Opinion of Mr Advocate General Léger delivered on 18 April 2002. - Commission of the European Communities v Hellenic Republic. - Failure by a Member State to fulfil its obligations - Waste - Management of hazardous waste - Failure to provide information required under Article 8(3) of Directive 91/689 - Establishments and undertakings which carry out disposal and/or recovery of hazardous waste. - Case C-33/01.



European Court reports 2002 Page I-05447



Opinion of the Advocate-General

1. The Commission of the European Communities, pursuant to Article 226 EC, claims that the Court should declare that, by failing to send to the Commission the information required under Article 8(3) of Council Directive 91/689/EEC of 12 December 1991 on hazardous waste, the Hellenic Republic has failed to fulfil its obligations under the EC Treaty. The Commission also claims that the Hellenic Republic should be ordered to pay the costs.

I - Legal background

2. The object of Directive 91/689, as amended by Directive 94/31/EC of 27 June 1994, is to approximate the laws of the Member States on the controlled management of hazardous waste.

3. Directive 91/689 also aims to prevent the risks inherent in operations for the disposal and recovery of hazardous waste.

4. As provided in the sixth recital in the preamble to Directive 91/689, it is necessary to ensure that disposal and recovery of hazardous waste is monitored in the fullest manner possible.

5. Article 5 of Directive 91/689 provides:

1. Member States shall take the necessary measures to ensure that, in the course of collection, transport and temporary storage, waste is properly packaged and labelled in accordance with the international and Community standards in force.

...

3. Where hazardous waste is transferred, it shall be accompanied by an identification form containing the details specified in Section A of Annex I to Council Directive 84/631/EEC of 6 December 1984 on the supervision and control within the European Community of the transfrontier shipment of hazardous waste, as last amended by Directive 86/279/EEC.

6. Article 8(3) of Directive 91/689 provides:

... by 12 December 1994, the Member States shall send the Commission the following information for every establishment or undertaking which carries out disposal and/or recovery of hazardous waste principally on behalf of third parties and which is likely to form part of the integrated network referred to in Article 5 of Directive 75/442/EEC:

- name and address,

- the method used to treat waste,

- the types and quantities of waste which can be treated.

Once a year, Member States shall inform the Commission of any changes in this information.

The Commission shall make this information available on request to the competent authorities in the Member States.

The format in which this information will be supplied to the Commission shall be agreed upon ...

7. Commission Decision 96/302/EC of 17 April 1996 establishes a format in which information is to be provided pursuant to Article 8(3) of Directive 91/689. The annex to the decision sets out the standard format in which this information is to be provided.

8. Article 10(1) of Directive 91/689 provides:

The Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 12 December 1993. They shall forthwith inform the Commission thereof.

II - Background to the dispute

9. Since the Commission took the view that the Hellenic Republic had not sent it the information required under Article 8(3) of Directive 91/689, it initiated the infringement procedure.

10. On 16 September 1998, the Commission sent a letter of formal notice to the Greek Government, under Article 226 EC, requesting it to make its observations within a period of two months. Since it received no reply, the Commission sent a reasoned opinion to the Hellenic Republic on 17 December 1998.

11. By letter of 30 November 1998, the Greek authorities replied to the letter of formal notice stating that, in Greece, there were neither establishments nor undertakings carrying out disposal and/or recovery of hazardous waste. In the same letter, they gave the names and addresses of four undertakings which manage hazardous waste on behalf of third parties, which export it to other Member States.

12. On 11 August 1999, taking into account the subsequent answers provided by the Hellenic Republic, the Commission drew up a supplementary reasoned opinion in which it stated that the information provided by the Republic was incomplete. In fact, it considered that one third of the hazardous waste produced in Greece was recovered by establishments or undertakings in respect of which the Greek authorities had not yet provided any information.

13. By letter of 9 November 1999, the Greek authorities replied to that supplementary reasoned opinion. In their reply, they maintained that they had sent to the Commission, by letter of 13 November 1998 from the Ministry of the Environment, information concerning the establishments or undertakings responsible for disposal and/or recovery of hazardous waste on behalf of third parties. They also stated that, as regards the question of the quantity of hazardous waste produced and the percentage recovered in Greece in 1998, the total quantity of that waste amounted to 287 000 tonnes/year, of which 65 000 tonnes/year were recovered, that is 22.82%.

The Commission found that this information contradicted the replies given by the Greek authorities on 30 November and 7 December 1998.

III - Forms of order sought

14. Since the Commission took the view that, according to all the information provided by the Hellenic Republic, the infringement noted in the reasoned opinion had not been remedied, it decided to bring this action.

15. The Commission claims that the Court should:

- declare that, by failing to send to the Commission within the prescribed period the information concerning every establishment or undertaking which carries out disposal and/or recovery of hazardous waste, as required under Article 8(3) of Directive 91/689 and by Decision 96/302, which is envisaged by that provision, the Hellenic Republic has failed to fulfil its obligations under the EC Treaty and that directive,

- order the Hellenic Republic to pay the costs.

16. The Hellenic Republic contends that the Court should:

- dismiss the action brought by the Commission,

- order the Commission to pay the costs.

IV - Arguments of the parties

17. The Commission complains that the Hellenic Republic did not send it the information required under Article 8(3) of Directive 91/689 and did not do so in the format laid down by Decision 96/302.

18. In its defence, the Greek Government acknowledges that, in reply to the letter of formal notice and the reasoned opinion of the Commission, it stated that, in Greece, there were neither establishments nor undertakings carrying out disposal and/or recovery of hazardous waste, and gave the names of four undertakings which manage hazardous waste on behalf of third parties. It also gave new information, pointing out that, at the present time, there are six companies of that type. In addition, it provided information on the construction, at national level, of the first installation for the treatment of hazardous waste.

19. It its reply, the Commission complains that the Hellenic Republic did not send it the information concerning all the undertakings responsible for disposal and/or recovery of hazardous waste. In their rejoinder, the Greek authorities gave additional names of undertakings and also supplementary information about them.

V - Assessment

20. It is settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of subsequent changes.

21. According to Article 8(3) of Directive 91/689, Member States are required to send:

- the list of all the establishments or undertakings which carry out disposal and/or recovery of hazardous waste principally on behalf of third parties, and

- the names and addresses for each establishment or undertaking, the method used to treat waste and the types and quantities of waste which can be treated.

This information must be provided in the format required by Decision 96/302.

Every year, Member States are also required to communicate any changes in this information.

22. It is not disputed in any way that, on expiry of the period laid down in the supplementary reasoned opinion, that is 11 August 1999, the Greek Government had not sent the Commission the information relating to every establishment or undertaking which carries out disposal and/or recovery of hazardous waste principally on behalf of third parties in the format laid down by Decision 96/302. Similarly, it did not inform the Commission once a year of any changes in this information.

23. Since the Greek Government did not fulfil the obligations under Article 8(3) of Directive 91/689 and under Decision 96/302, the action brought by the Commission is well founded.

24. Under Article 69(2) of the Rules of Procedure of the Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for, which is the case here. I therefore propose that the Hellenic Republic be ordered to pay the costs.

Conclusion

25. Consequently, I propose that the Court:

(1) declare that the Hellenic Republic has failed to fulfil its obligations under Article 8(3) of Council Directive 91/689/EEC of 12 December 1991 on hazardous waste and under Commission Decision 96/302/EC of 17 April 1996 establishing a format in which information is to be provided pursuant to Article 8(3) of Directive 91/689;

(2) order the Hellenic Republic to pay the costs.