C-347/97

COMMISSION v BELGIUM

OPINION OF ADVOCATE GENERAL COSMAS delivered on 24 September 1998 *

I — Introduction teries and accumulators containing dangerous substances in accordance with Annex I'.

1. By the application it has made in the present case under Article 169 of the EC Treaty, the Commission seeks a declaration by the Court that, by failing to adopt and/or 3. Article 6 of the Directive provides: communicate to the Commission all the mea- sures necessary to comply with Article 6 of Council Directive 91/157/EEC of 18 March 1991 on batteries and accumulators containing certain dangerous substances (hereinafter 'the Directive'), ' the Kingdom of Belgium has failed to fulfil its obligations under that direc- 'Member States shall draw up programmes in tive. order to achieve the following objectives:

II — Legal background — reduction of the heavy-metal content of batteries and accumulators,

2. Article 1 of the Directive provides as fol- lows: — promotion of marketing of batteries and accumulators containing smaller quanti- ties of dangerous substances and/or less polluting substances,

2. When notifying the programmes to which Article 6 refers, Member States shall inform the Commission of the measures they have taken pursuant to paragraph 1.' The first programmes shall cover a four-year period starting on 18 March 1993. They shall be communicated to the Commission by 17 September 1992 at the latest. III — Facts

The programmes shall be reviewed and updated regularly, at least every four years, in the light in particular of technical progress 5. Pursuant to the abovementioned provi- and of the economic and environmental situ- sions, the Member States are required to draw ation. Amended programmes shall be com- up and communicate the programmes set out municated to the Commission in good time.' in Article 6 and the measures referred to in Article 7 of the Directive. O n 11 May 1994, the Kingdom of Belgium notified the Com- mission of only certain measures adopted by the Flemish Region, the Region of the Capital City of Brussels and the Walloon Region with 4. Article 7 of the Directive is worded as fol- a view to complying with the Directive. The lows: Commission took the view that those mea- sures contained lacunae and shortcomings. It found, in particular, that it had not received notification, first, of any programmes ful- filling the conditions laid down in Article 6 of the Directive and, secondly, of any mea- ' 1 . Member States shall ensure the efficient sures to implement the requirements laid organisation of separate collection and, where down by Article 7(1) of the Directive. O n the appropriate, the setting up of a deposit system. basis of the information available to it, the

Commission found that the Kingdom of Bel- to separate collection and recycling of spent gium had probably failed to fulfil its obliga- batteries; the Belgian Government further tions under Articles 6 and 7(2) of the Direc- informed the Commission of the drawing up tive. of a draft agreement between the three regions and Bebat ASBL, which introduced a system of collection and recycling of spent batteries. Finally, the Region of the Capital City of Brussels provided some information on the content of a planned project concerning waste, 6. That is why, on 3 July 1995, in accordance which was still being drawn up. with the procedure laid down in Article 169 of the Treaty, it placed the Belgian Govern- ment on notice to submit its observations on the question of the aforementioned infringe- ment within a period of two months. 9. O n 29 April 1997, the Belgian Govern- ment forwarded to the Commission the Wal- loon Region's reply, setting out a waste man- agement action programme dealing with spent batteries and accumulators. That programme 7. Since the Kingdom of Belgium did not is to be updated when the second Walloon reply, the Commission, on 27 December 1996, waste plan, of which it is to form part, is sent it a reasoned opinion in which it com- adopted. plained that Belgium had failed to fulfil its obligations under Article 6 and 7(2) of the Directive by failing to inform it fully of the programme referred to in Article 6 of the Directive and by failing to inform it at all of the measures which it had to adopt in accor- dance with Article 7 of the Directive. At the 10. O n 9 July 1997, the Kingdom of Belgium same time it called upon the Kingdom of Bel- forwarded to the Commission the Royal gium to comply with the reasoned opinion Decree of 17 March 1997 on batteries and within a period of two months from its noti- accumulators containing certain dangerous fication. substances, Article 3 of which provides that the federal minister with responsibility for the environment is to draw up programmes in order to achieve the first, second and fourth objectives referred to in the first paragraph Article 6 of Directive 91/157. 8. O n 24 February 1997, the Belgian Gov- ernment forwarded to the Commission the reply of the Region of the Capital City of Brussels which stated that the implementa- tion of the objectives referred to in the third and fifth indents of the first paragraph of 11. O n the basis of the information available Article 6 of the Directive is a matter for that to it, namely that the country's regional region. That reply goes on to give the results authorities had adopted measures relating to achieved by the measures adopted with regard the third and fifth objectives referred to in

13. I would further point out that, on 26 November 1997, the Belgian authorities for- warded to the Commission certain informa- 16. Furthermore, the applicant states that, by tion supplementing the reply of the Govern- the time the period prescribed by the second ment of the Flemish Region to the paragraph of Article 6 of the Directive expired, Commission's reasoned opinion of 26 the Kingdom of Belgium had still not informed December 1996. it that the objectives referred to in Article 6

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21. It counters, however, by saying, on one merely a transposition and incorporation of hand, that, at the time when the programmes the Directive and does not amount to an provided for by Article 6 of the Directive acknowledgment that programmes were not were to have been first adopted for a period drawn up before that date, but that it con- of four years, 2 the federal authority had no firms a pre-existing situation and lays down power to do so. Protection of the environ- a legal framework for possible future legisla- ment was in principle a matter for the regions. tion by the federal Government in that field. It was not until the institutional reform of 16 Furthermore, the Kingdom of Belgium men- July 1993 that the federal authority obtained tions two agreements, while acknowledging powers to adopt the measures provided for in that it communicated them for the first time the first, second and fourth indents of the only as part of the defence. It cites specifi- first paragraph of Article 6 of the Directive. cally, firstly, the 1989 agreement with battery producers designed to reduce the heavy metal content, in particular that of mercury, as well as voluntary programmes developed by the European manufacturers to reduce the quan- tities of dangerous substances or find less- polluting substitutes. It adds that, in April 22. On the other hand, the Kingdom of Bel- 1990, an agreement was signed with the Féd- gium argues that it should be considered nec- ération de l'Électricité et de l'Électronique essary to draw up the programmes provided (FEE — Electricity and Electronics Federa- for in the first paragraph of Article 6 of the tion) and Fabrimétal to adopt the Code of Directive only to the extent that the Direc- Good Practice of 1 January 1988 to reduce tive's objectives were not yet achieved. In this the amount of mercury in primary electric respect, it considered that it had fulfilled its batteries marketed in Belgium. obligations under Article 6 of Directive 91/157 and that it was therefore not necessary to take additional measures.

25. The Kingdom of Belgium submits, fur- V — My views on the application thermore, that the concept of 'programme' in the Directive has no precise formal legal con- tent. Any group of measures intended to attain the objectives laid down by the Direc- tive — whatever their legal and formal nature — should be regarded as a 'programme' within 27. The Commission complains that the the meaning of the Directive. In that connec- Kingdom of Belgium has failed to fulfil the tion, the Kingdom of Belgium states that the obligations incumbent upon it under Article 6 abovementioned agreements may be regarded of Directive 91/157. It is therefore necessary as programmes which meet the requirements to determine precisely what those obligations of Article 6 of the Directive, first, inasmuch are, given that the parties approach their inter- as they relate to the objectives referred to in pretation differently. I would point out how- the first, second and fourth indents of the ever that the Court has until now not had the first paragraph of Article 6 and, secondly, opportunity of analysing the Directive thor- because they are in pursuance of a dynamic oughly. 3 process aimed at reducing in the most effec- tive manner the dangerous-substance content in the light of the existing situation. More- over, it states that the Directive does not set quantifiable objectives in respect of the reduc- tion of the dangerous or polluting substances 28. I deem it relevant to point out, by way of and for promoting the marketing of batteries introduction, that, from a methodological and accumulators containing fewer dangerous point of view, two different approaches may or polluting substances; it is therefore not be taken in interpreting the provisions of possible to determine when that objective has Article 6 of the Directive. Taking the first been attained. approach, based on the express wording of that article, the Member States are under two separate obligations: (a) to draw up pro- grammes in order to achieve the objectives referred to in the first paragraph of Article 6; and (b) to communicate those programmes to the Commission pursuant to the provisions 26. In view of the foregoing, the Kingdom of of the second and third paragraphs of that Belgium takes the view that the objectives referred to in Article 6 of the Directive have been achieved and that it has failed to fulfil its 3 — See the judgments in Case C-303/95 Commission v Italy obligations only in so far as it failed to com- [1996] ECR I-3859 (Article II of EHrective 91/157 — Failure to fulfil obligations not contested); Case C-236/96 Commis- municate to the Commission the agreements sion v Germany [1997] ECR I-6397; Joined Cases C-282/96 concluded at federal level, an infringement and C-283/96 Commission v France [1997] ECR I-2929; and the order of the Court of 30 March 1998 in Case C-286/96 which, in its view, is of a purely formal nature. Commission v Italy.

29. The first paragraph of Article 6 of Direc- tive 91/157 provides that Member States are to draw up programmes with a view to achieving the five objectives listed in that 32. However, while conceding that it has not paragraph. drawn up programmes sensu stricto at federal level in order to achieve the first, second and fourth objectives referred to in the first para- graph of Article 6, the Kingdom of Belgium claims that the agreements it cites and the measures which it has taken have made it 30. In my view, the obligation to draw up possible to achieve in their entirety the objec- programmes cannot be implemented at all by tives referred to in Article 6 of the Directive isolated measures or by ad hoc and specific and that they may in any event be regarded acts within the battery and accumulator as 'programmes'. Given that the Directive industry. I would recall that the Directive sets gives no formal definition of what is to be the objective, among others, of protecting the understood by the term 'programme', the environment, as is expressly stated in its pre- amble. Attainment of that objective neces- sarily involves the adoption, at the same time, both of regulatory measures and of practical 4 — See the judgment in Case C-298/97 Commission v Spain [1998] ECR I-3301, as well as my Opinion in that case of 19 measures; it therefore depends to a consider- March 1998.

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35. I would now consider the contentions of the Kingdom of Belgium in the light of the 34. It is apparent from the wording of that criteria laid down in Article 6 of the Direc- provision and from the general scheme of the tive. The following remarks must be made as Directive that the Community legislature regards the agreements relied upon by the Belgian Government:

5 — In other words, the Kingdom of Belgium has not filled to fulfil its obligations under Article 6 of the Directive only in so far as the measures which it adopted and the agreements which have been drawn up may be regarded as 'programmes' within the meaning of A r t i c l e 6 of the Directive. In this con- nection. I would refer in particular to the case brought by the Commission against France which concerned the failure of — First, the timetable for their adoption does the French Republic to transpose Article 3 of Council Direc- tive 85/339/EEC of 27 June 1985 on containers of liquids for not comply with Article 6 of the Direc- human consumption (OJ 1985 L 176, p. 18). In order to attain tive in that they do not provide that they the directive's objectives, the aforementioned article required the drawing up, at least every four years, commencing on 1 are to be reviewed and regularly updated January 1987, of programmes which were to be communi- cated to the Commission before the aforementioned date. In and communicated to the Commission, that case, which is not too different to the present case, the Court ruled that, for the purposes of the decision in that case, pursuant to the second paragraph of Arti- it was necessary to consider whether the voluntary agree- ments relied on by the French Republic were to be regarded as reduction programmes referred to in Article 3. See the judgment in Case C-255/93 Commission v France [1994] ECR I-4949, paragraph 20. 6 — Last paragraph of Article 6 of the Directive.

cle 6. Neither the Code of Good Practice, over, as has been said above, Article 2 of concluded on 1 January 1988 and in force both agreements set out in very general until 31 December 1991, nor the agree- terms the intention to continue research ment adopting that code, signed on 20 into the means of reducing dangerous April 1990, contains anything more than substances. Having said that, and although a general statement by the parties that they Articles 5 and 6 of the agreement of 20 intended to consider the means of reducing April 1990 mention an annual report by dangerous substances (the post-1990 Code the public authorities on the progress and and the post-1992 agreement) and to implementation of the objectives pursued encourage their replacement (by 1991 at by the agreement and the possibility of the latest). It should be stressed that Arti- compromise among the parties where there cle 3 of the agreement of 20 April 1990 is a dispute over what has been agreed in provides that the first two provisions of the Code of Good Practice, those provi- that agreement 'do not at all preclude the sions do not accord with the content and reduction programme or the introduction the thrust of the programmes for the pur- of lower levels of mercury content being pose of Article 6 of the Directive in that brought forward where technologically they are not directed towards the defini- possible'; accordingly, according to the tive abolition of dangerous substances. scheme of that agreement, the continued encouragement to reduce the dangerous- substance content beyond a certain per- centage is envisaged as a possibility which may not be excluded, whereas, in order to meet the requirements of Article 6 of the Directive, such reduction should consti- tute the essential objective. The agree- 36. So far as concerns the content of the ments mentioned by the Belgian Govern- measure taken under the 'eco-tax' scheme, it ment thus fail to take full account of the is clear that they are economic measures, as specific provisions of the Directive and provided for in Article 7 of the directive in are not in any event in accordance with question. The fact that they may indirectly the scheme and precise timetable laid down have a positive impact — to a greater or lesser by the Community programme; 7 extent — with regard to the objectives referred to in Article 6 of the Directive, as the Belgian Government claims, is manifestly not suffi- cient for them to be regarded as programmes enabling those objectives to be achieved.

38. Finally, Article 3 of the Royal Decree of 40. Given that the Kingdom of Belgium has 17 March 1997 cannot be regarded as imple- not transposed within the period prescribed menting the Directive. Although it is true that by the Directive — nor, moreover, within the it lays down a legal framework within which period prescribed by the Commission's rea- the competent authorities will be able subse- soned opinion — Article 6 of the directive in quently to adopt measures to implement the question into domestic law, I am of the view objectives of the Directive, the fact remains that the Commission's application should be that to provide such a legal framework by upheld in this respect. 9 simply repeating the wording of the Direc- tive in a provision of domestic law does not constitute full transposition of Article 6 of the Directive and cannot make up for the fact that specific programmes have not been drawn up in accordance with that article. 8 (b) The obligation to communicate the pro- grammes

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reply of the Region of the Capital City of graphs of Article 6 of Directive 91/157, and Brussels of 24 February 1997, all the other the applicant's claims in this regard must measures adopted by the Kingdom of Bel- therefore be considered to be well founded. gium were communicated after the expiry of the time-limit set by the Commission in its reasoned opinion of 27 December 1996.

(c) The single obligation to draw up and communicate programmes 43. Furthermore, the Belgian Government expressly acknowledges in its rejoinder that it did not communicate to the Commission within the prescribed period the agreements concluded at federal level and on which it relies in support of its claim that it achieved 46. Although the Kingdom of Belgium in its the objectives referred to in Article 6 of the rejoinder expressly admits that it did not Directive. The Commission became aware of communicate to the Commission the agree- the existence and content of those agreements ments concluded at federal level, it considers by way of the documents which the Belgian such failure to be purely formal in nature and Government lodged in the course of the cannot as such justify a finding against it by written procedure before the Court. the Court. In my view, that is not correct. First, failure to communicate, which is not disputed (in this case), is in itself a breach of a specific obligation expressly provided for by the second paragraph of Article 6 of the Directive. Secondly, such failure to commu- 44. Finally, in so far as the Kingdom of Bel- nicate has direct and serious consequences for gium has not monitored the progress of the the effective implementation of the material programmes, at least every four years, pur- obligations flowing from Article 6 of the suant to the third paragraph of Article 6 of Directive; I believe therefore that the general the Directive, nor communicated in good time scheme of that article requires absolutely, as a the measures which it claims to have adopted single obligation, the drawing up and com- under the requisite programmes, it has not munication of the requisite programmes. communicated — and indeed it could not have communicated — the reviewed and updated programmes for the purpose of that paragraph.

48. For such monitoring to be possible, not only must the programmes required by Arti- cle 6 of the Directive be drawn up, they must 51. Finally, regard must be had to the settled also be communicated to the Commission. case-law of the Court of Justice to the effect Accordingly, the specific obligations which that a State may not plead national practices flow from Article 6 of the Directive cannot or circumstances existing in its internal legal be regarded as satisfied until the action taken system in order to justify a failure to comply at national level has been brought to the with the obligations and time-limits laid down notice of the Commission. 10 The Member in the Treaty. 12 Accordingly, the claim made States' obligation to communicate such pro- by the regional and federal authorities as to grammes as they have drawn up is a substan- the determination of competence with respect tive obligation rather than a formal one in to the objectives referred to in Article 6 of the that it allows the Commission to monitor Directive cannot in any event excuse their national measures. failure to fulfil their obligation to draw up

VI — Conclusion

52. I therefore propose that the Court:

(1) declare that, by failing to adopt, within the prescribed period, all the measures necessary to comply with Article 6 of Council Directive 91/157/EEC of 18 March 1991 on batteries and accumulators containing certain dangerous substances, the Kingdom of Belgium has failed to fulfil its obligations under that article;

(2) order the Kingdom of Belgium to pay the costs, pursuant to Article 69(2) of the Rules of Procedure.

13 — See in dús connection Case C-290/89 Commission v Belgium [1991] ECR I-2851 and Case C-33/90 Commission v Italy [1991] ECR I-5987, paragraph 24.

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