CELEX: 62002CC0420
Language: en
Date: 2004-07-15
Title: Opinion of Mr Advocate General Geelhoed delivered on 15 July 2004. # Commission of the European Communities v Hellenic Republic. # Failure of a Member State to fulfil obligations - Unlawful deposit of waste at the 'Pera Galini' site - Directive 75/442/EEC on waste, as amended by Directive 91/156/EEC - Articles 4 and 9. # Case C-420/02.

OPINION OF ADVOCATE GENERAL
      GEELHOED
      delivered on 15 July 2004 (1)
      
      Case C-420/02
      Commission of the European Communities 
      v
      Hellenic Republic
      (Failure of a Member State to fulfil its obligations – Infringement of Articles 4 and 9 of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive
         91/156/EEC of 18 March 1991)
      I –  Introduction 
      1.        In these proceedings brought under Article 226 EC the Commission requests the Court to declare that, by failing to adopt the
         necessary measures to ensure that the disposal or recovery of waste at the Péra Galini site in the prefecture of Heraklion
         will be carried out without endangering human health, without risk to water, air, soil, plants and animals and without causing
         a nuisance through noise or odours, and by granting a permit which does not contain the necessary information, the Hellenic
         Republic has failed to fulfil its obligations under Articles 4 and 9 of Directive 75/442/EEC on waste as amended by Directive
         91/156/EEC (2) (hereinafter: the directive). 
      
      II –  Legal framework 
      2.        Article 4 of the directive provides: 
      3.        ‘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. 
      4.        Member States shall also take the necessary measures to prohibit the abandonment, dumping or uncontrolled disposal of waste.’
         
      
      5.        According to Article 9(1) of the directive: 
      ‘For the purposes of implementing Articles 4, 5 and 7, any establishment or undertaking which carries out the operations specified
         in Annex II A must obtain a permit from the competent authority referred to in Article 6. 
      
      6.        … 
      III –  Procedure 
      7.        Following information received in the framework of petitions addressed to the European Parliament on the illegal deposit of
         waste at the Péra Galini site and the operation of the site without a permit, the Commission requested the Greek authorities
         by letter of 23 February 2000 to provide it with further information on the operating conditions of the site. 
      
      8.        The Greek Government responded by letter of 10 May 2000. This was followed by consultations in December 2000 and a further
         letter of the Greek Government of 20 March 2001. The information provided did not, however, convince the Commission that the
         HellenicRepublic was acting in compliance with its obligations under Articles 4 and 9 of the directive. It therefore addressed
         a formal notice to the Greek Government on 24 April 2001. 
      
      9.        Considering that the Greek authorities had still not taken adequate measures to comply with the relevant provisions of the
         directive in response to the formal notice, the Commission sent the HellenicRepublic a reasoned opinion on 21 December 2001.
         Even after the expiry of the two‑month term set in the reasoned opinion on 20 February 2002, the Greek authorities, in the
         Commission’s view, had not succeeded in complying with the directive. It therefore lodged the present application which was
         registered at the Court on 21 November 2002. 
      
      IV –  Assessment of the Commission’s complaints 
      10.      The HellenicRepublic acknowledges that it has infringed its obligation under Article 9 of the directive to ensure that establishments
         processing waste must obtain a permit meeting certain requirements, as the operation permit relating to the Péra Galini site
         was annulled by the Court of First Instance of Heraklion. This means that it is only necessary to consider the alleged infringement
         of Article 4 of the directive. 
      
      11.      Article 4 of the directive requires Member States to 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, plants and animals, without causing a nuisance through noise or odours, and without adversely
         affecting the countryside or places of special interest. 
      
      12.      As the Court has already made clear, although ‘that provision does not specify the actual content of the measures which must
         be taken in order to ensure that waste is disposed of without endangering human health and without harming the environment,
         it is none the less true that it is binding on the Member States as to the objective to be achieved, whilst leaving to the
         Member States a margin of discretion in assessing the need for such measures. From the fact that a situation is not in conformity
         with the objectives laid down in the first paragraph of Article 4 of the amended directive, then, the direct inference may
         not in principle be drawn that the Member State concerned has necessarily failed to fulfil its obligation under that provision
         to take the requisite measures to ensure that waste is disposed of without endangering human health and without harming the
         environment. However, if that situation persists and leads in particular to a significant deterioration in the environment
         over a protracted period without any action being taken by the competent authorities, it may be an indication that the Member
         States have exceeded the discretion conferred on them by that provision.’ (3)
      
      13.      The Commission asserts that the operation (since 1994) of the rubbish tip at the Péra Galini site in the prefecture of Heraklion
         on Crete is the source of environmental pollution and entails risks for the health of the local population. The measures taken
         to prevent further pollution (drainage ditches, fencing, fire‑warding zones, covering waste with sand) are insufficient, in
         the light of the obligations under Article 4 of the directive, to guarantee the proper operation of the installation. The
         Commission indicates that these should be accompanied by hydrogeological studies and an analysis of the impenetrability of
         the underground, as well as by other protective measures. It points out that according to a report drawn up by the prefecture
         of Heraklion in January 2002 leachate is not contained by the protective wall which was erected for this purpose and that
         it flows into a stream before ending up in the sea. Neither was it proven that the rocks supporting the site were impenetrable
         so as to prevent the pollution of subterranean waters. In addition, no periodic inspections were carried out, the quality
         of water was not analysed nor was biogas collected and processed. The waste management programmes and plans referred to by
         the Greek authorities had not yet passed the study stage. The Commission points out further that, in fact, the Greek authorities
         do not contest that the site does not comply with Greek legislation, as is evidenced by the annulment of the operation permit
         by the court of first instance of Heraklion. It concludes that by failing to adopt effective measures to protect the environment
         and the health of the local population against the pollution caused by the Péra Galini site, the HellenicRepublic has exceeded
         the margin of discretion it enjoys under Article 4 of the directive. 
      
      14.      During the oral hearing the Commission referred to a technical dossier sent to it by the Greek Government on 17 November 2003
         in which the various conditions were set out aimed at ensuring that the site was operated in a way which does not threaten
         the environment or human health. However, these conditions were to apply at some future, as yet unspecified date and certainly
         did not apply at the end of the period laid down in the Commission’s reasoned opinion. 
      
      15.      The Greek Government maintains that, in view of the measures which it has taken in respect of the site, it has not exceeded
         the margin of discretion which Article 4 leaves to the Member States. It claims that the way the installation currently operates
         does not endanger the environment or human health. The report referred to by the Commission was drawn up following an on‑the-spot
         inspection which took place at a time when circumstances were particularly difficult due to continuous heavy rainfall. According
         to another report which was drawn up in March 2003 drain water is collected in watertight cisterns and is recycled on the
         spot. The environment impact assessment report relating to the tip rehabilitation project, which was undertaken in the framework
         of the regional plan on waste management, was presented on 10 February 2003. In addition, it points out that the impenetrability
         of the rocks supporting the site was confirmed in a geological analysis made for the purposes of the implementation of the
         waste management plan. Measurements of the water quality by the competent authorities did not reveal that the applicable limits
         had been exceeded. Furthermore, the Greek Government refers to a regional waste management plan for Crete which provides inter
         alia for the establishment and operation of a ‘XYTA’ installation. An application to the Cohesion Fund for a contribution
         towards the financing of the construction of this installation was being drawn up in 2003. Once it has become operational
         the Péra Galini site will be closed. The Greek Government also mentions a plan for creating a facility for recycling packaging
         materials. Initially this was to have been realised by the end of 2003; in the rejoinder this date is replaced by 2004. 
      
      16.      According to well settled case-law of the Court of Justice, the question whether a MemberState has failed to fulfil its obligations
         must be determined by reference to the situation prevailing in the MemberState at the end of the period laid down in the reasoned
         opinion, (4) in the present case 20 February 2002. In the light of the interpretation given by the Court to Article 4 of the directive
         (cited in paragraph 9 above), the question to be answered is whether at that time the Hellenic Republic had gone beyond the
         margin of appreciation it enjoys under this provision by not taking adequate measures to prevent pollution of the environment
         from the Péra Galini site. 
      
      17.      In order to determine whether this is the case it must be pointed out that, despite the existence of a margin of appreciation
         in respect of the measures to be taken, the Member States are bound to ensure that the objectives of the directive are attained.
         Quite clearly, the objective of Article 4 is to guarantee that waste is recovered or disposed of in a manner which is not
         detrimental to human health or does not lead to a deterioration of the quality of the environment. The Court has recognised
         that isolated cases of processing waste in a manner which is inconsistent with the objectives of the directive may not be
         sufficient as to constitute an infringement of Article 4 of the directive. However, where such isolated breaches become more
         structural in character this may be indicative of an infringement of the directive. In this respect the Court refers to a
         persistent situation of non‑conformity with the directive, leading to a significant deterioration in the environment over
         a protracted period of time. (5) It must therefore be examined whether the situation of the Péra Galini site could be considered to be such a structural situation
         at the end of the two‑month time‑limit set in the Commission’s reasoned opinion of 21 December 2001. 
      
      18.      It appears from the information in the case file and presented at the oral hearing of 24 June 2004 that the Péra Galini site
         has been in operation since 1992 and that environmental problems were noted following an inspection visit by national authorities
         on 11 February 1998. Since then the site has been operational without interruption until at least the introduction of the
         present proceedings. This time-frame clearly indicates that the problem is of a structural character. I would add that the
         fact that the case itself arose from a petition to the European Parliament also suggests that the problem is longer lasting.
         
      
      19.      Where the Commission cites a national report relating to an inspection of 24 January 2002 which confirms its position and
         the Greek Government invokes a report following a visit to the site of 12 March 2003 which refutes the findings of the first
         report, I do not consider these documents alone to be decisive. The main thrust of the defence of the Greek Government and
         in the observations which it made during the oral hearing is to indicate that various plans and studies at different levels
         of government are being prepared which are aimed at improving the waste processing facilities on Crete. As far as the Péra
         Galini site is concerned these plans provide for a rehabilitation of the site and its ultimate closure once the projected
         XYTA has become operational. This had not been accomplished as of 25 March 2003, the date of the Greek Government’s rejoinder.
         Not only does the very existence of these plans imply a recognition of the threat posed by the Péra Galini site to the environment
         and human health, it is manifest that these plans had not taken effect or resulted in adequate measures being taken at the
         end of the period laid down in the reasoned opinion of the Commission. 
      
      20.      Consequently, it must be held that  the HellenicRepublic has failed to fulfil its obligations under the directive. 
      V –  Conclusion 
      21.      I therefore conclude that the Court should: 
      –        declare that, by failing to adopt the necessary measures to ensure that the disposal or recovery of waste will be carried
         out without endangering human health, without risk to water, air, soil, plants and animals and without causing a nuisance
         through noise or odours, and by granting a permit which does not contain the necessary information, the Hellenic Republic
         has failed to fulfil its obligations under Articles 4 and 9 of Directive 75/442/EEC on waste as amended by Directive 91/156/EEC;
         
      
      –        order the HellenicRepublic to pay the costs. 
      1 –	 Original language: English.
      
      2  –	Council Directive 75/442/EEC of 15 July 1975 on waste, OJ 1975 L 194, p. 39, as amended by Council Directive 91/156/EEC
         of 18 March 1991, OJ 1991 L 78, p. 32.
      
      3  –	Case C‑365/97 Commission v Italy [1999] ECR I‑7773, paragraphs 67and 68.
      
      4  –	See, inter alia, Case C‑143/02 Commission  v Italy [2003] ECR I‑2877, paragraph 11, and Case C‑446/01 Commission  v Spain [2003] ECR I‑6053, paragraph 15.
      
      5  –	See the judgment cited in note 3 at paragraph 68.