Opinion of Mr Advocate General Darmon delivered on 3 February 1993. - Commission of the European Communities v Italian Republic. - Directive 75/439/EEC on the disposal of waste oils - Failure to fulfil obligations - Failure to comply with a judgment of the Court. - Case C-366/89.



European Court reports 1993 Page I-04201



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1. In its judgment of 17 December 1981 (1) the Court held that by failing to adopt within the prescribed period the provisions needed in order to comply with a number of Directives concerning the protection of the environment, including Council Directive 75/439/EEC on the disposal of waste oils (2) (hereinafter "the Directive"), the Italian Republic had failed to fulfil its obligations under the Treaty.

2. By its originating application of 28 November 1989 the Commission has brought before the Court, this time on the basis of Article 171 of the Treaty, a new action for failure to fulfil obligations, the Member State in question still not having taken, according to the Commission, all the measures necessary to implement the Directive in its entirety, since it has left Articles 4, 6, 12 and 15 thereof partially unapplied. Moreover, the legislation introduced by Italy is said to be contrary to Article 34 of the Treaty.

3. The Directive pursues a double objective. First, it seeks to bring about equal conditions of competition with respect to the disposal of waste oils. Secondly, it seeks to protect the environment against the harmful effects caused by the discharge, deposit or processing of these oils. (3)

4. Following the abovementioned judgment of the Court, Italy adopted Decree No 691 of 23 August 1982 (4) (hereinafter "DPR No 691") designed to transfer the Directive into national law.

5. By formal notice of 13 November 1986, the Commission informed the Italian Government that it considered that that Decree did not completely satisfy the requirements of the Directive and, furthermore, that it hindered intra-Community trade.

6. The Italian Government replied on 16 March 1987 that the Decree, and other relevant legislative provisions existing or adopted in the matter, ensured the conformity of the Italian legislation both with the rules of the Treaty and the requirements of the Directive.

7. By reasoned opinion of 15 June 1988, the Commission maintained its position.

8. Italy again disputed that position by letter of 22 December 1988.

9. At the hearing, that is to say, three years after the lodging of the application to the Court (the hearing having been postponed on a number of occasions in view of a possible discontinuance of the action), the Commission stated that it would limit its complaints to failure to comply with Articles 6, 12 and 15 of the Directive. There is therefore no longer any need to consider the other grounds of complaint initially formulated.

10. Let me say at once that the Decree of 27 January 1992 (5) concerning the implementation of Directives 75/439/EEC and 87/101/EEC (6) on the disposal of waste oils, even though its effect was to prompt the Commission to withdraw certain of its complaints, cannot be relied on to any purpose in this case. The Court has always been concerned to confine its examination exclusively to the legislation applicable at the time when the action was brought. Any legislative provision adopted subsequently may not therefore be taken into consideration. (7)

11. It must therefore be considered whether, at the time when the action was brought, Italy had or had not taken the measures necessary to comply with Articles 6, 12 and 15 of the Directive.

12. Let me dispose at once of the case of Article 15 which provides:

"Each Member State shall periodically convey to the Commission information concerning its technical expertise and the experience gained and results obtained through the application of measures taken pursuant to this Directive.

The Commission shall send an overall summary of such information to the Member State."

13. The Commission complains that the defendant has not fulfilled that obligation of notification.

14. Italy does not deny this. Its reply to the questionnaire drawn up by the Commission and sent to all the Member States as one of a series of steps concerning the transposition of the Directive may not be treated as equivalent to the periodic conveying of information on the experience gained or the techniques used in relation to the disposal of waste oils. (8)

15. The failure to fulfil obligations is therefore established on that point.

16. Let us now consider Articles 6 and 12 of the Directive jointly.

17. Article 6 requires all undertakings disposing of waste oils to obtain a permit. In order to obtain it, those undertakings must satisfy the conditions required by the state of technical development. The permit is granted, in so far as is necessary, after examination of their installations.

18. Article 12 sets up a system of periodic inspection of the "undertakings referred to in Article 6 ..., particularly as regards their compliance with the conditions of their permits."

19. The Court clearly described, in its judgment in Procureur de la République v Adbhu, (9) the structure of those two articles when it held that:

"... the Directive requires Member States to prohibit any form of waste oil disposal which has harmful effects on the environment. It is to that end that the Directive compels Member States to set up an effective system of prior approval and subsequent inspections". (10)

20. Those obligations of authorization and inspection concern undertakings responsible for disposing of waste oils. That disposal can be carried out by means of two techniques: either straightforward destruction, or regeneration (11) which enables the oils to be reused; the latter method has been chosen by the Directive. (12)

21. Let us look at two cases in turn and see whether the Member State has discharged its obligations regarding permits and inspections with respect, first, to undertakings which regenerate oils and, secondly, those which dispose of them by incineration.

22. As regards the undertakings which regenerate waste oils, the Commission points out that DPR No 691 does not contain any provisions concerning either permits or inspections.

23. In its first answers to the formal notice and to the reasoned opinion, Italy first maintains that Article 20 of Law No 615 of 13 July 1966 concerning atmospheric pollution (13) leaves it open to a regional committee to carry out "inspections on the premises of industrial establishments" and goes on to state that Articles 4 and 6 of Decree-Law No 1741 of 2 November 1933 (14) satisfies, in any event, the requirements of Articles 6 and 12 of the Directive.

24. In its defence, the Member State adds that the prior examination with respect to the conditions required by the state of technical development constitutes a requirement which has already been integrated into administrative practice because it is deemed to form part of the rules of good management of the authority responsible for issuing the permit. (15)

25. It certainly cannot be denied that full implementation of a directive may be achieved where the Member State has, in its domestic legal system, provisions making it possible to attain the desired result, even where those provisions are scattered among a number of statutes. It is then not necessary for that Member State to take specific measures. But it is still necessary for the Directive to be applied in its entirety; administrative circulars, and a fortiori mere administrative practices, cannot constitute sufficient implementing provisions. (16)

26. However, in view of the non-mandatory and incomplete nature of the legislation referred to by Italy, the requirements of the Directive cannot be satisfied. The Law of 13 July 1966 only relates to atmospheric pollution, whilst the Directive is designed, more generally, to protect waters and soil, and the inspection provided for by that law is uncertain since it depends on the discretion of a regional committee. Likewise, the provisions of the Decree-Law of 1933 prove to be inadequate in two respects. First, they do not, as regards the undertaking, make the granting of the permit dependant on the existence of "conditions required by the state of technical development". Still less do they require a subsequent inspection of the installations.

27. Admittedly, Article 4 of the Decree-Law requires "any person intending to process, rectify or treat in any way whatsoever the oils, minerals and residues derived from the refining of those oils" to apply for a "concession". But the granting of the concession is not made subject to the prior checks referred to in the Directive. Article 6 of the Decree-Law may seem more relevant, because it provides for "a permanent inspection from the technical and fiscal points of view", carried out by officials of the competent ministries, who may "at any time" enter the offices, depots and premises used for processing. However, nothing is specified as to the systematic and periodic nature of those inspections the conduct of which will not necessarily be in accordance with Article 12 of the Directive, since the conditions of the permits defined in Article 6 are not required to be satisfied.

28. The existing national provisions therefore do not ensure the full application of Articles 6 and 12 concerning regeneration of used oils.

29. As regards disposal by incineration of those oils, the Commission, in relation to industrial incineration installations, considers the provisions of DPR No 203 of 24 May 1988 (17) to be adequate.

30. But it complains of the inadequacy, in relation to Articles 6 and 12, of Article 3(3) of DPR No 691 which provides:

"The Minister for Industry, Trade and Crafts may, as regards certain stocks, permit undertakings to use in their own installations, for the purposes of incineration, used oils that they obtained following production or utilization cycles, subject to Law No 615 of 13 July 1966 and the subsequent provisions concerning atmospheric pollution."

31. That provision is silent as regards the technical conformity of the installations and the subsequent inspections which the installations must undergo.

32. As a result, it appears that the national provisions in force are also inadequate to ensure the full application of Articles 6 and 12 of the Directive as regards non industrial undertakings disposing of waste oils by incineration.

33. I therefore propose that the Court:

(1) declare that by persisting, despite the judgment of the Court of 17 December 1981 in Case 30/81 to 34/81 Commission v Italy, in not taking all the measures necessary to implement Articles 6, 12 and 15 of Council Directive 75/439/EEC of 16 June 1975, the Italian Republic has failed to fulfil its obligations under Article 171 of the Treaty;

(2) order, pursuant to Article 69(2) of the Rules of Procedure, that the costs be borne by the Italian Republic.

(*) Original language: French.

(1) ° Joined Cases 30/81 to 34/81 Commission v Italy [1981] ECR 3379.

(2) ° OJ 1981 L 194, p. 23.

(3) ° See recitals 1 and 3 in the preamble to the Directive.

(4) ° Gazzetta Ufficiale No 270 of 30 September 1982, p. 7081.

(5) ° Gazzetta Ufficiale of 15 February 1992, No 38.

(6) ° Council Directive of 22 December 1986, amending Directive 75/439/EEC on the disposal of waste oils (OJ 1987 L 42, p. 43).

(7) ° See, to that effect, paragraph 13 of the judgment in Case 291/84 Commission v Kingdom of the Netherlands [1987] ECR 3483; see also the judgment in Case 7/61 Commission v Italy [1961] ECR 317.

(8) ° See p. 8 of the reasoned opinion (French translation).

(9) ° Case 240/83 [1985] ECR 531.

(10) ° Paragraph 29.

(11) ° On the concept of regeneration, a complex chemical process which restores to used mineral oils all the properties they had before they were used , see the judgment in Case 21/79 Commission v Italy [1980] ECR 1.

(12) ° See Article 3 of the Directive.

(13) ° Gazzetta Ufficiale della Republica Italiana No 201 of 13 August 1966, p. 4091.

(14) ° Gazzetta Ufficiale del Regno d' Italia No 301, p. 5995.

(15) ° P. 7 of the French translation.

(16) ° See, in particular, Case 169/87 Commission v France [1988] ECR 4093, paragraph 12.

(17) ° Gazzetta Ufficiale No 140 of 16 June 1988.