European Commission v Italian Republic.
Date: 2010-03-04
47. With regard to the possibility that this combination of circumstances may be construed as a case of force majeure , the Commission states in its reply that the notion of force majeure  requires that the act in question or its non-performance be attributable to circumstances, beyond the control of the party claiming force majeure , which are abnormal and unforeseeable and the consequences of which could not have been avoided despite the exercise of all due diligence (Case 296/86 McNicholl and Others  [1988] ECR 1491, paragraph 11 and the case-law cited).
48. Moreover, where it is possible to attribute an act to force majeure , the effects of that attribution can only last a certain time, namely the time which is in fact needed in order for an administration exercising a normal degree of diligence to put an end to the crisis which has arisen for reasons outside its control (Case 101/84 Commission  v Italy  [1985] ECR 2629, paragraph 16).
50. As for the presence of organised crime, the Commission states that, even if it were to be proved, that could be no justification for the failure of the Italian Republic to comply with its obligations under Directive 2006/12 (see Case C‑263/05 Commission  v Italy  [2007] ECR I‑11745, paragraph 51).
52. As regards the criminal proceedings initiated by the Public Prosecutor’s Office against some of the managers of those undertakings and the difficulties encountered by the authorities in finding another tenderer to take over the operations concerned, the Commission argues that, according to settled case-law, a Member State cannot rely on provisions, practices or situations in its domestic law to justify non-compliance with obligations or time-limits laid down in a directive (see Case C‑263/05 Commission  v Italy , paragraph 51).
61. Under Article 5(1) of Directive 2006/12, Member States are to take appropriate measures to establish an integrated and adequate network of waste disposal installations, so as to enable the Community as a whole to become self-sufficient in waste disposal and the Member States to move towards that aim individually. To that end, Member States must take into account geographical circumstances or the need for specialised installations for certain types of waste.
62. For the purposes of establishing such a network, the Member States enjoy a measure of discretion as to the territorial basis which they consider appropriate if they are to achieve national self-sufficiency in terms of waste disposal capacity, and thus enable the Community itself to ensure disposal of its waste.
63. As the United Kingdom rightly pointed out, the characteristics of certain categories of waste, such as hazardous waste, can be so specific that it may be appropriate to treat waste belonging to such a category all together, with a view to its disposal at one or more dedicated national installations, or even – as expressly provided for under Articles 5(1) and 7(3) of Directive 2006/12 – within the framework of cooperation with other Member States.
64. The Court has nevertheless stated that one of the most important measures that the Member States must adopt as part of their obligation under Directive 2006/12 to establish waste management plans which may, in particular, provide for ‘appropriate measures to encourage rationalisation of the collection, sorting and treatment of waste’, is that provided for in Article 5(2) of that directive, under which the network established must enable waste to be disposed of in one of the nearest appropriate installations (see, to that effect, Case C‑480/06 Commission  v Germany  [2009] ECR I-0000, paragraph 37).
65. The Court has thus ruled that the criteria governing the location of waste disposal sites must be determined in the light of the objectives pursued by Directive 2006/12, which include the protection of health and the environment and the establishment of an integrated and adequate network of disposal installations, which must, in particular, enable waste to be disposed of in one of the nearest appropriate installations. Those location criteria should accordingly relate, inter alia, to the distance of such sites from inhabited areas where the waste is produced; the prohibition on establishing installations in the vicinity of sensitive areas; and the existence of adequate infrastructure for the shipment of waste, such as connections to transport networks (see, to that effect, Joined Cases C‑53/02 and C‑217/02 Commune de Braine-le-Château and Others  [2004] ECR I‑3251, paragraph 34).
66. Regarding non-hazardous urban waste, which does not, as a rule, require specialised installations like those required for the treatment of hazardous waste, Member States must therefore endeavour to have a network which makes it possible to meet the need, in terms of waste disposal installations, as close as possible to the places where the waste is produced, although that does not alter the fact that it is also possible to organise such a network within the framework of inter-regional or even cross-border cooperation, where that is consistent with the principle of proximity.
67. It follows that, as the Commission observed, where a Member State has specially opted, as part of one or more of its ‘waste management plans’ within the meaning of Article 7(1) of Directive 2006/12, to organise the equipping of its territory on a regional basis, it should be inferred from this that each region with a regional plan must, as a rule, ensure the treatment and disposal of its waste as close as possible to the place where it is produced. The principle that environmental damage should, as a matter of priority, be remedied at source – laid down in Article 191 TFEU as a basis for Community action in relation to the environment – entails that it is for each region, municipality or other local authority to take appropriate steps to ensure that its own waste is collected, treated and disposed of and that that waste must accordingly be disposed of as close as possible to the place where it is produced, in order to limit as far as possible the transportation of waste (see Case C‑155/91 Commission  v Council  [1993] ECR I‑939, paragraph 13 and the case-law cited).
68. Consequently, in such a national network as defined by a Member State, if one of the regions lacks, in telling measure and for a significant length of time, infrastructure sufficient to meet its waste disposal needs, it is legitimate to conclude that such serious deficiencies at regional level are likely to compromise the national network of waste disposal installations, which will then no longer be integrated and adequate, as required under Directive 2006/12, or capable of meeting the obligation to enable the Member State concerned to move individually towards the aim of self-sufficiency as defined in Article 5(1) of that directive.
69. In the present case, it should be noted that – as the Commission observed – the Italian Republic itself opted for waste management at the level of the region of Campania as an ‘Optimal Territorial Ambit’. As is clear from the regional law of 1993 and the 1997 regional waste management plan, as amended by the 2007 plan, the decision was taken, with a view to achieving regional self-sufficiency, to require the municipalities of Campania to deliver the waste collected in their territory to the regional service, an obligation which can be justified, moreover, by the need to ensure that operations are maintained at the level of activity necessary for the treatment installations to remain viable and, in that way, to preserve a treatment capacity sufficient to enable the principle of self-sufficiency to be put into practice at national level (see Case C‑324/99 DaimlerChrysler  [2001] ECR I‑9897, paragraph 62).
70. Furthermore, since – according to the statements made by the Italian Republic – first, the production of urban waste in Campania accounts for 7% of urban waste production nationwide (that is to say, a not insignificant proportion) and, secondly, the population of that region represents approximately 9% of the national population, a major deficiency in Campania’s capacity to dispose of its waste is likely to compromise seriously the ability of the Italian Republic to move towards the aim of self-sufficiency at national level.
77. The Italian Republic has contended that it is endeavouring to remedy the situation in Campania, informing the Court of the actual bringing on stream, subsequent to 2 May 2008, of the landfills at Savignano Irpino and Sant’Arcangelo Trimonte, and also of the measures provided for in the new plan of 23 May 2008, such as the establishment of four more landfills, the construction of two more incinerators and the establishment of thermal recovery facilities at Acerra and Salerno. Furthermore, the rate of sorted collection is definitely improving and daily disposal capacity in the region is higher than production, to the point where resolution of the ‘waste crisis’ can be expected.
78. Although such measures show that certain initiatives have been undertaken to deal with the difficulties in Campania, the fact remains that, in so acting, the Italian Republic clearly acknowledges that, on the expiry of the deadline set in the reasoned opinion, the installations then existing and operational in Campania fell a long way short of being able to meet the actual needs of the region in terms of waste disposal.
79. Moreover, and in any event, it should be borne in mind that the Court has held on numerous occasions that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation obtaining in that Member State at the time of the deadline set in the reasoned opinion and that the Court cannot take account of any subsequent changes (see, inter alia, Case C‑168/03 Commission  v Spain  [2004] ECR I‑8227, paragraph 24, and Case C‑23/05 Commission  v Luxembourg  [2005] ECR I‑9535, paragraph 9).
81. It should be stated in that regard that the procedure provided for in Article 258 TFEU presupposes an objective finding that a Member State has failed to fulfil its obligations under the Treaty or secondary legislation (see Case 301/81 Commission  v Belgium  [1983] ECR 467, paragraph 8, and Case C‑508/03 Commission  v United Kingdom [2006] ECR I‑3969, paragraph 67).
82. Where such a finding has been made, as in the present case, it is irrelevant whether the failure to fulfil obligations is the result of intention or negligence on the part of the Member State responsible, or of technical difficulties encountered by it (Case C‑71/97 Commission  v Spain  [1998] ECR I‑5991, paragraph 15).
83. With regard to the local inhabitants’ opposition to the establishment of certain disposal installations, it is settled case-law that a Member State may not plead internal situations, such as difficulties of implementation which emerge at the stage of putting a Community measure into effect, including difficulties relating to opposition on the part of certain individuals, in order to justify a failure to comply with obligations and time-limits laid down by Community law (see Case C‑45/91 Commission  v Greece  [1992] ECR I‑2509, paragraphs 20 and 21, and Case C‑121/07 Commission  v France  [2008] ECR I-9159, paragraph 72).
84. As regards the presence of criminal activity, or of persons described as operating ‘on the fringes of the law’, active in the waste management sector, it is sufficient to point out that that fact – even if it were assumed to be established – cannot justify the failure by that Member State to fulfil its obligations under Directive 2006/12 (Case C‑263/05 Commission  v Italy , paragraph 51).
85. Likewise, with regard to the non-performance of contractual obligations by the undertakings entrusted with the construction of certain waste disposal infrastructures, it need only be stated that, although the notion of force majeure  is not predicated on absolute impossibility, it nevertheless requires the non-performance of the act in question to be attributable to circumstances, beyond the control of the party claiming force majeure , which are abnormal and unforeseeable and the consequences of which could not have been avoided despite the exercise of all due diligence ( McNicholl and Others , paragraph 11).
87. As for the complaint made by the Italian Republic against the Commission, criticising the fact that the Commission did not bring the present proceedings until years after the waste crisis had arisen and at the very time that Italy had adopted the measures enabling the crisis to be brought to an end, it should be borne in mind that the Court has consistently held that the rules laid down in Article 258 TFEU are to be applied without the Commission being required to comply with fixed time-limits (see, inter alia, Case C‑96/89 Commission  v Netherlands  [1991] ECR I‑2461, paragraph 15, and Case C‑523/04 Commission  v Netherlands  [2007] ECR I‑3267, paragraph 38). The Commission is thus entitled to decide, in its discretion, on what date it may be appropriate to bring an action and it is not for the Court to review the exercise of that discretion (Case C‑422/92 Commission  v Germany  [1995] ECR I‑1097, paragraph 18).
96. As a preliminary point, it should be borne in mind that whilst Article 4(1) of Directive 2006/12 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 that 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  [1999] ECR I‑7773, paragraph 67, and Case C‑420/02 Commission  v Greece  [2004] ECR I‑11175, paragraph 21).
97. It follows that, in principle, it cannot be inferred directly from the fact that a situation is not in conformity with the objectives laid down in Article 4(1) of Directive 2006/12 that the Member State concerned has necessarily failed to fulfil its obligations under that provision, that is to say, 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, in particular, if it leads to a significant deterioration in the environment over a protracted period without any action being taken by the competent authorities, this may be an indication that the Member States have exceeded the discretion conferred on them by that provision (Case C‑365/97 Commission  v Italy , paragraph 68, and Case C‑420/02 Commission  v Greece , par agraph 22).
98. As for the territorial extent of the alleged infringement, the fact that, by the present action, the Commission is seeking a declaration that the Italian Republic has failed to fulfil its obligation to take the necessary measures only with regard to the region of Campania can have no bearing on any finding of such an infringement (Case C‑365/97 Commission  v Italy , paragraph 69).
99. The consequences of non-compliance with the obligation under Article 4(1) of Directive 2006/12 are likely, given 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 (Case C‑365/97 Commission  v Italy , paragraph 70), as was also the position in the case which led to the judgment in Case C‑45/91 Commission  v Greece .
101. Although, in proceedings brought under Article 258 TFEU for failure to fulfil an obligation, it is incumbent upon the Commission to prove the infringement alleged by providing the Court with the evidence necessary to enable it to establish that the obligation has not been fulfilled, without being able to rely on any presumption for those purposes (judgment of 22 January 2009 in Case C‑150/07 Commission  v Portugal , paragraph 65 and the case-law cited), 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 Directive 2006/12 are applied correctly in practice, the Commission, which does not have investigative powers of its own in this area, is largely reliant on the information provided by complainants, by public or private bodies, by the press or by the Member State concerned (see, to that effect, Case C‑494/01 Commission  v Ireland  [2005] ECR I‑3331, paragraph 43, and Case C‑135/05 Commission  v Italy , paragraph 28).
102. It follows, inter alia, that, where the Commission has adduced sufficient evidence to establish certain circumstances in the territory of the defendant Member State, it is for that Member State to challenge in substance and in detail the data produced and the inferences drawn (see, to that effect, Case C‑365/97 Commission  v Italy , paragraphs 84 and 86, and judgment of 22 December 2008 in Case C‑189/07 Commission  v Spain , paragraph 82).
103. It should be noted, first of all, that the Italian Republic does not dispute that, when the deadline set in the reasoned opinion expired, the waste littering the public roads totalled 55 000 tonnes, adding to the 110 000 tonnes to 120 000 tonnes of waste awaiting treatment at municipal storage sites. In any event, that information emerges from the memorandum of the Commissario delegato  of 2 March 2008, appended to the reply of the Italian Republic to the reasoned opinion. Furthermore, according to the statements made by the Italian Republic, the local inhabitants, exasperated by such accumulation, have taken the initiative of igniting fires in the piles of refuse, which is harmful both for the environment and for their own health.
105. Next, it should be borne in mind that waste is matter of a special kind, with the result that accumulation of waste, even before it becomes a health hazard, constitutes a danger to the environment, regard being had in particular to the limited capacity of each region or locality for waste reception (Case C‑2/90 Commission  v Belgium  [1992] ECR I‑4431, paragraph 30).