C-71/81

JUDGMENT OF T H E COURT 2 FEBRUARY 1982 1

Commission of the European Communities v Kingdom of Belgium

(Failure of a State to fulfil its obligations — Disposal of polychlorinated biphenyls and polychlorinated terphenyls)

Case 71/81

Member States — Obligations — Implementation of directives — Failure to comply — Justification — Not possible (EEC Treaty, Art. 169)

A Member State may not plead to comply with obligations under provisions, practices or circumstances in Community directives. its internal legal system to justify failure

composed of: J. Mertens de Wilmars, President, G. Bosco, A. Touffait and O. Due (Presidents of Chambers), P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe, T. Koopmans, U. Everling, A. Chloros and F. Grévisse, Judges,

Advocate General: F. Capotorti Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of the of the Community policy on the procedure, the claims, submissions and protection of the environment, aim on arguments of the parties may be the one hand to abolish disparities summarized as follows: between the laws of Member States which may, in particular by creating unequal conditions of competition, have I — Facts and written procedure a direct effect upon the functioning of the common market and on the other Council Directive 76/403/EEC on the hand to achieve by means of more disposal of polychlorinated biphenyls and extensive Community rules certain polychlorinated terphenyls (hereinafter objectives laid down by the Treaty. referred to as "PCB") is one of the Community measures based on Articles The PCB referred to by the directive are 100 and 235 of the Treaty which, as p a r t substances particularly harmful to human

health and the environment and because (Article 11) "Member States shall bring of their toxicity and non-degradability into force the measures needed in order their disposal requires forms of control to comply with this directive within 24 extending beyond the national frame- months of its notification and shall work. forthwith inform the Commission thereof." Articles 2 to 10 of the directive impose the following duties on the Member (Article 12) "Member States shall States : communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by (a) to prohibit the uncontrolled dis- this directive." charge, dumping and tipping of PCB (Article 2); The directive was notified on 9 April 1976. The Kingdom of Belgium was thus (b) to make compulsory the disposal of bound to adopt the implementation waste PCB (Article 3) without provisions of national law by 9 April endangering human health and 1978 at the latest. At that date however harming the environment (Article 4) ; the provisions for the adaptation of national law had not been adopted. The Commission states that at that date it (c) to ensure, as far as possible, the had received no official information on regeneration of waste PCB (Article the subject. 5); The Commission considered that the (d) to set up establishments or under- Kingdom of Belgium had therefore failed takings which are alone authorized to fulfil its obligations under the Treaty to dispose of PCB (Articles 6 and 7); regarding the directive in question and in consequence it decided to initiate the (e) to make the holders of PCB bear the procedure provided for in Article 169 of cost of disposal (application of the the Treaty. By a letter dated 3 July 1979 "polluter pays" principle) (Article 8) ; the Belgian Government was requested to submit its observations within a period of two months in accordance with the (f) to make a report every three years to first paragraph of the said article. the Commission on the situation of the disposal of PCB in their territory (Article 10). By a letter dated 20 August 1979 the Permanent Representation of Belgium informed the Commission that, regarding "the social aspect of the question", the Article 9 provides that the Member problems on the disposal of PCB had States are to lay down the special been settled by the Law of 22 July 1974 provisions with which the holders of and by the Royal Decree of 22 July PCB and the establishments or under- 1976. Some months later in a letter dated takings referred to in Article 6 must 14 November 1979 the Minister for comply pursuant to the directive. Health and the Environment, referring to the incorporation into national law of Regarding implementation of the directives in the field of the environment, directive, Articles 11 and 12 provide as stated that the fact that "the absence" of follows : authorities in the matter was "an indirect

At present, that is 16 months after the letter of 14 November 1979, requesting an additional period of one year, it does III — Submissions and a r g u m e n t s not seem that the provisions bringing the of t h e p a r t i e s national law into line with the directive have been adopted. The Commission says it has received no further communi- In its application the Commission argues cation from the Belgian authorities on that the Belgian authorities admit in their the subject. letter of 20 August 1979 that the rules on PCB are not covered by the Law of 22 On 2 April 1981 the Commission July 1974 on toxic waste in so far as brought the matter before the Court "the regeneration of PCB contained in pursuant to the second paragraph of small objects seems impossible and Article 169 of the Treaty. The the regeneration of PCB in large objects application was received at the Court will be carried out automatically . . .". Registry on 6 April. Moreover, the law prohibiting uncon- trolled discharge, dumping and tipping does not cover the obligation in relation Upon hearing the report of the Judge- to collection, the encouragement of Rapporteur and the views of the regeneration, the establishment of a Advocate General the Court decided to system of licensing undertakings for the

COMMISSION v BELGIUM

purpose of collection and the require- independent administrative authorities. ment that those holding PCB and not In the present case the matter comes authorized to dispose of them must within the powers not only of the deliver them to a centre for destruction national institutions but also of the or reprocessing. regional institutions whose powers were laid down in the special Law on institutional reforms of 8 August 1980, The binding nature of directives means enacted pursuant to Article 107 (d) of that the Member States must comply the Constitution. Implementation of the with the time-limits prescribed therein directive thus involves not only laws for bringing into force provisions emanating from the national Parliament adapting national law. but also decrees emanating from the regional councils.

The directive in question is of a general In its rejoinder the Belgian Government nature and its implementation requires observes that on 15 July 1981 as part of detailed measures by numerous and the institutional reforms it adopted

JUDGMENT OF 2. 2. 1982 — CASE 71/81

measures covering the implementation of itself should be taken into account by the the rules of Community law in relation Community authorities and states that it to the environment. The coordinating will ensure that all appropriate measures system referred to in the defence has for implementing the directives will be been set up. It has been agreed that the adopted as soon as possible. regions will draw up as soon as possible a timetable in relation to the implementation of the Community IV — O r a l p r o c e d u r e directives. Draft laws and decrees on the subjects referred to by the directives have The parties presented oral argument at been prepared. Other drafts are in the the sitting on 12 November 1981. course of preparation. The Advocate General delivered his The Belgian Government repeats that the opinion at the sitting on 2 December exceptional situation in which it finds 1981.

Decision

1 By application l o d g e d at the C o u r t Registry o n 6 April 1 9 8 1 , the C o m m i s s i o n of the E u r o p e a n C o m m u n i t i e s b r o u g h t an action for a declaration u n d e r Article 169 of the E E C T r e a t y t h a t by failing to a d o p t within t h e prescribed p e r i o d the provisions needed in o r d e r to comply w i t h Council Directive 7 6 / 4 0 3 / E E C of 6 April 1976 o n the disposal of polychlorinated biphenyls arid polychlorinated terphenyls (Official J o u r n a l L 108, p . 41), the K i n g d o m of Belgium has failed to fulfil its obligations u n d e r the third p a r a g r a p h of Article 189 of the T r e a t y .

7 It must therefore be held that by not adopting within the prescribed period the provisions needed to comply with Council Directive 76/403/EEC of 6 April 1976, the Kingdom of Belgium has failed to fulfil its obligations under the Treaty.

Costs

8 Article 69 (2) of the Rules of Procedure provides that the unsuccessful party is to be ordered to pay the costs if they have been asked for. Since the defendant has been unsuccessful, it must be ordered to pay the costs.

OPINION OF MR CAPOTORTI — CASE 71/81

On those grounds,

THE COURT

O P I N I O N OF MR ADVOCATE GENERAL C A P O T O R T I

(see Case 6 8 / 8 1 , p. 159)