61997CC0347_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I - Introduction
1 By the application it has made in the present case under Article 169 of the EC Treaty, the Commission seeks a declaration by the Court that, by failing to adopt and/or communicate to the Commission all the measures necessary to comply with Article 6 of Council Directive 91/157/EEC of 18 March 1991 on batteries and accumulators containing certain dangerous substances (hereinafter `the Directive'), (1) the Kingdom of Belgium has failed to fulfil its obligations under that directive.
II - Legal background
2 Article 1 of the Directive provides as follows:
`The aim of this Directive is to approximate the laws of the Member States on the recovery and controlled disposal of those spent batteries and accumulators containing dangerous substances in accordance with Annex I'.
3 Article 6 of the Directive provides:
`Member States shall draw up programmes in order to achieve the following objectives:
- reduction of the heavy-metal content of batteries and accumulators,
- promotion of marketing of batteries and accumulators containing smaller quantities of dangerous substances and/or less polluting substances,
- gradual reduction, in household waste, of spent batteries and accumulators covered by Annex I,
- promotion of research aimed at reducing the dangerous-substance content and favouring the use of less polluting substitute substances in batteries and accumulators, and research into methods of recycling,
- separate disposal of spent batteries and accumulators covered by Annex I.
The first programmes shall cover a four-year period starting on 18 March 1993.
They shall be communicated to the Commission by 17 September 1992 at the latest.
The programmes shall be reviewed and updated regularly, at least every four years, in the light in particular of technical progress and of the economic and environmental situation.
Amended programmes shall be communicated to the Commission in good time.'
4 Article 7 of the Directive is worded as follows:
`1. Member States shall ensure the efficient organisation of separate collection and, where appropriate, the setting up of a deposit system. Furthermore, Member States may introduce measures such as economic instruments in order to encourage recycling. These measures must be introduced after consultation with the parties concerned, be based on valid ecological and economic criteria and avoid distortions of competition.
2. When notifying the programmes to which Article 6 refers, Member States shall inform the Commission of the measures they have taken pursuant to paragraph 1.'
III - Facts
5 Pursuant to the abovementioned provisions, the Member States are required to draw up and communicate the programmes set out in Article 6 and the measures referred to in Article 7 of the Directive.
On 11 May 1994, the Kingdom of Belgium notified the Commission of only certain measures adopted by the Flemish Region, the Region of the Capital City of Brussels and the Walloon Region with a view to complying with the Directive.
The Commission took the view that those measures contained lacunae and shortcomings.
It found, in particular, that it had not received notification, first, of any programmes fulfilling the conditions laid down in Article 6 of the Directive and, secondly, of any measures to implement the requirements laid down by Article 7(1) of the Directive.
On the basis of the information available to it, the Commission found that the Kingdom of Belgium had probably failed to fulfil its obligations under Articles 6 and 7(2) of the Directive.
6 That is why, on 3 July 1995, in accordance with the procedure laid down in Article 169 of the Treaty, it placed the Belgian Government on notice to submit its observations on the question of the aforementioned infringement within a period of two months.
7 Since the Kingdom of Belgium did not reply, the Commission, on 27 December 1996, sent it a reasoned opinion in which it complained that Belgium
had failed to fulfil its obligations under Article 6 and 7(2) of the Directive by failing to inform it fully of the programme referred to in Article 6 of the Directive and by failing to inform it at all of the measures which it had to adopt in accordance with Article 7 of the Directive.
At the same time it called upon the Kingdom of Belgium to comply with the reasoned opinion within a period of two months from its notification.
8 On 24 February 1997, the Belgian Government forwarded to the Commission the reply of the Region of the Capital City of Brussels which stated that the implementation of the objectives referred to in the third and fifth indents of the first paragraph of Article 6 of the Directive is a matter for that region.
That reply goes on to give the results achieved by the measures adopted with regard to separate collection and recycling of spent batteries; the Belgian Government further informed the Commission of the drawing up of a draft agreement between the three regions and Bebat ASBL, which introduced a system of collection and recycling of spent batteries.
Finally, the Region of the Capital City of Brussels provided some information on the content of a planned project concerning waste, which was still being drawn up.
9 On 29 April 1997, the Belgian Government forwarded to the Commission the Walloon Region's reply, setting out a waste management action programme dealing with spent batteries and accumulators.
That programme is to be updated when the second Walloon waste plan, of which it is to form part, is adopted.
10 On 9 July 1997, the Kingdom of Belgium forwarded to the Commission the Royal Decree of 17 March 1997 on batteries and accumulators containing certain dangerous substances, Article 3 of which provides that the federal minister with responsibility for the environment is to draw up programmes in order to achieve the first, second and fourth objectives referred to in the first paragraph Article 6 of Directive 91/157.
11 On the basis of the information available to it, namely that the country's regional authorities had adopted measures relating to the third and fifth objectives referred to in the first paragraph of Article 6 of the Directive, while programmes relating to the first, second and fourth objectives were still to be drawn up at federal level, the Commission concluded that all the measures required by Article 6 of the Directive had not been adopted.
On the other hand, in view of the fact that the Belgian authorities had communicated, albeit outwith the scope of Directive 91/157, legislation on the `eco-tax' scheme (which related in particular to batteries also), the Commission withdrew its complaint concerning infringement of Article 7(2) of the Directive and it reserved the possibility of returning to that point if other measures were adopted without its being notified of them.
12 The Commission, taking the view that the Kingdom of Belgium had not complied with the reasoned opinion of 26 December 1996, thus decided to bring the present action on 6 October 1997.
13 I would further point out that, on 26 November 1997, the Belgian authorities forwarded to the Commission certain information supplementing the reply of the Government of the Flemish Region to the Commission's reasoned opinion of 26 December 1996.
IV - The views of the parties
14 The Commission bases its action on the third paragraph of Article 189 of the EC Treaty and on the first paragraph of Article 5 of the same Treaty, according to which Member States to which a directive is addressed are required to achieve the objectives provided therein within the time-limit laid down by it.
It observes that the Court has consistently held that a Member State cannot rely on provisions, practices or situations of its own internal legal order in order to justify its failure to respect the obligations and time-limits laid down by a directive.
15 It submits that, in the course of the pre-litigation procedure, it was not nor could not be disputed that the Kingdom of Belgium had not adopted all the measures necessary to draw up the programmes provided for by Article 6 of the Directive.
It maintains that the measures adopted by the regions were inadequate because they did not relate to the first, second and fourth objectives referred to in the first paragraph of Article 6 of the Directive, whereas additional measures should have been adopted at federal level with regard to those objectives, as is also clear from the wording of Article 3 of the Royal Decree of 17 March 1997.
16 Furthermore, the applicant states that, by the time the period prescribed by the second paragraph of Article 6 of the Directive expired, the Kingdom of Belgium had still not informed it that the objectives referred to in Article 6 had been achieved and that it was no longer necessary to draw up programmes for the implementation of the objectives referred to in the first, second and fourth indents of the first paragraph of Article 6.
It further points out that the measures referred to in general terms in the Kingdom of Belgium's letter had not been communicated to it so far.
17 The Commission points out, moreover, that Article 6 of the Directive provides that programmes are to be drawn up for successive four-year periods as part of a dynamic process intended to achieve the best possible results in step with the situation existing at the time, in order to reduce to zero the mercury and heavy metal content of batteries and accumulators. It therefore finds that the measures relied upon by the Kingdom of Belgium do not fulfil those conditions.
Specifically, it claims that the reduction of mercury content is not included among the obligations mentioned in Article 6 of the Directive, but among those of Article 3(1).
It also notes that, contrary to the defendant State's assertions, the first and second indents of the first paragraph of Article 6 of the Directive do not set a limit on the content of dangerous substances and that the efforts undertaken at national level can only be successful if such substances are definitively eliminated.
Finally, it states that the `eco-tax' scheme forms part of the obligations referred to in Article 7(2) of the Directive, which the Commission no longer claims has been infringed, and that it had not been notified of the measures promoting research, relied on by the Kingdom of Belgium.
Furthermore, according to the Commission, it appears from Article 3 of the abovementioned agreement that the Bebat scheme mentions the selective collection and recycling of accumulators, but not the first, second and fourth indents of the first paragraph of Article 6 of the Directive.
18 In this connection, the Commission claims that, even though certain results were achieved before the date prescribed by the Directive for the implementation of successive programmes for four-year periods, that does not excuse a Member State from the obligation of drawing up the requisite programmes.
In any event, the Kingdom of Belgium did not send it any content at all of any programme whatsoever relating to the first, second or fourth indents of the first paragraph of Article 6 of the Directive within the period provided for in Article 6, within the period prescribed by the Commission in the reasoned opinion or even before the Commission lodged its reply.
19 On those grounds, the Commission requests the Court, first, to declare that, by failing to adopt and/or communicate all the necessary measures, the Kingdom of Belgium has failed to comply with Article 6 of Directive 91/157 and, secondly, to order that State to pay the costs.
20 The Kingdom of Belgium does not deny that it has failed to communicate any programmes, as charged by the Commission.
In its rejoinder, it expressly states that it has not sent to the Commission the agreements concluded at federal level.
21 It counters, however, by saying, on one hand, that, at the time when the programmes provided for by Article 6 of the Directive were to have been first adopted for a period of four years, (2) the federal authority had no power to do so.
Protection of the environment was in principle a matter for the regions.
It was not until the institutional reform of 16 July 1993 that the federal authority obtained powers to adopt the measures provided for in the first, second and fourth indents of the first paragraph of Article 6 of the Directive.
22 On the other hand, the Kingdom of Belgium argues that it should be considered necessary to draw up the programmes provided for in the first paragraph of Article 6 of the Directive only to the extent that the Directive's objectives were not yet achieved.
In this respect, it considered that it had fulfilled its obligations under Article 6 of Directive 91/157 and that it was therefore not necessary to take additional measures.
23 In particular, the Belgian Government confirms that, when the abovementioned directive was adopted, it had already taken numerous measures with a view to achieving those objectives.
According to the Belgian Government, those measures were supplemented by other measures, taken after the Directive was adopted.
In that regard, it refers to the abovementioned regional programmes and to the Royal Decree of 17 March 1997.
It takes the view that that royal decree is not merely a transposition and incorporation of the Directive and does not amount to an acknowledgment that programmes were not drawn up before that date, but that it confirms a pre-existing situation and lays down a legal framework for possible future legislation by the federal Government in that field.
Furthermore, the Kingdom of Belgium mentions two agreements, while acknowledging that it communicated them for the first time only as part of the defence.
It cites specifically, firstly, the 1989 agreement with battery producers designed to reduce the heavy metal content, in particular that of mercury, as well as voluntary programmes developed by the European manufacturers to reduce the quantities of dangerous substances or find less-polluting substitutes.
It adds that, in April 1990, an agreement was signed with the Fédération de l'Électricité et de l'Électronique (FEE - Electricity and Electronics Federation) and Fabrimétal to adopt the Code of Good Practice of 1 January 1988 to reduce the amount of mercury in primary electric batteries marketed in Belgium.
24 The defendant State also points out the significance of the role played by Bebat ASBL, which was set up in August 1995 under the Law of 16 March 1993, amended by the Law of 7 March 1996, in collecting and recycling batteries. On 17 June 1996 the defendant concluded a protocol agreement with the three regions and it is adopting measures with a view to promoting research intended to develop techniques for the collection of batteries. Moreover, the Kingdom of Belgium points out that the `eco-tax' scheme does not concern solely the objectives referred to in Article 7 of the Directive; it largely succeeds in achieving that batteries and accumulators containing fewer dangerous substances or containing less-polluting substances are marketed, as well as promoting research aimed at reducing the dangerous-substance content and replacing it with less-polluting substitute substances.
25 The Kingdom of Belgium submits, furthermore, that the concept of `programme' in the Directive has no precise formal legal content.
Any group of measures intended to attain the objectives laid down by the Directive - whatever their legal and formal nature - should be regarded as a `programme' within the meaning of the Directive.
In that connection, the Kingdom of Belgium states that the abovementioned
agreements may be regarded as programmes which meet the requirements of Article 6 of the Directive, first, inasmuch as they relate to the objectives referred to in the first, second and fourth indents of the first paragraph of Article 6 and, secondly, because they are in pursuance of a dynamic process aimed at reducing in the most effective manner the dangerous-substance content in the light of the existing situation.
Moreover, it states that the Directive does not set quantifiable objectives in respect of the reduction of the dangerous or polluting substances and for promoting the marketing of batteries and accumulators containing fewer dangerous or polluting substances; it is therefore not possible to determine when that objective has been attained.
26 In view of the foregoing, the Kingdom of Belgium takes the view that the objectives referred to in Article 6 of the Directive have been achieved and that it has failed to fulfil its obligations only in so far as it failed to communicate to the Commission the agreements concluded at federal level, an infringement which, in its view, is of a purely formal nature.
It therefore contends that the Court should dismiss the action and order the Commission to pay the costs.
V - My views on the application
27 The Commission complains that the Kingdom of Belgium has failed to fulfil the obligations incumbent upon it under Article 6 of Directive 91/157.
It is therefore necessary to determine precisely what those obligations are, given that the parties approach their interpretation differently. I would point out however that the Court has until now not had the opportunity of analysing the Directive thoroughly. (3)
28 I deem it relevant to point out, by way of introduction, that, from a methodological point of view, two different approaches may be taken in interpreting the provisions of Article 6 of the Directive.
Taking the first approach, based on the express wording of that article, the Member States are under two separate obligations: (a) to draw up programmes in order to achieve the objectives referred to in the first paragraph of Article 6; and (b) to communicate those programmes to the Commission pursuant to the provisions of the second and third paragraphs of that article.
According to the second approach, which uses the systematic and teleological interpretation of the provisions in question, it is more accurate not to draw a distinction between two separate obligations; there exists in fact only a single obligation: (c) to draw up and communicate the requisite programmes, which means that, where it is found that the national measures are defective because no programmes have been drawn up or because they have not been communicated, it must be automatically acknowledged that the Member State has not fulfilled all its obligations under Article 6 of the Directive.
If my analysis is to be exhaustive, I must examine in turn each of the two interpretative routes, even if they both lead to the same reply.
(a) The obligation to draw up programmes
29 The first paragraph of Article 6 of Directive 91/157 provides that Member States are to draw up programmes with a view to achieving the five objectives listed in that paragraph.
30 In my view, the obligation to draw up programmes cannot be implemented at all by isolated measures or by ad hoc and specific acts within the battery and accumulator industry. I would recall that the Directive sets the objective, among others, of protecting the environment, as is expressly stated in its preamble.
Attainment of that objective necessarily involves the adoption, at the same time, both of regulatory measures and of practical measures; it therefore depends to a considerable extent on the planning of comprehensive action by the national and Community public institutions in those areas in which the environment is important.
In other words, the need for adequate planning, through the drawing up of complete programmes, which is the aim pursued by Article 6 of the Directive, cannot in any circumstances be satisfied by piecemeal activity on the part of the national authorities in the sectors which such planning ought to cover. (4)
31 The Commission's view that, even if certain results are achieved by measures introducing the first of a series of four-year programmes, taken by a Member State within the time-limit laid down by the second paragraph of Article 6 of the Directive, that State is not released from the obligation of drawing up programmes is therefore well founded.
32 However, while conceding that it has not drawn up programmes sensu stricto at federal level in order to achieve the first, second and fourth objectives referred to in the first paragraph of Article 6, the Kingdom of Belgium claims that the agreements it cites and the measures which it has taken have made it possible to achieve in their entirety the objectives referred to in Article 6 of the Directive and that they may in any event be regarded as `programmes'.
Given that the Directive gives no formal definition of what is to be understood by the term `programme', the Kingdom of Belgium considers that any group of measures intended to attain the objectives laid down by the Directive, whatever their legal and formal nature, should be regarded as a programme.
33 Irrespective of the foregoing, the national measures adopted must, in any event, comprise all the elements which make up the `programme' envisaged by Article 6 of the Directive. (5)
As I have already stated, the Court has not yet had the opportunity to rule on what must be understood by the term `programme' for the purpose of Article 6 of Directive 91/157.
That definition must be sought in the Directive itself.
In this connection, Article 6 of the Directive determines the content of the programmes (by the five objectives listed in the first paragraph of that article) and their timetable (by the second and third paragraphs of that article).
34 It is apparent from the wording of that provision and from the general scheme of the Directive that the Community legislature intends to have the problem of special waste (such as batteries and accumulators) dealt with in stages, in accordance with a precise timetable.
That is why it provided for the drawing up of national programmes which `... shall be reviewed and updated regularly, at least every four years, in the light in particular of technical progress and of the economic and environmental situation'. (6)
Moreover, as the Commission also maintains, it follows from the way in which the terms `reduction' and `promotion' are used in the first, second and fourth indents of the first paragraph of Article 6 and from the fact that that article provides for a succession of programmes covering four-year periods that no quantitative limit has been set for the definitive attainment of the Directive's specific objectives.
On the contrary, the Directive lays down a dynamic process for the continued reduction of dangerous substances, namely mercury and heavy metals, pending their definitive ban.
35 I would now consider the contentions of the Kingdom of Belgium in the light of the criteria laid down in Article 6 of the Directive.
The following remarks must be made as regards the agreements relied upon by the Belgian Government:
- First, the timetable for their adoption does not comply with Article 6 of the Directive in that they do not provide that they are to be reviewed and regularly updated and communicated to the Commission, pursuant to the second paragraph of Article 6.
Neither the Code of Good Practice, concluded on 1 January 1988 and in force until 31 December 1991, nor the agreement adopting that code, signed on 20 April 1990, contains anything more than a general statement by the parties that they intended to consider the means of reducing dangerous substances (the post-1990 Code and the post-1992 agreement) and to encourage their replacement (by 1991 at the latest).
It should be stressed that Article 3 of the agreement of 20 April 1990 provides that the first two provisions of that agreement `do not at all preclude the reduction programme or the introduction of lower levels of mercury content being brought forward where technologically possible';
accordingly, according to the scheme of that agreement, the continued encouragement to reduce the dangerous-substance content beyond a certain percentage is envisaged as a possibility which may not be excluded, whereas, in order to meet the requirements of Article 6 of the Directive, such reduction should constitute the essential objective.
The agreements mentioned by the Belgian Government thus fail to take full account of the specific provisions of the Directive and are not in any event in accordance with the scheme and precise timetable laid down by the Community programme; (7)
- secondly, Article 1 of the agreement of 20 April 1990, like Article 1 of the 1988 Code of Good Practice, provides for and requires the reduction in mercury content. Moreover, as has been said above, Article
2 of both agreements set
out in very general terms the intention to continue research into the means of reducing dangerous substances.
Having said that, and although Articles 5 and 6 of the agreement of 20 April 1990 mention an annual report by the public authorities on the progress and implementation of the objectives pursued by the agreement and the possibility of compromise among the parties where there is a dispute over what has been agreed in the Code of Good Practice, those provisions do not accord with the content and the thrust of the programmes for the purpose of Article 6 of the Directive in that they are not directed towards the definitive abolition of dangerous substances.
36 So far as concerns the content of the measure taken under the `eco-tax' scheme, it is clear that they are economic measures, as provided for in Article 7 of the directive in question.
The fact that they may indirectly have a positive impact - to a greater or lesser extent - with regard to the objectives referred to in Article 6 of the Directive, as the Belgian Government claims, is manifestly not sufficient for them to be regarded as programmes enabling those objectives to be achieved.
37 In that connection, the fact that Bebat's budget allocates extensive funds for research does not necessarily mean that a research programme which complies with the objectives and, above all, with the conditions laid down in Article 6 of the Directive exists.
38 Finally, Article 3 of the Royal Decree of 17 March 1997 cannot be regarded as implementing the Directive.
Although it is true that it lays down a legal framework within which the competent authorities will be able subsequently to adopt measures to implement the objectives of the Directive, the fact remains that to provide such a legal framework by simply repeating the wording of the Directive in a provision of domestic law does not constitute full transposition of Article 6 of the Directive and cannot make up for the fact that specific programmes have not been drawn up in accordance with that article. (8)
39 It follows from the foregoing that the Kingdom of Belgium has not fulfilled its obligations in respect of the drawing up of programmes pursuant to Article 6 of Directive 91/157.
Although it has adopted measures which have had positive results in the attainment of the objectives pursued by the Directive, those measures do not correspond to what the term `programme' must be understood to mean, as it emerges from Article 6 of the Directive; accordingly, the adoption of such measures cannot fulfil the obligation to draw up the programmes within the period prescribed under the specific conditions laid down in Article 6 of the directive in question.
40 Given that the Kingdom of Belgium has not transposed within the period prescribed by the Directive - nor, moreover, within the period prescribed by the Commission's reasoned opinion - Article 6 of the directive in question into domestic law, I am of the view that the Commission's application should be upheld in this respect. (9)
(b) The obligation to communicate the programmes
41 Under the second paragraph of Article 6 of Directive 91/157, the Member States were to communicate to the Commission, by 17 September 1992 at the latest, the programmes drawn up pursuant to the first paragraph covering a four-year period starting on 18 March 1993; any amended programmes were then to be communicated in good time.
42 Accordingly, as a secondary point, not only did it not take the necessary steps to draw up programmes pursuant to Article 6 of the directive in question, the Kingdom of Belgium manifestly and undeniably did not communicate those measures within the period prescribed by that article.
The various measures which were adopted by the regional authorities were not communicated until 11 May 1994, whereas, with the exception of the reply of the Region of the Capital City of Brussels of 24 February 1997, all the other measures adopted by the Kingdom of Belgium were communicated after the expiry of the time-limit set by the Commission in its reasoned opinion of 27 December 1996.
43 Furthermore, the Belgian Government expressly acknowledges in its rejoinder that it did not communicate to the Commission within the prescribed period the agreements concluded at federal level and on which it relies in support of its claim that it achieved the objectives referred to in Article 6 of the Directive.
The Commission became aware of the existence and content of those agreements by way of the documents which the Belgian Government lodged in the course of the written procedure before the Court.
44 Finally, in so far as the Kingdom of Belgium has not monitored the progress of the programmes, at least every four years, pursuant to the third paragraph of Article 6 of the Directive, nor communicated in good time the measures which it claims to have adopted under the requisite programmes, it has not communicated - and indeed it could not have communicated - the reviewed and updated programmes for the purpose of that paragraph.
45 It therefore follows that the Kingdom of Belgium has failed to fulfil its duty to notify, which flows from the second and third paragraphs of Article 6 of Directive 91/157, and the applicant's claims in this regard must therefore be considered to be well founded.
(c) The single obligation to draw up and communicate programmes
46 Although the Kingdom of Belgium in its rejoinder expressly admits that it did not communicate to the Commission the agreements concluded at federal level, it considers such failure to be purely formal in nature and cannot as such justify a finding against it by the Court. In my view, that is not correct.
First, failure to communicate, which is not disputed (in this case), is in itself a breach of a specific obligation expressly provided for by the second paragraph of Article 6 of the Directive. Secondly, such failure to communicate has direct and serious consequences for the effective implementation of the material obligations flowing from Article 6 of the Directive; I believe therefore that the general scheme of that article requires absolutely, as a single obligation, the drawing up and communication of the requisite programmes.
47 The directive in question was adopted under Article 100a of the EC Treaty and is therefore intended to bring about approximation of national laws with a view to obviating distortion of competition and other adverse effects on the functioning of the internal market.
In particular, as stated in the preamble to the Directive, the approximation of laws is necessary because `any disparity between the laws or administrative measures adopted by the Member States on the disposal of batteries and accumulators could create barriers to trade and distort competition in the Community and may thereby have a direct impact on the establishment and functioning of the internal market'.
The monitoring of programmes, national measures and other action by the national authorities in the sphere covered by the Directive is therefore particularly important.
48 For such monitoring to be possible, not only must the programmes required by Article 6 of the Directive be drawn up, they must also be communicated to the Commission. Accordingly, the specific obligations which flow from Article 6 of the Directive cannot be regarded as satisfied until the action taken at national level has been brought to the notice of the Commission. (10)
The Member States' obligation to communicate such programmes as they have drawn up is a substantive obligation rather than a formal one in that it allows the Commission to monitor national measures.
49 It follows from the foregoing that, by communicating belatedly or not at all, as it admits itself, either the measures it has adopted or, a fortiori, the programmes required by Article 6, the Kingdom of Belgium has failed to fulfil, on those grounds alone, its obligations under Article 6 of Directive 91/157.
50 Accordingly, the whole of the applicant's claims must be upheld.
The Court may arrive at the same conclusion whatever its interpretation of the requirement at issue of Article 6 of the Directive. (11)
51 Finally, regard must be had to the settled case-law of the Court of Justice to the effect that a State may not plead national practices or circumstances existing in its internal legal system in order to justify a failure to comply with the obligations and time-limits laid down in the Treaty.
(12)
Accordingly, the claim made by the regional and federal authorities as to the determination of competence with respect to the objectives referred to in Article 6 of the Directive cannot in any event excuse their failure to fulfil their obligation to draw up and communicate the programmes required by that article.
In this connection, even if the programmes which should have been drawn up were a matter for the regions, the fact that the regions did not communicate them in good time renders the federal State, which thus fails to fulfil its obligations, liable. (13)
VI - Conclusion
52 I therefore propose that the Court:
(1) declare that, by failing to adopt, within the prescribed period, all the measures necessary to comply with Article 6 of Council Directive 91/157/EEC of 18 March 1991 on batteries and accumulators containing certain dangerous substances, the Kingdom of Belgium has failed to fulfil its obligations under that article;
(2) order the Kingdom of Belgium to pay the costs, pursuant to Article 69(2)
of the Rules of Procedure.
(1) - OJ 1991 L 78, p. 38.
(2) - That is to say, on 18 March 1993.
(3) - See the judgments in Case C-303/95 Commission v Italy [1996] ECR I-3859 (Article 11 of Directive 91/157 - Failure to fulfil obligations not contested); Case C-236/96 Commission v Germany [1997] ECR I-6397; Joined Cases C-282/96 and C-283/96 Commission v France [1997] ECR I-2929; and the order of the Court of 30 March 1998 in Case C-286/96 Commission v Italy.
(4) - See the judgment in Case C-298/97 Commission v Spain [1998] ECR I-3301, as well as my Opinion in that case of 19 March 1998.
(5) - In other words, the Kingdom of Belgium has not failed to fulfil its obligations under Article 6 of the Directive only in so far as the measures which it adopted and the agreements which have been drawn up may be regarded as `programmes' within the meaning of Article 6 of the Directive.
In this connection, I would refer in particular to the case brought by the Commission against France which concerned the failure of the French Republic to transpose Article 3 of Council Directive 85/339/EEC of 27 June 1985 on containers of liquids for human consumption (OJ 1985 L 176, p. 18).
In order to attain the directive's objectives, the aforementioned article required the drawing up, at least every four years, commencing on 1 January 1987, of programmes which were to be communicated to the Commission before the aforementioned date.
In that case, which is not too different to the present case, the Court ruled that, for the purposes of the decision in that case, it was necessary to consider whether the voluntary agreements relied on by the French Republic were to be regarded as reduction programmes referred to in Article 3. See the judgment in Case C-255/93 Commission v France [1994] ECR I-4949, paragraph 20.
(6) - Last paragraph of Article 6 of the Directive.
(7) - So far as concerns the fact that the measures implementing the directive in the national legal system must lay down and observe the timetable laid down in the directive, see Commission v France, cited above at footnote 3 (paragraphs 24, 25 and 27).
(8) - Contrary to what the Belgian Government indirectly claims, it is not necessary for the provisions of the Directive to be incorporated formally and verbatim in express, specific legislation.
The Court has consistently acknowledged that a general legal context may be a proper implementation of a directive provided only that such a context actually guarantees full application of the directive in a sufficiently clear and precise manner. See Case C-131/88 Commission v Germany [1991] ECR I-825, paragraph 6; Case 247/85 Commission v Belgium [1987] ECR 3029, paragraph 9; and Case 262/85 Commission v Italy [1987] ECR 3073, paragraph 9.
(9) - See, by way of example, Case C-294/96 Commission v Belgium [1997] ECR I-1781 and the judgment in Commission v France, cited above at footnote 3 (paragraph 29)
(10) - See points 12 and 13 of my Opinion in Case C-298/97 Commission v Spain, cited above at footnote 4.
(11) - However, if the view taken is that there are two separate obligations, namely the obligation to draw up the necessary measures to comply with Article 6 of the Directive and the obligation to communicate them, a finding that the Member State has committed a specific infringement by failing to communicate the measures in good time does not necessarily mean that it has also failed to comply with the obligation of adopting the measures in question.
On the other hand, if the second interpretation is followed - which I believe is more in keeping with the strict nature/rigorousness which characterises the legislation at issue -, namely that there exists a single/unitary obligation to draw up and communicate the measures, it is not necessary additionally to consider whether the measures adopted by the Kingdom of Belgium satisfy the other requirements laid down by Article 6 of the Directive if the Court finds there has been an infringement of the obligation to communicate measures, an infringement which the Kingdom of Belgium itself in any case admits.
(12) - See, among many other judgments, that in Case C-294/96 Commission v Belgium [1997] ECR I-1781.
(13) - See in this connection Case C-290/89 Commission v Belgium [1991] ECR I-2851 and Case C-33/90 Commission v Italy [1991] ECR I-5987, paragraph 24.