C-255/93

COMMISSION v FRENCH REPUBLIC

OPINION OF ADVOCATE GENERAL LENZ delivered on 1 June 1994

Mr President, 3. The first two paragraphs of Article 3 pro­ Members of the Court, vide as follows:

A — Introduction '1 . In pursuance of the objectives referred to in Article 1, Member States shall draw up programmes for reducing the tonnage and/or volume of containers of liquids for human consumption in household waste to be finally disposed of.

1. The instant case is concerned with whether France has fulfilled its obligations under Article 3(1) and (2) of Council Direc­ tive 85/339/EEC of 27 June 1985 on contain­ ers of liquids for human consumption. '

2. Programmes shall be drawn up for the first time for a period commencing on 1 Jan­ uary 1987 and shall be communicated to the Commission before that date.'

4. 'Within the framework of the pro­ 22 September 1987 that it had decided to rely grammes referred to in Article 3', Article on voluntary agreements in order to imple­ 4 requires Member States to take measures ment the directive. At the same time, it designed inter alia to develop consumer edu­ stated that 'programmes' had been drawn up cation, to facilitate the recycling of contain­ in liaison with the economic circles con­ ers, to ensure the rational use of non- cerned, and that the programmes provided refillable containers, to promote the use of for measures for each of the types of con­ refillable containers and to develop new tainer concerned. The letter briefly summa­ types of container. Member States may take rized the measures. The French Government those measures either by legislative or further stated that the programmes would be administrative means or by voluntary agree­ 'given concrete form' by voluntary agree­ ments. Article 7(1) provides that the Member ments with industry, and that those agree­ States are to notify the Commission of such ments were still at the negotiation stage. It measures. added that the French authorities would communicate 'those programmes' to the Commission once they had been finalized.

Every four years Member States are to send reports to the Commission on the measures taken under the programmes referred to in Article 3 and the results achieved (Article 6).

7. On 16 March 1988, the French Govern­ ment communicated to the Commission the draft agreements which it was minded to conclude with the industrial circles con­ cerned. The agreements were signed on 5. On 22 July 1987, the Commission 9 May 1988 and forwarded by the French pointed out to the French Government that Government to the Commission by letter of it had not yet communicated the pro­ 12 August 1988. There were six agreements, grammes referred to in Article 3 and that each relating to a specific type of container France had therefore failed to fulfil its obli­ (glass, plastic, steel, aluminium, board, and gations under Article 3(1) and (2) of the returnable glass containers). directive and likewise under the third para­ graph of Article 189 and the first paragraph of Article 5 of the EC Treaty.

9. On 2 October 1989, the Commission sent the French Government a reasoned opinion pursuant to Article 169 of the EC Treaty. In that opinion, it stated that the French Gov­ 12. By the application which it brought in ernment's letter of 22 September 1987 and this case on 21 April 1993 (which was the measures set out therein could not be received at the Court Registry on 26 April regarded as being 'programmes' within the 1993), the Commission asks the Court to meaning of Article 3 of the directive. It declare that by failing to draw up and com­ added that that comment also applied to the municate to the Commission the pro­ draft agreements which had been communi­ grammes provided for in Article 3 of the cated concurrently with the aforementioned directive, the French Republic has failed to letter. The Commission considered as a fulfil its obligations under the directive and result that the programmes had not yet been the EC Treaty. It also asks that the French drawn up, and that the French Republic had Republic should be ordered to pay the costs. therefore infringed Community law by fail­ ing to communicate to it the programmes referred to in Article 3 of the directive.

10. In its answer of 26 October 1989 to that The French Government claims that the letter, the French Government contested the application should be dismissed as inadmissi­ Commission's view that the agreements con­ ble or, in the alternative, as unfounded, and cluded with industry could not be regarded asks that the Commission should be ordered as being programmes within the meaning of to pay the costs. Article 3 of the directive.

15. Under Article 3(2) of the directive, the 14. I am unable to agree with those argu­ Member States were under a duty to com­ ments. As regards in the first place the objec­ municate to the Commission before 1 Janu­ tion that the alleged failure to fulfil obliga­ ary 1987 the programmes which they had to tions was brought to an end, the French draw up pursuant to Article 3(1). It is clear Government claims that the agreements that France failed to fulfil that obligation which it concluded constitute programmes within the prescribed period. The French within the meaning of Article 3 of the direc­ Government admits moreover that the pro­ tive. Yet it is precisely this that the Commis­ grammes which it was under a duty to com­ sion is contesting. This therefore relates to municate were not set out in its letter of the question as to whether the application is 22 September 1987 to the Commission. well-founded, a subject which I shall be However, we are not concerned with that investigating later. The second argument delay in this case, but with the question as to against the admissibility of the application, whether the French Republic has fulfilled its relating to the failure to fulfil obligations obligations under Article 3(1) and (2) of the alleged by the Commission, stands up to directive at all. The French Republic main­ scrutiny no better. In its application, the tains that this is in fact the case owing to the Commission accuses the French Govern­ conclusion (and the communication) of the ment of not having drawn up and communi­ agreements concluded with industry con­ cated the programmes laid down by Article cerned. Consequently, the question arises as 3 of the directive. That charge corresponds to whether those agreements may be consid­ to the complaint which was already set out ered to be 'programmes'.

19. To this end, it should first be considered what the content of a 'programme' within the meaning of Article 3 should be. The Court has already had occasion to consider 17. The French Government argues that that provision, yet did not discuss the ques­ these are purely formal considerations and I tion of interest in this case in detail. 5The take that point. However, it must be stressed directive itself contains only a small number that that formal distinction is laid down by of concrete indications. According to Article the directive. Since the directive requires the 3(1), the programmes should aim at reducing Member States first to draw up programmes the tonnage and/or volume of containers of and then to implement them by specific liquids for human consumption in household means, the Member States are bound to com­ waste to be finally disposed of. In that con­ ply with that procedure. I would observe text, the aim is to achieve as far as possible a that that procedure seems to be familiar to reduction in energy consumption (Article the defendant, too. As I have mentioned, in 3(4)). What is involved, therefore, is a very its letter of 22 September 1987, the French general obligation which leaves a broad dis­ Government referred to the 'programmes' cretion to the Member States with regard to which it had drawn up and which had been its implementation. Consequently, it is for given concrete form by voluntary agree­ ments.

5 — Judgments in Case C-252/89 Commission v Luxembourg [1991] ECR I-3973 and in Case C-192/90 Commission v Spain [1991] ECR I-5933 (summary publication only in both 4 — See Article 4(1) and Article 6. cases).

the Member States themselves to decide to Next, the programme should determine the what extent and at what pace they wish to proposed actions — this follows from Arti­ progress along the path traced by the direc­ cle 3(4). Lastly — and this follows from the tive. very nature of the matter — the programme must include a timetable, that is to say, it should fix the period within which the target set is to be achieved. Article 3(2) expressly provides that the programmes must be drawn up for a period commencing on 1 Jan­ uary 1987. The duration of the period is not specified, but Article 3(3) — according to which the programmes are to be revised and updated at least every four years — suggests that the legislator contemplated a fairly long However, unless the obligation to draw up period. programmes (and, in the final analysis, the directive itself) is to be completely nugatory, the Member States must comply with certain minimum requirements in this regard. In my view, a programme designed to reduce the tonnage and/or volume of the containers in question will involve the Member State con­ cerned at least in setting itself a specific, quantified target, even though — as the 20. To turn to the agreements submitted by French Government rightly points out — the French Government, it can be observed the directive does not stipulate this expressly. that those minimum requirements are not That target may be expressed in absolute fig­ satisfied in every case. ures (for example, specific tonnages) or as a percentage (for example, a specific propor­ tion of refillable containers). It should also be clear that it is the Member State con­ cerned itself which undertakes to achieve that objective. Moreover, this is doubtless the reason for the distinction which is made by the directive between programmes and measures: the Member State in question must Admittedly, it appears from the agreements undertake vis-à-vis the Commission to that both contracting parties — and hence achieve a specific, concrete target. This will the French Republic — undertake to ensure allow the Commission to check in each case that they are implemented. Contrary to the whether the individual implementing mea­ view taken by the Commission, that should sures do indeed implement the relevant pro­ be deemed to be sufficient. Article 3 merely gramme. Admittedly, it goes without saying requires the Member States to draw up pro­ that that a Member State is entitled to con­ grammes. Since Article 4 authorizes them to sult the industrial circles affected before implement the programmes by means of vol­ drawing up the said programmes and to untary agreements, I do not consider that it leave it to industry to implement the pro­ is necessary for the Member States them­ grammes, through, for instance, voluntary selves to commit themselves in those agree­ agreements. ments to playing an active role. If and as

long as industry is in a position to comply so far as they are available. The other agree­ with the obligations laid down in the agree­ ments merely set out provisions of a varying ments, and hence to further the aims of the degree of generality. directive, there is no need for the State to intervene. However, the agreements in ques­ tion raise some doubts on matters of detail. For instance, they almost all contain a clause according to which, in the event of unfore­ seen difficulties, some obligations may be declared by common accord to be no longer applicable. 6Also, there is no doubt that it must be regarded as very unusual for an agreement to include a clause under which Only the agreement on glass, therefore, one of the contracting parties may 'call on' includes a concrete provision specifying the the public authorities to carry out a particu­ decrease in the tonnage of waste for the type lar measure. 7 of container in question. That individual measure, however, is not sufficient — having 1 regard to the agreements as a whole 1— in order to satisfy the requirements to which programmes within the meaning of Article 3 are subject. The directive requires the Member States to draw up programmes with a view to reducing the tonnage and/or vol­ ume of certain 'containers'. According to Article 2(b), 'containers' include, not only 21. However, most of the aforementioned glass containers, but also containers made of agreements lack a clear definition of the metal, plastic, paper or any other material. objectives to be attained and a timetable. Consequently, to set a specific target for Only some of the agreements contain con­ reducing the volume of waste glass contain­ crete objectives, capable of being translated ers is not sufficient in itself. into quantitative terms. The agreement on glass provides for at least 550 000 tonnes from household waste to be recycled in 8 1990. The agreement of 9 May 1988 on steel containers provides for a 1% reduction in energy consumption each year between 1984 (sic) and 1990. The agreement on returnable glass containers stipulates that 9 'cafés-hotels-restaurants' should undertake 10 to use solely returnable glass containers in 22. Five of the six agreements are for a lim­ ited period of time, barely over two and a half years (from 10 May 1988 — the date on which the agreements were signed — to 6 — See, for example, Article 8 of the agreement on aluminium. 7 — See Article 3(c) of the agreement on returnable glass con­ 31 December 1990). As regards the sixth tainers. agreement (on glass) its duration is not 8 — As much as 700 000 tonnes should be recycled in 1990 if industrial waste is included. 9 — The expression is not defined, but apparently refers to the trade associations (and their members) which are parties to 11 — As I have mentioned, the agreements relate to six kinds of the agreement. packaging materials. 10 — Article 3(c) of the agreement.

Neither do I consider that it is appropriate to go further into the Commission's com­ 23. In the light of the above considerations, plaint that, in order to be regarded as pro­ I take the view that the agreements con­ grammes, the agreements should have con­ cluded by the French Government cannot be tained at least a list of the main actions regarded as being programmes within the provided for with a view to attaining the meaning of Article 3 of the directive, and objectives laid down. The agreements set out that the Commission's application is there­ a whole series of measures to be carried out fore well-founded. However, the parties have by the industry which are conducive to the also set out a series of other arguments, on attainment of the objectives laid down by which, in my view, this case does not turn. Article 4(1) of the directive. Rather, the cru­ cial point is that, taken as a whole, the agree­ ments do not lay down to the necessary 12 — This view is based on the fact that the agreement mentions extent concrete, quantifiable targets and a a number of quantified objectives which are to be achieved in 1990 (Article 4(3) of the agreement). timetable for achieving those targets.

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COMMISSION v FRENCH REPUBLIC

However, all those considerations have no bearing on the result of my appraisal.

Nevertheless, one is still entitled to ask why the Commission has brought this action. The 13 — See sections 4.1 and 5.1 of the proposal submitted by the Commission on 15 July 1992 with a view to the adoption of French Government observed that in a Council directive on packaging and packaging waste (COM(92) 278 final —SYN 436). 1992 the Commission itself expressed the 14 — This is not, of course, true of the proceedings before the view that Directive 85/339 had not produced Court.

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OPINION OF MR LENZ — CASE C-255/93

C — Conclusion

25. I therefore propose that the Court should: