1. By application lodged at the Court Registry on 20 November 2001, the Commission of the European Communities brought an action under Article 226 EC for a declaration that, by failing to adopt the measures necessary to ensure, as regards certain waste-disposal sites, the implementation of Articles 4, 9 and, where relevant, 13 of Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), as amended by Council Directive 91/156/EEC of 18 March 1991 (OJ 1991 L 78, p. 32) (hereinafter "Directive 75/442" ), the Kingdom of Spain has failed to fulfil its obligations under that directive. Legal framework
2. Article 4 of Directive 75/442 provides: "Member States shall take the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment, and in particular: ─ without risk to water, air, soil and plants and animals, ─ without causing a nuisance through noise or odours, ─ without adversely affecting the countryside or places of special interest. Member States shall also take the necessary measures to prohibit the abandonment, dumping or uncontrolled disposal of waste. "
3. Article 9(1) of Directive 75/442 states that, for the purposes of implementing inter alia Article 4 of the Directive, any establishment or undertaking which carries out waste-disposal operations must obtain a permit from the competent authority responsible for the implementation of that directive. Such permit is to cover, inter alia : ─ the types and quantities of waste, ─ the technical requirements, ─ the security precautions to be taken, ─ the disposal site, ─ the treatment method.
4. According to Article 13 of Directive 75/442: "Establishments or undertakings which carry out the operations referred to in Articles 9 to 12 [that is, waste-disposal operations] shall be subject to appropriate periodic inspections by the competent authorities." Pre-litigation procedure
5. Having received several complaints concerning unsupervised waste-disposal sites at Torreblanca (Malaga), San Lorenzo de Tormes (Avila), Santalla del Bierzo (Leon), Sa Roca (Ibiza) and Campello (Alicante) (Spain), the Commission asked the Spanish authorities to set out their observations concerning the complaints and the measures adopted to implement Directive 75/442.
6. Since it was not satisfied with the response it received, the Commission sent the Kingdom of Spain two letters of formal notice in respect of improper implementation of Directive 75/442, on 17 December 1998 as regards the Torreblanca and San Lorenzo de Tormes disposal sites, and on 30 April 1999 for the Santalla del Bierzo, Sa Roca and Campello disposal sites. The Spanish authorities replied by letters of 12 March and 5 July 1999.
7. Since it was of the opinion that the facts of the case indicated an infringement of Directive 75/442, the Commission, by letter of 28 February 2000, delivered a reasoned opinion calling upon the Kingdom of Spain to take the measures necessary to comply therewith within two months of notification of the opinion.
8. By letter of 24 May 2000, the Spanish Government responded to the reasoned opinion by informing the Commission of the following measures: ─ Torreblanca site: sealing had been completed, but as the result of a court decision halting work on the transfer plant, the commune in question was provisionally using a part of the sealed site for the transfer of municipal solid waste; ─ San Lorenzo de Tormes site: on 18 January 2000, a cooperation agreement relating to the establishment of a provincial treatment system for municipal waste in the province of Avila was signed and, on 10 April 2000, a contract with the municipal waste treatment centre for the northern part of that province was approved; ─ Santalla del Bierzo site: the award of a contract to an undertaking for the construction of the municipal waste management system for the province of Leon in December 1999 would make it possible to seal the existing disposal sites, including that at Santalla del Bierzo; ─ Sa Roca site: a plan existed for retrofitting that disposal site to comply with Directive 75/442; ─ Campello site: on 23 March 2000, a procedure had been initiated with a view to imposing a penalty on the undertaking operating that illegal disposal site, with sealing expected to begin at the end of September or the beginning of October 2000 if the undertaking itself carried it out, or the end of December 2000 if the administrative authorities found it necessary to carry it out.
9. Since it was of the opinion that the Kingdom of Spain had not adopted measures which would have made it possible to conclude that the alleged infringements had ended, the Commission decided to bring the present action. Failure to fulfil obligations
10. The Commission claims, first, that the five disposal sites in question are illegal on the ground that they are not subject to any permit capable of satisfying the conditions laid down in Article 9 of Directive 75/442.
11. Secondly, the Commission maintains that those disposal sites do not meet the requirements of Article 4 of Directive 75/442, since municipal waste is dumped in them without undergoing processes to prevent their endangering human health and harming the environment. None of those disposal sites is equipped with systems to seal the area and recover leachate, which results in soil contamination and possible pollution of surface- or groundwater.
12. Finally, the Commission states that the alleged infringement of Article 13 of Directive 75/442 applies only to the Torreblanca and San Lorenzo de Tormes disposal sites. Those two sites are not subject to appropriate periodic inspections by the Spanish authorities, which have not provided any description of the inspection procedures intended to ascertain compliance with Directive 75/442.
13. The Spanish Government merely states that the closure of the disposal sites which are covered by the action is almost complete, with the exception of Sa Roca. Since the closure of those sites has been ordered, a permit is no longer necessary and the Commission therefore cannot allege infringement of Article 9 of Directive 75/442. Once the improvements to the Sa Roca disposal site have been completed, a new permit will be issued for that site as well, in accordance with the national legislation implementing the Directive.
14. As regards the other complaints against it, the Kingdom of Spain maintains that the Commission cannot claim that waste treatment was not carried out in accordance with Article 4 of Directive 75/442, since that activity ended following the closure of the disposal sites, and it cannot claim infringement of the inspection requirement laid down in Article 13 of the Directive as regards the San Lorenzo de Tormes site, which had already been closed. As for the Torreblanca site, the municipality was provisionally using a part of the sealed site as the result of exceptional and temporary circumstances, and the competent authority would guarantee its inspection.
15. In that regard, it is sufficient to point out that according to 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-47/01 Commission v Spain [2002] ECR I-8231, paragraph 15, and Case C-143/02 Commission v Italy [2003] ECR I-2877, paragraph 11).
16. The arguments put forward by the Kingdom of Spain acknowledge that, at the end of the period laid down in the reasoned opinion, the disposal sites in question were still being used in breach of the provisions of Directive 75/442. Therefore, the action brought by the Commission must be held to be well founded.
17. Consequently, it must be held that, by failing to adopt the measures necessary to ensure, as regards the waste-disposal sites at Torreblanca, San Lorenzo de Tormes, Santalla del Bierzo, Sa Roca and Campello, the implementation of Articles 4 and 9 of Directive 75/442 and, as regards the first two disposal sites, the implementation of Article 13 thereof, the Kingdom of Spain has failed to fulfil its obligations under that directive.