Opinion of Mr Advocate General Mischo delivered on 8 March 2001. - Commission of the European Communities v Kingdom of Belgium. - Failure by a Member State to fulfil its obligations - Failure to implement Directives 75/442/EEC, 76/464/EEC, 80/68/EEC, 84/360/EEC and 85/337/EEC - Pollution and nuisance - Waste - Dangerous substances - Pollution of the aquatic environment - Air pollution. - Case C-230/00.



European Court reports 2001 Page I-04591



Opinion of the Advocate-General

1. By this action the Commission seeks a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to transpose in full Article 9 of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991, Articles 3, 4, 5 and 7 of Council Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community, Articles 3, 4, 5, 7 and 10 of Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances, Articles 3, 4, 9 and 10 of Council Directive 84/360/EEC of 28 June 1984 on the combating of air pollution from industrial plants, and Articles 2 and 8 of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, the Kingdom of Belgium has failed to fulfil its obligations under Article 249 EC and the above directives.

2. In this regard, the Commission states, without being contradicted by the defendant, that the legislation applicable in both the Flemish and Walloon regions uses a system of tacit authorisation in respect of the abovementioned directives.

3. That means that in both regions, if the competent authority fails to respond to a request for authorisation within a certain time, the request is deemed to be refused. On the other hand, in case of appeal, authorisation is deemed to be granted in the absence of a response from the competent authority within the prescribed time.

4. In the Commission's view, it is indisputable that such tacit authorisation is incompatible with the requirements of the said directives.

5. I agree.

6. As the Commission rightly points out, the Court has already held that neither the process of tacit authorisation nor that of tacit refusal can be considered to satisfy the requirements of Directive 80/68.

7. I see no reason why these decisions should not be extended to apply to the other directives in issue in this case.

8. They all have the purpose, amongst other things, of regulating authorisation for various activities affecting the environment. Also, they all have in common, firstly, the setting out of detailed requirements as to the information which must be included in such authorisation and secondly, the guarantees to be made use of by the competent authority, which is required to determine, by means of various inquiries, certain information before it is entitled to grant authorisation.

9. I am of the view that the requirement of an express measure laid down by the case-law I have cited applies to all of these directives.

10. This is because, as the Commission has indeed submitted, without such a measure, it would be impossible to guarantee that authorisation was only granted after the conditions laid down by the directives as to the content of the authorisation and the inquiry procedures prior to its grant had been met.

11. The defendant accepts that in the current state of the legislation in the two regions in question there is no such guarantee.

12. It points, instead, to the efforts currently being made by the relevant authorities in order to remedy the situation. However, these efforts have not yet borne fruit.

13. It must be pointed out, however, that it is settled case-law that whether there has been a failure to fulfil obligations must be determined at the expiry of the time-limit set by the reasoned opinion. In this case, the time-limit was two months from notification of the reasoned opinion, which took place by letter dated 18 December 1998.

14. It follows that the failure to fulfil obligations is made out and it is appropriate to grant the Commission's application.

Conclusion

15. In those circumstances I propose that the Court should declare that:

By failing to adopt the laws, regulations and administrative provisions necessary to transpose in full Article 9 of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991, Articles 3, 4, 5 and 7 of Council Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community, Articles 3, 4, 5, 7 and 10 of Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances, Articles 3, 4, 9 and 10 of Council Directive 84/360/EEC of 28 June 1984 on the combating of air pollution from industrial plants, and Articles 2 and 8 of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, the Kingdom of Belgium has failed to fulfil its obligations under Article 249 EC and the above directives.

16. As a result I also propose that the Court should order the Kingdom of Belgium to pay the costs.