C-255/93

COMMISSION v FRENCH REPUBLIC

JUDGMENT OF THE COURT 5 October 1994 *

In Case C-255/93,

Commission of the European Communities, represented by Xavier Lewis, of its Legal Service, and Bernard Leplat, a national civil servant seconded to the Legal Service of the Commission, acting as Agents, with an address for service in Lux­ embourg at the office of Georgios Kremlis, of the Legal Service, Wagner Centre, Kirchberg,

applicant,

v

cle 3 of Council Directive 85/339/EEC of 27 June 1985 on containers of liquids for human consumption (OJ 1985 L 176, p . 18) for the reduction of the tonnage and/or volume of containers of liquids for human consumption in household waste to be finally disposed of, the French Republic has failed to fulfil its obliga­ tions under that provision and the EEC Treaty,

THE COURT,

composed of: G. F. Mancini, President of Chambers acting as President (Rappor­ teur), J. C. Moitinho de Almeida, M. Diez de Velasco (Presidents of Chambers), C. N . Kakouris, F. A. Schockweiler, F. Gravisse, M. Zuleeg, P. J. G. Kapteyn and J. L. Murray, Judges,

Advocate General: C. O . Lenz, Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 1 June 1994,

Article 3(1) of the directive requires the Member States to draw up programmes for reducing the tonnage and/or volume of containers of liquids for human con­ sumption in household waste to be finally disposed of. Article 3(2) states that the first programmes are to cover the period commencing on 1 January 1987 and are to be communicated to the Commission before that date. Article 3(3) provides that they are then to be 'revised and updated regularly, at least every four years, taking into account in particular technical progress and changing economic circumstanc­ es'.

Pursuant to Article 4(1), within the framework of those programmes, the Member States are, either by legislative or administrative means or by voluntary agree­ ments, to take measures designed inter alia to facilitate the refilling and/or recy­ cling of containers of liquids for human consumption, develop consumer educa­ tion in that area, promote the collection and processing of non-refillable containers, and also to maintain and, where possible, increase the proportion of refilled and/or recycled containers. In accordance with Article 5, the Member States are to take steps to inform consumers of the fact that the containers are refillable and of the amount of the deposit.

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4 Finally, Article 7 requires the Member States to notify the Commission of all the laws, regulations and administrative provisions enacted and of all the voluntary agreements referred to in Article 4(1) and entered into for the purposes of imple­ menting the directive.

9 On 2 October 1989 the Commission sent the French Government a reasoned opinion pursuant to Article 169 of the Treaty, complaining that the Government had not notified it of the programmes referred to in Article 3 of the directive. According to the reasoning in that opinion, neither the steps mentioned in the let­ ter of 22 September 1987 nor the draft agreements matched the definition of pro­ gramme given in that provision.

io The French authorities maintained in their reply of 26 October 1989 that the vol­ untary agreements notified were indeed the programmes required by the directive, whereupon the Commission decided to bring this action.

Admissibility

11 The principal submission of the French Government is that the action is inadmis­ sible for two reasons. First, the alleged failure to fulfil obligations ceased before the reasoned opinion was sent on 2 October 1989. Secondly, by not making its com­ plaints against the voluntary agreements clear until the stage of the application to the Court, the Commission had extended the subject-matter of the dispute as set out in the letter before action and the reasoned opinion.

12 Those two pleas in law must be rejected.

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17 According to the Commission, the voluntary agreements communicated by the French Republic at most constitute measures within the meaning of Article 4(1).

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COMMISSION v FRENCH REPUBLIC

Unlike programmes drawn up pursuant to Article 3, those agreements do not con­ tain an undertaking by the public authorities, or a quantified statement of the objectives pursued, or a time-table or a list of the steps proposed in order to attain them.

18 The French Republic, on the other hand, considers that it has satisfied its obliga­ tion to draw up programmes within the meaning of Article 3 of the directive by entering into voluntary agreements which meet the requirements of the directive and are therefore capable of playing a part in attaining its objectives.

19 First, it states that all those voluntary agreements contain undertakings given by the public authorities. Secondly, contrary to the Commission's assertion, the direc­ tive does not require the reduction objectives to be quantified. Thirdly, since the voluntary agreements require the competent authorities to draw up a report every year on the basis of which a monitoring committee is to decide on actions to be taken and on guidelines, if appropriate, they indirectly impose a duty to provide for time-tables in each area.

the French public authorities. In the glass containers sector, the public authorities make their contribution in various ways, such as by encouraging recovery, giving technical assistance to local authorities and setting up a statistical survey. In the plastic containers sector, the public authorities undertake to facilitate the exchange of information and the coordination of research and work between local authori­ ties and industry, and also the grant of State aids provided for in that area. In the steel, aluminium and board containers sectors, they commit themselves to facilitat­ ing to the greatest possible extent relations with local authorities, and in particular to encouraging investment projects involving recycling operations and to facilitat­ ing especially the grant of State aids. Finally, in the returnable glass containers sec­ tor, the public authorities are to ensure in particular that instructions on the use of returnable containers in private institutions are renewed and complied with.

23 In those circumstances, the voluntary agreements at issue cannot be regarded as not constituting reduction programmes for the purposes of the directive solely on the ground that they do not contain undertakings by the public authorities.

24 The situation is however quite different as regards the complaint relating to the lack of specification in quantitative terms of the objectives to be attained and the lack of a precise time-table.

25 As the Advocate General states in paragraph 19 of his Opinion, while the directive leaves it to the Member States to set concrete objectives for reducing the tonnage and/or volume of containers according to their own priorities and at their own pace, it requires them, in order to attain those objectives, to draw up programmes before 1 January 1987, and then to revise and update them at least every four years. In that respect, it is important that the Member States should notify the Commission in good time, and before the end of 1986, of their undertaking to attain those objectives and of the measures, expressed in quantitative terms, which

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29 On the other hand, and contrary to the claim formulated by the Commission, the Court need not consider the failure to fulfil obligations consisting of the non­ communication to the Commission of the programmes in question, given that it was precisely those programmes which the French Republic did not adopt within the prescribed period.

30 It must therefore be held that, by failing to draw up within the prescribed period the programmes laid down by Article 3 of Council Directive 85/339 for the reduc­ tion of the tonnage and/or volume of containers of liquids for human consumption in household waste to be finally disposed of, the French Republic has failed to ful­ fil its obligations under that provision and the EEC Treaty.

Costs

31 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs, if they have been applied for. Since the French Republic has been unsuccessful, it must be ordered to pay the costs.

the tonnage and / or volume of containers of liquids for human consumption in household waste to be finally disposed of, the French Republic has failed to fulfil its obligations under that provision and the EEC Treaty;

2. Orders the French Republic to pay the costs.

Mancini Moitinho de Almeida Diez de Velasco

Kakouris Schockweiler Grévisse

Zuleeg Kapteyn Murray

Delivered in open court in Luxembourg on 5 October 1994.