Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE COURT (Fifth Chamber)

8 July 1999 (1)

(Failure to fulfil obligations - Directive 91/157/EEC on batteries and accumulators containing certain dangerous substances - Failure of a Member State to adopt the programmes provided for by Article 6 of the Directive)

In Case C-178/98,

Commission of the European Communities, represented by Götz zur Hausen, Legal Adviser, and Olivier Couvert-Castéra, a national civil servant on secondment to the Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

applicant,

v

French Republic, represented by Kareen Rispal-Bellanger, Head of the Subdirectorate for International Economic Law and Community Law in the Legal Affairs Directorate of the Ministry of Foreign Affairs, and Romain Nadal, Assistant Secretary for Foreign Affairs in the same directorate, acting as Agents, with an address for service in Luxembourg at the French Embassy, 8B Boulevard Joseph II,

defendant,

APPLICATION for a declaration that, by failing to adopt and/or communicate all the measures necessary to comply with Council Directive 91/157/EEC of 18 March 1991 on batteries and accumulators containing certain dangerous substances (OJ 1991 L 78, p. 38), the French Republic has failed to fulfil its obligations under that directive,

THE COURT (Fifth Chamber),

composed of: J.-P. Puissochet, President of the Chamber, P. Jann, C. Gulmann (Rapporteur), D.A.O. Edward and L. Sevón, Judges,

Advocate General: G. Cosmas,

Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 25 March 1999,

gives the following

Judgment

1. By application lodged at the Registry of the Court on 14 May 1998, the Commission of the European Communities brought an action under Article 226 EC (ex Article 169) for a declaration that by failing to adopt and/or communicate all the measures necessary to comply with Council Directive 91/157/EEC of 18 March 1991 on batteries and accumulators containing certain dangerous substances (OJ 1991 L 78, p. 38, hereinafter 'the Directive') the French Republic had failed to fulfil its obligations under that directive.

2. Article 1 of the Directive provides that its 'aim ... is to approximate the laws of the Member States on the recovery and controlled disposal of ... spent batteries and accumulators containing dangerous substances in accordance with Annex I'.

3. Article 6 of the Directive provides:

   'Member States shall draw up programmes in order to achieve the following objectives:

   - reduction of the heavy-metal content of batteries and accumulators,

   - promotion of marketing of batteries and accumulators containing smaller quantities of dangerous substances and/or less polluting substances,

   - gradual reduction, in household waste, of spent batteries and accumulators covered by Annex I,

   - promotion of research aimed at reducing the dangerous-substance content and favouring the use of less polluting substitute substances in batteries and accumulators, and research into methods of recycling,

   - separate disposal of spent batteries and accumulators covered by Annex I.

   The first programmes shall cover a four-year period starting on 18 March 1993. They shall be communicated to the Commission by 17 September 1992 at the latest.

   The programmes shall be reviewed and updated regularly, at least every four years, in the light in particular of technical progress and of the economic and environmental situation. Amended programmes shall be communicated to the Commission in good time.'

4. Under Article 11(1) of the Directive Member States were to take the measures necessary to comply with the Directive before 18 September 1992. They were forthwith to inform the Commission thereof.

5. On 22 December 1992, the Commission sent a letter to the French Government reminding it of its obligations under Article 6 of the Directive and requesting a copy of the programmes mentioned in that article. The letter remained unanswered.

6. Accordingly, the Commission sent the French Government a letter of formal notice on 3 July 1995 under the procedure provided for in Article 226 EC, stating that, according to the information available to it, the French Republic had failed to fulfil its obligations under Article 6 of the Directive and requesting it to submit its observations on the subject within two months.

7. The French Government replied by letter of 19 September 1995, explaining that a decree was being drafted to transpose the Directive into national law and was currently before the Conseil d'État. On 9 April 1996, it sent the Commission a draft decree and stated that the programmes required by Article 6 of the Directive had been drawn up and would be signed within two months.

8. In the absence of any other information concerning those programmes, the Commission sent the French Government a reasoned opinion on 5 May 1997 declaring that the French Republic had failed to fulfil its obligations in not

   informing it of the programmes mentioned in Article 6 of the Directive and calling on it to comply with that opinion within two months of its notification.

9. By letter of 12 June 1997, the French Government informed the Commission that the draft decree on the marketing of batteries and accumulators containing certain dangerous substances and their disposal had been put before the Prime Minister for approval and it was expected that the whole scheme would be in place by 1 January 1998.

10. On 12 May 1998, not having been informed of any other measure taken by the French Government to implement the programmes provided for by Article 6 of the Directive, the Commission decided to bring this action.

11. In its defence, the French Government argues that the five objectives listed in Article 6 of the Directive have been achieved or are being achieved through various measures taken by the national authorities. Whilst acknowledging that those measures are not in the form of programmes, it submits that, since the objectives of Article 6 of the Directive are met by those measures, the failure to fulfil obligations of which it is accused is purely a matter of form.

12. On that point, the French Government first lists a series of measures which were taken in collaboration with market operators, including manufacturers of batteries and accumulators, consumers and public bodies. It refers, in particular, to a programme to reduce mercury content implemented by French manufacturers, the ban as of 1 January 1999, requested by producers, on the sale of mercuric oxide batteries and saline and alkaline batteries containing additional mercury, a project to prolong the life of lead batteries through a non-polluting additive, a campaign instigated by battery producers to have mercury and cadmium content indicated on batteries and measures taken by industry, producers, local authorities and commercial establishments for the collection of batteries and accumulators.

13. Second, it points out that, of 6 million lead batteries, 5.4 million are collected and recycled and that approximately 1 000 tonnes of batteries and portable nickel cadmium and nickel metal hydride accumulators were treated in 1997, so that the rate of recycling is about 4 or 5%. It also points to the financial support provided by the Agency for the environment and energy management (Agence de l'environnement et de la maîtrise de l'énergie, hereinafter 'ADEME') both for the recycling of nickel metal hydride accumulators and the recovery of between 10 and 15% of the lead from battery waste and the recycling of unpolluted polymers derived from this and for the creation of a recycling plant for lithium batteries and accumulators. The French Government also states that ADEME has published information on all the French sites for recycling batteries and accumulators.

14. Third, it states that a discussion group, first set up in 1992 and in which representatives from various government departments took part, led to the creation of an agency to manage the collection and disposal of portable accumulators. As

    regards the separate disposal of spent batteries and accumulators covered by Annex I of the Directive, the French Government claims that France now has sufficient facilities for dealing with all spent batteries and accumulators.

15. Finally, it points to the role played by ADEME, a public industrial and commercial establishment under the authority of the Minister for the Environment, which has been involved in the implementation of a large number of measures taken in pursuit of the objectives set out in Article 6 of the Directive.

16. In its reply, the Commission states that it does not share the French Government's view that the failure to fulfil obligations of which it is accused is purely a matter of form. It contends that the measures listed by that government are not such as to fulfil the obligation to draw up programmes under Article 6 of the Directive, given that most of those measures are not programmes set up or, at least, coordinated by the Member State, as the wording of that article clearly requires, but the results of isolated, incomplete schemes varying from one part of France to another, at the initiative of private individuals or local authorities, which can on no account be deemed equivalent to programmes within the meaning of Article 6 of the Directive. Moreover, those measures gave no figures regarding either quantity or dates of implementation.

17. First, it should be observed that Article 6 requires Member States, in pursuit of its objectives, to draw up programmes and then to review and update them regularly.

18. In that connection, it follows from the wording of Article 6 and the general scheme of the Directive that the various problems posed by specific waste such as batteries and accumulators are to be resolved according to a precise timetable.

19. Second, it must be noted that, even if certain results relating to the objectives of the Directive have been achieved before the expiry of the period prescribed thereby for the implementation of programmes, that does not excuse a Member State from drawing up the programmes required (Case C-347/97 Commission v Belgium [1999] ECR I-0000, paragraph 18).

20. As the Court has already held, incomplete practical measures and fragmentary legislation cannot discharge the obligation of a Member State to draw up programmes with a view to attaining certain objectives, as required by Article 6 of the Directive (Case C-298/97 Commission v Spain [1998] ECR I-3301, paragraph 16).

21. In the present case, it is clear that the French Republic has not drawn up programmes to achieve the said objectives, as it admits in its defence.

22. The measures described by the French Government do not fulfil the obligation to draw up programmes laid down by Article 6 of the Directive, given that it does not

    intend to review and update them regularly and that there is no clear timetable for such updating, which ought to take place at least every four years, in the light in particular of technical progress and of the economic and environmental situation.

23. In that connection, it must be stated that, although the French authorities have taken positive measures in relation to the objectives set out in the first paragraph of Article 6 of the Directive, they constitute no more than a series of legislative provisions or ad hoc measures which do not possess the characteristics of an organised and coordinated system of objectives such as to make it possible to regard them as programmes within the meaning of Article 6 (see Commission v Belgium, cited above, paragraph 23).

24. Accordingly, it must be held that, by failing to adopt within the prescribed period all the measures necessary to comply with Article 6 of the Directive, the French Republic has failed to fulfil its obligations under that article.

    Costs

25. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has asked for costs and the French Republic has been unsuccessful, the French Republic must be ordered to pay the costs.

On those grounds,

THE COURT (Fifth Chamber),

hereby:

1. Declares that, by failing to adopt, within the prescribed period, all the measures necessary to comply with Article 6 of Council Directive 91/157/EEC of 18 March 1991 on batteries and accumulators containing certain dangerous substances, the French Republic has failed to fulfil its obligations under that article;

2. Orders the French Republic to pay the costs.

PuissochetJann Gulmann EdwardSevón

Delivered in open court in Luxembourg on 8 July 1999.

R. Grass J.-P. Puissochet

Registrar President of the Fifth Chamber

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1: Language of the case: French.