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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> European Communities v Federal Republic of Germany (Environment and consumers) [2004] EUECJ C-454/01 (10 June 2004)
URL: http://www.bailii.org/eu/cases/EUECJ/2004/C45401.html
Cite as: [2004] EUECJ C-454/1, [2004] EUECJ C-454/01

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IMPORTANT LEGAL NOTICE - The source of this judgment is the web site of the Court of Justice of the European Communities. The information in this database has been provided free of charge and is subject to a Court of Justice of the European Communities disclaimer and a copyright notice. This electronic version is not authentic and is subject to amendment.

JUDGMENT OF THE COURT (Second Chamber)
10 June 2004 (1)

(Directive 96/59/EC -“ Waste management -“ Disposal of polychlorinated biphenyls and polychlorinated terphenyls)

In Case C-454/01,

Commission of the European Communities, represented by G. zur Hausen, acting as Agent, with an address for service in Luxembourg,

applicant,

v

Federal Republic of Germany, represented by W.-D. Plessing and R. Stüwe, acting as Agents,

defendant,

APPLICATION for a declaration that, by failing to draw up or to communicate to the Commission, within the prescribed period, the plan provided for in the first indent of Article 11(1) of Council Directive 96/59/EC of 16 September 1996 on the disposal of polychlorinated biphenyls and polychlorinated terphenyls (PCB/PCT) (OJ 1996 L 243, p. 31), the Federal Republic of Germany has failed to fulfil its obligations under the EC Treaty,

THE COURT (Second Chamber),

composed of: C.W.A. Timmermans (Rapporteur), President of the Chamber, C. Gulmann, R. Schintgen, F. Macken and N. Colneric, Judges,

Advocate General: C. Stix-Hackl,
Registrar: M.-F. Contet, Principal Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 15 January 2004,

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 22 November 2001, the Commission of the European Communities brought an action under Article 226 EC for a declaration that, by failing to draw up or to communicate to the Commission, within the prescribed period, the plan provided for in the first indent of Article 11(1) of Council Directive 96/59/EC of 16 September 1996 on the disposal of polychlorinated biphenyls and polychlorinated terphenyls (PCB/PCT) (OJ 1996 L 243, p. 31, hereinafter -˜the Directive-™), the Federal Republic of Germany has failed to fulfil its obligations under the EC Treaty.

Legal framework
2. Article 11 of the Directive states:
-˜1.Member States shall, within three years of the adoption of this Directive, draw up:
-“ plans for the decontamination and/or disposal of inventoried equipment and the PCBs contained therein;
-“ outlines for the collection and subsequent disposal of equipment which is not subject to inventory in accordance with Article 4(1), as referred to in Article 6(3).
2.Member States shall communicate these plans and outlines to the Commission without delay.-™

Pre-litigation procedure
3. On 7 April 2000, the Commission sent a letter of formal notice to the Federal Republic of Germany alleging that it had failed to transpose Articles 4(1) and 11 of the Directive correctly into national law.
4. Since it was not satisfied with the response of the Federal Republic of Germany by letter of 31 July 2000 to the letter of formal notice, the Commission issued a reasoned opinion on 19 January 2001 calling on that Member State to take the measures necessary to comply with the opinion within two months of its notification.
5. In that reasoned opinion, the Commission takes the view that the Federal Republic of Germany failed to fulfil its obligations under the Directive in that it did not draw up or communicate to the Commission by 16 September 1999 at the latest the summary and the plan referred to in the first sentence of Article 4(1), and in the first indent of Article 11(1), in conjunction with Article 11(2), of the Directive. It no longer sets out the complaint alleging failure to fulfil obligations flowing from the second indent of Article 11(1) of the Directive.
6. As is clear from the copy of the letter of notification bearing the stamp of receipt of the Permanent Representation of the Federal Republic of Germany to the European Union, which was provided by the Commission at the request of the Court, the reasoned opinion was notified on 19 January 2001.
7. The Federal Republic of Germany responded to the reasoned opinion by a document of 23 March 2001 sent by letter of 27 March 2001 and registered at the Commission on 2 April 2001. It states in that document that it is sending the Commission a summary of inventories pursuant to the first sentence of Article 4(1) of the Directive and a plan pursuant to the first indent of Article 11(1) of the Directive. In respect of that plan, it refers to the -˜Bericht über die Bestandsaufnahmen und die Entsorgungsplanung PCB-haltiger Geräte in Deutschland-™ (Report on the inventories and planning for the disposal of PCB-‘containing equipment in Germany, hereinafter -˜the Report-™), which is appended to the document.

The application
8. The Commission states that it is no longer proceeding with the complaint based on infringement of Article 4(1) of the Directive.
9. However, as regards the complaint alleging infringement of the first indent of Article 11(1) of the Directive, the Commission points out that the Federal Republic of Germany notified the information which, the latter contends, constitutes a plan within the meaning of that provision only after the time-limit laid down in the reasoned opinion had expired. Moreover, the Commission takes the view that the Report cannot in any event be regarded as a plan within the meaning of that provision.
10. At the hearing, the German Government stated that it does not deny that the period laid down in the reasoned opinion had expired. It points out, however, that by transmitting the Report to the Commission it fulfilled the obligation, laid down in the first indent of Article 11(1) of the Directive, to draw up and to communicate a plan for the decontamination or disposal of inventoried equipment.
11. It must be remembered 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 and that the Court cannot take account of any subsequent changes (see, inter alia, Case C-47/01 Commission v Spain [2002] ECR I-8231, paragraph 15 and the case-law cited).
12. The parties agree that even if the Report can be considered a plan within the meaning of the first indent of Article 11(1) of the Directive, it was drawn up and communicated to the Commission after the expiry of the period laid down in the reasoned opinion. That period expired on 19 March 2001, while the document to which the Report, which itself is not dated, was appended is dated 23 March 2001 and was registered at the Commission on 2 April 2001.
13. It follows that the action brought by the Commission is well founded.
14. It must therefore be held that, by failing to draw up, within the prescribed period, the plan provided for in the first indent of Article 11(1) of the Directive, the Federal Republic of Germany has failed to fulfil it obligations under the Directive.

Costs
15. 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 Federal Republic of Germany has been unsuccessful, the latter must be ordered to pay the costs.



On those grounds,

THE COURT (Second Chamber)

hereby:
1. Declares that, by failing to draw up, within the prescribed period, the plan provided for in the first indent of Article 11(1) of Council Directive 96/59/EC of 16 September 1996 on the disposal of polychlorinated biphenyls and polychlorinated terphenyls (PCB/PCT), the Federal Republic of Germany has failed to fulfil its obligations under that directive;
2. Orders the Federal Republic of Germany to pay the costs.

Timmermans	Gulmann	Schintgen
Macken		Colneric

Delivered in open court in Luxembourg on 10 June 2004.

R. Grass

C.W.A. Timmermans

Registrar

President of the Second Chamber

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1 -“ Language of the case: German.