Opinion of the Advocate General — ECLI:EU:C:1999:455
Date: 1999-09-28
Language of the case: Greek
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: Greece

Summary of the Judgment 
1. Actions for failure to fulfil obligations — Judgment of the Court establishing such 
failure — Breach of the obligation to comply with the judgment — Action brought 
under Article 171(2) of the Treaty (now Article 228(2) EC)— Admissibility — 
Conditions 
(EC Treaty, Art. 171(2) (now Art. 228(2) EC)) 
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SUMMARY — CASE C-387/97 
2. Environment — Disposal of waste — Directives 75/442 and 78/319 — Articles 4 and 
5 respectively — Obligation on the Member States to ensure the disposal of waste and 
to take appropriate measures in respect of toxic and dangerous waste — Scope — 
Assessment of the need for measures — Discretion — Limits 
(Council Directives 75/442, Art. 4, and 78/319, Art. 5) 
3. Environment — Disposal of waste — Directives 75/442 and 78/319 — Articles 4 and 
5 respectively — Obligation on the Member States to ensure the disposal of waste and 
to take appropriate measures in respect of toxic and dangerous waste — Identical effect 
in Directives 75/442 as amended and 91/689 
(Council Directives 75/442, Art. A, 78/319, Art. 5, and 91/689) 
4. Member States — Obligations — Failure to fulfil obligations — Justification — Nor 
permissible 
(EC Treaty, Art. 169 (now Art. 226 EC)) 
"5. Acts of the institutions — Directives — Implementation by the Member States — 
Directive requiring a plan to be drawn up for the attainment of certain objectives — 
Implementation of incomplete practical measures or fragmentary legislation — 
Obligation not discharged— Plans prescribed by Directives 75/442 and 78/319 on 
waste 
(EC Treaty, Art. 189, third para, (now Art. 249, third para., EC); Council Directives 
75/442, Art. 6, and 78/319, Art. 12) 
6. Actions for failure to fulfil obligations — Judgment of the Court establishing such 
failure — Period allowed for compliance 
(EC Treaty, Art. 171 (now Art. 228 EC)) 
7. Actions for failure to fulfil obligations — Judgment of the Court establishing such 
failure — Effects — Obligations of the defaulting Member State — Compliance with 
the judgment — Failure to comply — Financial penalties — Method of calculation — 
Power for the Commission to adopt guidelines — Suggestions submitted to the 
Court — Effect 
(EC Treaty, Art. 171 (2), first and second subparas (now Art. 228(2), first and second 
subparas, EC)) 
8. Actions for failure to fulfil obligations — Judgment of the Court establishing such 
failure — Breach of the obligation to comply with the judgment — Financial 
penalties — Periodic penalty payment — Determination of the amount — Criteria 
(EC Treaty, Art. 171(2), third subpara, (now Art. 228(2), third subpara., EC)) 
1. Infringement proceedings brought by 
the Commission under Article 171(2) 
of the Treaty (now Article 228(2) EC) 
for a declaration that a Member State 
has failed to fulfil its obligations by not 
taking the necessary measures to com­
ply with a judgment of the Court 
establishing a breach of obligations on 
its part and for an order requiring it to 
pay a periodic penalty payment are 
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admissible where all the stages of the 
pre-litigation procedure, including the 
letter of formal notice, have occurred 
after the Treaty on European Union 
entered into force. 
(see para.. 42) 
2. Whilst Article 4 of Directive 75/442 on 
waste did not specify the actual content 
of the measures to be taken by the 
Member States in order to ensure that 
waste is disposed of without endanger­
ing human health and without harming 
the environment, it was none the less 
binding on the Member States as to the 
objective to be achieved, while leaving 
to them a margin of discretion in 
assessing the need for such measures. 
A significant deterioration in the envi­
ronment over a protracted period when 
no action has been taken by the 
competent authorities is in principle 
an indication that the Member State 
concerned has exceeded the discretion 
conferred on it by that provision. The 
same analysis can be made as regards 
Article 5 of Directive 78/319 on toxic 
and dangerous waste. 
(see paras 55-57) 
3. The obligations flowing from Article 4 
of Directive 75/442 on waste and 
Article 5 of Directive 78/319 on toxic 
and dangerous waste were independent 
of the more specific obligations con­
tained in Articles 5 to 11 of Directive 
75/442 concerning the planning, orga­
nisation and supervision of waste dis­
posal operations and Article 12 of 
Directive 78/319 concerning the dispo­
sal of toxic and dangerous waste. The 
same is true of the corresponding 
obligations under Directive 75/442 as 
amended and Directive 91/689 on 
hazardous waste. 
(see paras 48-49, 58) 
4. A Member State may not plead internal 
circumstances, such as difficulties of 
implementation which emerge at the 
stage when a Community measure is 
put into effect, to justify a failure to 
comply with obligations and time-lim­
its laid down by Community law. 
(see para. 70) 
5. Incomplete practical measures or frag­
mentary legislation cannot discharge 
the obligation of Member States to 
draw up a comprehensive programme 
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SUMMARY — CASE C-387/97 
with a view to attaining certain objec­
tives. 
Legislation or specific measures 
amounting only to a series of ad hoc 
normative interventions that are incap­
able of constituting an organised and 
coordinated system for the disposal of 
waste and toxic and dangerous waste 
cannot be regarded as plans which the 
Member States are required to adopt 
under Article 6 of Directive 75/442 on 
waste and Article 12 of Directive 
78/319 on toxic and dangerous waste. 
(see paras 75-76) 
6. While Article 171 of the Treaty (now 
Article 228 EC) does not specify the 
period within which a judgment estab­
lishing that a Member State has failed 
to fulfil its obligations must be com­
plied with, the importance of immedi­
ate and uniform application of Com­
munity law means that the process of 
compliance must be initiated at once 
and completed as soon as possible. 
(see para. 82) 
7. Article 171(1) of the Treaty (now Arti­
cle 228(1) EC) provides that, if the 
Court finds that a Member State has 
failed to fulfil an obligation under the 
Treaty, that State is required to take the 
necessary measures to comply with the 
Court's judgment. If the Member State 
concerned does not take those mea­
sures within the time-limit laid down 
by the Commission in the reasoned 
opinion adopted pursuant to the first 
subparagraph of Article 171(2) of the 
Treaty, the Commission may bring the 
case before the Court. As provided in 
the second subparagraph of Arti­
cle 171(2), the Commission is to spe­
cify the amount of the lump sum or 
penalty payment to be paid by the 
Member State concerned which it con­
siders appropriate in the circumstances. 
In the absence of provisions in the 
Treaty, the Commission may adopt 
guidelines for determining how the 
lump sums or penalty payments which 
it intends to propose to the Court are 
calculated, so as, in particular, to 
ensure equal treatment between the 
Member States. While these sugges­
tions of the Commission cannot bind 
the Court, they are however a useful 
point of reference. 
(see paras 81, 83-84, 89) 
8. It is stated in the third subparagraph of 
Article 171(2) of the Treaty (now the 
third subparagraph of Article 228(2) 
EC) that the Court, if it finds that the 
Member State concerned has not com­
plied with its judgment, may impose a 
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lump sum or a penalty payment on it. 
First, since the principal aim of penalty 
payments is that the Member State 
should remedy the breach of obliga­
tions as soon as possible, a penalty 
payment must be set that will be 
appropriate to the circumstances and 
proportionate both to the breach which 
has been found and to the ability to pay 
of the Member State concerned. Sec­
ond, the degree of urgency that the 
Member State concerned should fulfil 
its obligations may vary in accordance 
with the breach. To that end, the basic 
criteria which must be taken into 
account in order to ensure that penalty 
payments have coercive force and 
Community law is applied uniformly 
and effectively are, in principle, the 
duration of the infringement, its degree 
of seriousness and the ability of the 
Member State to pay. In applying those 
criteria, regard should be had in parti­
cular to the effects of failure to comply 
on private and public interests and to 
the urgency of getting the Member 
State concerned to fulfil its obligations. 
(see paras 89-92) 
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