Case C-263/07: Action brought on 1 June 2007 — Commission of the European Communities v Grand Duchy of Luxembourg
Date: 2007-09-08
Institutions: Court of Justice
Subjects: European Commission, Luxembourg, action for failure to fulfil an obligation, air quality, industrial pollution, polluter pays principle, pollution control measures, waste management

C 211/12

EN

Official Journal of the European Union

8.9.2007

Form of order sought

Form of order sought

— Declare that, by reason of the transposition into domestic
law of the provisions relating to the designation of undertak-
ings able to guarantee the provision of universal service, the
French Republic has failed to fulfil its obligations under Arti-
cles 8(2), 12 and 13 and Annex IV of the Universal Service
Directive 2002/22/EC (1);

— order the French Republic to pay the costs.

Pleas in law and main arguments

incorrectly transposed Directive 2002/22,

By its action, the Commission in essence complains that the
defendant
to the
extent that French legislation provides that any operator able to
ensure the provision of one of the components of the universal
service over the whole of the national territory may be given
the task of so doing. Such a provision disregards both the prin-
ciple of non-discrimination set out in Article 8(2) of the above-
mentioned directive and the principles of profitability and effi-
ciency which follow from Articles 8, 12 and 13 thereof and
Annex IV thereto, since it excludes a priori economic operators
which are not able to ensure provision of the universal service
over the whole of the national territory. It is true that the Direc-
tive does not of itself exclude the possibility of the designation,
in fine, of a single operator to cover the whole of the national
territory, but, in any event, it requires that the Member States
first follow an open procedure in accordance with the criteria
set out in Article 8(2) of the Directive in order to ensure that
any designation of a single operator is indeed the most efficient
and cost-effective solution.

(1) Directive 2002/22/EC of

the
Council of 7 March 2002 on universal service and users' rights
relating to electronic
and services
communications networks
(Universal Service Directive) (OJ 2002 L 108, p. 51).

the European Parliament and of

Action brought on 1 June 2007 — Commission of the
European Communities v Grand Duchy of Luxembourg

(Case C-263/07)

(2007/C 211/22)

Language of the case: French

— Declare that, by failing correctly to transpose Articles 9(4)
and 13(1) of Council Directive 96/61/EC of 24 September
1996 concerning integrated pollution prevention and
control (1) and Annex I
the Grand Duchy of
its obligations under that
Luxembourg has failed to fulfil
directive;

thereto,

— order the Grand Duchy of Luxembourg to pay the costs.

Pleas in law and main arguments

The Commission raises three complaints in support of
action.

its

In its first complaint, it alleges, firstly, that the defendant incor-
rectly transposed Article 9(4) of Directive 96/61 in that
it
supplemented the — correct — definition of ‘best available tech-
niques’ with a comment relating to the ‘excessive costs’ of those
techniques which does not appear in the Directive. Although
the Directive does indeed stipulate that the best available techni-
ques imply techniques perfected on a scale which permits their
application, in the context of the industrial sector concerned, in
economically and technically viable conditions,
it does not
permit
techniques whose appli-
cability and availability would entail costs excessive by reference
to establishments of average size and economically healthy in
the same sector or a similar sector. Such precise requirements
would go beyond what is laid down by the Directive in that
regard.

the systematic exclusion of

By its second complaint, the Commission then alleges that the
defendant reduced the scope of the obligation to reconsider or
update the permit conditions, laid down in Article 13(1) of the
Directive, since, according to the terms of the national trans-
posing provisions, those conditions are to be reconsidered only
in three particular situations or where it is necessary, for which
‘appropriate reasons’ are to be given. Those terms are, once
again, more restrictive than those of the Directive, which merely
refers to periodic reconsideration and to updating ‘where neces-
sary’ of the permit conditions.

By its third complaint, the Commission alleges, finally, that the
defendant incorrectly transposed Annex I to the Directive since
the national transposing measures refer to ‘boilers with a rated
thermal input exceeding 50 MW’ and not, as in category 1.1 in
that Annex, to ‘combustion installations with a rated thermal
input exceeding 50 MW’. That category is wider than that of
simple boilers.

Parties

Applicant: Commission of the European Communities (repre-
sented by: A. Alcover San Pedro and J.-B. Laignelot, acting as
Agents)

(1) OJ 1996 L 257, p. 26.

Defendant: Grand Duchy of Luxembourg