OPINION OF ADVOCATE GENERAL

GEELHOED

delivered on 15 July 2004 ( )

Case C-420/02

Commission of the European Communities

v

Hellenic Republic

(Failure of a Member State to fulfil its obligations – Infringement of Articles 4 and 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)

I – Introduction

1. In these proceedings brought under Article 226 EC the Commission requests the Court to declare that, by failing to adopt the necessary measures to ensure that the disposal or recovery of waste at the Péra Galini site in the prefecture of Heraklion will be carried out without endangering human health, without risk to water, air, soil, plants and animals and without causing a nuisance through noise or odours, and by granting a permit which does not contain the necessary information, the Hellenic Republic has failed to fulfil its obligations under Articles 4 and 9 of Directive 75/442/EEC on waste as amended by Directive 91/156/EEC ( ) (hereinafter: the directive).

II – Legal framework

2. Article 4 of the directive provides:

3. ‘Member States shall take the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment, and in particular:

– without risk to water, air, soil and plants and animals,

– without causing a nuisance through noise or odours,

– without adversely affecting the countryside or places of special interest.

4. Member States shall also take the necessary measures to prohibit the abandonment, dumping or uncontrolled disposal of waste.’

5. According to Article 9(1) of the directive:

‘For the purposes of implementing Articles 4, 5 and 7, any establishment or undertaking which carries out the operations specified in Annex II A must obtain a permit from the competent authority referred to in Article 6.

6. …

III – Procedure

7. Following information received in the framework of petitions addressed to the European Parliament on the illegal deposit of waste at the Péra Galini site and the operation of the site without a permit, the Commission requested the Greek authorities by letter of 23 February 2000 to provide it with further information on the operating conditions of the site.

8. The Greek Government responded by letter of 10 May 2000. This was followed by consultations in December 2000 and a further letter of the Greek Government of 20 March 2001. The information provided did not, however, convince the Commission that the HellenicRepublic was acting in compliance with its obligations under Articles 4 and 9 of the directive. It therefore addressed a formal notice to the Greek Government on 24 April 2001.

9. Considering that the Greek authorities had still not taken adequate measures to comply with the relevant provisions of the directive in response to the formal notice, the Commission sent the HellenicRepublic a reasoned opinion on 21 December 2001. Even after the expiry of the two‑month term set in the reasoned opinion on 20 February 2002, the Greek authorities, in the Commission’s view, had not succeeded in complying with the directive. It therefore lodged the present application which was registered at the Court on 21 November 2002.

IV – Assessment of the Commission’s complaints

10. The HellenicRepublic acknowledges that it has infringed its obligation under Article 9 of the directive to ensure that establishments processing waste must obtain a permit meeting certain requirements, as the operation permit relating to the Péra Galini site was annulled by the Court of First Instance of Heraklion. This means that it is only necessary to consider the alleged infringement of Article 4 of the directive.

11. Article 4 of the directive requires Member States to take the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment and, in particular, without risk to water, air, soil, plants and animals, without causing a nuisance through noise or odours, and without adversely affecting the countryside or places of special interest.

12. As the Court has already made clear, although ‘that provision does not specify the actual content of the measures which must be taken in order to ensure that waste is disposed of without endangering human health and without harming the environment, it is none the less true that it is binding on the Member States as to the objective to be achieved, whilst leaving to the Member States a margin of discretion in assessing the need for such measures. From the fact that a situation is not in conformity with the objectives laid down in the first paragraph of Article 4 of the amended directive, then, the direct inference may not in principle be drawn that the Member State concerned has necessarily failed to fulfil its obligation under that provision to take the requisite measures to ensure that waste is disposed of without endangering human health and without harming the environment. However, if that situation persists and leads in particular to a significant deterioration in the environment over a protracted period without any action being taken by the competent authorities, it may be an indication that the Member States have exceeded the discretion conferred on them by that provision.’ ( )

13. The Commission asserts that the operation (since 1994) of the rubbish tip at the Péra Galini site in the prefecture of Heraklion on Crete is the source of environmental pollution and entails risks for the health of the local population. The measures taken to prevent further pollution (drainage ditches, fencing, fire‑warding zones, covering waste with sand) are insufficient, in the light of the obligations under Article 4 of the directive, to guarantee the proper operation of the installation. The Commission indicates that these should be accompanied by hydrogeological studies and an analysis of the impenetrability of the underground, as well as by other protective measures. It points out that according to a report drawn up by the prefecture of Heraklion in January 2002 leachate is not contained by the protective wall which was erected for this purpose and that it flows into a stream before ending up in the sea. Neither was it proven that the rocks supporting the site were impenetrable so as to prevent the pollution of subterranean waters. In addition, no periodic inspections were carried out, the quality of water was not analysed nor was biogas collected and processed. The waste management programmes and plans referred to by the Greek authorities had not yet passed the study stage. The Commission points out further that, in fact, the Greek authorities do not contest that the site does not comply with Greek legislation, as is evidenced by the annulment of the operation permit by the court of first instance of Heraklion. It concludes that by failing to adopt effective measures to protect the environment and the health of the local population against the pollution caused by the Péra Galini site, the HellenicRepublic has exceeded the margin of discretion it enjoys under Article 4 of the directive.

14. During the oral hearing the Commission referred to a technical dossier sent to it by the Greek Government on 17 November 2003 in which the various conditions were set out aimed at ensuring that the site was operated in a way which does not threaten the environment or human health. However, these conditions were to apply at some future, as yet unspecified date and certainly did not apply at the end of the period laid down in the Commission’s reasoned opinion.

15. The Greek Government maintains that, in view of the measures which it has taken in respect of the site, it has not exceeded the margin of discretion which Article 4 leaves to the Member States. It claims that the way the installation currently operates does not endanger the environment or human health. The report referred to by the Commission was drawn up following an on‑the-spot inspection which took place at a time when circumstances were particularly difficult due to continuous heavy rainfall. According to another report which was drawn up in March 2003 drain water is collected in watertight cisterns and is recycled on the spot. The environment impact assessment report relating to the tip rehabilitation project, which was undertaken in the framework of the regional plan on waste management, was presented on 10 February 2003. In addition, it points out that the impenetrability of the rocks supporting the site was confirmed in a geological analysis made for the purposes of the implementation of the waste management plan. Measurements of the water quality by the competent authorities did not reveal that the applicable limits had been exceeded. Furthermore, the Greek Government refers to a regional waste management plan for Crete which provides inter alia for the establishment and operation of a ‘XYTA’ installation. An application to the Cohesion Fund for a contribution towards the financing of the construction of this installation was being drawn up in 2003. Once it has become operational the Péra Galini site will be closed. The Greek Government also mentions a plan for creating a facility for recycling packaging materials. Initially this was to have been realised by the end of 2003; in the rejoinder this date is replaced by 2004.

16. According to well settled case-law of the Court of Justice, the question whether a MemberState has failed to fulfil its obligations must be determined by reference to the situation prevailing in the MemberState at the end of the period laid down in the reasoned opinion, ( ) in the present case 20 February 2002. In the light of the interpretation given by the Court to Article 4 of the directive (cited in paragraph 9 above), the question to be answered is whether at that time the Hellenic Republic had gone beyond the margin of appreciation it enjoys under this provision by not taking adequate measures to prevent pollution of the environment from the Péra Galini site.

17. In order to determine whether this is the case it must be pointed out that, despite the existence of a margin of appreciation in respect of the measures to be taken, the Member States are bound to ensure that the objectives of the directive are attained. Quite clearly, the objective of Article 4 is to guarantee that waste is recovered or disposed of in a manner which is not detrimental to human health or does not lead to a deterioration of the quality of the environment. The Court has recognised that isolated cases of processing waste in a manner which is inconsistent with the objectives of the directive may not be sufficient as to constitute an infringement of Article 4 of the directive. However, where such isolated breaches become more structural in character this may be indicative of an infringement of the directive. In this respect the Court refers to a persistent situation of non‑conformity with the directive, leading to a significant deterioration in the environment over a protracted period of time. ( ) It must therefore be examined whether the situation of the Péra Galini site could be considered to be such a structural situation at the end of the two‑month time‑limit set in the Commission’s reasoned opinion of 21 December 2001.

18. It appears from the information in the case file and presented at the oral hearing of 24 June 2004 that the Péra Galini site has been in operation since 1992 and that environmental problems were noted following an inspection visit by national authorities on 11 February 1998. Since then the site has been operational without interruption until at least the introduction of the present proceedings. This time-frame clearly indicates that the problem is of a structural character. I would add that the fact that the case itself arose from a petition to the European Parliament also suggests that the problem is longer lasting.

19. Where the Commission cites a national report relating to an inspection of 24 January 2002 which confirms its position and the Greek Government invokes a report following a visit to the site of 12 March 2003 which refutes the findings of the first report, I do not consider these documents alone to be decisive. The main thrust of the defence of the Greek Government and in the observations which it made during the oral hearing is to indicate that various plans and studies at different levels of government are being prepared which are aimed at improving the waste processing facilities on Crete. As far as the Péra Galini site is concerned these plans provide for a rehabilitation of the site and its ultimate closure once the projected XYTA has become operational. This had not been accomplished as of 25 March 2003, the date of the Greek Government’s rejoinder. Not only does the very existence of these plans imply a recognition of the threat posed by the Péra Galini site to the environment and human health, it is manifest that these plans had not taken effect or resulted in adequate measures being taken at the end of the period laid down in the reasoned opinion of the Commission.

20. Consequently, it must be held that the HellenicRepublic has failed to fulfil its obligations under the directive.

V – Conclusion

21. I therefore conclude that the Court should:

– declare that, by failing to adopt the necessary measures to ensure that the disposal or recovery of waste will be carried out without endangering human health, without risk to water, air, soil, plants and animals and without causing a nuisance through noise or odours, and by granting a permit which does not contain the necessary information, the Hellenic Republic has failed to fulfil its obligations under Articles 4 and 9 of Directive 75/442/EEC on waste as amended by Directive 91/156/EEC;

– order the HellenicRepublic to pay the costs.