C-45/91

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OPINION OF MR JACOBS — CASE C-45/91

'The competent authority or authorities the competent authority referred to in referred to in Article 5 shall be required to Article 5 . . . '. draw up as soon as possible one or several plans relating to, in particular:

5. Article 14 of Directive 75/442 requires the Member States to communicate to the — the type and quantity of waste to be Commission the texts of the main provisions disposed of, of national law which they adopt in the field covered by the directive.

— general technical requirements, 6. Similar provisions are laid down in respect of toxic and dangerous waste by Directive 78/319. Thus, according to Article — suitable disposal sites, 5 of that directive,

— any special arrangements for particular wastes. '1. Member States shall take the necessary measures to ensure that toxic and dangerous waste is disposed of without endangering human health and without harming the The plan or plans may, for example, cover: environment, and in particular:

waste, as well as its consignment to instal- The competent authorities of the Member lations, establishments or undertakings other States may include other specific aspects, in than those referred to in Article 9(1).' particular the estimated cost of the disposal operations.

7. Article 9(1) of Directive 78/319 requires installations, establishments or undertakings which carry out the storage, treatment or 2. The competent authorities shall make deposit of toxic and dangerous waste to public the plans referred to in paragraph 1. obtain a permit from the competent auth- The Member States shall forward these orities. plans to the Commission.

8. By virtue of Article 12 of Directive 78/319, 3. The Commission, together with the Member States, shall arrange for regular comparisons of the plans in order to ensure that implementation of this Directive is sufficiently coordinated.' '1. The competent authorities shall draw up and keep up to date plans for the disposal of toxic and dangerous waste. The plans shall cover in particular:

9. Article 21(2) of Directive 78/319 requires the Member States to communicate to the Commission the texts of the main — the type and quantity of waste to be provisions of national law which they adopt disposed of; in the field covered by the directive.

— the methods of disposal; 10. 'Waste' is defined by Article 1(a) of both directives as 'any substance or object which the holder disposes of or is required to dispose of pursuant to the provisions of national law in force'. 'Toxic and dangerous — specialized treatment centres where waste' is defined by Article 1(b) of Directive necessary; 78/319 as 'any waste containing or contaminated by the substances or materials listed in the Annex to this Directive of such a nature, in such quantities or in such concentrations as to constitute a risk to — suitable disposal sites. health or the environment'.

14. The response of the Greek Government did not satisfy the Commission that the requirements of Directives 75/442 and 78/319 had been met. In the absence of any 12. The unrestricted dumping of waste was further information from the Greek alleged to have created an intolerable Government, on 26 April 1989 the situation in the region, due to the stench Commission sent it a letter of formal notice and the various species of rodent and insect under Article 169 of the Treaty, asking it to which had been attracted. Moreover, incin- specify the measures it had taken to give eration of the waste was said to be carried effect to those directives. out without supervision, creating a risk that fires would break out over large areas, perhaps endangering the military bases, with incalculable consequences for the whole region. In addition, following torrential rain on 22 September 1986, the Kouroupitos apparently burst its banks, dumping into the 15. The Greek authorities responded by sea hundreds of tonnes of waste, thereby letter dated 4 August 1989, in which they polluting the entrance to the Gulf of Souda. set out their medium and long-term plans Fishing in the region was said not to have for waste disposal in Chania. The been prohibited. Commission took the view that the response of the Greek authorities demonstrated that no concrete steps had yet been taken to ensure that waste was disposed of in the district without endangering human health and without harming the environment. It therefore addressed a reasoned opinion to the Greek Government in accordance with 13. By letter dated 27 January 1988, the Article 169 of the Treaty. The Greek Commission asked the Greek Government Government did not respond to the to comment on the complaint. In its reasoned opinion, and the Commission response, dated 15 March 1988, the Greek accordingly brought the matter before the Government did not deny the allegations Court.

16. In response to a question from the by which the Greek Government was asked Court, the Commission has provided more to comment on the complaint received by information about the type of waste with the Commission, contained no reference to which the present proceedings are Directive 78/319. According to the Greek concerned. The Commission states that the Government, the Commission was not waste comes from a number of sources, therefore entitled to raise the question of including military bases, local hospitals and the steps taken by Greece to comply with pharmacies, and small local businesses such that directive in the letter of formal notice as tanneries, dying and cleaning under- and the reasoned opinion. takings and car-repair workshops. According to the Commission, it contains one or more of a number of the substances listed in the Annex to Directive 78/319, namely mercury and mercury compounds; cadmium and cadmium compounds; chrome 19. There is plainly nothing in this 6 compounds; lead and lead compounds; argument. It is the letter of formal notice organic-halogen compounds; chlorinated which represents the first formal step in solvents; organic solvents; pharmaceutical proceedings under Article 169 and which compounds; chemical laboratory materials, gives the Member State concerned the not identifiable and/or new, whose effects opportunity to submit its observations on on the environment are not known; and the alleged breach before the Commission aromatic polycyclic compounds (with carci- delivers a reasoned opinion on the matter. nogenic effects). Any contact there may be in connection with the alleged breach between the Commission and the Member State in question prior to the dispatch of the letter of formal notice is purely informal and has no legal consequences for the rest of the procedure. In the present case, it is clear 17. At the hearing, the Greek Government that the Greek Government was given the challenged for the first time the admissibility opportunity to submit its observations on its of the action in so far as it concerns alleged failure to implement both the Directive 78/319. Since its challenge was directives in issue before the delivery of the not based on matters of law or of fact which reasoned opinion. The admissibility of the came to light in the course of the written application in relation to each of those procedure, it is clear that, even if the directives is consequently beyond doubt. challenge was well founded, the Court would be entitled not to take account of it: see Article 42(2) of the Rules of Procedure. It is arguable, however, that the Court should consider the question of admissibility of its own motion. I will therefore comment briefly on it. 20. The Greek authorities sought to give effect to Directives 75/442 and 78/319 by Law No 1650 of 16 October 1986 and Ministerial Decrees 49541/1424 and 72751/3054. It is evident from the pleadings of the Greek Government in this case, however, that no. concrete steps have yet 18. The Greek Government points out that been taken to ensure that waste is disposed the Commission's letter of 27 January 1988, of in Chania without endangering human

23. It is evident that, while the Greek Government m a y have m a d e some progress towards the implementation of Directives 7 5 / 4 4 2 and 7 8 / 3 1 9 , it has still to adopt concrete measures to achieve that result in the district of Chania m o r e than ten years after the expiry of the time-limit laid d o w n in the G r e e k Act of Accession. Accordingly, I consider that the C o u r t should declare that, by failing to take all the measures necessary to comply with Directive 7 5 / 4 4 2 on waste and Directive 7 8 / 3 1 9 on toxic and dangerous waste within the time-limit laid d o w n in the G r e e k Act of Accession, Greece has failed to fulfil its obligations u n d e r the T r e a t y . Greece should be ordered to p a y the costs.

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