Commission of the European Communities v Hellenic Republic.
Date: 2000-07-04
55 It should be noted that, whilst Article 4 of Directive 75/442 did 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, it was 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 (Commission v Italy, cited above, paragraph 67).
56 Thus the Court has held that a significant deterioration in the environment over a protracted period when no action has been taken by the competent authorities is in principle an indication that the Member State concerned has exceeded the discretion conferred on it by that provision (Commission v Italy, paragraph 68).
58 In addition, the obligations flowing from Article 4 of Directive 75/442 and Article 5 of Directive 78/319 were independent of the more specific obligations contained in Articles 5 to 11 of Directive 75/442 concerning the planning, organisation and supervision of waste disposal operations and Article 12 of Directive 78/319 concerning the disposal of toxic and dangerous waste. The same is true of the corresponding obligations under Directive 75/442 as amended and Directive 91/689.
69 It is true that, according to the Greek Government, the competent authorities, which have planned to establish and put into operation a mechanical recycling and composting plant and a landfill site at Strongilo Kefali in the municipality of Khordakios, have come up against opposition from the members of the public concerned, in the form of complaints and actions brought before the competent administrative and judicial authorities challenging the administrative decisions concerning the location of the two installations.
70 However, as has already been pointed out in paragraph 21 of the judgment in Case C-45/91, it is settled case-law that a Member State may not plead internal circumstances, such as difficulties of implementation which emerge at the stage when a Community measure is put into effect, to justify a failure to comply with obligations and time-limits laid down by Community law.
73 It is for the Commission in such circumstances to provide the Court, in the course of the proceedings, with the information necessary to determine the extent to which a Member State has complied with a judgment declaring it to be in breach of its obligations.
74 Since no such information is available, it has not been proved that the Hellenic Republic has failed fully to comply with the obligation to dispose of toxic and dangerous waste from the area of Chania in accordance with Article 5 of Directive 78/319.
75 As regards, third, fulfilment of the obligations to draw up waste disposal plans and to draw up, and keep up to date, plans for the disposal of toxic and dangerous waste, imposed by Article 6 of Directive 75/442 and Article 12 of Directive 78/319 respectively, it is settled case-law that incomplete practical measures or fragmentary legislation cannot discharge the obligation of a Member State to draw up a comprehensive programme with a view to attaining certain objectives (Case C-298/97 Commission v Spain [1998] ECR I-3301, paragraph 16).
76 Contrary to the claims of the Greek Government, legislation or specific measures amounting only to a series of ad hoc normative interventions that are incapable of constituting an organised and coordinated system for the disposal of waste and toxic and dangerous waste cannot be regarded as plans which the Member States are required to adopt under Article 6 of Directive 75/442 and Article 12 of Directive 78/319 (see, by analogy, Case C-214/96 Commission v Spain [1998] ECR I-7661, paragraph 30).
80 The Greek Government claims that the Court should set the penalty payment on the basis of coefficients of seriousness and duration which are more favourable to the Hellenic Republic than those applied by the Commission. It contends that the coefficient relating to the duration of the infringement, determined unilaterally by the Commission without considering the extent to which the judgment has been complied with, does not reflect the existing situation and would be unfair to the Hellenic Republic. While the Commission has a discretion to determine coefficients relating to seriousness, duration and the Member States' ability to pay, without their assent, it is exclusively for the Court to assess what is just, proportionate and equitable.
82 Article 171 of the Treaty does not specify the period within which a judgment must be complied with. However, in accordance with settled case-law, the importance of immediate and uniform application of Community law means that the process of compliance must be initiated at once and completed as soon as possible (Case 131/84 Commission v Italy [1985] ECR 3531, paragraph 7, Case 169/87 Commission v France [1988] ECR 4093, paragraph 14, and Case C-334/94 Commission v France, cited above).
87 Those guidelines, setting out the approach which the Commission proposes to follow, help to ensure that it acts in a manner which is transparent, foreseeable and consistent with legal certainty and are designed to achieve proportionality in the amounts of the penalty payments to be proposed by it.
88 The Commission's suggestion that account should be taken both of the gross domestic product of the Member State concerned and of the number of its votes in the Council appears appropriate in that it enables that Member State's ability to pay to be reflected while keeping the variation between Member States within a reasonable range.
89 It should be stressed that these suggestions of the Commission cannot bind the Court. It is expressly stated in the third subparagraph of Article 171(2) of the Treaty that the Court, if it finds that the Member State concerned has not complied with its judgment ... may impose a lump sum or a penalty payment on it. However, the suggestions are a useful point of reference.
90 First, since the principal aim of penalty payments is that the Member State should remedy the breach of obligations as soon as possible, a penalty payment must be set that will be appropriate to the circumstances and proportionate both to the breach which has been found and to the ability to pay of the Member State concerned.
92 In that light, and as the Commission has suggested, the basic criteria which must be taken into account in order to ensure that penalty payments have coercive force and Community law is applied uniformly and effectively are, in principle, the duration of the infringement, its degree of seriousness and the ability of the Member State to pay. In applying those criteria, regard should be had in particular to the effects of failure to comply on private and public interests and to the urgency of getting the Member State concerned to fulfil its obligations.
94 As regards the seriousness of the infringements and in particular the effects of failure to comply on private and public interests, 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 as set out in Article 130r of the EC Treaty (now, after amendment, Article 174 EC). The failure to comply with the obligation resulting from Article 4 of Directive 75/442 could, by the very nature of that obligation, endanger human health directly and harm the environment and must, in the light of the other obligations, be regarded as particularly serious.
95 The failure to fulfil the more specific obligations of drawing up a waste disposal plan and drawing up, and keeping up to date, plans for the disposal of toxic and dangerous waste, imposed by Article 6 of Directive 75/442 and Article 12 of Directive 78/319 respectively, must be regarded as serious in that compliance with those specific obligations was necessary in order for the objectives set out in Article 4 of Directive 75/442 and Article 5 of Directive 78/319 to be fully achieved.