Commission of the European Communities v Republic of Austria.
Date: 2004-04-29
34. According to settled case-law, in an action for failure to fulfil obligations it is for the Commission to prove the allegation that the obligation has not been fulfilled. It is the Commission which must provide the Court with the evidence necessary for the Court to establish that the obligation has not been fulfilled, and it may not rely on any presumption (see, inter alia, Case 96/81 Commission  v Netherlands  [1982] ECR 1791, paragraph 6; Case C-404/00 Commission  v Spain  [2003] ECR I-6695, paragraph 26; and Case C-434/01 Commission  v United Kingdom  [2003] ECR I-0000, paragraph 21).
38. It must also be recalled that, according to settled case-law, each of the Member States to which a directive is addressed is obliged to adopt, in its national legal system, all the measures necessary to ensure that the directive is fully effective, in accordance with the objective it pursues (see, inter alia, Case C-478/99 Commission  v Sweden  [2002] ECR I-4147, paragraph 15, and Case C-72/02 Commission  v Portugal  [2003] ECR I-6597, paragraph 18).
39. The obligation to ensure the full effectiveness of the directive, in accordance with its objective, cannot be interpreted as meaning that the Member States are released from adopting transposing measures where they consider that their national provisions are better than the Community provisions concerned and that the national provisions are therefore better able to ensure that the objective pursued by the directive is achieved. According to the Court’s case-law, the existence of national rules may render transposition by specific legislative or regulatory measures superfluous only if those rules actually ensure the full application of the directive by the national authorities and, where the relevant provision of the directive seeks to create rights for individuals, the legal situation arising from those national rules is sufficiently precise and clear and the persons concerned are in a position to know the full extent of their rights and obligations and, where appropriate, to rely on them before the national courts (see, to that effect, Case C-296/01 Commission  v France  [2003] ECR I-0000, paragraph 55, and the case-law cited).
41. The Republic of Austria cannot, outside the period laid down by Article 230 EC, contest the lawfulness of an act adopted by the Community legislature which has become final with respect to it. It is settled case-law that a Member State cannot properly plead the unlawfulness of a directive or decision addressed to it as a defence in an action for a declaration that it has failed to fulfil its obligations arising out of its failure to implement that decision or comply with that directive (see, inter alia, Case C-74/91 Commission  v Germany  [1992] ECR I-5437, paragraph 10, and Case C-154/00 Commission  v Greece  [2002] ECR I-3879, paragraph 28).
51. It considers that the definition of ‘hazardous waste’ in Article 1(4) of Directive 91/689 is essential for the application of that directive. The definition refers to Annexes I to III to Directive 91/689 and to the LHW established in accordance with the procedure laid down in Article 18 of Directive 75/442. Furthermore, according to the fifth recital in the preamble to Directive 91/689, it is necessary to use a precise and uniform definition of hazardous waste in order to improve the effectiveness of the management of hazardous waste in the Community. It follows that Annexes I to III to Directive 91/689 and the LHW adopted by Decision 94/904, which supplements that directive (Case C-318/98 Fornasar and Others  [2000] ECR I-4785, paragraph 44) constitute the foundation on which the measures taken by the Member States to implement that directive must be based.
73. The Commission rightly points out that, under the second indent of Article 1(4) of Directive 91/689, the Member States concerned must notify the Commission of cases in which it classifies waste other than that in the LHW as hazardous ( Fornasar and Others , paragraph 51). It has not, however, replied to the argument of the Republic of Austria that it complied with that obligation when it formally notified the Commission of the 1997 regulation transposing the LHW.