Commission of the European Communities v Kingdom of Spain.
Date: 2002-07-11
18 It is settled case-law that the subject-matter of proceedings brought under Article 226 EC is circumscribed by the pre-litigation procedure provided for by that provision and that, consequently, the Commission's reasoned opinion and the application must be based on the same complaints (see Case C-11/95 Commission v Belgium [1996] ECR I-4115, paragraph 73, and Case C-279/94 Commission v Italy [1997] ECR I-4743, paragraph 24).
19 However, that requirement cannot be stretched so far as to mean that in every case the statement of the complaints set out in the letter of formal notice, the wording of the reasoned opinion and the subject-matter of the proceedings must be exactly the same, if the subject-matter of the proceedings has not been extended or altered but has simply been limited (see Commission v Italy, paragraph 25, and Case C-191/95 Commission v Germany [1998] ECR I-5449, paragraph 56).
27 In accordance with the third paragraph of Article 189 of the EC Treaty (now the third paragraph of Article 249 EC), a directive is to be binding, as to the result to be achieved, upon each Member State to which it is addressed. As is clear from, inter alia, Case C-60/01 Commission v France [2002] ECR I-0000, paragraph 33), Directive 89/369 imposes on the Member States obligations, formulated in clear and unequivocal terms, in order to achieve a certain result, that their incineration plants meet detailed and precise requirements within the stated time-limits. Accordingly, a Member State will comply with its obligations under Directive 89/369 and thus achieve the result prescribed therein only if, in addition to the correct implementation of the provisions of that directive into domestic law, the incineration plants located in its territory have in actual fact been commissioned and operate in accordance with the requirements of the provisions of Directive 89/369.  It follows that, contrary to the Spanish Government's assertion, the correct transposition in domestic law of the provisions of Directive 89/369 is not sufficient to comply with the obligations imposed by that directive.
45 According to settled case-law, 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 (Case 96/81 Commission v Netherlands [1982] ECR 1791, paragraph 6; Case C-62/89 Commission v France [1990] ECR I-925, paragraph 37; Case C-300/95 Commission v United Kingdom [1997] ECR I-2649, paragraph 31; and Case C-408/97 Commission v Netherlands [2000] ECR I-6417, paragraph 15).
51 As to the argument of the Spanish Government based on the dismantling of the furnaces in question and their closure in September 2000, 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 prevailing at the end of the period laid down in the reasoned opinion and that subsequent changes cannot be taken into account by the Court (Case C-214/96 Commission v Spain [1998] ECR I-7661, paragraph 25, and Case C-384/97 Commission v Greece [2000] ECR I-3823, paragraph 35).  In the light of the fact that the dismantling of the incineration plants at Mazo and Barlovento and their closure occurred after the period laid down in the reasoned opinion expired, that is, after 24 October 1998, that argument must be dismissed.