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

JUDGMENT OF THE COURT (Fourth Chamber)
27 May 2004 (1)

applicant,

v

defendant,

THE COURT (Fourth Chamber),

having regard to the Report of the Judge-Rapporteur,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1. By application lodged at the Court Registry on 11 November 2002, 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 the landfill located at La Bañeza (Spain), the implementation of Articles 4, 9 and 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 (JO 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 states:
-˜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 provides that, for the purpose inter alia of implementing Article 4 thereof, any establishment or undertaking which carries out waste disposal operations must obtain a permit from the competent authority responsible for implementation of the Directive. That permit is to cover:
- the types and quantities of waste,
- the technical requirements,
-the security precautions to be taken,
-the disposal site, and
-the treatment method.
4. Article 13 of Directive 75/442 states:
-˜Establishments or undertakings which carry out the operations referred to in Articles 9 to 12 shall be subject to appropriate periodic inspections by the competent authorities.-™

Pre-litigation procedure
5. Following a written question by a Member of the European Parliament, who reported the possible existence of an illegal landfill in the locality of La Bañeza, the Commission asked the Spanish authorities to submit their observations concerning that claim and the measures adopted to implement Directive 75/442.
6. By letter of 22 November 2000, the Spanish authorities informed the Commission that the landfill at La Bañeza was not covered by a permit as provided for by Article 9 of Directive 75/442 because it had been built before that directive was adopted. The authorities also stated that the area given over to the landfill of waste was full and that the association of communes which brought together the towns of La Bañeza and Cuatro Riberas (Spain) had no installation for the treatment of waste available to them. Work to improve and rehabilitate that landfill had been carried out in order to remedy the nuisances it caused and to extend its lifetime until the waste treatment centre in the province of León entered into service.
7. Since it did not find these observations convincing, the Commission sent the Kingdom of Spain a letter of formal notice on 5 April 2001, on the basis of incorrect implementation of Articles 4, 9 and 13 of Directive 75/442.
8. In their reply, the Spanish authorities pointed out that the landfill in question had been granted a permit in 1979/1980 and that it satisfied the conditions laid down by the legislation in force at that time. However, no copy of the operating licence was submitted. The Spanish authorities again sent the Commission information relating to measures to improve and rehabilitate that landfill which were implemented in order to remedy its effects on the environment, extend its lifetime and improve its management, while repeating that these were provisional measures taken while waiting for the waste treatment centre at San Román de la Vega (Spain) to enter into service.
9. Since it took the view that the facts known to it constituted an infringement of Directive 75/442, the Commission, on 21 December 2001, sent a reasoned opinion to the Kingdom of Spain and asked it to adopt the measures necessary to comply with it within two months of notification of that opinion.
10. By letter of 28 February 2002, the Spanish Government replied to the reasoned opinion, submitting the same arguments as those relied on in its reply to the letter of formal notice. In particular, it pointed out that the landfill at issue would be closed upon completion of construction of the waste treatment centre at San Román de la Vega.
11. Since it took the view that the Kingdom of Spain had failed to adopt measures which would make it possible to conclude that it had put an end to the alleged infringement, the Commission decided to bring the present action.

Infringement
12. The Commission states that the landfill at La Bañeza is illegal because it does not have a permit capable of satisfying the conditions set out in Article 9 of Directive 75/442.
13. Moreover, the obligation to obtain a permit ceases only when that landfill is definitively closed or is rehabilitated. However, it is established that at the end of the period allowed to the Kingdom of Spain to comply with the reasoned opinion, namely 21 February 2002, that landfill was still open, since construction of the waste treatment centre at San Román de la Vega had not been completed.
14. The Commission also claims that the landfill does not satisfy the requirements of the first paragraph of Article 4 of Directive 75/442, since municipal waste was discharged there without the prior use of methods to prevent human health being endangered and the environment harmed. That situation was acknowledged in the report of 27 June 2000 by the Council of Castilla y León and in the hydrogeological report of 5 April 2002 drawn up by the water commission of the Hydrographic Confederation of the Douro. That latter report makes clear that the landfill at La Bañeza continues to degrade the environment and that the only way to put an end to that pollution is to make the landfill watertight.
15. As regards infringement of Article 13 of Directive 75/442, the Commission claims that, in their reply to the reasoned opinion, the Spanish authorities failed to address the question concerning the information which it had requested in respect of the periodic inspections it is mandatory to carry out under that provision.
16. The Spanish Government merely asserts that the landfill at La Bañeza was licensed in 1979/1980 and that the improvements and rehabilitation intended to bring it into compliance with Article 4 of Directive 75/442 have been carried out. It is at present unused and its definitive closure will take place upon completion of construction of the new waste treatment centre at San Román de la Vega.
17. 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 in the Member State at the end of the period laid down in the reasoned opinion (see, inter alia, Case C-143/02 Commission v Italy [2003] ECR I-2877, paragraph 11, and Case C-446/01Commission v Spain [2003] ECR I-6053, paragraph 15).
18. The arguments put forward by the Kingdom of Spain acknowledge that on the expiry of the period set out in the reasoned opinion, the landfill at issue was still in use, in breach of Articles 4 and 9 of Directive 75/442. In addition, it is established that the Spanish authorities failed to provide the information requested by the Commission as to the periodic inspections to which establishments that carry out waste disposal operations are subject. The action brought by the Commission must therefore be considered to be well founded.
19. Accordingly, it must be held that by failing to adopt the measures necessary to ensure, as regards the landfill located at La Bañeza (Spain), the implementation of Articles 4, 9 and 13 of Directive 75/442, the Kingdom of Spain has failed to fulfil its obligations under that directive.

Costs
20. 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 applied for costs and the Kingdom of Spain has been unsuccessful, the latter must be ordered to pay the costs.



On those grounds,

THE COURT (Fourth Chamber)

hereby:
1. Declares that, by failing to adopt the measures necessary to ensure, as regards the landfill located at La Bañeza (Spain), the implementation of Articles 4, 9 and 13 of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991, the Kingdom of Spain has failed to fulfil its obligations under that directive;
2. Orders the Kingdom of Spain to pay the costs.

Cunha Rodrigues	Puissochet	Macken

Delivered in open court in Luxembourg on 27 May 2004.

R. Grass

J.N. Cunha Rodrigues

Registrar

President of the Fourth Chamber

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1 - Language of the case: Spanish.