Opinion of the Advocate General — ECLI:EU:C:2002:109
Date: 2002-02-21
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;Waste;Pollution
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: Spain

Summary of the Judgment 
1. Actions for failure to fulfil obligations — Subject-matter of the dispute — Delimited 
in the course of the pre-litigation procedure — Amendment of a complaint to take 
account of additional information — Whether permissible 
(Art. 226 EC) 
I - 6407 
SUMMARY — CASE C-139/00 
2. Environment — Air pollution — Municipal waste incineration plants — Directive 
89/369 — Implementation by the Member States — Obligation as to the result to be 
achieved 
(Council Directive 89/369) 
3. Actions for failure to fulfil obligations — Sufficient evidence — Burden of proof on 
the Commission — Whether a presumption may be relied on — Not permissible 
(Art. 226 EC) 
1. While it is true that the subject-matter 
of proceedings brought under 
Article 226 EC is circumscribed by 
the pre-litigation procedure provided 
for by that provision and that, con­
sequently, the Commission's reasoned 
opinion and the application must be 
based on the same complaints, that 
requirement cannot be stretched so far 
as to mean that in every case the 
statement of the complaints set out in 
the letter of formal notice, the wording 
of the reasoned opinion and the sub­
ject-matter of the proceedings must be 
exactly the same, if the subject-matter 
of the proceedings has not been 
extended or altered but has simply 
been limited. 
In the present case, the rewording in 
the application of the complaint, 
whereby the Commission merely 
intended to take account of additional 
evidence produced after notification of 
the reasoned opinion, did not extend, 
alter or even limit the subject-matter of 
the proceedings as defined in the rea­
soned opinion. 
(see paras 18-21) 
2. Directive 89/369 on the prevention of 
air pollution from new municipal 
waste incineration plants imposes on 
the Member States obligations, formu­
lated in clear and unequivocal terms, in 
order to achieve a certain result, that 
their incineration plants meet detailed 
and precise requirements within the 
stated time-limits. Accordingly, a 
Member State will comply with its 
obligations under Directive 89/369 
and thus achieve the result prescribed 
therein only if, in addition to the 
correct implementation of the provi­
sions of that directive into domestic 
law, the incineration plants located in 
its territory have in actual fact been 
commissioned and operate in accord­
ance with the requirements of the 
provisions of Directive 89/369. It fol­
lows that the correct transposition in 
domestic law of the provisions of 
Directive 89/369 is not sufficient to 
comply with the obligations imposed 
by that directive. 
(see para. 27) 
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COMMISSION v SPAIN 
3. In proceedings under Article 226 EC 
for failure to fulfil obligations it is 
incumbent upon the Commission to 
prove the allegation that the obligation 
has not been fulfilled. It is the Com­
mission'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 presumption. 
(see para. 45) 
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