Commission of the European Communities v Ireland.
Date: 2005-04-26
27. As to those various submissions, it should be stated, first, in relation to the subject-matter of the present proceedings, that, without prejudice to the Commission’s obligation to satisfy in each and every case the burden of proof which it bears, in principle nothing prevents the Commission from seeking in parallel a finding that provisions of a directive have not been complied with by reason of the conduct of a Member State’s authorities with regard to particular specifically identified situations and a finding that those provisions have not been complied with because its authorities have adopted a general practice contrary thereto, which the particular situations illustrate where appropriate.
28. It is accepted that an administrative practice can be the subject-matter of an action for failure to fulfil obligations when it is, to some degree, of a consistent and general nature (see, in particular, Case C-387/99 Commission  v Germany  [2004] ECR I-0000, paragraph 42, and the case-law cited).
29. Second, as is clear from settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion (see, inter alia, Case C-446/01 Commission  v Spain  [2003] ECR I‑6053, paragraph 15).
32. Admittedly, it follows that the Court cannot declare that Ireland has failed to fulfil its obligations under the Directive with regard to a given particular situation where it is established that, on the date of expiry of that period, the deficiencies alleged by the Commission had been remedied. On the other hand, as the Commission rightly submits, in so far as the action also seeks a declaration that there has been a general failure on the part of the competent national authorities to fulfil obligations, the fact that the deficiencies pointed out in one or other case have been remedied does not necessarily mean that the general and continuous approach of those authorities, to which such specific deficiencies would testify where appropriate, has come to an end.
33. Third, in the context of proceedings for failure to fulfil obligations, the purpose of the pre-litigation phase is to give the Member State concerned an opportunity, on the one hand, to comply with its obligations under Community law and, on the other, to avail itself of its right to defend itself against the charges formulated by the Commission (see, inter alia, Case C-350/02 Commission  v Netherlands  [2004] ECR I-0000, paragraph 18, and the case-law cited).
34. The proper conduct of that procedure constitutes an essential guarantee required by the EC Treaty not only in order to protect the rights of the Member State concerned, but also so as to ensure that any contentious procedure will have a clearly defined dispute as its subject-matter (see, inter alia, Commission  v Netherlands , cited above, paragraph 19, and the case-law cited).
35. The subject-matter of proceedings under Article 226 EC is accordingly delimited by the pre-litigation procedure governed by that provision. The Commission’s reasoned opinion and the application must be based on the same grounds and pleas, with the result that the Court cannot examine a ground of complaint which was not formulated in the reasoned opinion, which for its part must contain a cogent and detailed exposition of the reasons which led the Commission to the conclusion that the Member State concerned had failed to fulfil one of its obligations under the Treaty (see, inter alia, Commission  v Netherlands , paragraph 20, and the case-law cited).
36. It indeed follows that the Commission cannot seek a declaration of a specific failure by Ireland to fulfil its obligations under the Directive regarding a particular factual situation that was not referred to in the course of the pre-litigation procedure. A specific ground of complaint of that kind must necessarily have been relied on at the pre-litigation stage, in order that the Member State concerned has the opportunity to remedy the particular situation complained of or to avail itself of its right to defend itself in that regard; such defence may in particular prompt the Commission to withdraw the ground of complaint and/or help to delimit the subject-matter of the dispute that the Court will subsequently have before it.
37. On the other hand, in so far as the action seeks to raise a failure of a general nature to comply with the Directive’s provisions, concerning in particular the Irish authorities’ systemic and consistent tolerance of situations not in accordance with the Directive, the production of additional evidence intended, at the stage of proceedings before the Court, to support the proposition that the failure thus alleged is general and consistent cannot be ruled out in principle.
38. It should be noted that in its application the Commission may clarify its initial grounds of complaint provided, however, that it does not alter the subject-matter of the dispute. In producing fresh evidence intended to illustrate the grounds of complaint set out in its reasoned opinion, which allege a failure of a general nature to comply with the provisions of a directive, the Commission does not alter the subject-matter of the dispute (see, by analogy, the judgment of 12 October 2004 in Case C-328/02 Commission  v Greece , not published in the ECR, paragraphs 32 and 36).
41. 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 allegation that the obligation has not been fulfilled. 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 (see, in particular, Case 96/81 Commission  v Netherlands  [1982] ECR 1791, paragraph 6, and Case C-408/97 Commission  v Netherlands  [2000] ECR I-6417, paragraph 15).
42. 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 (Case 96/81 Commission  v Netherlands , paragraph 7, and Case C-408/97 Commission  v Netherlands , paragraph 16).
43. 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 the directive are applied correctly in practice, the Commission which, as the Advocate General has observed in point 53 of his Opinion, does not have investigative powers of its own in the matter, is largely reliant on the information provided by any complainants and by the Member State concerned (see, by analogy, Case C‑408/97 Commission  v Netherlands , paragraph 17).
44. 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 (see to this effect Case C‑365/97 Commission  v Italy  [1999] ECR I‑7773 (‘ San Rocco ’), paragraphs 84 and 86).
45. 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 42 of the present judgment, to facilitate the general task of the Commission ( San Rocco , paragraph 85).
46. 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 to contest specifically the facts alleged in those complaints (see, by analogy, Case 272/86 Commission  v Greece  [1988] ECR 4875, paragraph 19).
47. 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 (see, by analogy, Case 272/86 Commission  v Greece , cited above, paragraph 21, and San Rocco , paragraphs 84 and 86).
The facts relating to the complaints examined by the Commission
69. The Commission submits, first, that the competent authorities of the city of Dublin tolerated, from 1997, dumping of construction and demolition waste in a green area on the Poolbeg Peninsula, failing to ensure that the dumping ceased or was punished or that the waste concerned was removed. Second, those authorities tolerated the operation on the peninsula, without a permit, of two treatment facilities for metallic waste, failing to ensure that such operation ceased or was punished, and even went so far as to have Community financial assistance granted to the facilities in question.
116. In this regard, it should be observed at the outset that, in accordance with the third paragraph of Article 249 EC, a directive is binding, as to the result to be achieved, upon each Member State to which it is addressed. In the present instance, Articles 9 and 10 of the Directive impose on the Member States obligations formulated in clear and unequivocal terms to achieve a certain result, under which undertakings or establishments which carry out waste disposal operations or waste recovery operations in those States must hold a permit. It follows that a Member State has complied with its obligations under those provisions only if, in addition to the correct transposition of the provisions into domestic law, the operators concerned have the permit required (see, by analogy, in relation to the prior authorisation required to operate incineration plants referred to in Article 2 of Council Directive 89/369/EEC of 8 June 1989 on the prevention of air pollution from new municipal waste incineration plants (OJ 1989 L 163, p. 32), Case C‑139/00 Commission  v Spain  [2002] ECR I-6407, paragraph 27).
118. Furthermore, the permit systems referred to in Articles 9 and 10 of the Directive are intended, as is apparent from the very wording of those provisions, to enable Article 4 of the Directive to be implemented correctly, in particular by ensuring that disposal and recovery operations carried out under such permits comply with the various requirements set by Article 4. For this purpose, the permits must contain a number of details and conditions, as is moreover expressly laid down in Article 9 of the Directive in relation to disposal operations. It follows that the authorisation processes referred to in Articles 9 and 10 must necessarily be such that they precede all disposal or recovery operations (see, to this effect, Case C-230/00 Commission  v Belgium  [2001] ECR I-4591, paragraph 16). Contrary to the Irish Government’s assertions, mere submission of a permit application cannot therefore have the effect of making such operations consistent with the requirements of those provisions.
121. The Irish Government therefore had the task of initiating in good time the procedures necessary for transposing into national law, initially, Article 8 of Directive 75/442 and, subsequently, Articles 9 and 10 of the Directive, so that those procedures were completed within the time-limits prescribed by the directives and the obligations formulated in clear and unequivocal terms in those provisions to achieve a certain result, namely that the operations concerned be carried out only under the requisite permits, were met. In so far as the measures adopted by Ireland to transpose the directives were belated, they cannot be relied on to justify the failure to fulfil obligations (see, by analogy, Case C‑60/01 Commission  v France  [2002] ECR I-5679, paragraphs 33, 37 and 39).
144. Accordingly, on the date upon which the two-month period set in the 2001 reasoned opinion expired, possession of a permit or registration was not yet compulsory for waste collection operations. Furthermore, even if all the operators concerned submitted a permit application pursuant to the 2001 Regulations before that date, which has not been established by the Irish Government, the submission of such an application cannot, contrary to its submissions, be taken as equivalent to registration for the purposes of Article 12 of the Directive and, consequently, satisfy the requirements of that provision. Article 12 requires the Member States to choose a permit system or a registration procedure and Ireland did not opt for the second approach.
149. The establishment of an integrated and adequate network of disposal installations, taking account of the best available technology not involving excessive costs, the network having to enable waste to be disposed of in one of the nearest appropriate installations, in accordance with Article 5 of the Directive, is among the objectives pursued by the Directive (Joined Cases C-53/02 and C-217/02 Commune de Braine-le-Château and Others  [2004] ECR I-0000, paragraph 33).
157. In those circumstances, it must be found that, on the date upon which the period set in the 2001 reasoned opinion expired, Ireland had failed to take appropriate measures to introduce an integrated and adequate network of disposal installations which, as is clear from Article 5 of the Directive, must be such 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.
165. It is to be remembered that the obligation to dispose of waste without endangering human health and without harming the environment forms part of the very objectives of Community environmental policy and that Article 4 of the Directive is intended in particular to implement the principle that preventive action should be taken, contained in the second sentence of the first subparagraph of Article 174(2) EC, by virtue of which it is for the Community and the Member States to prevent, reduce and, in so far as is possible, eliminate from the outset the sources of pollution or nuisance by adopting measures of a nature such as to eliminate recognised risks (see Joined Cases C-175/98 and C-177/98 Lirussi and Bizzaro  [1999] ECR I‑6881, paragraph 51, and Case C-387/97 Commission  v Greece  [2000] ECR I-5047, paragraph 94).
166. First, Article 4 of the Directive sets out various objectives which the Member States must observe in their performance of the more specific obligations imposed on them by other provisions of the Directive (see, to this effect, Case C-236/92 Comitato di coordinamento per la difesa della cava and Others  [1994] ECR I‑483, paragraph 12).
168. Second, even though the first paragraph of Article 4 of the Directive does not specify the actual content of the measures to be taken in order to ensure that waste is disposed of without endangering human health and without harming the environment, that provision, which contains obligations independent of those arising from the other provisions of the Directive, is none the less binding on the Member States as to the objective to be achieved, while leaving to them a margin of discretion in assessing the need for such measures ( San Rocco , paragraph 67, and Case C-387/97 Commission  v Greece , cited above, paragraphs 55 and 58).
179. Article 8 of the Directive, which inter alia implements the principle that preventive action should be taken, provides that the Member States have the task of ensuring that any holder of waste has it handled by a private or public waste collector or by an undertaking which carries out waste disposal and recovery operations, or recovers or disposes of it himself in accordance with the provisions of the Directive ( Lirussi and Bizzaro , cited above, paragraph 52).
180. First, such obligations are the corollary to the prohibition on the abandonment, dumping or uncontrolled disposal of waste laid down in the second paragraph of Article 4 of the Directive, a provision already found to have been breached by Ireland in paragraph 176 of the present judgment (see Case C-1/03 Van de Walle and Others  [2004] ECR I-0000, paragraph 56).
181. Second, the operator or owner of an illegal tip must be regarded as the holder of waste for the purposes of Article 8 of the Directive, so that this provision imposes on the Member State concerned the obligation to take, in his regard, the steps necessary to ensure that that waste is handed over to a private or public waste collector or a waste disposal undertaking, unless it is possible for the operator or owner himself to recover or dispose of the waste (see, in particular, San Rocco , paragraph 108, the judgment of 9 September 2004 in Case C-383/02 Commission  v Italy , not published in the ECR, paragraphs 40, 42 and 44, and the judgment of 25 November 2004 in Case C-447/03 Commission  v Italy , not published in the ECR, paragraphs 27, 28 and 30).
197. The Member States are under a duty, by virtue of Article 10 EC, to facilitate the achievement of the Commission’s tasks, which consist in particular, in accordance with Article 211 EC, in ensuring that the measures taken by the institutions pursuant to the Treaty are applied (see, in particular, Case C-33/90 Commission  v Italy  [1991] ECR I-5987, paragraph 18).
198. It follows that the Member States are required to cooperate in good faith with the inquiries of the Commission pursuant to Article 226 EC, and to provide the Commission with all the information requested for that purpose (Case 192/84 Commission  v Greece  [1985] ECR 3967, paragraph 19, and Case C-82/03 Commission  v Italy  [2004] ECR I-0000, paragraph 15).