Opinion of Mr Advocate General Jacobs delivered on 29 April 1999. - Commission of the European Communities v Hellenic Republic. - Failure by a Member State to fulfil its obligations - Directive 91/157/EEC on batteries and accumulators containing certain dangerous substances - Failure by a Member State to adopt the programmes provided for in Article 6 of the Directive. - Case C-215/98.



European Court reports 1999 Page I-04913



Opinion of the Advocate-General

1 In this case the Commission seeks a declaration pursuant to Article 169 of the EC Treaty that Greece has failed properly to implement Council Directive 91/157/EEC of 18 March 1991 on batteries and accumulators containing certain dangerous substances. (1)

2 In particular the Commission alleges that Greece has failed to implement Article 6 of the Directive.

3 According to Article 1 of the Directive, its aim is to approximate the laws of the Member States on the recovery and controlled disposal of spent batteries and accumulators containing dangerous substances.

4 The relevant provisions of the Directive are as follows:

`Article 6

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.'

5 Annex I sets out the types of batteries and accumulators covered by the Directive by reference to certain amounts of mercury, cadmium, and lead.

6 In November 1995 the Commission sent Greece a letter setting out its view that the programmes provided for by Article 6 had not yet been established. The Commission asserted that it had not received any communication from Greece pursuant to Article 6, nor did it possess other information that would allow it to conclude that Greece had satisfied its obligation to establish such programmes.

7 The Greek Government replied in March 1996, informing the Commission of a ministerial decree according to which the programmes provided for by Article 6 were to be established prior to 18 March 1997 by a committee specially created for that purpose. The Commission considered this response unsatisfactory insofar as the programmes in question were to have been communicated, pursuant to Article 6, by 17 September 1992 at the latest.

8 Following another exchange of letters without satisfactory result, the Commission sent Greece a reasoned opinion in April 1997 and invited Greece to take the necessary measures to comply with that opinion within two months of its notification.

9 The Greek Government sent a reply in December 1997 indicating that the relevant ministry had commissioned a study to be undertaken in respect of the programmes provided for by Article 6. Because the Commission considered that establishment of those programmes was still at a preliminary stage, it decided to bring proceedings pursuant to Article 169.

10 In its defence, Greece observes that the study mentioned in paragraph 9 above has now been completed and that it has been transmitted to the competent ministry for implementation. This study, on the `treatment of batteries and accumulators containing dangerous materials', describes the current situation in Greece on the one hand and defines the objectives regarding the implementation of the programmes provided for by Article 6 on the other hand. The implementation of such programmes is to be carried out by a national body that is to be created in the immediate future.

11 Greece accordingly considers that it has made and will continue to make all possible efforts to realise the programmes provided for by Article 6.

12 In its reply, the Commission denies neither the efforts undertaken by Greece to advance the programmes provided for by Article 6 nor the contribution of the study in question to the planning and implementation of those programmes. None the less, the study only goes so far as to reach certain conclusions and proposals with a view to creating a framework for the administration of such programmes.

13 The Commission accordingly considers that the programmes have not yet been established, and that the study in question can only be considered as a preliminary stage toward the realisation of the programmes provided for by Article 6.

14 In its rejoinder, Greece cites a proposed law entitled `Measures and conditions for new administration of packaging and other products', which among other matters includes provisions concerning the administration of batteries and accumulators and the creation of a supervisory administrative organ. Greece accordingly considers that it has made all possible efforts to realise the programmes in question.

15 In my view the application of the Commission is well founded. Pursuant to Article 189 of the Treaty, a directive binds Member States as to the result to be achieved. In this instance the study and proposed legislation put forth by Greece are insufficient to achieve the actual result sought by Article 6, namely the implementation of certain programmes concerning batteries and accumulators. At most they provide details as to certain programmes whose implementation may occur in the future.

16 Moreover, the fact that Greece has made and may be continuing to make all possible efforts to rectify its non-compliance does not afford it a defence. An action based on Article 169 of the Treaty requires only an objective finding of a failure to fulfil obligations and not proof of any inertia or opposition on the part of the Member State concerned. (2)

Conclusion

17 Accordingly I am of the opinion that the Court should:

(1) declare that, by failing to establish and to communicate to the Commission the programmes provided for by Article 6 of Council Directive 91/157/EEC of 18 March 1991 on batteries and accumulators containing certain dangerous substances, Greece has failed to fulfil its obligations under the Treaty;

(2) order Greece to pay the costs of these proceedings.

(1) - OJ 1991 L 78, p. 38.

(2) - Case 301/81 Commission v Belgium [1983] ECR 467, paragraph 8 of the judgment.