Commission of the European Communities v Italian Republic.
Date: 1999-11-09
12 By a letter dated 28 January 1992, the Italian Ministry of the Environment provided the Commission with the following information:
- it appeared that biological and chemical materials from the second general hospital had been systematically discharged into the San Rocco valley, putting the population in various areas at serious risk;
- major hydrogeological problems had been recorded in the same valley owing to the presence of tufaceous quarries;
- in the past one of those quarries had been used as an illegal tip;
- having been placed under sequestration on 8 May 1990, that quarry was re-used as a tip in May 1991. The operator was prosecuted on that ground and the proceedings are still pending.
21 The Italian Government maintains first of all that the allegation in the letter of 26 June 1990 constituting formal notice was not sufficiently clear to enable it effectively to deploy its defence pleas.
22 The Commission considers at the outset that the letter of formal notice identified with sufficient precision the Italian Government's alleged failure to comply with its obligations since it referred to pollution due to uncontrolled tipping of waste from areas upstream of the San Rocco valley and the failure to take the steps necessary to plan, organise and control waste-disposal operations as provided for in Directive 75/442. The Commission goes on to state that it had already asked the Italian Government, in its letter of 15 December 1988, to submit its observations on the state of the environment in the San Rocco valley. Finally, it was clear from the Italian Government's reply to the letter of formal notice that it was in a position fully to exercise its rights of the defence since it replied point by point to the individual allegations and did not plead that they were of a general nature.
23 As a preliminary point it should be recalled that, in accordance with settled case-law, the letter of formal notice from the Commission to the Member State, and then the reasoned opinion issued by the Commission, delimit the subject-matter of the dispute, so that it cannot thereafter be extended. The opportunity for the State concerned to submit its observations, even if it chooses not to avail itself thereof, constitutes an essential guarantee intended by the Treaty, adherence to which is an essential formal requirement of the infringement procedure. Consequently, the reasoned opinion and the proceedings brought by the Commission must be based on the same complaints as those set out in the letter of formal notice initiating the pre-litigation procedure (Case C-191/95 Commission v Germany [1998] ECR I-5449, paragraph 55).
24 Thus, in so far as a judgment declaring that a Member State has failed to fulfil its obligations establishes the basis of liability which that State may incur, as a result of its default (see Case C-29/90 Commission v Greece [1992] ECR I-1971, paragraph 12), and constitutes a condition precedent to the bringing of proceedings under Article 171 of the EC Treaty (now Article 228 EC), the Member State must be afforded the opportunity, in the course of the pre-litigation procedure, to refute in their entirety the allegations made against it by the Commission.
25 However, that requirement cannot be carried so far as to mean that in every case the statement of complaints in the letter of formal notice, the operative part of the reasoned opinion and the form of order sought in the application must be exactly the same, where the subject-matter of the proceedings has not been extended or altered but simply limited (Commission v Germany, cited above, paragraph 56).
26 The reasoned opinion provided for in Article 169 of the Treaty must contain a coherent and detailed statement of the reasons which led the Commission to conclude that the State in question has failed to fulfil one of its obligations under the Treaty. The letter of formal notice cannot be subject to such strict requirements of precision, since it cannot, of necessity, contain anything more than an initial brief summary of the complaints. There is therefore nothing to prevent the Commission from setting out in detail in the reasoned opinion the complaints which it has already made more generally in the letter of formal notice (see Commission v Germany, cited above, paragraph 54).
27 In the present case, the letter of formal notice must be held to satisfy the degree of precision required by the case-law, because identification of the Member State's non-compliance and its designation as being capable of constituting an infringement of Articles 4, 5, 6, 7 and 10 of Directive 75/442 were sufficient to enable the Italian Republic to present its defence.
28 It follows that the first plea of inadmissibility must be rejected as unfounded.
30 In that connection, the Italian Government states that the discrepancy between the reasoned opinion and the application cannot be justified by reference to an amendment to Directive 75/442 in the course of the procedure since the amendment was made more than three years prior to notification of the reasoned opinion. Therefore, when drawing up the reasoned opinion, the Commission could not ignore the fact that, with effect from 1 April 1993, the original version of Directive 75/442 was no longer in force. Moreover, by referring exclusively to the provisions of Directive 75/442, the wording of the reasoned opinion tacitly limits the alleged infringement to matters occurring prior to 1 April 1993.
32 In that connection, the Court has held that, in the context of proceedings under Article 169, the existence of an infringement must be assessed in the light of the Community legislation in force at the close of the period prescribed by the Commission for the Member State concerned to comply with its reasoned opinion (Case C-61/94 Commission v Germany [1996] ECR I-3989, paragraph 42).
35 As the Court has consistently held, the proper conduct of the pre-litigation procedure constitutes an essential guarantee required by the Treaty not only in order to protect the rights of the Member State concerned, but also to ensure that any contentious procedure will have a clearly defined dispute as its subject-matter.  It is only on the basis of a properly conducted pre-litigation procedure that the contentious procedure before the Court will enable the latter to judge whether the Member State has in fact failed to fulfil the specific obligations which the Commission alleges it has breached (order in Case C-266/94 Commission v Spain [1995] ECR I-1975, paragraphs 17 and 18).
36 Accordingly, although the claims as stated in the application cannot in principle be extended beyond the infringements alleged in the operative part of the reasoned opinion and in the letter of formal notice, it is none the less true that, where Community law is amended during the course of the pre-litigation procedure, the Commission has standing to seek a declaration that a Member State has failed to fulfil obligations which were created in the initial version of a directive, subsequently amended or repealed, and which were maintained in force under the new provisions.
37 As the Commission has emphasised, a comparative study of those provisions shows that the amended directive tightened up certain provisions of Directive 75/442. Consequently, the majority of the obligations imposed on the Member States under Directive 75/442 remain applicable under the amended directive.
38 Indeed, although the provisions of the amended directive are not formally mentioned in the operative part of the reasoned opinion, they are none the less mentioned in the body of the opinion among the provisions relied on by the Commission (see Case C-431/92 Commission v Germany [1995] ECR I-2189, paragraph 18).
39 Conversely, the subject-matter of the dispute cannot be extended to obligations arising under the amended directive which do not correspond to those arising under Directive 75/442, as otherwise it would constitute a breach of the essential procedural requirements of infringement proceedings.
40 It follows that the action is admissible inasmuch as it concerns obligations arising under the amended directive which were already applicable under Directive 75/442.
42 Thirdly, the Italian Government contends that the Commission based its application on the results of fresh investigations which it carried out after receiving the Italian Government's letter of 21 April 1997. That being the case, the Commission, it is contended, ought to have restarted the pre-litigation procedure instead of bringing proceedings.
44 In that connection, it must be stated that the investigations carried out following the adoption of the reasoned opinion, as well as the deliberations of the municipal council, led the Commission, for the purposes of bringing the action, to the conclusion that the Italian Republic had still not complied with that opinion, even after expiry of the time-limit prescribed for compliance therewith.
45 The Court has consistently held that, even where the default has been remedied after the time-limit prescribed has expired, there is still an interest in pursuing the action (see, in particular, Case 103/84 Commission v Italy [1986] ECR 1759, paragraph 8; Case 240/86 Commission v Greece [1988] ECR 1835, paragraph 14; and Case C-29/90 Commission v Greece, cited above, paragraph 12).
59 On the basis of that provision and of Article 169 of the Treaty, the Commission's function is, in the general interest of the Community, to ensure that the Treaty and the provisions adopted by the institutions thereunder are applied by the Member States  and to note the existence of any failure to fulfil the obligations deriving therefrom, with a view to bringing it to an end ( Case 167/73 Commission v France [1974] ECR 359, paragraph 15, and Case C-431/92 Commission v Germany, cited above, paragraph 21).
60 Given its role as guardian of the Treaty, the Commission may ask the Court to find that, in not having achieved, in a specific case, the result intended by the directive, a Member State has failed to fulfil its obligations (Case C-431/92 Commission v Germany, cited above, paragraph 22).
62 It is true that the Court ruled in Comitato di Coordinamento per la Difesa della Cava, cited above, with regard to the possibility raised by the national court of Directive 75/442 requiring the Member States to adopt appropriate measures in order to encourage the prevention, recycling and conversion of waste, rather than the tipping thereof, that Article 4 of Directive 75/442 does not create rights for individuals which the national courts must protect.
63 None the less, the question arising in the present case is whether the first paragraph of Article 4 of the amended directive is to be interpreted as imposing the obligation contended for and whether that obligation was fulfilled in a given case. That is quite separate from the question whether the unconditional and sufficiently clear and precise provisions of an unimplemented directive may be relied upon directly by individuals as against the State (Case C-431/92 Commission v Germany, cited above, paragraph 26).
64 Admittedly, Article 4 of Directive 75/442, which essentially repeats the terms of the third recital in the preamble thereto, set out the principal objective of that directive, namely the protection of human health and the environment against harmful effects caused by the collection, transport, treatment, storage and tipping of waste, which the Member States were obliged to observe in their performance of the more specific obligations imposed on them by Articles 5 to 11 of the directive concerning planning, supervision and monitoring of waste-disposal operations (see Joined Cases 372/85 to 374/85 Traen and Others [1987] ECR 2141, paragraph 9, and Comitato di Coordinamento per la Difesa della Cava, cited above, paragraph 12).
65 However, in regard to the `necessary measures' to be taken by the Member States under Article 4 of Directive 75/442, it was permissible for them to impose on operators requirements not prescribed by the other provisions of the directive in order to ensure attainment of the directive's essential objective (see to that effect Traen and Others, cited above, paragraph 13).
66 Under the first paragraph of Article 4 of the amended directive, the 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 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.
67 Whilst 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.
68 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.
69 As to the territorial extent of the alleged infringement, the fact that the Commission's action is for a declaration that the Italian Republic has failed to fulfil its obligation to take the necessary measures only in the San Rocco valley cannot have a bearing on any finding of such an infringement.
70 The consequences of non-compliance with the obligation under the first paragraph of Article 4 of the amended directive are likely, by the very nature of that obligation, to endanger human health and harm the environment even in a small part of the territory of a Member State, as was the position, moreover, in Case C-45/91 Commission v Greece, cited above.
78 At the outset, it should be emphasised that, as the Court has consistently held, in proceedings under Article 169 of the Treaty for failure to fulfil an obligation, it is incumbent upon the Commission to prove the allegation that the obligation has not been fulfilled (Case 96/81 Commission v Netherlands [1982] ECR 1791, paragraph 6).
84 Accordingly, the Commission has adduced sufficient evidence to show that biological and chemical waste has been discharged into the watercourse which bisects the San Rocco valley.
85 Furthermore, it is 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 under Article 5 of the EC Treaty (now Article 10 EC), to facilitate attainment of the general task of the Commission, which is to ensure that the provisions of the Treaty, as well as provisions adopted thereunder by the institutions, are applied.
86 Since in the present case those investigations were ordered by the Ministry of the Environment, it is for the Italian Republic to challenge in substance and in detail the data produced by the Commission and to show that the conditions laid down in Article 2(1)(b)(iv) of the directive were met in the present case, that is to say, that only waste waters were discharged into the San Rocco valley.
87 Since the Italian Government has not adduced before the Court any evidence in that regard, the facts alleged by the Commission concerning the discharge of waste into the watercourse bisecting the San Rocco valley must be regarded as proven.
109 Thus, by confining itself to ordering the sequestration of the illegal tip and prosecuting the operator of that tip, the Italian Republic did not satisfy the specific obligation imposed on it by Article 8 of the amended directive.