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

JUDGMENT OF THE COURT (First Chamber)
18 November 2004 (1)

applicant,

v

defendant,

THE COURT (First Chamber),

after hearing the Opinion of the Advocate General at the sitting on 15 July 2004,

gives the following

Judgment

1. By its application, the Commission of the European Communities requests the Court to declare that, by failing to take the necessary measures to ensure that waste deposited at the -˜Pera Galini-™ site in the prefecture of Heraklion (Greece) will be recovered or disposed of without endangering human health, without risk to water, air, soil, plants and animals and without causing a nuisance through noise or odours, and by granting a permit to operate the installation which does not contain the necessary information, the Hellenic Republic has failed to fulfil its obligations under Articles 4 and 9 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) (-˜the directive-™).

Legal framework
2. Article 4 of the directive 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 of the directive provides:
-˜1. For the purposes of implementing Articles 4, 5 and 7, any establishment or undertaking which carries out the operations specified in Annex II A must obtain a permit from the competent authority referred to in Article 6.
Such permit shall cover:
- the types and quantities of waste,
- the technical requirements,
- the security precautions to be taken,
- the disposal site,
- the treatment method.
2. Permits may be granted for a specified period, they may be renewable, they may be subject to conditions and obligations, or, notably, if the intended method of disposal is unacceptable from the point of view of environmental protection, they may be refused.-™

Pre-litigation procedure
4. Following the submission of petitions to the European Parliament alleging that waste was being deposited unlawfully at the -˜Pera Galini-™ site in the prefecture of Heraklion, the Commission requested the Greek authorities, by letter of 23 February 2000, to provide it with information as to the operating conditions of the installation in question and on the progress of the waste management plan in that prefecture.
5. In their reply of 10 May 2000, the Greek authorities referred to the implementation, in various areas of the abovementioned prefecture, of construction projects for controlled landfill sites. They indicated that there is such a project for the -˜Pera Galini-™ site, approval for the location of which was given by a decision dating from March 1995. They stated that the joint ministerial order for approval of the environmental conditions for that project had not yet been adopted.
6. In May 2000, the Commission learned of a decision taken on 22 December 1998 by the Heraklion Court of First Instance (several judges) which, holding that the installation was being unlawfully operated with resultant risks to the environment and to human health, ordered that waste should cease to be deposited at the -˜Pera Galini-™ site.
7. At meetings held on 13 and 14 December 2000, the Greek authorities informed the Commission that the waste management plan for the prefecture of Heraklion had not yet been adopted and that the environment impact assessment relating to the new installation at the -˜Pera Galini-™ site had not yet been completed.
8. By a letter of 20 March 2001, they informed the Commission that the first phase of the waste management plan in the region of Crete had been completed. They also referred to an expert-™s report examining the operating conditions of the -˜Pera Galini-™ site. They added that that site was suitable for the construction of the new waste management installation.
9. Since it considered that the Hellenic Republic had failed to fulfil its obligations under Articles 4 and 9 of the directive, in a letter of 24 April 2001 the Commission gave that Member State formal notice to submit its observations.
10. In their reply of 16 November 2001, the Greek authorities informed the Commission that, on 16 July 2001, the Crete Regional Council had approved the waste management plan for the region of Crete. They maintained that the implementation of that plan, by means of the adoption of a rehabilitation plan for the -˜Pera Galini-™ site, would make a decisive contribution to resolving the problem. Furthermore, they pointed to various measures taken at that site to limit the harmful consequences for the environment and the risks to public health. Fencing and a 24-hour security system have been put in place, a fire-break zone has been created, the access road to the site has been asphalted to reduce dust, a rainwater drainage ditch has been dug and its drainage is checked and content recycled on site, and the site has been covered with sand. Moreover, according to the Greek authorities, the rocks in the region are impermeable.
11. Taking the view that the above measures were not sufficient, on 21 December 2001 the Commission issued a reasoned opinion calling on the Hellenic Republic to take the measures necessary to comply with it within a period of two months of its notification.
12. In their replies of 17 April and 7 June 2002, the Greek authorities once again referred to the completion of the framework for the regional waste management plan for Crete, of which the plan for the prefecture of Heraklion forms a part, and reiterated the measures taken at the -˜Pera Galini-™ site. They stated that all the studies carried out by the region of Crete on the management of waste were to be completed in July 2002 and accordingly the projects could be financed within that year. The plan provides for the establishment and operation, at the -˜Pera Galini-™ site, of a controlled landfill installation meeting the needs of the prefectures of Heraklion, Rethimnon and Lassithi.
13. The Commission considered that the situation remained unsatisfactory and decided to bring the present action.

The action
The first complaint, alleging infringement of Article 4 of the directive
Arguments of the parties
14. The Commission notes that, according to an inspection carried out by the competent authorities on 11 February 1998, the operation of the -˜Pera Galini-™ landfill site is a source of environmental pollution and entails risks for the health of the local population.
15. It notes that, in their replies to the letter of formal notice and the reasoned opinion, the Greek authorities admit that the landfill operations have not been halted. It submits that the measures taken at the site are not sufficient to ensure the proper operation of the landfill and to prevent any risks to the natural and human environment within the meaning of Article 4 of the directive. According to the Commission, the construction of drainage ditches should be accompanied by hydrogeological studies and information regarding impermeability. Furthermore, no protective measures against pollution of the soil and groundwater have been proposed, such as the construction of a geological isolating barrier, the implementation of a new system for the collection of drainage water and a sealing system, periodic on-site checks, analyses of the quality of water or the collection and processing of biogas.
16. Moreover, the Commission points out that, according to a report drawn up on 23 January 2002 by the health authority of the prefecture of Heraklion, leachate was not contained and flowed into a stream before ending up in the sea. With regard to the impermeability of the rocks underlying the landfill, this was not proven and could not therefore be put forward to justify the absence of measures intended to prevent pollution of the soil and groundwater. Lastly, the measures contained in the regional waste management plan for resolving the problem of waste management in Crete were still at the study stage.
17. In those circumstances, the Commission submits that, to the extent that the -˜Pera Galini-™ tip has been in use since 1994 and remains in operation to date, the Hellenic Republic has exceeded the limits of the discretion it enjoys under Article 4 of the directive.
18. The Greek Government contends that it has not exceeded the limits of the discretion enjoyed by Member States under Article 4 of the directive. It considers that, having regard to the measures taken at the -˜Pera Galini-™ site, the current operation of the landfill does not endanger human health or the environment.
19. In that regard, it submits as follows:
- as part of the new waste management plan, the site in question is the subject of a rehabilitation study;
- the second phase of the regional waste management plan for Crete has been completed;
- the plan and the programme for investment and operation of the system for recycling packaging materials, approved by the Minister for the Environment, should become operational during 2004;
- an application to the Cohesion Fund for the purposes of financing the construction of the central controlled landfill site and the rehabilitation of the -˜Pera Galini-™ site was to be made in 2003.
20. With regard to the report of January 2002 referred to by the Commission, the Greek Government submits that this was drawn up following an inspection which took place at a time when circumstances were particularly difficult owing to continuous rainfall. In addition, the Greek authorities indicate that, according to a report drawn up on 12 March 2003, other than in exceptional cases, the drainage water is collected in three watertight cisterns where it is recycled. Furthermore, the environment impact assessment report relating to the rehabilitation of the -˜Pera Galini-™ landfill was submitted on 10 February 2003, with approval expected in April 2003. With regard to the impermeability of the rock in the region, this was confirmed in a geological study carried out for the purposes of the implementation of the waste management plan. The Greek authorities also indicate that checks on water quality carried out by the competent authorities have never shown the authorised limits to have been exceeded.
Findings of the Court
21. It should be noted at the outset that whilst the first subparagraph of Article 4 of the directive does not specify the actual content of the measures which must be taken in order to ensure that waste is disposed of without endangering human health and without harming the environment, it is none the less true that it is binding on the Member States as to the objective to be achieved, whilst leaving to the Member States a margin of discretion in assessing the need for such measures (Case C-'365/97 Commission v Italy [1999] ECR I-7773, paragraph 67).
22. From the fact that a situation is not in conformity with the objectives laid down in the first paragraph of Article 4 of the directive, then, the direct inference may not in principle be drawn that the Member State concerned has necessarily failed to fulfil its obligations under that provision to take the requisite measures to ensure that waste is disposed of without endangering human health and without harming the environment. However, if that situation persists and leads in particular to a significant deterioration in the environment over a protracted period without any action being taken by the competent authorities, it may be an indication that the Member States have exceeded the discretion conferred on them by that provision (Commission v Italy, cited above, paragraph 68).
23. It must also be recalled that the Court has consistently held that the question whether there has been a failure to fulfil obligations must be examined on the basis of the position in which the Member State found itself at the end of the period laid down in the reasoned opinion and the Court cannot take account of any subsequent changes (see, inter alia, Case C-455/00 Commission v Italy [2002] ECR I-9231, paragraph 21, and Case C-348/02 Commission v Italy [2003] ECR I-'0000, paragraph 7).
24. The Court must therefore ascertain whether the Commission has established to the requisite legal standard that, on expiry of the period laid down in the reasoned opinion, the Hellenic Republic had failed over a protracted period to take the measures necessary to ensure that waste deposited at the -˜Pera Galini-™ site was recovered or disposed of without endangering human health and without using processes or methods which could harm the environment.
25. In that regard, it should be noted that the Greek Government does not dispute the presence at the -˜Pera Galini-™ site of waste likely to endanger human health and harm the environment.
26. It should also be noted that, as early as 1998, the conclusions of an inspection carried out at the site in question showed that the operation of the landfill at the -˜Pera Galini-™ site was a source of environmental pollution and entailed risks for the health of the local population.
27. In the same year, a decision of the Heraklion Court of First Instance finding that the installation was being operated unlawfully and ordering that waste cease to be deposited at the -˜Pera Galini-™ site noted the resultant risks to the environment and to human health.
28. Furthermore, the inspection report drawn up on 23 January 2002 shows that, despite the measures taken by the Greek authorities, leachate was not contained by the protective barrier erected for this purpose and flowed into a stream before ending up in the sea.
29. That finding cannot be invalidated by the fact that the inspection was carried out at a time of heavy rainfall. Nor can the Greek Government base its argument on the conclusions of the report drawn up following the inspection of 12 March 2003, since that took place after the expiry of the period laid down in the reasoned opinion, namely after 20 February 2002.
30. With regard to the plans and studies, relied on by the Greek Government, for improving the treatment of waste in the region of Crete, it must be held that they do not constitute the measures necessary to ensure that waste deposited at the -˜Pera Galini-™ site is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment.
31. In addition, they do not offer any information to enable it to be determined when operations for the recovery or disposal of waste at the site in question are to commence, if at all. On the contrary, they show that, on expiry of the period laid down in the reasoned opinion, those operations had not materialised.
32. Furthermore, as observed by the Advocate General in paragraph 16 of his Opinion, the very existence of those plans and studies implies recognition by the Greek authorities of the threat posed by the -˜Pera Galini-™ landfill to human health and to the environment.
33. The Commission has, therefore, shown to the requisite legal standard that the Greek authorities have failed over a protracted period to adopt the necessary measures to ensure that waste deposited at the -˜Pera Galini-™ site is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment.
34. It follows that the first complaint, alleging infringement of Article 4 of the directive, is well founded.
The second complaint alleging infringement of Article 9 of the directive
35. By its second complaint, the Commission requests the Court to declare that, by granting a permit for operation of the -˜Pera Galini-™ site which does not contain the necessary information, the Hellenic Republic has failed to fulfil its obligations under Article 9 of the directive.
36. The Commission submits that the -˜Pera Galini-™ landfill is operating without fulfilling the requirements of the Greek legislation in force. In those circumstances, the Commission considers that it is a fortiori indisputable that the landfill is operating without a licence meeting the requirements laid down in Article 9 of the directive.
37. The Greek Government does not dispute that allegation. Consequently, in the absence of any evidence to the contrary presented by the Greek Government, it must be held that the Commission-™s second complaint, alleging infringement of Article 9 of the directive, is well founded.
38. In the light of the foregoing, it must be held that, by failing to take the necessary measures to ensure that waste deposited at the -˜Pera Galini-™ site in the prefecture of Heraklion will be recovered or disposed of without endangering human health, without risk to water, air, soil, plants and animals and without causing a nuisance through noise or odours, and by granting a permit to operate that installation which does not contain the necessary information, the Hellenic Republic has failed to fulfil its obligations under Articles 4 and 9 of the directive.

Costs
39. 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 Hellenic Republic has been unsuccessful, the Hellenic Republic must be ordered to pay the costs.




On those grounds, the Court (First Chamber) hereby:
1. Declares that, by failing to take the necessary measures to ensure that waste deposited at the -˜Pera Galini-™ site in the prefecture of Heraklion will be recovered or disposed of without endangering human health, without risk to water, air, soil, plants and animals and without causing a nuisance through noise or odours, and by granting a permit to operate that installation which does not contain the necessary information, the Hellenic Republic has failed to fulfil its obligations under Articles 4 and 9 of Council Directive 75/442/EEC on waste, as amended by Council Directive 91/156/EEC;
2. Orders the Hellenic Republic to pay the costs.

Signatures.

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1 - Language of the case: Greek.