Opinion of Mr Advocate General Mischo delivered on 20 September 2001. - Commission of the European Communities v Italian Republic. - Failure by a Member State to fulfil its obligations - Environment - Waste - Directives 75/442/EEC, 91/689/EEC and 94/62/EC - Waste management plans. - Case C-466/99.



European Court reports 2002 Page I-00851



Opinion of the Advocate-General

1. In an action brought under Article 169 of the EC Treaty (now Article 226 EC), the initial subject-matter of which was reduced at the reply stage, the Commission of the European Communities requests the Court to make a declaration that, by failing to forward to the Commission information concerning plans for the management and disposal of waste and hazardous waste in respect of the regions of Sicily and Basilicata or information concerning plans for the management of packaging and packaging waste in respect of all the regions of Italy, the Italian Republic has failed to fulfil its obligations under Article 7 of Council Directive 75/442/EEC of 15 July 1975, as amended by Council Directive 91/156/EEC of 18 March 1991, on ensuring waste disposal and recovery, Article 6 of Council Directive 91/689/EEC of 12 December 1991 on hazardous waste, as amended by Council Directive 94/31/EC of 27 June 1994, and Article 14 of European Parliament and Council Directive 94/62/EC of 20 December 1994 on packaging and packaging waste.

2. Article 7(1) and (2) of Directive 75/442 provides:

1. In order to attain the objectives referred to in Articles 3, 4 and 5, the competent authority or authorities referred to in Article 6 shall be required to draw up as soon as possible one or more waste management plans. ...

2. Member States shall collaborate as appropriate with the other Member States concerned and the Commission to draw up such plans. They shall notify the Commission thereof.

3. Article 2(1) of Directive 91/156, amending Directive 75/442, leaves intact the obligation to notify and fixes a period ending 1 April 1993 for Member States to adopt the provisions necessary to comply with the Directive.

4. Article 6 of Directive 91/689 provides:

1. As provided in Article 7 of Directive 75/442/EEC, the competent authorities shall draw up, either separately or in the framework of their general waste management plans, plans for the management of hazardous waste and shall make these plans public.

2. The Commission shall compare these plans, and in particular the methods of disposal and recovery. It shall make this information available to the competent authorities of the Member States which ask for it.

5. Article 1 of Directive 94/31 amending Directive 91/689 leaves intact the obligation on Member States to notify and fixes a period ending 27 June 1995 for Member States to adopt the provisions necessary to comply with the Directive.

6. Article 14 of Directive 94/62 provides:

In pursuance of the objectives and measures referred to in this directive, Member States shall include in the waste management plans required pursuant to Article 7 of Directive 75/442/EEC, a specific chapter on the management of packaging and packaging waste ....

7. Under Article 22(1) of Directive 94/62, Member States are to bring into force the measures necessary to comply with that directive before 30 June 1996 and inform the Commission thereof.

8. The Italian authorities sent the Commission a series of regional waste management plans. Since the Commission had received no plan either for the regions of Sicily and Basilicata or for the four provinces of the Tuscany region (Florence, Leghorn, Pisa and Lucca) and had found that some of the plans were incomplete and finally that none of the plans dealt with packaging and packaging waste, by letter dated 14 January 1998, it initiated the procedure laid down in Article 169 of the Treaty by giving formal notice to the Italian authorities to submit their observations within a period of two months.

9. On 21 October 1998, the Commission sent a reasoned opinion to the Italian authorities, in which it specified that, since the Italian Republic had failed to adopt and, in any event, had failed to forward to the Commission within the prescribed period the measures laid down in Article 7 of Directive 75/442, Article 6 of Directive 91/689 and Article 14 of Directive 94/62, the Italian Republic had failed to fulfil its obligations under those directives.

10. Since there was no reaction from the Italian Government to the reasoned opinion, the Commission brought this action against the Italian Republic for failure to fulfil its obligations. In this action it no longer requested the Court to make a declaration that the Italian Republic had not adopted plans, but only that it had not forwarded to the Commission information relating to the management plans presented by the three directives.

11. In its application, the Commission stated that although Article 6 of Directive 91/689 and Article 14 of Directive 94/62 do not set out expressly the obligation to forward the waste management plans, such an obligation can be inferred from the references made by those articles to Article 7 of Directive 75/442.

12. I am able to endorse this assertion even though, with respect to Article 6 of Directive 91/689, the obligation to notify appears to arise from paragraph 2, which requires the Commission to compare the management plans, a task which clearly can be carried out only after notification, rather than from paragraph 1, to which the Commission refers, and which requires the plans to be made public.

13. In any event, it is not on this ground that the Italian Government has sought to make its defence. In fact, in its defence of 27 March 2000, although it does not dispute that this situation constitutes an infringement of Community law, it does nevertheless contest the fact that, in its application, the Commission implies, as it did in the reasoned opinion, that no plan was forwarded to it, which is not true.

14. The merit of that assertion has been acknowledged by the Commission since, in its reply, it limited its application. As I have already indicated in point 1 of this Opinion, it maintains its claim for a declaration of infringement of Article 7 of Directive 75/442 and Article 6 of Directive 91/689 only in respect of the regions of Sicily and Basilicata. As far as Article 14 of Directive 94/62 (packaging) is concerned, it maintains it in respect of all the Italian regions. With respect to the situation in the regions of Calabria, Latium, Lombardy, Puglia, Sardinia, Tuscany and Veneto, which forwarded incomplete plans, the Commission states that it will be the subject of a separate examination.

15. At the hearing, the Italian Republic referred to the emergency measures adopted in the two aforementioned regions. With respect to packaging and packaging waste, the attention of the Court was drawn to a framework agreement between the national group of packaging producers and the national association of communes. This plan was said to have already been very widely applied.

16. It is however not disputed that, at the date of expiry of the period prescribed by the reasoned opinion, the Italian Republic had still not forwarded to the Commission all the information required by Directives 75/442, 91/689 and 94/62 and that the new measures carried out with respect to packaging have not been integrated into management plans drawn up by the competent authorities, namely the regions. It is therefore necessary to find in favour of the Commission's claims set out in its reply.

17. As regards costs, it seems to me that the fact that the Commission had, in its application, wrongly charged the Italian Republic with a total failure to fulfil its obligations, which led it de facto to a form of discontinuance in its reply, should result in the Italian Republic not paying all the costs. I can only state however that the Italian Republic has not applied for costs. Consequently, it cannot avoid being ordered to pay the whole of the costs (Article 69(5) and (2) of the Rules of Procedure of the Court).

Conclusion

18. Having regard to the preceding considerations, I propose that the Court rule as follows:

- by failing to forward to the Commission information concerning plans for the management and disposal of waste and hazardous waste in respect of the regions of Sicily and Basilicata, or information concerning plans for the management of packaging and packaging waste in respect of all the regions of Italy, the Italian Republic has failed to fulfil its obligations under Article 7 of Council Directive 75/442/EEC of 15 July 1975, as amended by Council Directive 91/156/EEC of 18 March 1991, on ensuring waste disposal and recovery, Article 6 of Council Directive 91/689/EEC of 12 December 1991 on hazardous waste, as amended by Council Directive 94/31/EC of 27 June 1994 and Article 14 of European Parliament and Council Directive 94/62/EC of 20 December 1994 on packaging and packaging waste;

- the Italian Republic is ordered to pay the costs.