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— without causing a nuisance through or noise or odours,

— without adversely affecting the coun- tryside or places of special interest.

Article 5

Member States shall establish or designate the competent authority or authorities to be responsible, in a given zone, for the plan- Article 10 ning, organisation, authorisation and supervision of waste disposal operations.

'Article 4

Member States shall take the necessary Article 6 measures to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environ- ment, and in particular: Member States shall establish or designate the competent authority or authorities to be responsible for the implementation of this directive.

— without risk to water, air, soil and plants and animals,

— without causing a nuisance through noise or odours, Article 8

Member States shall take the necessary — without adversely affecting the coun- measures to ensure that any holder of tryside or places of special interest. waste:

Member States shall also take the neces- — has it handled by a private or public sary measures to prohibit the abandon- waste collector or by an undertaking

Article 13

— it had come to light that certain Establishments or undertakings which biological and chemical materials from carry out the operations referred to in polyclinic No 2 had been systemati- Articles 9 to 12 shall be subject to appro- cally discharged in the San Rocco priate periodic inspections by the compe- valley, thus seriously endangering the tent authorities.' communities living in certain areas;

7. Under Article 2 of Directive 91/156/EC, — serious groundwater problems caused Member States must bring into force the by the presence of pits in the tufa had laws, regulations and administrative provi- been recorded in the same valley;

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— one of the pits in the tufa had been used entire region of Campania in which the San for fly tipping in the past; Rocco valley lies.

— the local authorities had adopted six deteriorated as a result of further measures to close down the same discharges of waste water; number of private tips;

— finally, in order to ensure public and private safety (in Italian incolumità) the sewage service of the municipality — the water improvement project could of Naples had already carried out a be approved only as part of a more number of operations involving the comprehensive decision aimed at resol- removal of obstructions from and the ving all the environmental problems in continuous monitoring and clearing up the area in question once and for all; of the valley;

— a committee of experts had been appointed and instructed to draw up a plan to improve the riverbed com- — to that end, a group of experts inde- pletely in terms of groundwater, sur- pendent of the administration had been face water and health. set up whose basic task was to establish the principal points of that clear-up operation on the basis of which the municipality's technical services department would then have to draw up a definitive water management 13. On the basis of that information the project for the San Rocco valley. Commission carried out investigations into the initiatives announced in respect of the environmental state of the San Rocco valley as a result of which it learnt of a Naples municipal council resolution of 10 March 1997 which demonstrated that:

14. The Commission brought this action because it considered that not all the necessary measures to remedy the com- — the San Rocco river bed required plaints addressed to the Italian Republic in immediate water improvement mea- its reasoned opinion of 5 July 1996 had sures. Pollution levels appeared to have been adopted thus far.

15. The defendant puts forward four grounds to contest the admissibility of the action. 18. It considers that the letter of formal notice set out the Italian Government's alleged failure to fulfil its obligations in a sufficiently precise manner since it referred to the pollution caused by the uncontrolled discharges of waste from areas upstream of the San Rocco valley and the failure to take the action necessary to plan, organise and First ground of inadmissibility monitor waste disposal operations within the meaning of Directive 75/442/EEC. Furthermore, the Commission notes that it had already asked the Italian Govern- ment to submit observations on the envir- 16. The Italian Government argues that onmental situation in the San Rocco valley although the letter of formal notice does by a letter of 15 December 1988. Finally, it not have to set out the dispute in detail, in is evident from the reply to the letter of this case the complaint made in the letter of formal notice that the Italian Government formal notice of 26 June 1990 was not had been able to exercise its right of clear enough to enable it to put its case defence to the full since it argued its case properly. It claims that that letter amounts point by point and did not claim that the to no more than a 'general and hypothetical complaints were of a general nature. statement of alleged facts and an equally general reference to articles of the directive which fails to show the slightest connection between them.' In its reply of 28 January 1992 the Italian Republic had simply provided the Commission with comprehen- sive information on events in the San Rocco 19. Even if it were not possible to infer valley. from the fact that the Italian Government argued its case point by point that the complaint set out in the letter of formal complaint was sufficiently precise, as the Commission does, I nevertheless consider that in this case the letter of formal notice displayed in full the degree of precision 17. First, the Commission points out that required by the case-law appositely cited by according to settled case-law 3a letter of the Commission. The identification of a formal notice must indicate to the Member failure to fulfil obligations, as noted above State the factors enabling it to prepare its by the Commission, and the contention that that state of affairs might constitute an infringement of Articles 4, 5, 6, 7 and 10 of 3 — It cites, in that respect, the judgment in Case 274/83 Commission v Italy [1985] ECR 1077. Directive 75/442/EEC must be considered

23. In support of its argument the Com- mission refers to the judgment in the case of Second ground of inadmissibility Commission v Greece, 4in which the Court ruled that '[a]lthough ... the Commission's reasoned opinion and the application to the 21. The defendant argues, as the second Court must be based on the same com- ground, that there is an unacceptable plaints, that requirement cannot go so far difference between the reasoned opinion as to make it necessary that in every event and the application. The complaints made the national provisions mentioned in the in the reasoned opinion of 5 July 1996 reasoned opinion and in the application concern only the original version of Direc- should be completely identical. Where a tive 75/442/EEC, whereas the application change in the legislation occurred between also refers to the provisions of Directive those two phases in the procedure, it is 75/442/EEC, as amended by Directive sufficient that the system established by the 91/156/EC. legislation contested in the pre-litigation procedure has as a whole been maintained by the new measures which were adopted by the Member State '. That argument can be extended mutatis mutandis where it is the Community rule that has been subject 22. The Commission notes that the alleged to amendments. failure of the Italian Republic to fulfil its obligations refers to a situation of fact — that is to say the pollution of the San Rocco valley by waste — which constitutes a manifest infringement of the directive both in its original and amended version. 24. The Italian Government counters that Although the obligations originally argument by stating that the difference imposed on Member States by the directive between the reasoned opinion and the have essentially remained unchanged, they application cannot be justified by referring have become more detailed and more to the amendment to the directive during stringent. The obligations laid down in the course of the proceedings, since the Articles 4, 5, 7 and 1Ö of Directive 75/442/ EEC have been confirmed fully by Directive 91/156/EC and therefore the environmental 4 — Judgment in Case C-105/91 Commission v Greece [1992] situation in the San Rocco valley must a ECR I-5871.

31. As regards the application, the Com- mission refers in the conclusion to the numbers of the old articles and on each 28. Directive 91/156/EC amending (but not occasion adds, in brackets, the number replacing) Directive 75/442/EEC was which that provision has in the amended adopted on 18 March 1991. The Member version of the directive with the clarifica-

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tion 'which substantially reproduces the the old version of the directive but not provisions thereof.' under the new version.

39. Finally, since, in the view of the Com- mission, Directive 91/156/EC simply 36. Third, it should be noted that the new provisions are no less stringent than the old. Therefore, the Italian Republic is not 5 — See, in particular, the judgments in Case 309/84 Commis- alleged to have committed acts which sion v Italy [1986] ECR 599, in Case C-306/91 Commission v Italy [1993] ECR I - 2133 and in Case C-296/92 Commis- would have been open to criticism under sion v Italy [1994] ECR I -1.

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strengthened certain provisions of Directive entered into force, should be rejected as 75/442/EEC, it goes without saying that the unfounded. obligations imposed on the Member States under the original version of the directive still apply under the amended version of that directive. At no time did the obliga- tions that Italian Government allegedly failed to fulfil cease to be imposed on it. Third ground of inadmissibility

40. Consequently, the simultaneous refer- 44. The Italian Government claims that the ence to the old articles and the new articles, Commission based its action on the results together with the addition of the words of new inspections which it made after it 'which substantially reproduces the provi- had received the Italian Government's letter sions thereof' means that the Commission of 21 April 1997. It claims that in those considers that the provisions to which it circumstances the Commission should have refers are the same in content. started the pre-litigation procedure again instead of bringing the action.

requirement that the reasoned opinion and incorporated new facts and a new or the action must be absolutely identical does different wording of the complaints into not apply solely to the subject-matter of the its reply: dispute but also to the grounds and the pleas relied on. The Commission itself acknowledges in its reply that it based its action partly on the Naples municipal council resolution of 10 March 1997. — by asserting that persons subject to the supervision provided for in Article 10 of Directive 7/442/EEC were among those responsible for the creation of the 47. However, I consider that the arguments fly tip in the San Rocco valley; put forward by the defendant in respect of that ground are unconvincing. Neither the inspections carried out by the Commission nor the fact that it refers to the above- mentioned municipal council resolution may be considered as constituting new — by asserting that the waste abandoned pleas or new grounds. They simply consti- in the tip had created certain risks and tute factors which led the Commission to caused successive damage to the water, conclude that the failure to fulfil obliga- soil, air, animals and plants, and the tions alleged in the reasoned opinion con- countryside; tinued to exist despite the expiry of the two-month time limit and notwithstanding the promises of action made by the Italian authorities in response to the reasoned opinion.

— by alleging that the Italian Government had failed to fulfil, in respect of the fly tip, its obligation to restore the envir- onment in a manner consistent with 48. Consequently, this ground of inadmis- Community law. sibility must be rejected as unfounded.

56. Furthermore, the Italian Government claims that an action for failure to comply with obligations under the Treaty pursuant to Article 169 of the Treaty must relate to a significant part of the national territory. In this case the Commission has targeted a 53. On the basis of the foregoing consid- small locality which is not an administra- erations, I therefore propose that the Court tive district created by national law for the should find that the action is admissible. performance of administrative functions·

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relating to waste and which constitutes a domestic legal system to justify its failure to tiny proportion of the vast territory of the fulfil obligations laid down by a directive. municipality of Naples.

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the provisions of the directive at the request 65. Similarly, the fact that a competent of the national court. authority granted consent for the construc- tion of a new block with a heat output of 500 megawatts at a thermal power station without carrying out the preliminary envir- onmental impact assessment required by a directive also justified, in principle, the 62. The fact none the less remains that the Commission bringing an action for failure first indent of Article 155 of the EC Treaty to fulfil obligations under the Treaty. That assigns the Commission the general task of case prompted the Court to state that ensuring that the provisions of the Treaty 'Given its role as guardian of the Treaty, and the measures taken by the institutions the Commission alone is ... competent to pursuant thereto are applied. Furthermore, decide whether it is appropriate to bring Article 189 provides that '[a] directive shall proceedings against a Member State for be binding, as to the result to be achieved, failure to fulfil its obligations and to upon each Member State'. Therefore, determine the conduct or omission attribu- where it appears that a directive has been table to the Member State concerned on the transposed solely in terms of legislation and basis of which those proceedings should be that the Member State is not ensuring, with brought. It may therefore ask the Court to the necessary diligence, that it is complied find that, in not having achieved, in a with, the Commission cannot be denied the specific case, the result intended by the right to bring an action for failure to directive, a Member State has failed to fulfil comply with obligations under the Treaty. its obligations.' 7

67. The presence within a large agglomera- tion of a fly tip and a river made up essentially of water from the pipes of 71. The Italian Government confirms that hospitals and private dwellings constitutes the Commission's allegations are based a situation to which the Commission quite solely on information provided by the understandably felt bound to respond. Italian Government itself in the letter that it sent to the Commission on 28 January 1992. That information was taken from a report drawn up by the 'Nucleo Operativo Ecologico dei Carabinieri' (the Carabinieri Ecological Operations Group, hereinafter 68. It is still necessary that the alleged offences fall within the scope of the direc- 'the NOE'). 10 However, that report did not tive which has been invoked. The Italian identify any pollution from waste other Government maintains that this is only than from fly tipping. On the other hand, it partly the case. did reveal that 'discharges from hospitals, a clinic and other installations flow together towards the watercourse in the valley'. Therefore, there is no discharge of solid or liquid substances that constitute waste since the use of the term 'flow together' clearly indicates that the discharges are of Do all the alleged offences fall under the waste water which are excluded from the directive ? scope of the directive. The Italian Govern- ment adds that the serious environmental problems which have affected the San Rocco valley, some of which continue to 69. The Italian Republic and the Commis- do so, are caused not only by discharges of sion disagree as to whether further waste water but also by phenomena relating to within the meaning of the Directive was the degradation of groundwater which are discharged into the valley in addition to the also excluded from the scope of the direc- objects discharged in the fly tip whose tive. Furthermore, the claim that the existence is not contested. Naples municipal council resolution of 10 March 1997 demonstrates that the measures announced by the Ministry of the Environment were insufficient is also incorrect since that resolution simply con- 70. The Commission refers to the fact that 10 — This is a special body responsible for investigating and the Italian authorities acknowledged that identifying infringements or environmental law.

3. '"industrial waste water" means any waste water which is discharged from premises used for carrying on any trade

74. What does the relevant legislation tell 11 —OJ 1991 L 135, p. 40. us in that respect ? 12 — Emphasis added.

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or industry, other than domestic waste by 31 December 1998 for agglomerations water and run-off rain water'. of more than 10 000 p.e.'.

77. Article 3 of that directive states as follows: 78. It follows from that provision that even in respect of mixtures of 'domestic waste water with industrial waste water' the Member States are not required to set up collection systems until 31 December 1998, ' 1 . Member States shall ensure that all that is to say after the transmission of the agglomerations are provided with collect- reasoned opinion. That is probably the ing systems for urban waste water, reason why the Commission did not rely on that directive.

in liquid form' and not simply 'urban waste sion and the limited means at its disposal to water'. accomplish that task. However, such lack of means cannot be relied on in order to exempt the Commission from the burden of proof incumbent on it in an action against a Member State for failure to fulfil obliga- tions under the Treaty. 81. Quite the opposite, since the Commis- sion implicitly acknowledged that waste water was involved by conceding at point 11 of its application that 'the water discharged by polyclinic No 2 will hence- forth be consigned to the municipality's sewage system once and for all'. 84. Therefore, it will not be possible to take into consideration the environmental situation created by the 'discharges of biological and chemical materials' from the polyclinic as it has not been established that those discharges fall within the scope 82. Admittedly, it would be tempting to of Directive 75/442/EEC. It will be possible invoke 'the great danger posed to the to take into consideration only the situation communities along the river', to which the resulting from the existence of the fly tip. letter from the Ministry of the Environment of 28 January 1992 refers, in order to infer that more than mere discharges of waste water were involved. However, there is no doubt that, even if it collects only domestic waste water, the San Rocco valley conse- quently constitutes a type of open sewer that necessarily poses a danger to the population. Moreover, I do not consider Complaint alleging failure to fulfil obliga- that the discharges may be reclassified tions imposed by Article 4 of Directive according to their degree of noxiousness. 75/442/EEC The classification of waste water, or indeed waste, turns entirely on the nature of the discharges in question. 85. The Commission requests that the Court declare that the Italian Republic has infringed Article 4 of Directive 75/442/EEC (or Article 4 of Directive 83. In that respect it would have been right 75/442/EEC, as amended by Directive to expect the Commission to submit to the 91/156/EC, which substantially reproduces Court documents containing a precise and the provisions thereof) in that that Member incontestable description of the chemical State has failed to adopt the necessary substances contained in the discharges in measures to ensure that waste was disposed question. I am well aware that a problem of without endangering human health and arises between the task of supervision harming the environment, in particular which Article 155 assigns to the Commis- without risk to water, air, soil and plants

87. The Commission subsequently claimed that the Italian Republic failed to fulfil the obligation as to the result to be achieved, imposed on it by that article. 90. On the other hand, in my view the argument that the Italian Government derives from the judgment in the case of Comitato di Coordinamento per la Difesa della Cava and Others v Regione Lombar- dia and Others is convincing. Even if it 88. The Italian Government responds by might have been thought, from reading saying that that argument is both inadmis- Article 4 in isolation, that it imposes on sible, on the ground that it was not put Member States an independent obligation forward in the application, and disproved as to the result to be achieved, no such by the judgment in Comitato di Coordina- obligation exists. At paragraph 12 of that mento per la Difesa della Cava and Others judgment the Court states that: v Regione Lombardia and Others. 14 In that judgment the Court makes a distinction between the objectives laid down by Arti- cle 4 of the directive as a programme to be followed, with which the Member States must comply, and the obligations which the Member States must fulfil. In principle, the 'Considered in its context, Article 4 of the fact that a factual situation is inconsistent directive, which essentially repeats the with the objectives laid down by Article 4 terms of the third recital in the preamble, does not automatically provide grounds for indicates a programme to be followed and sets out the objectives which the Member States must observe in their performance of 14 — Judgment in Case C-236/92 Comitato di Coordinamento perla Difesa della Cava and Others v Regione Lombardia the more specific obligations imposed on and Others [1994] I-483. them by Articles 5 to 11 of the directive

93. It is true that in the abovementioned case the Commission interpreted Article 4 95. Article 5 of the Directive provides: in its original version and that that version was supplemented by the following phrase in 1991:

'Member States shall establish or designate the competent authority or authorities to be responsible, in a given zone, for the plan- 'Member States shall also take the neces- ning, organisation, authorisation and sary measures to prohibit, the abandon- supervision of waste disposal operations.'

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96. The new Article 6, which corresponds soned opinion of 5 July 1996, has been to Article 5, reads as follows: terminated.

98. Moreover, the Commission states that 101. The Commission points out that the it regards as positive the programming fly tip continued to take waste in spite of which has been carried out as part of the sequestration measures taken in 1990, since more general management plan communi- is clear from the Italian Government's cated by the Italian authorities on 2 Janu- response to the reasoned opinion that the ary 1997 and that it therefore considers said tip was the subject of a fresh seques- that the breach of the programming obliga- tration measure in September 1996. That tions, of which it complained in its rea- clearly demonstrates the ineffectiveness of

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103. Since I came to the conclusion earlier that the discharges of biological and che- mical materials do not fall within the scope of Directive 75/442/EEC, the complaint 107. Therefore, the problem comes down concerning Articles 5 and 6 comes down, in to the question whether the competent my view, to the question whether the authority has displayed the necessary dili- existence of the fly tip is, in itself, such as gence and effectiveness to put an end to the to prove that the authorities referred to tipping of waste in the valley. However, have failed to fulfil their obligations con- that question is covered by the complaint cerning the organisation, authorisation and based on (old) Article 7 and (new) Article 8

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of the directive which will be examined or undertakings which carry out the opera- below. tions referred to in Articles 9 to 12 shall be subject to appropriate periodic inspections by the competent authorities'.

108. I therefore conclude that the above complaint is unfounded even if it is accepted that (old) Article 5 and (new) 111. From a reading of (new) Articles 9 to Article 6 lay down obligations that go 12 there would appear to be no substantive beyond the designation of a 'competent difference between Article 10 and Arti- authority'. cle 13.

112. The Italian Government takes the view that that complaint is without sub- stance, in particular because Article 10 Complaint alleging failure to fulfil obliga- provides for supervision in respect of tions imposed by (old) Article 10 or (new) persons entitled to carry out the various Article 13 of Directive 75/442/EEC stages of waste management. The Commis- sion has adduced no evidence to show that the fly tip was related to persons subject to such supervision. 109. The Commission considers that:

proof in proceedings for failure to fulfil which substantially reproduces the provi- obligations, according to which it is 'the sions thereof)'. Commission's responsibility to place before the Court the information needed to enable the Court to establish that the obligation has not been fulfilled, and in so doing the Commission may not rely on any presump- 117. That complaint reproduces the terms tion'. of Article 7. New Article 8 uses the phrase 'undertaking which carries out the opera- tions listed in Annex II A or B' rather than 'disposal undertaking'. Therefore, it may be said that the terms of the two provisions are essentially the same. 115. In the absence of any information proving that the waste discharged in the fly tip came from undertakings subject to the supervision provided for in Article 10, I must therefore conclude that that com- 118. The Commission states that the Ita- plaint is unfounded. lian authorities appear to have failed to adopt the necessary measures to compel the operator of the fly tip to have the waste handled by a private or public waste collector or by a disposal undertaking. Consequently, the Italian Republic has failed to fulfil its obligations under the first indent of Article 7 of Directive 75/442/ EEC. Complaint alleging failure to fulfil obliga- tions imposed by (old) Article 7 or the first indent of (new) Article 8 of Directive 75/442/EEC 119. The Italian Government argues that that complaint is unfounded. In its view, the fact that the pit was used for fly tipping does not demonstrate that the Italian 116. The Commission claims that the Ita- Republic has infringed the provision in lian Republic 'has not taken the necessary question, merely that the relevant Italian measures to ensure, with regard to a pit in rules have been infringed. The Italian the tufa located in the San Rocco riverbed authorities took the necessary measures to area, used for fly tipping in the past, that put an end to the abuse by sequestrating the the concessionaire responsible for that pit tip. has the waste handled by a private or public waste collector or by a disposal undertaking, in breach of the first indent of Article 7 of Directive 75/442/EEC (or the first indent of Article 8 of Directive 75/442/ 120. However, in my view there can be EEC, as amended by Directive 91/156/EC little doubt that by receiving waste there

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necessary measures to ensure that the waste discharged at the tip was handled by a private or public waste collector or by a waste disposal undertaking;

— dismiss the remainder of the action;

— order the Italian Republic to pay the costs.

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