C-223/96
ECLI:EU:C:1997:181
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O P I N I O N OF MR LÉGER — CASE C-223/96
O P I N I O N O F ADVOCATE GENERAL LÉGER delivered o n 20 M a r c h 1997 *
1. By application lodged at the Registry on 3. On 9 August 1993, having received no 26 June 1996, pursuant to Article 169 of the communication or other information from E C Treaty, the Commission claimed that the the French Government, the Commission Court should: initiated the procedure for failure to fulfil Treaty obligations by sending a letter of for- mal notice requesting the Government to submit its observations within two months.
'l) declare that, by not adopting the laws, regulations and administrative provi- sions necessary to comply with Council Directive 91/156/EEC of 18 March 1991 amending Directive 75/442/EEC 4. In reply, the French authorities, by letters on waste, ' or by not communicating of 4 November 1993 and 1 April 1994, com- those measures, the French Republic municated to the Commission an inventory had failed to fulfil its obligations under of the French provisions in force pursuant to that directive; which the Directive could be applied and informed the Commission that a decree con- cerning the collection and transport of waste and the activities of dealers and brokers was being prepared for the purpose of transpos- ing Article 12 of the Directive. 2 2) order the French Republic to pay the costs.'
5. In the absence of any fresh communi- 2. Article 2 of the Directive provides that cation regarding the further transposition of Member States are to bring into force the the directive into French law, the Commis- laws, regulations and administrative provi- sion issued a reasoned opinion on 3 August sions necessary to comply therewith not later than 1 April 1993 and forthwith to inform the Commission thereof. 2 — The provision referred to is in fact Article 1 of the Directive, which amends Article 12 of Directive 75/442 as follows: 'Establishments or undertakings which collect or transport waste on a professional basis or which arrange for the dis- posal or recovery of waste on behalf of others (dealers or * Original language: French. brokers), where not subject to authorization, shall be regis- 1 — OJ 1991 L 78, p. 32 (hereinafter 'the Directive'). tered with the competent authorities.'
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1995 requesting the French Government to be signed and published before the end of take the necessary measures within two 1996. months of notification thereof.
6. By letter of 30 October 1995 the French Government confirmed that the adoption of 9. The Commission contests the objection of the decree completing the transposition of inadmissibility. In its reply it claims that the the Directive was proceeding. pre-litigation procedure was conducted in conformity with its objective as defined in the case-law of the Court of Justice, which is to provide the Member State concerned with the opportunity to comply with its obliga- tions under Community law and to put for- ward its defence against the complaints for- 7. Since it received no further communi- mulated by the Commission. In that regard, cation from the French authorities, the Com- at the formal notice stage, when the Com- mission brought this action, in support of mission, in the absence of any communi- which it maintains that, pursuant to the third cation from the French authorities, still did paragraph of Article 189 and the first para- not know whether any measures had been graph of Article 5 of the EC Treaty, the adopted to transpose the Directive, the Member States to which a directive is authorities were able to give an account of addressed are required, within the time pre- the measures adopted and inform the Com- scribed, to achieve the results provided for mission that only Article 12 called for mea- therein, namely to transpose its provisions sures to complete the transposition of the into national law in such a way that it takes Directive. The Commission points out that it full effect upon expiry of the time prescribed therefore took account of that acknowledge- for transposition. ment by the French Government in its rea- soned opinion, which, by referring expressly to the Government's letter setting out the measures still to be adopted, was sufficiently precise.
8. In its defence, the French Republic con- tends, primarily, that the application is inad- missible owing to the imprecise formulation of the complaints made against it during the pre-litigation procedure and in the applica- tion. In the alternative, the Government, whilst informing the Court of the position regarding the transposition of the Directive 10. In its rejoinder, the French Government into French law, concedes that Article 12 considers that the Commission's arguments remains to be transposed by a decree due to against the objection of inadmissibility in
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fact support the Government's case. It is concerned' 3 and those 'measures' unambigu- paradoxical that the Commission should ously indicate the draft decree mentioned by only be able to prove that it correctly the French authorities. 4 defined the subject-matter of the action by referring to the documents submitted by the defendant Member State.
13. Secondly, the infringement alleged also concerns the failure to communicate the implementing measures within the time pre- scribed in Article 2 of the Directive.
11. The objection of inadmissibility raised by the French Government must be dis- 14. The Commission therefore clearly set missed. out the subject-matter of the alleged infringement both during the pre-litigation stage and in the context of its action.
15. It is common ground that the French Government had not communicated the measures to transpose the Directive within the prescribed time or completed the pro- 12. First, as the Commission has explained, cedure for the adoption of those measures. the French authorities were fully aware, both during the pre-litigation procedure and dur- ing the proceedings before the Court, of the infringement of which they were accused, since they stated in their defence that the adoption of the decree transposing Article 12 into domestic law was proceeding smoothly; 16. The Court should therefore uphold the they thus clearly identified Article 12 as the Commission's application and, in accordance provision which had not been transposed with Article 69(2) of the Rules of Procedure, into national law. Moreover, the Commission order the unsuccessful party to pay the costs. clearly referred in its reasoned opinion to the fact that '... the French authorities are in the process of preparing the necessary measures 3 — Paragraph 111(2). still to be taken to comply with the directive 4 — Referred to expressly in paragraph II.
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Conclusion
17. Accordingly, I propose that the Court should:
(1) declare that, by not adopting within the prescribed time the laws, regulations and administrative provisions necessary to comply with Council Directive 91/156/EEC of 18 March 1991 amending Directive 75/442/EEC on waste, or by not communicating those measures, the French Republic has failed to fulfil its obligations under Article 2 of that directive;
(2) order the French Republic to pay the costs.
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