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

JUDGMENT OF THE COURT (Third Chamber)
12 October 2004 (1)

applicant,

v

defendant,

THE COURT (Third Chamber),

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

gives the following

Judgment

1. By its action, the Commission of the European Communities is seeking a declaration from the Court that, by failing to adopt all the measures necessary to comply with its obligations under Articles 1(4) and (5), 2(1), (2) and (4), 3(1) to (4), 4(1) to (3) and 5(1) and (2) of Council Directive 91/689/EEC of 12 December 1991 on hazardous waste (OJ 1991 L 377, p. 20) (-�the Directive-�), the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that Directive and under the EC Treaty.

Legal framework
2. The object of the Directive, according to Article 1(1) thereof, is to approximate the laws of the Member States on the controlled management of hazardous waste. The Directive establishes a framework for controls on hazardous waste in the Community. In particular, it introduces a series of controls and requirements specific to such waste in addition to those already applicable to all waste under Council Directive 75/442/EEC of 15 July 1975 (OJ 1975 L 194, p. 39), as amended by Council Directive 91/156/EEC of 18 March 1991 (OJ 1991 L 78, p, 32).
3. Article 1(4) of the Directive provides:
-�For the purpose of this Directive -�hazardous waste-� means:
- wastes featuring on a list to be drawn up in accordance with the procedure laid down in Article 18 of Directive 75/442/EEC on the basis of Annexes I and II to this Directive, not later than six months before the date of implementation of this Directive. These wastes must have one or more of the properties listed in Annex III. The list shall take into account the origin and composition of the waste and, where necessary, limit values of concentration. This list shall be periodically reviewed and [revised] if necessary by the same procedure,
- any other waste which is considered by a Member State to display any of the properties listed in Annex III. Such cases shall be notified to the Commission and reviewed in accordance with the procedure laid down in Article 18 of Directive 75/442/EEC with a view to adaptation of the list.-�
4. Article 1(5) of the same directive provides:
-�Domestic waste shall be exempted from the provisions of this Directive. The Council shall establish, upon a proposal from the Commission, specific rules taking into consideration the particular nature of domestic waste not later than the end of 1992.-�
5. Article 2 of the Directive provides:
-�Member States shall take the necessary measures to require that on every site where tipping (discharge) of hazardous waste takes place the waste is recorded and identified.
2. Member States shall take the necessary measures to require that establishment[s] and undertaking[s] which dispose of, recover, collect or transport hazardous waste do not mix different categories of hazardous waste or mix hazardous waste with non-hazardous waste.
-�
4. Where waste is already mixed with other waste, substances or materials, separation must be effected, where technically and economically feasible, and where necessary in order to comply with Article 4 of Directive 75/442/CEE. -�
6. Article 3 of the Directive provides:
-�1. The derogation referred to in Article 11(1)(a) of Directive 75/442/EEC from the permit requirement for establishments or undertakings which carry out their own waste disposal shall not apply to hazardous waste covered by this Directive.
2. In accordance with Article 11(1)(b) of Directive 75/442/EEC, a Member State may waive Article 10 of that Directive for establishments or undertakings which recover waste covered by this Directive:
- if the Member State adopts general rules listing the type and quantity of waste and laying down specific conditions (limit values for the content of hazardous substances in the waste, emission limit values, type of activity) and other necessary requirements for carrying out different forms of recovery, and
- if the types or quantities of waste and methods of recovery are such that the conditions laid down in Article 4 of Directive 75/442/EEC are complied with.
3. The establishments or undertakings referred to in paragraph 2 shall be registered with the competent authorities.
4. If a Member State intends to make use of the provisions of paragraph 2, the rules referred to in that paragraph shall be sent to the Commission not later than three months prior to their coming into force. The Commission shall consult the Member States. In the light of these consultations the Commission shall propose that the rules be finally agreed upon in accordance with the procedure laid down in Article 18 of Directive 75/442/EEC. -�
7. According to Article 4 of the Directive:
-�1. Article 13 of Directive 75/442/EEC shall also apply to producers of hazardous waste.
2. Article 14 of Directive 75/442/EEC shall also apply to producers of hazardous waste and to all establishments and undertakings transporting hazardous waste.
3. The records referred to in Article 14 of Directive 75/442/EEC must be preserved for at least three years except in the case of establishments and undertakings transporting hazardous waste which must keep such records for at least 12 months. Documentary evidence that the management operations have been carried out must be supplied at the request of the competent authorities or of a previous holder.-�
8. Article 5(1) and (2) of the Directive read as follows:
-�1. Member States shall take the necessary measures to ensure that, in the course of collection, transport and temporary storage, waste is properly packaged and labelled in accordance with the international and Community standards in force.
2. In the case of hazardous waste, inspections concerning collection and transport operations made on the basis of Article 13 of Directive 75/442/EEC shall cover more particularly the origin and destination of such waste. -�
9. Article 10 of the Directive, as amended by Council Directive 94/31/EC of 27 June 1994 (OJ 1994 L 168, p. 28), provides:
-�1. Member States shall bring into force the laws, regulations and administrative provisions necessary for them to comply with this Directive by 27 June 1995. They shall immediately inform the Commission thereof.
-�
3. Member States shall communicate to the Commission the texts of the main provisions of national law which they adopt in the field governed by this Directive.-�
10. The documents in the case-file indicate that the United Kingdom adopted a certain number of legislative measures in order to transpose the Directive, in particular the following:
- In Great Britain, the Special Waste Regulations 1996;
- In Northern Ireland, the Special Waste Regulations (Northern Ireland) 1998;
- In Gibraltar, the Public Health (Amendment) Ordinance 1997.

Pre-litigation procedure
11. After examining the provisions of national law intended to transpose the Directive, on 16 March 1999 the Commission sent the United Kingdom Government a letter setting out some of the main areas where it considered the transposition of the Directive to be deficient.
12. The United Kingdom replied in letters of 1 June 1999 and 24 August 1999, setting out its position on the various points raised.
13. The Commission still had reservations as to the effectiveness of the transposition by the United Kingdom and on 8 November 2000 sent it a letter of formal notice detailing the various aspects of the United Kingdom's transposition which it considered to be deficient.
14. By letters of 28 February 2001, and 24 and 27 April 2001, the United Kingdom Government responded to that letter.
15. By letter of 24 July 2001, the Commission issued a reasoned opinion in which it concluded that, by failing to transpose correctly Articles 1(4) and (5), 2(1), (2) and (4), 3(1) to (4), 4(1) to (3), and 5(1) and (2) of the Directive, the United Kingdom had failed to fulfil its obligations under that directive.
16. The United Kingdom Government responded to the reasoned opinion by letters of 4 December 2001 concerning Great Britain and Northern Ireland, and 25 January 2002 concerning Gibraltar. In those responses, the United Kingdom authorities agreed to bring into force new legislation on every point made by the Commission. However, the Commission had not been informed of any of the required amending legislation, with the exception of two pieces of draft legislation concerning Gibraltar, which had still not been adopted.
17. Taking the view that the Directive had not been fully transposed throughout the United Kingdom by the time-limit set in the reasoned opinion, the Commission brought the present action.

The action
18. In support of its action the Commission has put forward complaints concerning the transposition of certain articles of the Directive in Great Britain and Northern Ireland and in Gibraltar.
Incomplete transposition of Article 5(1) of the Directive
Admissibility
19. This complaint concerns Article 5(1) of the Directive, under which the Member States are required to take the measures necessary to ensure that, in the course of collection, transport and temporary storage, waste is properly packaged and labelled in accordance with the international and Community standards in force.
20. The Commission states, first, with the concurrence of the United Kingdom Government, that the Community standards in force governing the packaging and labelling of hazardous waste referred to in that provision are the result, in particular, of four other directives. It is common ground that those directives have been implemented in Great Britain and in Northern Ireland.
21. The Commission maintains, next, that Article 5(1) of the Directive does not require either discrete implementation or that the United Kingdom establish a dual system for the packaging and labelling of hazardous waste.
22. With respect to Gibraltar, however, the Commission states that the transposition measures applicable there, which do not have any packaging-related requirements, are too limited.
23. The United Kingdom Government responds to that argument by stating that none the directives in question, save one, apply to Gibraltar, making transposition measures unnecessary. Since the other directives have not been implemented in Gibraltar, the standards laid down therein concerning the packaging and labelling of waste are not -�Community standards in force-� within the meaning of Article 5(1) of the Directive; accordingly, that article cannot require that those standards be implemented there.
24. The Commission maintains, in response, that, notwithstanding the physical or legal impossibility of implementing those standards, it is necessary to find a solution for ensuring that hazardous waste is packaged and labelled properly.
25. It should be borne in mind that, in an action for failure to fulfil obligations, the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity, on the one hand, to comply with its obligations under Community law and, on the other, to avail itself of its right to defend itself against the charges formulated by the Commission (see, inter alia, Case 293/85 Commission v Belgium [1988] ECR 305, paragraph 13; Case C-96/95 Commission v Germany [1997] ECR I-'1653, paragraph 22; and Case C-439/99 Commission v Italy [2002] ECR I-'305, paragraph 10).
26. The proper conduct of that procedure constitutes an essential guarantee required by the Treaty not only in order to protect the rights of the Member State concerned, but also so as to ensure that any contentious procedure will have a clearly defined dispute as its subject-matter (see, inter alia, Case C-'1/00 Commission v France [2001] ECR I-'9989, paragraph 53; and Case C-287/00 Commission v Germany [2002] ECR I-'5811, paragraph 17).
27. It should also be borne in mind that that an application under Article 226 EC must contain a cogent and detailed exposition of the reasons which led the Commission to the conclusion that the Member State concerned has failed to fulfil one of its obligations under the Treaty (see, inter alia, Case C-439/99 Commission v Italy, cited above, paragraph 12, and Case C-287/00 Commission v Germany, cited above, paragraph 19).
28. In that respect, the part of the complaint relating only to Gibraltar does not meet those conditions.
29. First, by confining itself to a mere statement in the letter of formal notice, the reasoned opinion and the application to the effect that the transposition measures for Article 5(1) of the Directive in Gibraltar were too limited, without explaining either to which Community standards in force in Gibraltar itself that provision refers or exactly which measures are required thereunder, the Commission failed to indicate in those documents in a cogent, comprehensible and detailed manner the essential elements of fact and law on which the action is based.
30. Second, the Commission states in its reply that, notwithstanding the physical or legal impossibility of implementing those standards in Gibraltar, the United Kingdom Government had to find another solution for ensuring that hazardous waste was packaged and labelled properly. The Commission fails to state in a cogent and detailed manner, however, exactly what that solution might comprise.
31. It follows that the action is inadmissible in so far as it concerns the complaint alleging incomplete transposition of Article 5(1) of the Directive in Gibraltar.
Substance
32. The Commission also states that the measures to transpose Article 5(1) of the Directive must include a pertinent reference to the Community standards in force. The transposition measures in Great Britain and in Northern Ireland do not contain such a reference and thus, in its view, in failing to impose a requirement relating to packaging and labelling, the United Kingdom has failed to fulfil its obligation in that regard.
33. Although the Commission acknowledges, on the one hand, that Article 5(1) of the Directive does not necessarily require discrete implementation so long as the packaging and labelling standards for hazardous waste are provided for in the legislation in force governing its collection, transport and temporary storage, it submits, on the other hand, that it is nevertheless necessary to include such a reference to those standards in the implementing legislation.
34. The requirement to include such a reference is not evident from the wording of that article. The Commission has not identified in a sufficiently clear and precise manner, either in the reasoned opinion or in the application, the basis of the United Kingdom-�s obligation to include a specific reference in the legislation to the Community standards in force. Nor has it referred to any general principle of Community law to support the proposition that such an obligation exists. Lastly, it has not put forward any argument to show that there is any need for such a reference in the national legislation or maintained that the absence of a specific reference to the Community standards in force would jeopardise the application of the Community legislation on the management of hazardous waste (see, to that effect, the judgment of 29 August 2004 in Case C-194/01 Commission v Austria, not yet published in the ECR, paragraph 80).
35. In those circumstances, the Commission, upon whom it is incumbent to prove the allegation that the obligation has not been fulfilled (see, inter alia, Case C-159/94 Commission v France [1997] ECR I-'5815, paragraph 102, and the case-law cited therein) has not succeeded in establishing that, by failing to include such a reference, the United Kingdom has failed to fulfil its obligations under Article 5(1) of the Directive.
36. Accordingly, the Commission-�s complaint concerning Article 5(1) of the Directive must be dismissed as unfounded in so far as it concerns Great Britain and Northern Ireland.
The other complaints in the application
37. As far as the remainder of the application is concerned, the United Kingdom Government admits it that has not complied, within the prescribed period, with its obligations under Article 1(4), first and second indents, and (5), Article 2(1), (2) and (4), Article 3(1) to (4), Article 4(1) to (3) and Article 5(2) of the Directive and that the action is well founded in that respect.
38. The United Kingdom Government states that all the provisions referred to in the preceding paragraph are in the process of being transposed.
39. 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-143/02 Commission v Italy [2003] ECR I-'2877, paragraph 11, and Case C-446/01 Commission v Spain [2003] ECR I-'6053, paragraph 15).
40. The United Kingdom Government admits that, at the end of the time period prescribed in the reasoned opinion, not all the laws, regulations and administrative provisions necessary to comply with the provisions of the Directive referred to in paragraph 37 of the present judgment had been adopted. Accordingly, the Commission-�s complaints regarding those provisions must be considered to be well founded.
41. Accordingly, the Court finds that, by failing to adopt all the measures necessary to comply with its obligations under Articles 1(4) and (5), 2(1), (2) and (4), 3(1) to 3(4), 4(1) to 4(3) and 5(2) of the Directive, the United Kingdom has failed to fulfil its obligations under that Directive and under the EC Treaty.

Costs
42. 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. Under the first paragraph of Article 69(3) of those Rules, where each party succeeds on some and fails on other heads, the Court may order that the costs be shared or that the parties bear their own costs. In this case, since each of the parties has applied for costs and the Commission has failed in its complaint relating to incomplete transposition of Article 5(1) of the Directive, it must be ordered to bear one-fifth of the costs and the United Kingdom must be ordered to bear the remainder.




On those grounds, the Court (Third Chamber) hereby:
1. Declares that, by failing to adopt all the measures necessary to comply with its obligations under Articles 1(4) and (5), 2(1), (2) and (4), 3(1) to (4), 4(1) to (3) and 5(2) of Council Directive 91/689/EEC of 12 December 1991 on hazardous waste (OJ 1991 L 377, p. 20), the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under that Directive and under the EC Treaty;
2. Dismisses the remainder of the action;
3. Orders the Commission of the European Communities to bear one-fifth of the costs;
4. Orders the United Kingdom of Great Britain and Northern Ireland to bear four-fifths of the costs.

Signatures.

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1 - Language of the case: English.