C-33/90

OPINION OF MR DARMON — CASE C-33/90

OPINION OF MR ADVOCATE GENERAL DARMON delivered on 5 November 1991 *

Mr President, or authorities to be responsible, in a given Members of the Court, zone, for the planning, organization, auth­ orization and supervision of waste disposal 3 operations'.

1. The present action for failure to fulfil obligations seeks to obtain from the Court a 4. In its application, the Commission declaration that in the absence of measures reproached Italy for having failed to by the Government of the Italian Republic designate those authorities. It would appear to ensure in the region of Campania the from Decree No 915 of the President of the planning, organization and supervision of 4 Republic of 10 September 1982, submitted waste disposal operations under Article 6 of during the hearing, that Italy has conferred Council Directive 75/442/EEC of 15 July on its regions the power to draw up the 1975 1 or of plans for the disposal of toxic plans provided for by the above articles. and dangerous waste under Article 12 Furthermore, in its written answer to the of Council Directive 78/319/EEC of 2 questions put by the Court, the Commission 20 March 1978 and in the absence of any stated that it was not pursuing that head of communication to the Commission of those complaint. plans, the Italian Republic has failed to fulfil its obligations under Article 5 of the EEC Treaty, Articles 5 and 6 of Directive 75/442 and Articles 6 and 12 of Directive 78/319. 5. It also stated in the same document that it would not be pursuing the complaint based on failure to comply with the obli­ gation to forward and make public the 2. As a result of questions put by the Court waste disposal plans imposed by Article during the written procedure, the 12(2) of Directive 78/319 as the Court has Commission abandoned a number of heads already ruled that there had been a failure of complaint. It is for that reason necessary in this regard in its judgment of 14 June 5 to define precisely the ambit of the 1990 in Case C-48/89. application.

7. The latter two articles obliged the neither the plans referred to in Article 6 of competent authorities — in the case of Italy, the 1975 directive nor those referred to in therefore, the regions — to draw up one or Article 12(1) of the 1978 directive. 6 several 'plans' for waste disposal, setting out in particular the type of waste to be disposed of, disposal methods and suitable sites. The relevant authorities may include in these plans an estimation of the costs of the 12. Following a request in the Court's waste disposal operations. question that it submit the plans adopted pursuant to the two directives in question, the Italian Government stated in its reply that it had for a long time recorded throughout its national territory difficulties 8. The Commission claims that Italy has not which were due to an imbalance between yet implemented these plans in the region of the amounts of waste produced and the Campania. ability to dispose of it. It pointed out that the Minister for the Environment had been given the task of remedying this situation.

9. The origin of these proceedings lies in a written question of 20 May 1987 from an Italian Member of the European Parliament 13. No document testifying to the existence drawing the Commission's attention to the of waste disposal plans in Campania was situation in Campania, which produces produced during the hearing. It must for 1 620 000 tonnes of waste each year, has at that reason be accepted that the plans its disposal only unofficial and unsupervised provided for by Article 6 of the 1975 discharge points and was preparing at that directive and Article 12(1) of the 1978 time to receive 500 000 tonnes of waste directive have not yet been drawn up for from the United States. Campania.

16. It follows that the liability involved in an action for failure to fulfil obligations is that of the State itself, 'Generally speaking, it must be said that the implementation of directives by means of legislative measures of a regional nature is 'whatever the agency of the State whose certainly acceptable from the Community action or inaction is the cause of the failure point of view since each Member State is to fulfil its obligations, even in the case of a free to distribute legislative powers within constitutionally independent institution'. 8 its territory as it thinks best, but it remains true that the Member State, whatever its structure, is responsible to the Community when there is implementation only in 11 respect of part of its territory'. 17. With particular regard to decentralized local authorities, the Court has already ruled that Italy failed to comply with the Directive of 26 July 1971 concerning the coordination for procedures for the award of public works contracts, following the 20. It follows that, quite irrespective of the failure to comply with that directive on the operating difficulties experienced by the part of the Municipality of Milan, which authorities which the Italian Government had awarded a contract for the construction designated, the Italian Republic has failed to of incinerators without having previously fulfil its obligations under Article 6 of published a notice thereof in the Official Directive 75/442 and Article 12(1) of Journal of the European Communities, even Directive 78/319. though the Government declared that it had already instructed the Municipality to comply with the directive. 9

23. The argument based on Article 5 of the 27. The Commission is charged under EEC Treaty refers to the absence of a reply Article 155 of the Treaty with the task of to the letter of 29 June 1987 and to the ensuring that Community law is applied. It letter of formal notice of 20 June 1988. is vital that it should be fully informed of measures adopted by Member States for the purpose of implementing that law. The duty 24. In the former letter, the Commission of cooperation imposed by Article 5 of the requested the Italian Government to provide Treaty assumes particular importance it with information relating to the tonnage during the pre-litigation phase in an action of waste produced each year in Campania, for failure to fulfil obligations. As Advocate the measures taken to dispose of that waste General Lenz pointed out in his Opinion in and the circumstances under which the Case 240/86 Commission v Greece, abovementioned bilateral agreement with the United States was adopted. The Commission referred to this document in its 'The purpose of the pre-litigation procedure letter of formal notice of 20 June 1988 in in actions for failure to fulfil obligations is which it pointed to the failure by Italy to to enable disputes to be settled without reply to the questions put and, drawing court proceedings, which implies that the attention to Article 5 of the Treaty, stressed Member State in question has an obligation the obligation on Member States to to cooperate. Without active cooperation it cooperate. cannot be determined whether a breach of the Treaty has been committed, nor, a 12 fortiori, can such a breach be eliminated'.

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OPINION OF MR DARMON — CASE C-33/90

'that omission, by preventing the 29. I would similarly suggest that the Court Commission from acquainting itself with the rule that the absence of cooperation on the whole complex relationship between the part of Italy in the present case itself Greek State and KYDEP, must be regarded constitutes a failure to fulfil the obligations as a refusal to cooperate with that arising under the first paragraph of Article 5 16 institution'. of the EEC Treaty.

30. I therefore propose that the Court should rule that:

'1 . By failing to ensure the implementation in the region of Campania of the plans for waste disposal referred to in Article 6 of Directive 75 / 442 / EEC and Article 12(1) of Directive 78 / 319 / EEC , Italy has failed to fulfil its obligations under those two directives;

2. By refusing to reply to the three questions contained in the letter of 29 June 1987 and repeated in the letter of formal notice of 20 June 1988, the defendant State has failed to fulfil its obligations under the first paragraph of Article 5 of the EEC Treaty,