Commission of the European Communities v French Republic.
Date: 2002-06-18
25 However, Community legislative practice shows that there may be great differences in the types of obligations which directives impose on the Member States and therefore in the results which must be achieved.
26 Some directives require legislative measures to be adopted at national level and compliance with those measures to be the subject of judicial or administrative review (see, for example, Article 4, in conjunction with Article 8, of Council Directive 84/450/EEC of 10 September 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising (OJ 1984 L 250, p. 17); see, in this regard, Case C-360/88 Commission v Belgium [1989] ECR 3803 and Case C-329/88 Commission v Greece [1989] ECR 4159).
27 Other directives lay down that the Member States are to take the necessary measures to ensure that certain objectives formulated in general and unquantifiable terms are attained, whilst leaving them some discretion as to the nature of the measures to be taken (see, for example, Article 4 of 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); see, in this regard, Case C-365/97 Commission v Italy (the San Rocco case) [1999] ECR I-7773, paragraphs 67 and 68).
28 Yet other directives require the Member States to obtain very precise and specific results after a certain period (see, for example, Article 4(1) of Council Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing water (OJ 1976 L 31, p. 1); see, in this regard, Case C-56/90 Commission v United Kingdom [1993] ECR I-4109, paragraphs 42, 43 and 44, Case C-198/97 Commission v Germany [1999] ECR I-3257, paragraph 35, Case C-307/98 Commission v Belgium [2000] ECR I-3933, paragraph 51, and Case C-268/00 Commission v Netherlands [2002] ECR I-2995, paragraphs 12, 13 and 14).
33 It follows that Directives 89/369 and 89/429 impose on the Member States obligations, formulated in clear and unequivocal terms, to achieve a certain result, in order that their incineration plants meet detailed and precise requirements within the stated time-limits.
34 In those circumstances, contrary to the French Government's assertions it is not therefore sufficient for a Member State to take all reasonably practicable measures to achieve the result imposed by Directives 89/369 and 89/249 (see, to that effect, with regard to Directive 76/160, Commission v United Kingdom, cited above, paragraphs 42 and 44, Commission v Germany, cited above, paragraph 35, Case C-307/98 Commission v Belgium, cited above, paragraph 51, and Commission v Netherlands, cited above, paragraphs 12, 13 and 14).
35 Furthermore, even assuming that absolute physical impossibility to perform the obligations at issue imposed by Directives 89/369 and 89/429 may justify failure to fulfil them, the French Government has not been able to establish such impossibility in the present case (see Commission v United Kingdom, cited above, paragraph 46).
36 Next, in accordance with settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing at the end of the period laid down in the reasoned opinion, and subsequent changes cannot be taken into account by the Court (see Case C-214/96 Commission v Spain [1998] ECR I-7661, paragraph 25, and Case C-384/97 Commission v Greece [2000] ECR I-3823, paragraph 35).
37 In that regard, it need only be stated that the French Government itself acknowledged in its reply to the reasoned opinion of 21 October 1999, which laid down a period of two months from its notification, that at the end of 1999 seven incineration plants were still operating without complying with the combustion conditions laid down by Directives 89/369 and 89/429.
39 It is likewise not possible to accept the French Government's argument that it embarked upon a vigorous programme to comply with the rules laid down by Directives 89/369 and 89/429, enabling the number of plants not complying with those rules to be reduced from 40 in December 1996 to seven at the end of 1999. It is common ground that the French Government established and then implemented that programme from the end of 1996 only, that is to say six years after the time-limit for implementing Directive 89/429 expired. Accordingly, the measures adopted by the French Government were belated and they cannot be relied on in order to justify the failure to fulfil obligations.