Commission of the European Communities v Italian Republic.
Date: 2007-04-26
20. First of all, it is appropriate to state that, without prejudice to the Commission’s obligation to discharge the burden of proof upon it in proceedings under Article 226 EC, the EC Treaty does not contain any rule which precludes the overall treatment of a significant number of situations on the basis of which the Commission considers that a Member State has, repeatedly and over a long period, failed to fulfil its obligations under Community law.
21. Next, it is settled case-law that an administrative practice can be made the object of an action for failure to fulfil obligations when it is, to some degree, of a consistent and general nature (see, in particular, Commission  v Ireland , paragraph 28 and the case-law cited).
26. In that regard, it is to be remembered that in proceedings under Article 226 EC for failure to fulfil obligations it is incumbent upon the Commission to prove the alleged failure. It is the Commission’s responsibility to place before the Court the information needed to enable the Court to establish that the obligation has not been fulfilled, and in so doing the Commission may not rely on any presumption (Case 96/81 Commission  v Netherlands  [1982] ECR 1791, paragraph 6).
27. However, the Member States are required, under Article 10 EC, to facilitate the achievement of the Commission’s tasks, which consist in particular, pursuant to Article 211 EC, in ensuring that the provisions of the Treaty and the measures taken by the institutions pursuant thereto are applied ( Commission  v Ireland , paragraph 42 and the case-law cited).
28. In this context, account should be taken of the fact that, where it is a question of checking that the national provisions intended to ensure effective implementation of directives, including those adopted in the environmental field, are applied correctly in practice, the Commission, which does not have investigative powers of its own in the matter, is largely reliant on the information provided by any complainants, private or public bodies active in the Member State concerned and that Member State itself (see, to that effect, Commission  v Ireland , paragraph 43 and the case-law cited).
30. It follows in particular that, where the Commission has adduced sufficient evidence of certain matters in the territory of the defendant Member State, it is incumbent on the latter to challenge in substance and in detail the information produced and the consequences flowing therefrom (C ommission  v Ireland , paragraph 44 and the case-law cited).
31. In such circumstances, it is indeed primarily for the national authorities to conduct the necessary on-the-spot investigations, in a spirit of genuine cooperation and mindful of each Member State’s duty, recalled in paragraph 27 of the present judgment, to facilitate the general task of the Commission ( Commission  v Ireland , paragraph 45 and the case-law cited).
32. Thus, where the Commission relies on detailed complaints revealing repeated failures to comply with the provisions of the directive, it is incumbent on the Member State concerned to contest specifically the facts alleged in those complaints. Likewise, where the Commission has adduced sufficient evidence to show that a Member State’s authorities have developed a repeated and persistent practice which is contrary to the provisions of a directive, it is incumbent on that Member State to challenge in substance and in detail the information produced and the consequences flowing therefrom ( Commission  v Ireland , paragraphs 46 and 47 and the case-law cited). That obligation rests on the Member States under the duty of genuine cooperation, enshrined in Article 10 EC, throughout the procedure provided for by Article 226 EC. It is apparent from the case-file that the Italian authorities did not fully cooperate with the Commission for the purposes of the investigation of the present case at the stage of the pre-litigation procedure.
Infringement of Articles 4, 8 and 9 of Directive 75/442, Article 2(1) of Directive 91/689 and Article 14(a) to (c) of Directive 1999/31
– Arguments of the parties
36. First of all, it is settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation obtaining in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes even if they constitute a correct application of the Community law rule which is the subject of the action for failure to fulfil obligations (see, to that effect, Case C‑111/00 Commission  v Austria  [2001] ECR I‑7555, paragraphs 13 and 14; Case C‑103/00 Commission  v Greece  [2002] ECR I‑1147, paragraph 23; the judgment of 28 April 2005 in Case C‑157/04 Commission  v Spain , not published in the ECR, paragraph 19; and the judgment of 7 July 2005 in Case C‑214/04 Commission  v Italy , not published in the ECR, paragraph 14).
37. Next, so far as concerns, more specifically, the determination as to the infringement by a Member State of Article 4 of Directive 75/442, it is important to note that that article provides that Member States are 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, without however specifying the actual content of the measures which must be taken in order to ensure that such objective is attained. It is none the less true that the provision 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 (Case C‑365/97 Commission  v Italy (‘San Rocco’)  [1999] ECR I‑7773, paragraph 67). It cannot, therefore, in principle, be directly inferred from the fact that a situation is not in conformity with the objectives laid down in Article 4 of Directive 75/442 that the Member State concerned has necessarily failed to fulfil its obligations under that provision. Nevertheless, it is established that 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 ( San Rocco , paragraphs 67 and 68).
40. The existence of such a situation over a prolonged period necessarily brings about a significant deterioration in the environment.
44. Finally, the same applies to the complaint alleging infringement of Article 14 of Directive 1999/31. In this instance, the Italian Government itself stated that 747 landfills in Italian territory should have been the subject of conditioning plans. Examination of all the documents annexed to the government’s rejoinder reveals that, when the prescribed period expired, such plans had been presented for only 551 landfills and that only 131 plans had been approved by the competent authorities. In addition, as the Commission correctly points out, the government has not made clear what action was taken as regards the landfills for which the conditioning plans were not approved.