Opinion of Mr Advocate General Mischo delivered on 20 April 1999. - Commission of the European Communities v Italian Republic. - Failure to fulfil obligations - Directives 75/442/EEC and 91/156/EEC - Management of waste. - Case C-365/97.



European Court reports 1999 Page I-07773



Opinion of the Advocate-General

1 This action against the Italian Republic, which was brought by the Commission of the European Communities, seeks a declaration from the Court that the Italian Republic has failed to fulfil its obligations under the EC Treaty, not because it failed adequately to transpose a directive but because it failed, in respect of the San Rocco riverbed area, fully and properly to apply the provisions of Articles 4 and 5, the first indent of Article 7 and Article 10 of Council Directive of 15 July 1975 on waste (75/442/EEC) (1) or the corresponding provisions, as amended by Council Directive of 18 March 1991 (91/156/EC). (2)

2 It also raises several interesting questions regarding the admissibility of such an action, the very concept of failure to fulfil obligations and the scope of the burden of proof on the Commission.

Legal context

3 The aim of Directive 75/442/EEC is to approximate the Member States' provisions on waste disposal.

4 The provisions of Directive 75/442/EEC relevant to this case read as follows in the original version of that directive:

`Article 4

Member States shall take the necessary measures to ensure that waste is disposed of without endangering human health and without harming 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.

Article 5

Member States shall establish or designate the competent authority or authorities to be responsible, in a given zone, for the planning, organisation, authorisation and supervision of waste disposal operations.

...

Article 7

Member States shall take the necessary measures to ensure that any holder of waste:

- has it handled by a private or public waste collector or by a disposal undertaking,

or

- ... ...

Article 10

Undertakings transporting, collecting, storing, tipping or treating their own waste and those which collect or transport waste on behalf of third parties shall be subject to supervision by the competent authority referred to in Article 5.'

5 Article 1 of Directive 91/156/EC provides that Articles 1 to 12 of Directive 75/442/EEC must be replaced by new Articles 1 to 18 and Annexes I, II A and II B.

6 The provisions of Articles 4, 5, 7 and 10 of Directive 75/442/EEC are replaced by those of new Articles 4, 6, 8 and 13 which read as follows:

`Article 4

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.

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

...

Article 6

Member States shall establish or designate the competent authority or authorities to be responsible for the implementation of this directive.

...

Article 8

Member States shall take the necessary measures to ensure that any holder of waste:

- has it handled by a private or public waste collector or by an undertaking which carries out the operations listed in Annex II A or B, or

- ...

...

Article 13

Establishments or undertakings which carry out the operations referred to in Articles 9 to 12 shall be subject to appropriate periodic inspections by the competent authorities.'

7 Under Article 2 of Directive 91/156/EC, Member States must bring into force the laws, regulations and administrative provisions necessary to comply with it not later than 1 April 1993.

Pre-litigation procedure

8 On 26 June 1990 the Commission sent the Italian Government a letter of formal notice in which it noted its failure to fulfil its obligations under Articles 4, 5, 6, 7, and 10 of Directive 75/442/EEC.

9 By letter of 28 January 1992 the Italian Ministry of the Environment provided the Commission with the following information:

- it had come to light that certain biological and chemical materials from polyclinic No 2 had been systematically discharged in the San Rocco valley, thus seriously endangering the communities living in certain areas;

- serious groundwater problems caused by the presence of pits in the tufa had been recorded in the same valley;

- one of the pits in the tufa had been used for fly tipping in the past;

- that pit had again been used for fly tipping in May 1991, after it had been sequestrated on 8 May 1990. Criminal proceedings were still under way against the concessionaire on account of that renewed use.

10 Since the Commission had received no communication regarding the implementation of measures aimed at restoring the environmental situation in the San Rocco valley, it sent the Italian Government a reasoned opinion by a letter of 5 July 1996 in which it concluded that the Italian Republic had infringed Articles 4, 5, 6, 7 and 10 of Directive 75/442/EEC.

11 On 2 January 1997 the Commission received a note from the Italian Permanent Representation to the European Union in which it informed the Commission of an environmental management plan for the entire region of Campania in which the San Rocco valley lies.

12 By letter of 21 April 1997 the Permanent Representation subsequently forwarded to the Commission a communication from the Ministry of the Environment which referred to a whole series of initiatives aimed at restoring the environmental situation in the San Rocco valley. That communication stated, in particular, that:

- the municipality of Naples, in conjunction with the province's environment department, had adopted the necessary measures to monitor any fly tipping in the San Rocco valley;

- the pit located in the upper part of the valley, which had repeatedly been used for fly tipping, had again been sequestrated in September 1996;

- the water discharged by polyclinic No 2 had now been consigned to the municipality sewage system once and for all;

- the local authorities had adopted six measures to close down the same number of private tips;

- finally, in order to ensure public and private safety (in Italian incolumità) the sewage service of the municipality of Naples had already carried out a number of operations involving the removal of obstructions from and the continuous monitoring and clearing up of the valley;

- a committee of experts had been appointed and instructed to draw up a plan to improve the riverbed completely in terms of groundwater, surface water and health.

13 On the basis of that information the Commission carried out investigations into the initiatives announced in respect of the environmental state of the San Rocco valley as a result of which it learnt of a Naples municipal council resolution of 10 March 1997 which demonstrated that:

- the San Rocco river bed required immediate water improvement measures. Pollution levels appeared to have deteriorated as a result of further discharges of waste water;

- the water improvement project could be approved only as part of a more comprehensive decision aimed at resolving all the environmental problems in the area in question once and for all;

- to that end, a group of experts independent of the administration had been set up whose basic task was to establish the principal points of that clear-up operation on the basis of which the municipality's technical services department would then have to draw up a definitive water management project for the San Rocco valley.

14 The Commission brought this action because it considered that not all the necessary measures to remedy the complaints addressed to the Italian Republic in its reasoned opinion of 5 July 1996 had been adopted thus far.

Admissibility of the action

15 The defendant puts forward four grounds to contest the admissibility of the action.

First ground of inadmissibility

16 The Italian Government argues that although the letter of formal notice does not have to set out the dispute in detail, in this case the complaint made in the letter of formal notice of 26 June 1990 was not clear enough to enable it to put its case properly. It claims that that letter amounts to no more than a `general and hypothetical statement of alleged facts and an equally general reference to articles of the directive which fails to show the slightest connection between them.' In its reply of 28 January 1992 the Italian Republic had simply provided the Commission with comprehensive information on events in the San Rocco valley.

17 First, the Commission points out that according to settled case-law (3) a letter of formal notice must indicate to the Member State the factors enabling it to prepare its defence and may contain only an initial brief summary of the complaints.

18 It considers that the letter of formal notice set out the Italian Government's alleged failure to fulfil its obligations in a sufficiently precise manner since it referred to the pollution caused by the uncontrolled discharges of waste from areas upstream of the San Rocco valley and the failure to take the action necessary to plan, organise and monitor waste disposal operations within the meaning of Directive 75/442/EEC. Furthermore, the Commission notes that it had already asked the Italian Government to submit observations on the environmental situation in the San Rocco valley by a letter of 15 December 1988. Finally, it is evident from the reply to the letter of formal notice that the Italian Government had been able to exercise its right of defence to the full since it argued its case point by point and did not claim that the complaints were of a general nature.

19 Even if it were not possible to infer from the fact that the Italian Government argued its case point by point that the complaint set out in the letter of formal complaint was sufficiently precise, as the Commission does, I nevertheless consider that in this case the letter of formal notice displayed in full the degree of precision required by the case-law appositely cited by the Commission. The identification of a failure to fulfil obligations, as noted above by the Commission, and the contention that that state of affairs might constitute an infringement of Articles 4, 5, 6, 7 and 10 of Directive 75/442/EEC must be considered as sufficient to enable the Member State concerned to present its defence.

20 Consequently, I conclude that the first ground of inadmissibility must be rejected.

Second ground of inadmissibility

21 The defendant argues, as the second ground, that there is an unacceptable difference between the reasoned opinion and the application. The complaints made in the reasoned opinion of 5 July 1996 concern only the original version of Directive 75/442/EEC, whereas the application also refers to the provisions of Directive 75/442/EEC, as amended by Directive 91/156/EC.

22 The Commission notes that the alleged failure of the Italian Republic to fulfil its obligations refers to a situation of fact - that is to say the pollution of the San Rocco valley by waste - which constitutes a manifest infringement of the directive both in its original and amended version. Although the obligations originally imposed on Member States by the directive have essentially remained unchanged, they have become more detailed and more stringent. The obligations laid down in Articles 4, 5, 7 and 10 of Directive 75/442/EEC have been confirmed fully by Directive 91/156/EC and therefore the environmental situation in the San Rocco valley must a fortiori be considered to be contrary to the new provisions. In the view of the Commission the fact that the applicable rules have been amended during the course of the procedures does not mean that it may be inferred that the Commission has modified its complaints against the Italian Government.

23 In support of its argument the Commission refers to the judgment in the case of Commission v Greece, (4) in which the Court ruled that `[a]lthough ... the Commission's reasoned opinion and the application to the Court must be based on the same complaints, that requirement cannot go so far as to make it necessary that in every event the national provisions mentioned in the reasoned opinion and in the application should be completely identical. Where a change in the legislation occurred between those two phases in the procedure, it is sufficient that the system established by the legislation contested in the pre-litigation procedure has as a whole been maintained by the new measures which were adopted by the Member State '. That argument can be extended mutatis mutandis where it is the Community rule that has been subject to amendments.

24 The Italian Government counters that argument by stating that the difference between the reasoned opinion and the application cannot be justified by referring to the amendment to the directive during the course of the proceedings, since the amendment was made more than three years before the reasoned opinion was sent. Therefore, when drawing up its reasoned opinion the Commission could not ignore the fact that the original text of Directive 75/442/EEC had not been in force since 1 April 1993.

25 Furthermore, the defendant contends that the wording of the reasoned opinion, inasmuch as it refers solely to the provisions of the original directive, suggests an implicit but clear identification of the time at which the alleged infringement occurred in that it concerns only alleged offences prior to 1 April 1993.

26 Before commenting on this plea of inadmissibility I consider it necessary to look again at the sequence of events relating to the pre-litigation procedure and the manner in which the Commission cited the provisions which it alleges have been infringed.

27 The letter of formal notice was sent on 26 June 1990.

28 Directive 91/156/EC amending (but not replacing) Directive 75/442/EEC was adopted on 18 March 1991. The Member States had to comply with it not later than 1 April 1993.

29 The reasoned opinion was dated 5 July 1996. In its conclusion it cites the articles which are alleged to have been infringed in accordance with their old numbering, a procedure which is certainly not correct.

30 Nevertheless, and I consider this to be very significant, the introduction to the reasoned opinion refers specifically to the fact that the directive has been amended. In the sixth paragraph of point I (whose preceding paragraphs set out the obligations under the old articles) the reasoned opinion states as follows:

`Directive 75/442/EEC was amended by Council Directive 91/156/EC of 18 March 1991 and the time-limit for its transposition was set for 1 April 1993. However, the provisions of Articles 4, 5, 7 and 10 of Directive 75/442/EEC are substantially reproduced in Articles 4, 6, 7, 10 and 13 of Directive 91/156/EC.'

31 As regards the application, the Commission refers in the conclusion to the numbers of the old articles and on each occasion adds, in brackets, the number which that provision has in the amended version of the directive with the clarification `which substantially reproduces the provisions thereof.'

32 It is evident that, strictly in accordance with the law, the Commission should have referred to the new numbers of the articles both in the conclusion of the reasoned opinion and that of the application even if that also meant adding the old numbers in brackets.

33 However, is it possible to conclude from this that the action is inadmissible? I think not.

34 An initial argument against a very strict approach lies in the fact that we are not dealing with two directives, one of which has superseded another, but with the same directive, certain provisions of which have been replaced by provisions that are largely identical.

35 Second, the similarity between the old and the new provisions has been established with precision in the introduction to the reasoned opinion.

36 Third, it should be noted that the new provisions are no less stringent than the old. Therefore, the Italian Republic is not alleged to have committed acts which would have been open to criticism under the old version of the directive but not under the new version.

37 Finally, it should be noted that, although the case-law of the Court (5) relating to the requirement that the complaints referred to in the reasoned opinion and those referred to in the application should be the same is strict, it is not excessively formalistic. It might rather be described as functional. The aim of that case-law is to safeguard respect of the right of defence of the Member State in question and, in particular, to ensure that it has an opportunity in the pre-litigation procedure to submit observations on all the complaints which are finally set out in the application.

38 Without wishing to go as far as extending by analogy the line of argument regarding amendments to national provisions which the Court followed in the case of Commission v Greece, cited above, to the problem of amendments to Community rules during the course of a procedure, as the Commission proposes, I nevertheless consider that it demonstrates the Court's intention not to take an excessively formalistic approach to such matters.

39 Finally, since, in the view of the Commission, Directive 91/156/EC simply strengthened certain provisions of Directive 75/442/EEC, it goes without saying that the obligations imposed on the Member States under the original version of the directive still apply under the amended version of that directive. At no time did the obligations that Italian Government allegedly failed to fulfil cease to be imposed on it.

40 Consequently, the simultaneous reference to the old articles and the new articles, together with the addition of the words `which substantially reproduces the provisions thereof' means that the Commission considers that the provisions to which it refers are the same in content.

41 In the alternative, it must be regarded as reflecting the Commission's intention to restrict each complaint to the corpus communis of the two successive versions of each provision.

42 Therefore, it is sufficient for the Court to express the infringement solely in terms of its corpus communis when upholding a given complaint.

43 Therefore, I propose that the Italian Government's argument that the action may not apply to offences alleged to have occurred after 1 April 1993, the date on which the amendments to the Directive entered into force, should be rejected as unfounded.

Third ground of inadmissibility

44 The Italian Government claims that the Commission based its action on the results of new inspections which it made after it had received the Italian Government's letter of 21 April 1997. It claims that in those circumstances the Commission should have started the pre-litigation procedure again instead of bringing the action.

45 The Commission points out that the new inspections do not constitute new complaints against the Italian Republic. On the contrary, those inspections were carried out with the sole aim of determining whether or not the measures communicated by the Italian Government in response to the reasoned opinion could actually restore the environmental situation in the San Rocco valley in accordance with Community law. However, the Commission noted that the abovementioned measures could not change the state of degradation in the valley concerned.

46 The Italian Government responds by saying that the Commission's argument that the new inspections do not constitute new complaints is not sufficient to dismiss the objection of inadmissibility. The requirement that the reasoned opinion and the action must be absolutely identical does not apply solely to the subject-matter of the dispute but also to the grounds and the pleas relied on. The Commission itself acknowledges in its reply that it based its action partly on the Naples municipal council resolution of 10 March 1997.

47 However, I consider that the arguments put forward by the defendant in respect of that ground are unconvincing. Neither the inspections carried out by the Commission nor the fact that it refers to the abovementioned municipal council resolution may be considered as constituting new pleas or new grounds. They simply constitute factors which led the Commission to conclude that the failure to fulfil obligations alleged in the reasoned opinion continued to exist despite the expiry of the two-month time limit and notwithstanding the promises of action made by the Italian authorities in response to the reasoned opinion.

48 Consequently, this ground of inadmissibility must be rejected as unfounded.

Fourth ground of inadmissibility

49 In its rejoinder the Italian Government claims that the Commission improperly incorporated new facts and a new or different wording of the complaints into its reply:

- by asserting that persons subject to the supervision provided for in Article 10 of Directive 7/442/EEC were among those responsible for the creation of the fly tip in the San Rocco valley;

- by asserting that the waste abandoned in the tip had created certain risks and caused successive damage to the water, soil, air, animals and plants, and the countryside;

- by alleging that the Italian Government had failed to fulfil, in respect of the fly tip, its obligation to restore the environment in a manner consistent with Community law.

50 As regards the first indent, I must point out that the Commission by no means claims that those persons set up the fly tip, simply that they used it. In its application the Commission alleges that Article 10 of the directive has been infringed on the ground that `the waste continues to be discharged in the valley in question'. Since the tip at issue also lies in the San Rocco valley that factor must be considered as forming an integral part of the alleged infringement of Article 10 of Directive 75/442/EEC.

51 As regards the second indent, it is sufficient to note that in point of fact the contested assertion constitutes nothing more than a paraphrase of Article 4 of Directive 75/442/EEC. Since the infringement of that provision is also alleged in the application, the Commission's assertion must be regarded as referring to it.

52 Finally, as regards the third indent, it should be noted that the Commission's allegation is not a new complaint which was not set out in the application. Subject to the analysis of the validity of the complaints, it must also be regarded as a factor in the alleged failure to fulfil obligations under Article 4 of Directive 75/442/EEC as construed by the Commission.

53 On the basis of the foregoing considerations, I therefore propose that the Court should find that the action is admissible.

Substance of the action

54 Before I can analyse the Commission's complaints, I must examine two arguments put forward by the Italian Government, one of which seeks to contest the validity of the action in its entirety and the other the legal characterisation of some of the alleged offences cited by the Commission.

May the Commission verify that a directive has been applied in specific instances?

55 First, the Italian Government claims that in this case the Commission sought to protect the environment directly. However, it contends that `the Commission's task pursuant to Article 169 of the Treaty must be restricted to monitoring the transposition into national law of the directive and the legislative and administrative provisions which the Member States have adopted to that end.' Therefore, the Commission's action has no basis in the Treaty.

56 Furthermore, the Italian Government claims that an action for failure to comply with obligations under the Treaty pursuant to Article 169 of the Treaty must relate to a significant part of the national territory. In this case the Commission has targeted a small locality which is not an administrative district created by national law for the performance of administrative functions relating to waste and which constitutes a tiny proportion of the vast territory of the municipality of Naples.

57 The Commission contests that argument by maintaining that it is not simply required to ensure that directives are transposed into each domestic legal system but also to verify that the objectives pursued by such objectives are actually and properly achieved in the Member States, which are consequently under a genuine obligation as to the result to be achieved.

58 As regards the Italian Government's argument that the territory covered by the San Rocco valley is too small to warrant an action against the Italian Republic for failure to comply with obligations under the Treaty, the Commission first points out that Article 169 of the Treaty does not lay down a minimum territorial threshold and second refers to the judgment in the Case C-45/91 Commission v Greece (6) in which the Court found that that State had failed to fulfil its obligations in respect of the disposal of waste in the Chania region of the island of Crete and, in particular, in respect of the existence of a tip at the mouth of a river.

59 The Commission adds that the fact that the area in which the infringement took place is not an administrative district is irrelevant. A Member State may not plead practical arrangements or situations of its domestic legal system to justify its failure to fulfil obligations laid down by a directive.

60 What should be made of these opposing arguments? I cannot conceal the fact that I do have a certain amount of understanding for the Italian Government's reaction. Moreover, the Commission itself acknowledges in its reply that `it is inconceivable that the Commission has a genuine obligation to intervene wherever the objectives laid down by rules on the environment are not implemented', but it adds that `it is beyond question that the Commission may bring an action for failure to fulfil obligations wherever it considers that it is in the Community's interest to allege that a Member State has failed to fulfil its obligations'.

61 In my view the Commission should, in general, leave it to the competent national authorities to ensure that a directive is actually implemented throughout a particular country once it has been properly transposed. Where infringements of national law stemming from the directive are established, the public prosecutor's office must take the necessary measures to ensure that they are punished by the courts. Individuals may lodge complaints or bring actions for damages if they consider that they have sustained damage as a result of the infringement of provisions of national law laid down pursuant to the directive. Where necessary the Court will interpret the provisions of the directive at the request of the national court.

62 The fact none the less remains that the first indent of Article 155 of the EC Treaty assigns the Commission the general task of ensuring that the provisions of the Treaty and the measures taken by the institutions pursuant thereto are applied. Furthermore, Article 189 provides that `[a] directive shall be binding, as to the result to be achieved, upon each Member State'. Therefore, where it appears that a directive has been transposed solely in terms of legislation and that the Member State is not ensuring, with the necessary diligence, that it is complied with, the Commission cannot be denied the right to bring an action for failure to comply with obligations under the Treaty.

63 Such a situation would certainly exist if the Commission established a series of cases of non-application of a directive spread over a certain period.

64 However, what should its attitude be towards an isolated infringement? It would be necessary for it to be an obvious and particularly striking case and for the efforts made by the Commission to induce the Member State to act to have been unsuccessful. There is no doubt that the fly tip in Crete which formed the subject-matter of the judgment in the Case C-45/91 Commission v Greece, cited above, fell within that category.

65 Similarly, the fact that a competent authority granted consent for the construction of a new block with a heat output of 500 megawatts at a thermal power station without carrying out the preliminary environmental impact assessment required by a directive also justified, in principle, the Commission bringing an action for failure to fulfil obligations under the Treaty. That case prompted the Court to state that `Given its role as guardian of the Treaty, the Commission alone is ... competent to decide whether it is appropriate to bring proceedings against a Member State for failure to fulfil its obligations and to determine the conduct or omission attributable to the Member State concerned on the basis of which those proceedings should be brought. It may therefore ask the Court to find that, in not having achieved, in a specific case, the result intended by the directive, a Member State has failed to fulfil its obligations.' (7)

66 The situation which forms the subject-matter of this case is described as follows in the Italian Government's defence: `The San Rocco valley lies in the hinterland of the urban (8) agglomeration of the municipality of Naples. That valley is shaped like a canyon. It forms a deep incision in the ground which follows a winding course and is about six kilometres long. The difference in level between the bottom of the valley and the line of the ridge varies from 20 to 30 metres. A watercourse flows along the bottom of the valley and is fed not by springs but solely by rainwater (9) which flows in from a catchment area of approximately 10 km2. At the end of the valley the watercourse does not run into another watercourse but descends entirely into the mouth of the sewage system of the municipality of Naples.'

67 The presence within a large agglomeration of a fly tip and a river made up essentially of water from the pipes of hospitals and private dwellings constitutes a situation to which the Commission quite understandably felt bound to respond.

68 It is still necessary that the alleged offences fall within the scope of the directive which has been invoked. The Italian Government maintains that this is only partly the case.

Do all the alleged offences fall under the directive?

69 The Italian Republic and the Commission disagree as to whether further waste within the meaning of the Directive was discharged into the valley in addition to the objects discharged in the fly tip whose existence is not contested.

70 The Commission refers to the fact that the Italian authorities acknowledged that the biological and chemical materials from polyclinic No 2 had been discharged there at the time the reasoned opinion was sent.

71 The Italian Government confirms that the Commission's allegations are based solely on information provided by the Italian Government itself in the letter that it sent to the Commission on 28 January 1992. That information was taken from a report drawn up by the `Nucleo Operativo Ecologico dei Carabinieri' (the Carabinieri Ecological Operations Group, hereinafter `the NOE'). (10) However, that report did not identify any pollution from waste other than from fly tipping. On the other hand, it did reveal that `discharges from hospitals, a clinic and other installations flow together towards the watercourse in the valley'. Therefore, there is no discharge of solid or liquid substances that constitute waste since the use of the term `flow together' clearly indicates that the discharges are of waste water which are excluded from the scope of the directive. The Italian Government adds that the serious environmental problems which have affected the San Rocco valley, some of which continue to do so, are caused not only by discharges of water but also by phenomena relating to the degradation of groundwater which are also excluded from the scope of the directive. Furthermore, the claim that the Naples municipal council resolution of 10 March 1997 demonstrates that the measures announced by the Ministry of the Environment were insufficient is also incorrect since that resolution simply confirms the NOE report without adding anything to it.

72 In the view of the Italian Government the only factor establishing a link between the environmental situation in the San Rocco valley and the application on the ground of the directive lies in the fact that a fly tip was set up in the area of the valley. However, with regard to the fly tip, the offence is attributable to individuals who have acted contrary to the national provisions implementing the directive. Those provisions were applied specifically as a result of the sequestration measures referred to above. The defendant claims that the sequestration `prevents the addition of any new waste to the tip and the removal or treatment of any waste already taken to that tip.'

73 It should be noted that the Commission merely points out that `the biological and chemical materials polluting the valley may definitely not be equated with waste water' but adduces no evidence enabling doubt to be cast on the Italian Government's contention that there is no waste in liquid form but simply discharges of waste water, which are excluded from the scope of the directive.

74 What does the relevant legislation tell us in that respect?

75 Amended Article 2 of Directive 75/442/EEC, which is identical to Article 2 of the original version in that respect, provides that `waste waters, with the exception of waste in liquid form' must be excluded from the scope of the directive.

76 Article 2 of Council Directive of 21 May 1991 concerning urban waste-water treatment (91/271/EEC) (11) provides that for the purpose of that directive:

`1. "urban waste water" means domestic waste water or the mixture of domestic waste water with industrial waste water (12) and/or run-off rain water;

2. "domestic waste water" means waste water from residential settlements and services which originates predominantly from the human metabolism and from household activities;

3. `"industrial waste water" means any waste water which is discharged from premises used for carrying on any trade or industry, other than domestic waste water and run-off rain water'.

77 Article 3 of that directive states as follows:

`1. Member States shall ensure that all agglomerations are provided with collecting systems for urban waste water,

- at the latest by 31 December 2000 for those with a population equivalent (p.e.) of more than 15 000, and

- at the latest by 31 December 2005 for those with a p.e. of between 2 000 and 15 000.

For urban waste water discharging into receiving waters which are considered "sensitive areas" as defined under Article 5, Member States shall ensure that collection systems are provided at the latest by 31 December 1998 for agglomerations of more than 10 000 p.e.'.

78 It follows from that provision that even in respect of mixtures of `domestic waste water with industrial waste water' the Member States are not required to set up collection systems until 31 December 1998, that is to say after the transmission of the reasoned opinion. That is probably the reason why the Commission did not rely on that directive.

79 It is true that, according to the case-law of the Court, (13) where the Commission has produced sufficient evidence to show the failure to fulfil obligations, the Member State in question is not entitled merely to deny its existence but must contest substantively and in detail the information produced and the consequences thereof, failing which the allegations made by the Commission must be held to be established.

80 However, those conditions are not satisfied in this case since the Commission has not produced sufficient evidence to show that the polyclinic discharged `waste in liquid form' and not simply `urban waste water'.

81 Quite the opposite, since the Commission implicitly acknowledged that waste water was involved by conceding at point 11 of its application that `the water discharged by polyclinic No 2 will henceforth be consigned to the municipality's sewage system once and for all'.

82 Admittedly, it would be tempting to invoke `the great danger posed to the communities along the river', to which the letter from the Ministry of the Environment of 28 January 1992 refers, in order to infer that more than mere discharges of waste water were involved. However, there is no doubt, that even if it collects only domestic waste water, the San Rocco valley consequently constitutes a type of open sewer that necessarily poses a danger to the population. Moreover, I do not consider that the discharges may be reclassified according to their degree of noxiousness. The classification of waste water, or indeed waste, turns entirely on the nature of the discharges in question.

83 In that respect it would have been right to expect the Commission to submit to the Court documents containing a precise and incontestable description of the chemical substances contained in the discharges in question. I am well aware that a problem arises between the task of supervision which Article 155 assigns to the Commission and the limited means at its disposal to accomplish that task. However, such lack of means cannot be relied on in order to exempt the Commission from the burden of proof incumbent on it in an action against a Member State for failure to fulfil obligations under the Treaty.

84 Therefore, it will not be possible to take into consideration the environmental situation created by the `discharges of biological and chemical materials' from the polyclinic as it has not been established that those discharges fall within the scope of Directive 75/442/EEC. It will be possible to take into consideration only the situation resulting from the existence of the fly tip.

Complaint alleging failure to fulfil obligations imposed by Article 4 of Directive 75/442/EEC

85 The Commission requests that the Court declare that the Italian Republic has infringed Article 4 of Directive 75/442/EEC (or Article 4 of Directive 75/442/EEC, as amended by Directive 91/156/EC, which substantially reproduces the provisions thereof) in that that Member State has failed to adopt the necessary measures to ensure that waste was disposed of without endangering human health and harming the environment, in particular without risk to water, air, soil and plants and animals, without causing a nuisance through noise or odours and without adversely affecting the countryside or places of special interest.

86 Subject to what I shall say below regarding the final paragraph of the new version of Article 4, the two versions may essentially be regarded as identical.

87 The Commission subsequently claimed that the Italian Republic failed to fulfil the obligation as to the result to be achieved, imposed on it by that article.

88 The Italian Government responds by saying that that argument is both inadmissible, on the ground that it was not put forward in the application, and disproved by the judgment in Comitato di Coordinamento per la Difesa della Cava and Others v Regione Lombardia and Others. (14) In that judgment the Court makes a distinction between the objectives laid down by Article 4 of the directive as a programme to be followed, with which the Member States must comply, and the obligations which the Member States must fulfil. In principle, the fact that a factual situation is inconsistent with the objectives laid down by Article 4 does not automatically provide grounds for inferring that the obligations imposed by that article have not been fulfilled.

89 In my view the Italian Government is wrong in claiming that a new complaint has been made in this case. Since the pre-litigation procedure, all the Commission's action have been based on the contention that the Italian Republic has failed to fulfil the obligations which the directive lays down as to the result to be achieved.

90 On the other hand, in my view the argument that the Italian Government derives from the judgment in the case of Comitato di Coordinamento per la Difesa della Cava and Others v Regione Lombardia and Others is convincing. Even if it might have been thought, from reading Article 4 in isolation, that it imposes on Member States an independent obligation as to the result to be achieved, no such obligation exists. At paragraph 12 of that judgment the Court states that:

`Considered in its context, Article 4 of the directive, which essentially repeats the terms of the third recital in the preamble, indicates a programme to be followed and sets out the objectives which the Member States must observe in their performance of the more specific obligations imposed on them by Articles 5 to 11 of the directive concerning planning, supervision and monitoring of waste-disposal operations.'

91 Paragraph 14 of the judgment adds:

`Thus, the provision at issue must be regarded as defining the framework for the action to be taken by the Member States regarding the treatment of waste and not as requiring, in itself, the adoption of specific measures ...'.

92 The conclusion to be drawn from those two passages is clear: Article 4 may not, in itself, constitute the basis for an infringement of the directive. For that to be the case an infringement of another, more specific, provision of the directive must be established at the same time.

93 It is true that in the abovementioned case the Commission interpreted Article 4 in its original version and that that version was supplemented by the following phrase in 1991:

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

That constitutes an obligation that goes beyond the definition of an objective.

94 However, the Commission has not specifically alleged that the Italian Republic had failed to enact such a prohibition. Moreover, the fact that the municipality of Naples was able to sequestrate the fly tip proves that it is able to rely on a legal basis that prohibits the uncontrolled abandonment of waste.

Complaint alleging failure to fulfil obligations imposed by Article 5 (or Article 6 under the new version) of Directive 75/442/EEC

95 Article 5 of the Directive provides:

`Member States shall establish or designate the competent authority or authorities to be responsible, in a given zone, for the planning, organisation, authorisation and supervision of waste disposal operations.'

96 The new Article 6, which corresponds to Article 5, reads as follows:

`Member States shall establish or designate the competent authority or authorities to be responsible for the implementation of this directive.'

97 In its application the Commission requests the Court to find that the Italian Republic has failed to fulfil its obligations in that, in respect of the San Rocco valley, `the competent authorities designated pursuant to Article 5 of Directive 75/442/EEC (or Article 6 of Directive 75/442/EEC, as amended by Directive 91/156/EC which substantially reproduces the provisions thereof) failed to discharge their obligations concerning the organisation, authorisation and supervision of waste disposal operations in the area in question in breach of Article 5 of Directive 75/442/EEC (Article 6 of Directive 75/442/EEC, as amended by Directive 91/156/EC).'

98 Moreover, the Commission states that it regards as positive the programming which has been carried out as part of the more general management plan communicated by the Italian authorities on 2 January 1997 and that it therefore considers that the breach of the programming obligations, of which it complained in its reasoned opinion of 5 July 1996, has been terminated.

99 A comparison of Articles 5 and 6 cited above reveals that the only feature they have in common is that they require the Member States to establish or designate a `competent authority'. For the reasons set out in respect of the admissibility of this action, that obligation is the only one the Italian Republic can be alleged not to have fulfilled. It is clear from the way in which the Commission has worded its application that it acknowledges that the Italian Republic has fulfilled that obligation. Therefore, I consider that this complaint automatically fails.

100 However, on the basis of the wording of the old Article 5 the Commission argues that the `competent authorities' failed to fulfil their obligations as to the result to be achieved in respect of the organisation, authorisation and supervision of waste disposal operations which, it claims, are also laid down in Articles 5 and 6. Despite my belief that, in doing so, the Commission is mistaken, I will briefly examine the merits of its assertions in that respect.

101 The Commission points out that the fly tip continued to take waste in spite of sequestration measures taken in 1990, since is clear from the Italian Government's response to the reasoned opinion that the said tip was the subject of a fresh sequestration measure in September 1996. That clearly demonstrates the ineffectiveness of the measures taken. Furthermore, those sequestration measures were insufficient since, on account of the obligation imposed by the directive as to the result to be achieved, the Italian Republic was required not only to punish abuses but also to restore a healthy environment in accordance with Community law.

102 For its part, the Italian Government argues that that complaint is unfounded for the following reasons. First, the provisions invoked lay down only an obligation to designate authorities to be responsible for administrative tasks concerning the management of waste. The Italian Republic fulfilled that obligation by transposing the directive. Second, the question whether the alleged obligation has been fulfilled cannot be determined by one specific case. Third, to demonstrate that there has been a failure to fulfil obligations, the Commission relies on circumstances that have not been substantiated by evidence.

103 Since I came to the conclusion earlier that the discharges of biological and chemical materials do not fall within the scope of Directive 75/442/EEC, the complaint concerning Articles 5 and 6 comes down, in my view, to the question whether the existence of the fly tip is, in itself, such as to prove that the authorities referred to have failed to fulfil their obligations concerning the organisation, authorisation and supervision of waste disposal operations. That is not, in my opinion, the case.

104 The Commission has neither proved, nor even alleged, that no public refuse and waste collection service exists in Naples. Nor has it alleged that the creation of fly tips is not prohibited in that city. On the contrary, the fact that the tip was sequestrated and that criminal proceedings were instituted against the person responsible demonstrates that the necessary legal bases do exist.

105 As regards any infringement of the competent authority's obligations concerning `authorisation', that cannot be relevant since no authorisation was granted.

106 Finally, the obligation concerning `supervision' can, in my view, apply only to lawful waste disposal operations. The activities of a fly tip cannot, by definition, be subject to `supervision' by the authority established pursuant to (old) Article 5 or (new) Article 6 of the directive.

107 Therefore, the problem comes down to the question whether the competent authority has displayed the necessary diligence and effectiveness to put an end to the tipping of waste in the valley. However, that question is covered by the complaint based on (old) Article 7 and (new) Article 8 of the directive which will be examined below.

108 I therefore conclude that the above complaint is unfounded even if it is accepted that (old) Article 5 and (new) Article 6 lay down obligations that go beyond the designation of a `competent authority'.

Complaint alleging failure to fulfil obligations imposed by (old) Article 10 or (new) Article 13 of Directive 75/442/EEC

109 The Commission considers that:

`the competent authorities have not fulfilled their obligation of supervising undertakings transporting, collecting, storing, tipping or treating their own waste and those which collect or transport waste on behalf of third parties, in breach of Article 10 of Directive 75/442/EEC (or Article 13 of Directive 75/442/EEC, as amended by Directive 91/156/EC which substantially reproduces the provisions thereof)'.

110 The wording of that complaint reproduces the text of old Article 10. New Article 13 provides that `[E]stablishments or undertakings which carry out the operations referred to in Articles 9 to 12 shall be subject to appropriate periodic inspections by the competent authorities'.

111 From a reading of (new) Articles 9 to 12 there would appear to be no substantive difference between Article 10 and Article 13.

112 The Italian Government takes the view that that complaint is without substance, in particular because Article 10 provides for supervision in respect of persons entitled to carry out the various stages of waste management. The Commission has adduced no evidence to show that the fly tip was related to persons subject to such supervision.

113 In its reply the Commission acknowledges that it is not `able to demonstrate specifically that the individuals who used the fly tip had to be subject to the supervision provided for in that rule However, it is difficult to imagine that the waste does not come, at least in part, from those individuals.'

114 In that connection I consider it sufficient to draw attention to the terms of settled case-law (15) concerning the burden of proof in proceedings for failure to fulfil obligations, according to which it is `the Commission's responsibility to place before the Court the information needed to enable the Court to establish that the obligation has not been fulfilled, and in so doing the Commission may not rely on any presumption'.

115 In the absence of any information proving that the waste discharged in the fly tip came from undertakings subject to the supervision provided for in Article 10, I must therefore conclude that that complaint is unfounded.

Complaint alleging failure to fulfil obligations imposed by (old) Article 7 or the first indent of (new) Article 8 of Directive 75/442/EEC

116 The Commission claims that the Italian Republic `has not taken the necessary measures to ensure, with regard to a pit in the tufa located in the San Rocco riverbed area, used for fly tipping in the past, that the concessionaire responsible for that pit has the waste handled by a private or public waste collector or by a disposal undertaking, in breach of the first indent of Article 7 of Directive 75/442/EEC (or the first indent of Article 8 of Directive 75/442/EEC, as amended by Directive 91/156/EC which substantially reproduces the provisions thereof)'.

117 That complaint reproduces the terms of Article 7. New Article 8 uses the phrase `undertaking which carries out the operations listed in Annex II A or B' rather than `disposal undertaking'. Therefore, it may be said that the terms of the two provisions are essentially the same.

118 The Commission states that the Italian authorities appear to have failed to adopt the necessary measures to compel the operator of the fly tip to have the waste handled by a private or public waste collector or by a disposal undertaking. Consequently, the Italian Republic has failed to fulfil its obligations under the first indent of Article 7 of Directive 75/442/EEC.

119 The Italian Government argues that that complaint is unfounded. In its view, the fact that the pit was used for fly tipping does not demonstrate that the Italian Republic has infringed the provision in question, merely that the relevant Italian rules have been infringed. The Italian authorities took the necessary measures to put an end to the abuse by sequestrating the tip.

120 However, in my view there can be little doubt that by receiving waste there the operator of a fly tip becomes the holder of that waste. Therefore, Article 7 imposed on the Italian Republic a specific obligation, that is to say to take, in respect of that operation, since it was aware of the existence of the tip and the requirements of criminal procedure enabled it so to act, the measures necessary to ensure that the waste discharged at the tip was handled by a private or public waste collector or by a disposal undertaking if that operator was unable to dispose of or recover such waste itself.

121 Since it confined itself to ordering the sequestration of the fly tip and instituting criminal proceedings against the operator of that tip, the Italian Republic failed to fulfil the specific obligation imposed on it by the (old) Article 7 or (new) Article 8 of Directive 75/442/EEC.

Costs

122 Even though I conclude that only one of the Commission's pleas can be upheld, I propose that the defendant should be ordered to pay the entire costs. It is clear from the documents before the Court that the procedure initiated by the Commission played a major part in the adoption by the Italian Republic of a series of measures aimed at remedying a situation that was eminently criticisable from the point of view of protecting the environment.

Conclusion

Concluding, I propose that the Court should:

- declare that the Italian Republic failed to fulfil its obligations under Article 7 of the original version or Article 8 of the amended version of Council Directive of 15 July 1975 on waste (75/442/EEC) in that it failed to take the necessary measures to ensure that the waste discharged at the tip was handled by a private or public waste collector or by a waste disposal undertaking;

- dismiss the remainder of the action;

- order the Italian Republic to pay the costs.

(1) - OJ 1975 L 194, p. 39.

(2) - OJ 1991 L 78, p. 32.

(3) - It cites, in that respect, the judgment in Case 274/83 Commission v Italy [1985] ECR 1077.

(4) - Judgment in Case C-105/91 Commission v Greece [1992] ECR I-5871.

(5) - See, in particular, the judgments in Case 309/84 Commission v Italy [1986] ECR 599, in Case C-306/91 Commission v Italy [1993] ECR I-2133 and in Case C-296/92 Commission v Italy [1994] ECR I-1.

(6) - Judgment in Case C-45/91 Commission v Greece [1992] ECR I-2509.

(7) - Judgment in Case C-431/92 Commission v Germany [1995] ECR I-2189, at paragraph 22. Emphasis added.

(8) - Emphasis added.

(9) - Emphasis added.

(10) - This is a special body responsible for investigating and identifying infringements of environmental law.

(11) - OJ 1991 L 135, p. 40.

(12) - Emphasis added.

(13) - Judgment in Case 272/86 Commission v Greece [1988] ECR 4875.

(14) - Judgment in Case C-236/92 Comitato di Coordinamento per la Difesa della Cava and Others v Regione Lombardia and Others [1994] I-483.

(15) - See, in particular, the judgment in Case 96/81 Commission v Netherlands [1982] ECR 1791.