C-366/89

O P I N I O N O F MR D A R M O N — CASE C-366/89

OPINION OF ADVOCATE GENERAL DARMON delivered on 3 February 1993

Mr President, 4. Following the abovementioned judgment Members of the Court, of the Court, Italy adopted Decree N o 691 of 23 August 1982 4 (hereinafter 1. In its judgment of 17 December 1981 ' the 'DPR N o 691') designed to transfer the Court held that by failing to adopt within Directive into national law. the prescribed period the provisions needed in order to comply with a number of Direc­ 5. By formal notice of 13 November 1986, tives concerning the protection of the envi­ the Commission informed the Italian Gov­ ronment, including Council Directive ernment that it considered that that Decree 75/439/EEC on the disposal of waste oils 2 did not completely satisfy the requirements (hereinafter 'the Directive'), the Italian of the Directive and, furthermore, that it Republic had failed to fulfil its obligations hindered intra-Community trade. under the Treaty.

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no longer any need to consider the other The Commission shall send an overall sum­ grounds of complaint initially formulated. mary of such information to the Member State.'

10. Let me say at once that the Decree of 13. The Commission complains that the 5 27 January 1992 concerning the implemen­ defendant has not fulfilled that obligation of tation of Directives 75/439/EEC and notification. 87/101/EEC 6 on the disposal of waste oils, even though its effect was to prompt the Commission to withdraw certain of its com­ plaints, cannot be relied on to any purpose in 14. Italy does not deny this. Its reply to the this case. The Court has always been con­ questionnaire drawn up by the Commission cerned to confine its examination exclusively and sent to all the Member States as one of a to the legislation applicable at the time when series of steps concerning the transposition the action was brought. Any legislative pro­ of the Directive may not be treated as equiv­ vision adopted subsequently may not there­ alent to the periodic conveying of infor­ fore be taken into consideration. 7 mation on the experience gained or the tech­ niques used in relation to the disposal of waste oils. 8

11. It must therefore be considered whether, at the time when the action was brought, 15. The failure to fulfil obligations is there­ Italy had or had not taken the measures nec­ fore established on that point. essary to comply with Articles 6, 12 and 15 of the Directive. 16. Let us now consider Articles 6 and 12 of the Directive jointly.

20. Those obligations of authorization and inspection concern undertakings responsible for disposing of waste oils. That disposal can 24. In its defence, the Member State adds be carried out by means of two techniques: that the prior examination with respect to either straightforward destruction, or regen­ the conditions required by the state of tech­ eration " which enables the oils to be reused; nical development constitutes a requirement the latter method has been chosen by the which has already been integrated into Directive. 1 2 administrative practice because it is deemed to form part of the rules of good manage­ ment of the authority responsible for issuing the permit. 1 5 21. Let us look at two cases in turn and see whether the Member State has discharged its obligations regarding permits and inspec­ tions with respect, first, to undertakings 25. It certainly cannot be denied that full which regenerate oils and, secondly, those implementation of a directive may be which dispose of them by incineration. achieved where the Member State has, in its domestic legal system, provisions making it possible to attain the desired result, even where those provisions are scattered among a 22. As regards the undertakings which number of statutes. It is then not necessary regenerate waste oils, the Commission points for that Member State to take specific mea­ out that DPR N o 691 does not contain any sures. But it is still necessary for the Direc­ tive to be applied in its entirety; administra­ tive circulars, and a fortiori mere

9 — Case 240/83 [1985] ECR 531. 10 — Paragraph 29. 11 — On the concept of regeneration, 'a complex chemical pro­ cess which restores to used mineral oils all the properties 13 — Gazzetta Ufficiale della Republica Italiana N o 201 of they had before they were used', sec the judgment in 13 August 1966, p. 4091. Case 21/79 Commission ν Italy [1980] ECR 1. 14 — Gazzetta Ufficiale del Regno d'Italia N o 301, p. 5995. 12 — See Article 3 of the Directive. 15 — P. 7 of the French translation.

27. Admittedly, Article 4 of the Decree-Law 30. But it complains of the inadequacy, in requires 'any person intending to process, relation to Articles 6 and 12, of Article 3(3) rectify or treat in any way whatsoever the of DPR No 691 which provides: oils, minerals and residues derived from the refining of those oils' to apply for a 'conces­ sion'. But the granting of the concession is not made subject to the prior checks referred to in the Directive. Article 6 of the Decree- Law may seem more relevant, because it pro­ 'The Minister for Industry, Trade and Crafts vides for 'a permanent inspection from the may, as regards certain stocks, permit under­ technical and fiscal points of view', carried takings to use in their own installations, for out by officials of the competent ministries, the purposes of incineration, used oils that who may 'at any time' enter the offices, they obtained following production or utili depots and premises used for processing. zation cycles, subject to Law No 615 of However, nothing is specified as to the 13 July 1966 and the subsequent provisions concerning atmospheric pollution.'

16 - Sec. in particular, Case 169/87 Commission ν France[1988] ECR 4093. paragraph 12 17 - Gazzetta Ufficiale No 140 of 16 June 1988.

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OPINION OF MR DARMON — CASE C-366/89

31. That provision is silent as regards the ensure the full application of Articles 6 and technical conformity of the installations and 12 of the Directive as regards non industrial the subsequent inspections which the instal­ undertakings disposing of waste oils by lations must undergo. incineration.