. Therefore, it will not be possible to 
take into consideration the environmental 
situation created by the 'discharges of 
biological and chemical materials' from 
the polyclinic as it has not been established 
that those discharges fall within the scope 
of Directive 75/442/EEC. It will be possible 
to take into consideration only the situation 
resulting from the existence of the fly tip. 
Complaint alleging failure to fulfil obliga­
tions imposed by Article 4 of Directive 
75/442/EEC 
85. The Commission requests that the 
Court declare that the Italian Republic 
has infringed Article 4 of Directive 
75/442/EEC (or Article 4 of Directive 
75/442/EEC, as amended by Directive 
91/156/EC, which substantially reproduces 
the provisions thereof) in that that Member 
State has failed to adopt the necessary 
measures to ensure that waste was disposed 
of without endangering human health and 
harming the environment, in particular 
without risk to water, air, soil and plants 
I - 7795 
OPINION OF MR MISCHO — CASE C-365/97 
and animals, without causing a nuisance 
through noise or odours and without 
adversely affecting the countryside or 
places of special interest. 
86. Subject to what I shall say below 
regarding the final paragraph of the new 
version of Article 4, the two versions may 
essentially be regarded as identical. 
87. The Commission subsequently claimed 
that the Italian Republic failed to fulfil the 
obligation as to the result to be achieved, 
imposed on it by that article. 
88. The Italian Government responds by 
saying that that argument is both inadmis­
sible, on the ground that it was not put 
forward in the application, and disproved 
by the judgment in Comitato di Coordina­
mento per la Difesa della Cava and Others 
v Regione Lombardia and Others. 14 In that 
judgment the Court makes a distinction 
between the objectives laid down by Arti­
cle 4 of the directive as a programme to be 
followed, with which the Member States 
must comply, and the obligations which the 
Member States must fulfil. In principle, the 
fact that a factual situation is inconsistent 
with the objectives laid down by Article 4 
does not automatically provide grounds for 
inferring that the obligations imposed by 
that article have not been fulfilled. 
89. In my view the Italian Government is 
wrong in claiming that a new complaint 
has been made in this case. Since the pre-
litigation procedure, all the Commission's 
action have been based on the contention 
that the Italian Republic has failed to fulfil 
the obligations which the directive lays 
down as to the result to be achieved. 
90. On the other hand, in my view the 
argument that the Italian Government 
derives from the judgment in the case of 
Comitato di Coordinamento per la Difesa 
della Cava and Others v Regione Lombar­
dia and Others is convincing. Even if it 
might have been thought, from reading 
Article 4 in isolation, that it imposes on 
Member States an independent obligation 
as to the result to be achieved, no such 
obligation exists. At paragraph 12 of that 
judgment the Court states that: 
'Considered in its context, Article 4 of the 
directive, which essentially repeats the 
terms of the third recital in the preamble, 
indicates a programme to be followed and 
sets out the objectives which the Member 
States must observe in their performance of 
the more specific obligations imposed on 
them by Articles 5 to 11 of the directive 
14 — Judgment in Case C-236/92 Comitato di Coordinamento 
perla Difesa della Cava and Others v Regione Lombardia 
and Others [1994] I-483. 
I - 7796 
COMMISSION V ITALY 
concerning planning, supervision and mon­
itoring of waste-disposal operations.' 
91. Paragraph 14 of the judgment adds: 
'Thus, the provision at issue must be 
regarded as defining the framework for 
the action to be taken by the Member 
States regarding the treatment of waste and 
not as requiring, in itself, the adoption of 
specific measures ...'. 
92. The conclusion to be drawn from those 
two passages is clear: Article 4 may not, in 
itself, constitute the basis for an infringe­
ment of the directive. For that to be the case 
an infringement of another, more specific, 
provision of the directive must be estab­
lished at the same time. 
93. It is true that in the abovementioned 
case the Commission interpreted Article 4 
in its original version and that that version 
was supplemented by the following phrase 
in 1991: 
'Member States shall also take the neces­
sary measures to prohibit, the abandon­
ment, dumping or uncontrolled disposal of 
waste.' 
That constitutes an obligation that goes 
beyond the definition of an objective. 
94. However, the Commission has not 
specifically alleged that the Italian Republic 
had failed to enact such a prohibition. 
Moreover, the fact that the municipality of 
Naples was able to sequestrate the fly tip 
proves that it is able to rely on a legal basis 
that prohibits the uncontrolled abandon­
ment of waste. 
Complaint alleging failure to fulfil obliga­
tions imposed by Article 5 (or Article 6 
under the new version) of Directive 75/442/ 
EEC 
95. Article 5 of the Directive provides: 
'Member States shall establish or designate 
the competent authority or authorities to be 
responsible, in a given zone, for the plan­
ning, organisation, authorisation and 
supervision of waste disposal operations.' 
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OPINION OF MR MISCHO — CASE C-3 65/97 
96. The new Article 6, which corresponds 
to Article 5, reads as follows: 
'Member States shall establish or designate 
the competent authority or authorities to be 
responsible for the implementation of this 
directive.' 
97. In its application the Commission 
requests the Court to find that the Italian 
Republic has failed to fulfil its obligations 
in that, in respect of the San Rocco valley, 
'the competent authorities designated pur­
suant to Article 5 of Directive 75/442/EEC 
(or Article 6 of Directive 75/442/EEC, as 
amended by Directive 91/156/EC which 
substantially reproduces the provisions 
thereof) failed to discharge their obligations 
concerning the organisation, authorisation 
and supervision of waste disposal opera­
tions in the area in question in breach of 
Article 5 of Directive 75/442/EEC (Arti­
cle 6 of Directive 75/442/EEC, as amended 
by Directive 91/156/EC).' 
98. Moreover, the Commission states that 
it regards as positive the programming 
which has been carried out as part of the 
more general management plan communi­
cated by the Italian authorities on 2 Janu­
ary 1997 and that it therefore considers 
that the breach of the programming obliga­
tions, of which it complained in its rea­
soned opinion of 5 July 1996, has been 
terminated. 
99. A comparison of Articles 5 and 6 cited 
above reveals that the only feature they 
have in common is that they require the 
Member States to establish or designate a 
'competent authority'. For the reasons set 
out in respect of the admissibility of this 
action, that obligation is the only one the 
Italian Republic can be alleged not to have 
fulfilled. It is clear from the way in which 
the Commission has worded its application 
that it acknowledges that the Italian 
Republic has fulfilled that obligation. 
Therefore, I consider that this complaint 
automatically fails. 
100. However, on the basis of the wording 
of the old Article 5 the Commission argues 
that the 'competent authorities' failed to 
fulfil their obligations as to the result to be 
achieved in respect of the organisation, 
authorisation and supervision of waste 
disposal operations which, it claims, are 
also laid down in Articles 5 and 6. Despite 
my belief that, in doing so, the Commission 
is mistaken, I will briefly examine the 
merits of its assertions in that respect. 
101. The Commission points out that the 
fly tip continued to take waste in spite of 
sequestration measures taken in 1990, since 
is clear from the Italian Government's 
response to the reasoned opinion that the 
said tip was the subject of a fresh seques­
tration measure in September 1996. That 
clearly demonstrates the ineffectiveness of 
I - 7798 
COMMISSION V ITALY 
the measures taken. Furthermore, those 
sequestration measures were insufficient 
since, on account of the obligation imposed 
by the directive as to the result to be 
achieved, the Italian Republic was required 
not only to punish abuses but also to 
restore a healthy environment in accor­
dance with Community law. 
102. For its part, the Italian Government 
argues that that complaint is unfounded for 
the following reasons. First, the provisions 
invoked lay down only an obligation to 
designate authorities to be responsible for 
administrative tasks concerning the man­
agement of waste. The Italian Republic 
fulfilled that obligation by transposing the 
directive. Second, the question whether the 
alleged obligation has been fulfilled cannot 
be determined by one specific case. Third, 
to demonstrate that there has been a failure 
to fulfil obligations, the Commission relies 
on circumstances that have not been sub­
stantiated by evidence. 
103. Since I came to the conclusion earlier 
that the discharges of biological and che­
mical materials do not fall within the scope 
of Directive 75/442/EEC, the complaint 
concerning Articles 5 and 6 comes down, in 
my view, to the question whether the 
existence of the fly tip is, in itself, such as 
to prove that the authorities referred to 
have failed to fulfil their obligations con­
cerning the organisation, authorisation and 
supervision of waste disposal operations. 
That is not, in my opinion, the case. 
104. The Commission has neither proved, 
nor even alleged, that no public refuse and 
waste collection service exists in Naples. 
Nor has it alleged that the creation of fly 
tips is not prohibited in that city. On the 
contrary, the fact that the tip was seque­
strated and that criminal proceedings were 
instituted against the person responsible 
demonstrates that the necessary legal bases 
do exist. 
105. As regards any infringement of the 
competent authority's obligations concern­
ing 'authorisation', that cannot be relevant 
since no authorisation was granted. 
106. Finally, the obligation concerning 
'supervision' can, in my view, apply only 
to lawful waste disposal operations. The 
activities of a fly tip cannot, by definition, 
be subject to 'supervision' by the authority 
established pursuant to (old) Article 5 or 
(new) Article 6 of the directive. 
107. Therefore, the problem comes down 
to the question whether the competent 
authority has displayed the necessary dili­
gence and effectiveness to put an end to the 
tipping of waste in the valley. However, 
that question is covered by the complaint 
based on (old) Article 7 and (new) Article 8 
I - 7799 
OPINION OF MR MISCHO — CASE C-365/97 
of the directive which will be examined 
below. 
108. I therefore conclude that the above 
complaint is unfounded even if it is 
accepted that (old) Article 5 and (new) 
Article 6 lay down obligations that go 
beyond the designation of a 'competent 
authority'. 
Complaint alleging failure to fulfil obliga­
tions imposed by (old) Article 10 or (new) 
Article 13 of Directive 75/442/EEC 
109. The Commission considers that: 
'the competent authorities have not ful­
filled their obligation of supervising under­
takings transporting, collecting, storing, 
tipping or treating their own waste and 
those which collect or transport waste on 
behalf of third parties, in breach of Arti­
cle 10 of Directive 75/442/EEC (or Arti­
cle 13 of Directive 75/442/EEC, as amen­
ded by Directive 91/156/EC which substan­
tially reproduces the provisions thereof)'. 
110. The wording of that complaint repro­
duces the text of old Article 10. New 
Article 13 provides that '[E]stablishments 
or undertakings which carry out the opera­
tions referred to in Articles 9 to 12 shall be 
subject to appropriate periodic inspections 
by the competent authorities'. 
111. From a reading of (new) Articles 9 to 
12 there would appear to be no substantive 
difference between Article 10 and Arti­
cle 13. 
112. The Italian Government takes the 
view that that complaint is without sub­
stance, in particular because Article 10 
provides for supervision in respect of 
persons entitled to carry out the various 
stages of waste management. The Commis­
sion has adduced no evidence to show that 
the fly tip was related to persons subject to 
such supervision. 
113. In its reply the Commission acknowl­
edges that it is not 'able to demonstrate 
specifically that the individuals who used 
the fly tip had to be subject to the super­
vision provided for in that rule However, it 
is difficult to imagine that the waste does 
not come, at least in part, from those 
individuals.' 
114. In that connection I consider it suffi­
cient to draw attention to the terms of 
settled case-law 15 concerning the burden of 
15 — See, in particular, the judgment in Case 96/81 Commission 
v Netherlands [1982] ECR 1791. 
I - 7800 
COMMISSION V ITALY 
proof in proceedings for failure to fulfil 
obligations, according to which it is 'the 
Commission's responsibility to place before 
the Court the information needed to enable 
the Court to establish that the obligation 
has not been fulfilled, and in so doing the 
Commission may not rely on any presump­
tion'. 
115. In the absence of any information 
proving that the waste discharged in the fly 
tip came from undertakings subject to the 
supervision provided for in Article 10, I 
must therefore conclude that that com­
plaint is unfounded. 
Complaint alleging failure to fulfil obliga­
tions imposed by (old) Article 7 or the first 
indent of (new) Article 8 of Directive 
75/442/EEC 
116. The Commission claims that the Ita­
lian Republic 'has not taken the necessary 
measures to ensure, with regard to a pit in 
the tufa located in the San Rocco riverbed 
area, used for fly tipping in the past, that 
the concessionaire responsible for that pit 
has the waste handled by a private or 
public waste collector or by a disposal 
undertaking, in breach of the first indent of 
Article 7 of Directive 75/442/EEC (or the 
first indent of Article 8 of Directive 75/442/ 
EEC, as amended by Directive 91/156/EC 
which substantially reproduces the provi­
sions thereof)'. 
117. That complaint reproduces the terms 
of Article 7. New Article 8 uses the phrase 
'undertaking which carries out the opera­
tions listed in Annex II A or B' rather than 
'disposal undertaking'. Therefore, it may 
be said that the terms of the two provisions 
are essentially the same. 
118. The Commission states that the Ita­
lian authorities appear to have failed to 
adopt the necessary measures to compel the 
operator of the fly tip to have the waste 
handled by a private or public waste 
collector or by a disposal undertaking. 
Consequently, the Italian Republic has 
failed to fulfil its obligations under the first 
indent of Article 7 of Directive 75/442/ 
EEC. 
119. The Italian Government argues that 
that complaint is unfounded. In its view, 
the fact that the pit was used for fly tipping 
does not demonstrate that the Italian 
Republic has infringed the provision in 
question, merely that the relevant Italian 
rules have been infringed. The Italian 
authorities took the necessary measures to 
put an end to the abuse by sequestrating the 
tip. 
120. However, in my view there can be 
little doubt that by receiving waste there 
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OPINION OF MR MISCHO — CASE C-365/97 
the operator of a fly tip becomes the holder 
of that waste. Therefore, Article 7 imposed 
on the Italian Republic a specific obliga­
tion, that is to say to take, in respect of that 
operation, since it was aware of the exis­
tence of the tip and the requirements of 
criminal procedure enabled it so to act, the 
measures necessary to ensure that the waste 
discharged at the tip was handled by a 
private or public waste collector or by a 
disposal undertaking if that operator was 
unable to dispose of or recover such waste 
itself. 
121. Since it confined itself to ordering the 
sequestration of the fly tip and instituting 
criminal proceedings against the operator 
of that tip, the Italian Republic failed to 
fulfil the specific obligation imposed on it 
by the (old) Article 7 or (new) Article 8 of 
Directive 75/442/EEC. 
Costs 
122. Even though I conclude that only one 
of the Commission's pleas can be upheld, I 
propose that the defendant should be 
ordered to pay the entire costs. It is clear 
from the documents before the Court that 
the procedure initiated by the Commission 
played a major part in the adoption by the 
Italian Republic of a series of measures 
aimed at remedying a situation that was 
eminently criticisable from the point of 
view of protecting the environment. 
Conclusion 
Concluding, I propose that the Court should: 
— declare that the Italian Republic failed to fulfil its obligations under Article 7 
of the original version or Article 8 of the amended version of Council 
Directive of 15 July 1975 on waste (75/442/EEC) in that it failed to take the 
I - 7802 
COMMISSION V ITALY 
necessary measures to ensure that the waste discharged at the tip was handled 
by a private or public waste collector or by a waste disposal undertaking; 
— dismiss the remainder of the action; 
— order the Italian Republic to pay the costs. 
I - 7803