C-387/97

OPINION OF MR RUIZ-JARABO — CASE C-387/97

O P I N I O N OF ADVOCATE GENERAL RUIZ-JARABO C O L O M E R delivered on 2 8 September 1999 *

I — Introduction pay the penalty imposed, as yet remain unanswered.

1. This will be the first case in which the Court of Justice has had to give a ruling on Article 171 of the EC Treaty (now Arti- cle 228 EC) as amended by the Treaty on European Union. That provision makes it possible for financial penalties to be The present proceedings entail a further imposed on Member States which have difficulty inasmuch as the infringement of failed to comply with a judgment delivered which the Hellenic Republic is accused by the Court of Justice in Treaty-infringe- does not, as is often the case, boil down to ment proceedings under Article 169 of the non-transposition of a Community direc- EC Treaty (now Article 226 EC). tive into internal law, but relates rather to the failure to take the material measures necessary to comply with the relevant European legislation. More specifically, the issue is whether, in the Chania area of Crete, waste is disposed of in accordance The concise nature of the text and the with Council Directive 75/442/EEC on inherent complexity of the subject-matter waste 1 and Council Directive 78/319/EEC itself raise a large number of legal issues, on toxic and dangerous waste. 2 including, to mention but the most impor- tant, what form the penalties are to take, whether they are to be retroactive and, if so, to what extent, and what the respective powers of the Court and the Commission are to be in determining the type and amount of such penalties. It is unlikely, however, that delivery of the judgment will put an end to the uncertainty. Fundamental The difficulties mentioned define this ana- questions such as when the (total or partial) lysis, which is undertaken in full awareness infringement ceases, what procedure is to of the importance of practice in defining be followed to verify that it has ceased, and the as yet extremely vague characteristics of what consequences should follow from the this new procedure under Community law. failure by the Member State concerned to

3. Article 4 of Directive 75/442 provides as follows: 'The competent authority or authorities referred to in Article 5 shall be required to draw up as soon as possible one or several plans relating to, in particular:

'Member States shall take the necessary measures to ensure that waste is disposed of without endangering human health and without harming the environment, and in particular: — the type and quantity of waste to be disposed of;

— without risk to water, air, soil and plants and animals; — general technical requirements;

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— suitable disposal sites; 6. Directive 78/319 lays down similar pro- visions with regard to toxic and dangerous waste. Article 5 of that directive provides:

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7. Article 9(1) of Directive 78/319 requires The competent authorities of the Member - that installations, establishments or under- States may include other specific aspects, in takings which carry out the storage, treat- particular the estimated cost of the disposal ment and/or deposit of toxic and dangerous operations. waste must obtain a permit from the competent authorities.

2. The competent authorities shall make public the plans referred to in paragraph 1. 8. Under Article 12 of Directive 78/319: The Member States shall forward these plans to the Commission.

'1. The competent authorities shall draw up and keep up to date plans for the 3. The Commission, together with the disposal of toxic and dangerous waste. The Member States, shall arrange for regular plans shall cover in particular: comparisons of the plans in order to ensure that implementation of this directive is sufficiently coordinated.'

— the type and quantity of waste to be disposed of; 9. Article 21(2) of Directive 78/319 requires that Member States communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this directive. — the methods of disposal;

10. 'Waste' is defined in Article 1(a) of both directives as 'any substance or object — specialised treatment centres where which the holder disposes of or is required necessary; to dispose of pursuant to the provisions of national law in force'. 'Toxic and danger- ous waste' is defined in Article 1(b) of Directive 78/319 as 'any waste containing or contaminated by the substances or materials listed in the Annex to this direc- — suitable disposal sites. tive of such a nature, in such quantities or

If the Member State concerned fails to take the necessary measures to comply with the 13. The Commission memorandum on Court's judgment within the time-limit laid applying Article 171 of the EC Treaty of

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21 August 1996 ('the memorandum'), 3 that the amount must be calculated on establishes, inter alia, the following: the basis of three fundamental criteria:

— the seriousness of the infringement;

— its duration; 4. Article 171 offers a choice between two types of pecuniary sanction, a lump sum or a penalty payment. The basic object of the whole infringement procedure is to secure compliance as rapidly as possible, and the Commis- — the need to ensure that the penalty sion considers that a penalty payment itself is a deterrent to further is the most appropriate instrument for infringements. achieving it.

A decision as to whether to ask for a penalty to be imposed will depend on the circumstances of the case, as stated at point 3. But, once it has been found that a penalty should be imposed, for it to have a deterrent effect it must be set at a higher figure if there is any risk of a repetition (or where there has been a repetition) of the failure to comply, in The penalty to be paid by the Member State order to cancel out any economic is the sum of the amounts due in respect of advantage which the Member State each day's delay in implementing a judg- responsible for the infringement might ment of the Court, beginning from the day derive in the case in point.' on which the Court's second judgment was brought to the attention of the Member State concerned and ending when the latter complies with the judgment. ...

14. For its part, the communication enti- tled 'Method of calculating the penalty payments provided for pursuant to Arti- cle 171 of the EC Treaty', of 28 February 1997 ('the Communication'), 4 provides, The amount of the daily penalty is calcu- inter alia, as follows: lated as follows:

'... — a uniform flat-rate amount is multi- plied by two coefficients, one reflecting the seriousness of the infringement and 4 —OJ 1997 C 63, p. 2. the other the duration;

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— the result is multiplied by a special factor (n) reflecting the ability to pay of the Member State concerned and the number of votes it has in the Council.

OPINION OF MR RUIZ-JARABO — CASE C-387/97

Depending on the duration of the infringe- The deterrent effect is achieved by applying ment, the flat-rate amount will be multi- a special factor n which is a geometric plied by a coefficient of at least 1 and no mean based on the Member State's gross more than 3. domestic product (GDP) and the weighting of votes in the Council. The factor n combines the ability of each Member State to pay, as measured by the GDP, with the number of votes it has in the Council. The resulting formula gives a reasonable degree of variation between Member States (from 1.0 to 26.4).

The amount of the penalty payment should ensure that the penalty is proportionate and, at the same time, has a deterrent n is equivalent to: effect.

This deterrent effect should be sufficient to ensure that:

Greece: 4.1. — the Member State decides to regularise its position and bring the infringement to an end (the penalty must, therefore, outweigh the advantage gained by the Member State from the infringement);

— the Member State will not repeat the The amount of the daily penalty is arrived infringement. at by multiplying the flat-rate by the coefficients for the seriousness and dura- tion of 'the infringement and by the special (invariable) factor n for the Member State in question. ... The need for the penalty to have a deterrent effect precludes any purely symbolic pen- alty. The penalty must exert sufficient pressure on the Member State for it to regularise its position. ...

20. On 21 September 1995, having received no information regarding the pro- 17. On 1 November 1993, the Treaty on ject, the Commission decided to initiate the European Union entered into force. procedure under Article 171(2) of the Treaty. By letter of the same date, it called on the Greek authorities to submit obser- 5 — Case C-45/91 Commission v Greece [1992] ECR I-2509. vations within two months.

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21. By letter of 14 December 1995, the 23. The Greek authorities replied by letter Hellenic Republic stated in reply that the of 11 November 1996. They stated, first of competent local authorities had already all, that a national waste management plan, selected a site and that it should therefore implemented at local level, and with suffi- be possible to implement the waste disposal cient funds had been adopted and adequate programme which had been drawn up. funds had been allocated to it.

The Commission considered that the word- ing of that reply showed that, four years As regards the regional waste management after the judgment establishing the breach plan for the prefecture of Chania, the of obligations had been delivered, the Greek authorities stated that it consisted Greek authorities had still not taken the in the implementation of an integrated necessary steps to remedy that breach. The waste management plan including: waste disposal programme, still in its preliminary stages, had not yet been imple- mented and, consequently, waste continued to be deposited in the tip at the mouth of the river Kouroupitos, thereby endangering public health and harming the environ- ment. — the sorting of waste at source;

24. As regards the management of toxic and dangerous waste, as well as hospital waste, the Greek authorities stated that the competent ministry was still carrying out a IV — Analysis of the substance series of measures, including the financing of waste management studies and works. In particular, the Chania prefectorial autho- rities had taken the steps necessary to set up 27. The Greek Government disputes the a mechanical recycling plant and to convert admissibility of the application on the an area into a landfill site. The competent ground that it seeks to punish conduct authorities were of the view that comple- retroactively. In the alternative, it contends, tion of those programmes would resolve with regard to the amount of the penalty, the problem of the river Kouroupitos and inter alia, that there was no guilty intent on make good the deficiencies of the waste the part of the defendant State. The Greek management arrangements in Chania gen- authorities proceed from the premiss that erally. the procedure and penalties provided for in Article 171 are penal or, at least, quasi penal, and that they are therefore subject to the principles of criminal law.

25. By letter of 28 August 1997, the Greek authorities informed the Commission of the progress which had been made. They stated, for example, that the environmental It is therefore necessary, first of all, to impact study in connection with the recy- examine the legal nature of the penalties cling plant had been completed, as had the provided for in Article 171 in order to first stage of an international restricted determine whether or not they constitute tendering procedure. measures of a penal or comparable nature. Next, following the scheme of the Treaty text, I shall consider what, if any, infringe- ments of Article 171(1) have been commit- ted, in order, finally, to examine the con- sequences that may follow from those 26. The reply from the Greek authorities infringements in accordance with Arti- did not satisfy the Commission, which cle 171(2).

A — First question: the nature of the rapidly as possible. 6My analysis will be penalties under Article 171 concerned with the pecuniary sanction which the Commission may seek and which the Court may impose in the form of a penalty payment. A fine or, more correctly, a coercive sanction 7 is 'a pecuniary penalty 28. Article 171(1), which was not amended imposed by a court in order to compel the by the Maastricht Treaty, establishes the person liable to perform his principal binding nature of judgments delivered by obligation, and is generally set at a certain the Court of Justice under Article 169. The amount for each day of delay or on the State against which judgment has been basis of any other unit of time'. 8 However, delivered 'shall be required to take the the payment of a lump sum, to which the necessary measures to comply with the Commission makes no reference in its judgment of the Court of Justice'. memorandum or its communication, 9must likewise be regarded as a means of obtain- ing ultimate compliance and not as a penalty which serves to punish a Member State for its unlawful conduct or still less as a form of compensation for the damage 29. Article 171(2) empowers the Commis- caused as a result of the delay in compliv sion to bring a further action against the ance. Otherwise, the scheme of the proce- defaulting Member State. It must first give dure under Article 171(2) would be chan- notice to the authorities of the State ged irrevocably, inasmuch as its nature concerned, affording them the opportunity would vary depending on the type of to submit observations, and then issue a penalty sought by the Commission. 10 reasoned opinion stating precisely how the Member State in question has failed to comply with the judgment of the Court of Justice. If the Member State does not take the measures necessary to comply with the judgment within the prescribed time-limit, the Commission may refer the case to the Court of Justice, specifying the amount of the lump sum or penalty payment to be 31. I acknowledge from the outset that paid by the Member State which it con- there is a great temptation to classify new, siders necessary. and therefore unknown, procedures under traditional headings that are entirely famil- iar to us. Because of the importance attached to the rights of the defence in

any democratic society, that temptation is indirectly into adjusting his conduct in a all the greater where the procedure in particular way, not to penalise unlawful question shares (or appears to share) a conduct. particular characteristic with national criminal procedure. For some time now, that assimilation has largely blurred the distinction, in regard to their procedural treatment, formerly drawn between penal- ties depending on their criminal or admin- 33. The same can be argued, in my opi- istrative origin. It is now recognised that nion, with respect to the arrangement similar principles must apply to both. That introduced by Article 171. It does not serve development is to be welcomed, particu- to punish the defaulting Member State but larly from a Community perspective. It is, to encourage it to comply by applying after all, not unusual for the same conduct pressure in the form of a substantial to be punishable under criminal law in one financial penalty which increases on a daily Member State but to be the proper subject basis. I therefore consider that, if that of administrative proceedings in another, a arrangement had to be classified under a fact which at the same time highlights just traditional legal heading, it would have to how artificial the distinction is. be described as a procedure for the enfor- cement of judgments. In ordinary proceed- ings for the judicial enforcement of judg- ments, courts not only have the obvious option of recourse to physical force; they can also impose financial penalties. This is common practice in civil and administra- tive proceedings in several continental Member States. 11 32. What is more debatable, in my view, is the application of the principles developed by criminal law to fields such as the protection of competition or the combating of discrimination on grounds of sex. In those cases, the aim of the legislature is to 34. In France, for example, civil courts maintain or achieve a situation viewed in have been imposing astreintes (periodic objective terms (freedom of competition, in penalty payments), as created by the judi- one instance, and equality as between men and women, in the other), not to punish the ciary, since the beginning of the last cen- allegedly unlawful intent of a particular tury. Although there was some confusion trader. In the two examples cited, therefore, initially as to whether or not they were contrary to what would be the case in compensatory in nature, such doubts were criminal law, there is no requirement for dispelled by the legislature. Law No 80- intention or even negligence to be present for the punishable act to have been com- 539 of 16 July 1980, on coercive sanctions mitted. Although the punitive element can in administrative proceedings a n d compli- never be entirely disregarded, the financial 11 — In common-law systems, there exists the concept of penalties imposed in such circumstances are contempt of court, which, although pursuing similar aims, is clearly penal in nature, since it is primarily characterised primarily intended, in the absence of more by the punishment of failures to comply with court orders, inasmuch as these represent a challenge to judicial appropriate means, to coerce the trader authority.

38. Under the system of Community law, since it is difficult to imagine any form of 35. In Belgium, the Netherlands and Lux- legal force being used to induce a Member embourg, astreintes are governed by the State to comply, there is no alternative, in Benelux Agreement of 26 November 1973 seeking to overcome the resistance of a on uniform legislation relating to coercive recalcitrant Member State, but to resort to sanctions. None of the three laws transpos- coercion. This could have taken political or ing the agreement into the national legal diplomatic form. It would, after all, have system attaches to the financial penalties been perfectly in keeping with the tradi- which courts may impose the status of tional practice of international law for the penal sanctions. Council to be entrusted with the task of enforcing the judgments of the Court of Justice, for example, and being empowered for that purpose to suspend the voting rights of the Member State concerned. That, to a certain extent, is what happens with the judgments of the European Court 36. Article 354(1) of the Austrian law on of Human Rights. Under Article 54 of the the enforcement of judgments delivered by Convention for the Protection of Human ordinary courts (Exekutionsordnung of Rights and Fundamental Freedoms, the 27 May 1896, as amended on several enforcement of judgments delivered by the occasions since then) allows coercive sanc- European Court of Human Rights is tions, both pecuniary and custodial, to be entrusted to the Committee of Ministers, imposed in cases where a judgment lays which is a permanent conference of Minis- down an obligation to act which is not ters for Foreign Affairs of the Member enforceable by third parties and the perfor- States of the Council of Europe and the mance of which is dependent on the will of organisation's governing body. 13 In itself, the person liable (unvertretbare Handlung). enforcement of a judgment delivered by the European Court of Human Rights, which, as that court has consistently held, is purely

declaratory, consists merely in the payment The Committee of Ministers of the Council of an amount by way of 'just satisfaction' of Europe uses only diplomatic and poli- (Article 41 of the Convention). 14 That tical pressure as means of enforcing a amount includes compensation for the judgment of the European Court of Human material and non-material damage suffered Rights. Under the Statute of the Council of as a result of the infringement of the Europe, it is authorised, in the event of a Convention and partial or total reimburse- serious violation of the principles of the ment of the procedural expenses and costs rule of law and the protection of human incurred. However, it has been understood rights, to suspend the defaulting State's from the outset that, where an infringement right of representation, and can even call of the rights and freedoms under the upon it to withdraw from the Council of Convention which has been established by Europe. a judgment of the European Court of Human Rights derives from the legislation or administrative practice of the defendant Member State, enforcement of that judg- ment will also include amendments to the relevant legislation or practice. It goes 40. Those measures therefore pursue without saying that, since the legislation exactly the same objective as Article 171, in question often directly affects funda- and yet few would venture to claim that mental human rights, such amendments are that particular procedure for the enforce- not always easy to carry out. They may ment of judgments might be capable of require constitutional changes or involve leading to a full re-hearing of the case in public authorities other than the central question, let alone that the defaulting State State which signed the Convention and could, during the re-hearing, rely on the which alone is internationally responsible same guarantees as are enjoyed by the for it. accused in a criminal trial.

— failure to fulfil the obligation arising from Article 4 of Directive 75/442: to 43. Several significant consequences follow dispose of waste without endangering from the correct classification of the pro- human life and without harming the cedure under Article 171. It dictates, inter environment; alia, the application in its entirety or otherwise of the system of guarantees available under criminal law (intention, characterisation of the offence, specifica- tion of the penalty, non-retroactivity), the nature of the Commission's powers in this — failure to fulfil the obligation arising context, and the scope of the examination from Article 6 of the same directive: to which the Court of Justice will have to draw up a waste-management plan; undertake. I shall now address each of those points separately, with reference to the present case.

— failure to fulfil the obligation arising from Article 5 of Directive 78/319: to dispose of toxic and dangerous waste without endangering human health and B — Infringements of Article 171(1) of the without harming the environment; Treaty

44. Article 171(1), which was not amended by the Maastricht Treaty, requires a Mem- ber State whose failure to fulfil an obliga- — failure to fulfil the obligation arising tion under the Treaty has been established from Article 12 of Directive 78/319: to in a judgment of the Court of Justice to draw up and keep up to date plans for take the necessary measures to comply with the disposal of toxic and dangerous that judgment. waste.

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47. I shall therefore look now at whether 49. It appears that Articles 4 and 6 of each of those obligations has been fulfilled, Directive 75/442 were amended by Direc- in order, afterwards, to consider the tive 91/156/EEC of 18 March 1 9 9 1 , 1 5 amount of any penalty payment which it while Directive 78/319 was repealed by may be appropriate to impose on the Directive 91/689/EEC of 12 December defendant Member State in respect of each 1 9 9 1 . 1 6 Both directives gave Member of them. First of all, however, I must States a period of two years in which to address two preliminary issues, namely (a) bring into force the laws, regulations and the continuing validity of the obligations administrative provisions necessary to give failure to fulfil which constitutes the effect to them. alleged infringement and (b) the period of time for which the judgment establishing a breach of obligations was or was not complied with.

50. It should be recalled (see points 2 to 10 (a) Whether the obligations arising from above) that Directives 75/442 and 78/319 Directives 75/442 and 78/319 are in force laid down similar obligations with regard both to the disposal of waste and toxic and dangerous waste and to the drawing up of plans for such disposal. The present legal position is as follows.

48. Although this question has not been raised by any of the parties, I think it useful 15 — Council Directive 91/156/EEC of 18 March 1991 amend- ing Directive 75/442/EEC on waste (OJ 1991 L 78, p. 32). to devote some attention to it. The issue is 16— Council Directive 91/689/EEC of 12 December 1991 on whether the obligations arising from the waste (OJ 1991 L 377, p. 20).

— general technical requirements;

— without adversely affecting the coun- tryside or places of special interest. — any special arrangements for particular' waste;

Member States shall also take the necessary measures to prohibit the abandonment, dumping or uncontrolled disposal of waste'. — suitable disposal sites or installations.

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Such plans may, for example, cover: judgment in Case C-45/91 found to have been breached.

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18 — See, for example, the judgment in Case C-361/88 Com- mission v Germany [1991] ECR I-2567, paragraph 31. 19 —Ibid.

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submitted by the parties prior to the actual tional on implementation of the provisions hearing. on the drawing up and notification of plans; nor, conversely, is implementation of the provisions on the drawing up of plans conditional on compliance with the rules on the adoption of disposal measures.

(c) Compliance with the obligation to dis- pose of waste without endangering human health and without harming the environ- ment (Article 4 of Directive 75/442) The Commission, on the other hand, con- siders that, in order for waste to be properly managed, it must necessarily be deposited or disposed of in accordance with a plan.

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measures conform to the management plan 'contamination of the sea, in particular provided for in the same directive. when the river Kouroupitos bursts its banks', 'the risk of fires caused by unau- thorised incineration', 'the proliferation of rodents and insects of all types', 'offensive smells', 'the impairment of a site of "excep- tional beauty", the unique shoreline of the rocky area around Akrotiri'. 20 As the 64. As regards whether or not it has in fact Commission has pointed out, the technical failed to fulfil its obligations, the Greek study cited by the Greek Government 21 Government contends in its defence that contains the following passage: the amount of solid waste which continues to be tipped in the Kouroupitos ravine has decreased significantly. That decrease had been made possible by the opening or extension of four landfill sites (in the municipalities of Sfakia, Kalyves, Selino '... high concentrations of various toxic and Kissamo), and the introduction of a substances such as polycyclic aromatic paper-sorting and recycling system. Fur- hydrocarbons, polychlorobiphenyls, poly- thermore, an experimental aluminium-col- chlorodibenzodioxins, polychlorodibenzo- lection programme has been launched and furans and heavy metals have been detected plans have been drawn up for the establish- in the area around the Kouroupitos. The ment of a regional recycling centre. A study pollution from these dangerous substances carried out by the Technical University of is considerable in the area around the Crete detected only a very faint presence of Kouroupitos and declines with distance'. toxic substances (dioxins and furans) in the area around the Kouroupitos and within a two-kilometre radius.

pitos tip. It refers in particular to the a solid-waste management plan for the existence of an extensive water table, the Chania area. proliferation of scattered population cen- tres and the abundance of archaeological sites and places of natural and historic interest. It then lists the various research studies which had to be carried out before the Strongylo Kefali site was chosen. 71. The Greek Government contends that Ministerial Resolutions No 114218 and No 113944 on the creation of a framework for solid-waste management projects and programmes and the national solid-waste management plan were adopted on 27 October 1997. 22 The waste manage- 68. The explanations given by the Greek ment plan for the prefecture of Chania, Government relate to measures which, at which, according to the Greek Govern- best, constitute a preliminary stage in the ment, covers both solid waste and toxic process of discharging its obligations under and dangerous waste, was approved on Article 4 of Directive 75/442, but cannot in 25 November 1997. The latter plan covers themselves be regarded as amounting to all the individual action plans and pro- compliance. grammes adopted hitherto.

69. It is therefore appropriate, in my view, 72. As far as the Commission is concerned, to find that, by failing to comply with the the document of 25 November 1997 is not judgment in Case C-45/91 as regards the a plan within the meaning of Article 6 of obligations arising from Article 4 of Direc- Directive 75/442 or Article 12 of Directive tive 75/442, the Hellenic Republic has 78/319, but is a preparatory study for such infringed Article 171(1) of the Treaty. a plan. Rather than decisions on waste management, it contains a series of propo- sals for each of the territorial units into which the prefecture is divided.

of which, as the Commission has pointed for it to be treated. That also applies to out, acknowledge the preliminary nature of hospital waste, which is loaded into a the study and the fact that, 'in order to special vehicle and stored in a cold chamber supplement it, it will be necessary to until it is incinerated. As for sediments of produce all the reports envisaged in it'. hydrocarbon deposits, the Greek Govern- ment states that they are stored in an appropriate place until they are sent abroad. Used mineral oils are passed to the prefectorial authorities for removal to a reclamation plant, and tankers no longer deposit the contents of septic tanks into the 74. The document of 25 November 1997 Kouroupitos as a biological sewage treat- cannot therefore be deemed, as far as solid ment plant has been built in the Chania waste is concerned, to contain sufficient area. detail as regards the types and quantities of waste to be disposed of, general technical requirements, suitable sites for its treatment and disposal or deposit and any other special arrangements, for it to be regarded as a plan within the meaning of Article 6 of Directive 75/442. Nor, as regards toxic and dangerous waste, does it contain any deci- sions as to the types and quantities of waste In short, the Greek Government submits, which are to be disposed of, the methods of toxic and dangerous waste in the Chania disposal, specialised treatment centres or area is disposed of in a manner perfectly suitable disposal sites, such as would give consistent with Directive 78/319, since the effect to the provisions of Article 12 of measures necessary to protect human Directive 78/319. health and safeguard the environment have been adopted.

77. It is my view that, in proceedings under accordance with Article 5 of Directive Article 171, it is for the defendant Member 78/319. State to prove that it has duly complied with the judgment establishing an infringe- ment of the Treaty. On that basis, the Commission's role can be confined to pointing out which obligations have not been fully shown to have been discharged. (f) Fulfilment of the obligation to draw up This is particularly true where, as here, the and keep up to date plans for the disposal Community rule requires that the Member of toxic and dangerous waste (Article 12 of State notify the Commission of the mea- Directive 78/319) sures it has adopted. It is therefore appro- priate to find that the Hellenic Republic has failed to fulfil its obligations. After all, 'incomplete practical measures and frag- mentary legislation cannot discharge the obligation of a Member State to draw up a 80. As regards the obligation to draw up a comprehensive programme with a view to plan for the disposal of toxic and danger- attaining certain objectives . . . ' . 23 ous waste in the Chania area, the Greek Government has submitted that the docu- ment of 25 November 1997 (see point 71 above) covers plans for both solid waste and toxic and dangerous waste.

78. In any event, it has not been shown that the measures taken by the Greek authorities form part of a methodical, long-term plan for the disposal of toxic and dangerous waste, as required by Article 12 of Direc- For a discussion of this issue, I therefore tive 78/319. As I stated earlier (see point 62 refer to the section relating to compliance above), the obligation to dispose of waste with the judgment in Case C-45/91 as in accordance with Directives 75/442 and regards Article 6 of Directive 75/442. 78/319 requires that such disposal be effected in accordance with the plans provided for in those directives.

to pay. Since this is the first time that the my argument. It is true that, in that case, Court of Justice has been called upon to the Court of Justice recognised, albeit address this issue, it is appropriate to indirectly, the existence in Community examine the temporal limits applicable to law of the general principle of nulla poena the imposition of penalties and the respec- sine lege. However, the Court was con- tive functions of the Commission and the cerned, essentially, to make it clear that not Court in the context of the procedure under every provision that imposes a burden on Article 171(2). As I have already said, those an individual constitutes a sanction. That factors are closely bound up with the legal case concerned certain provisions of Com- status attributed to that procedure. mission Decision No 2794/80/ECSC of 31 October 1980 25 establishing a system of steel production quotas. Those provi- sions favoured any undertaking which had satisfied certain requirements, while at the same time excluding — and, in compara- (a) The retroactive effect of Article 171(2) tive terms, harming — other undertakings. The Court of Justice rightly held that those provisions did not in any way constitute sanctions against undertakings not fulfill- ing the conditions and could not therefore be considered to be in breach of the 82. As I stated earlier, the Greek Govern- principle of nulla poena sine lege. ment considers the retroactive application of the procedure provided for in Arti- cle 171(2) to be unlawful. In its submis- sion, taking into account the fact that the prior administrative procedure began on 11 October 1993 (see point 16 above), that is to say before the entry into force of the Maastricht Treaty, and that the new text of Article 171 provides for the imposition of substantial financial penalties, the applica- tion of Article 171(2) would amount to the retroactive application of a more stringent rule, in breach of the general principle of 84. In other words, only measures which nulla poena sine lege upheld by the Court may properly be described as sanctions in its judgment in Alpha Steel v Commis- merit the special protection afforded in sion. 2 4 criminal proceedings, not every provision which entails adverse financial conse- quences for a particular individual. In Alpha Steel v Commission, the financial damage arose from the fact that better terms were granted to undertakings com- peting in an industrial promotion exercise. 83. However, the Alpha Steel case relied on In the present case, the financial damage by the defendant serves rather to illustrate which may ultimately be suffered by the

(b) The functions of the Commission and the Court of Justice in the context of the That said, I shall now examine the rules for procedure under Article 171(2) setting coercive sanctions laid down in Article 171(2) and, in particular, the scope of the powers which the Commission and the Court of Justice enjoy in this matter.

86. Article 171(2) merely provides, in very concise terms, that, subject to prior com- pletion of the relevant administrative pro- cedure, 26 the Commission may bring an 87. According to Article 171(2), the Com- action and specify the amount which it mission is to specify the amount it con- considers appropriate to the circumstances, siders appropriate to the circumstances, it being for the Court of Justice, should it so and the Court, where necessary, is to decide, to impose the penalty, if it considers impose a sanction if it considers that the that the Member State concerned has not Member State has indeed failed to fulfil its complied with its judgment. The legislature obligations. The wording of that paragraph has said nothing further. The complex task does not therefore establish any link of drawing up criteria for quantifying between the Commission's power to specify and the Court's power to impose. I do not, however, believe that these are fully auton- 26 — Which is identical to that provided for in Article 169 of the Treaty, except for the fact that, in its reasoned opinion, the omous powers, in the sense that the Court Commission is required to specify the 'points' on which the Member State concerned has failed to comply with the first of Justice can depart at will from the judgment. general direction and amount of the Com-

mission's proposal. I do not think so for the not to bring an action, the Commission following four reasons. must take into account not only legal considerations but also criteria of political expediency. However, the process of impos- ing and setting a coercive sanction cannot be divorced from considerations of political 88. First of all, because, if that were the expediency either. From that perspective, it case, that is to say if the Court of Justice would be contrary to the scheme of Arti- had complete freedom to decide, on its own cle 171 for the Commission to be the initiative, whether or not to impose a orchestrator of the proceedings — since it financial penalty and to set the amount of alone has authority to decide to initiate any penalty it did impose, the Commis- them and the power to terminate them by sion's function, once it had brought the withdrawing its action — but for its pro- action, would be reduced to that of an posals regarding sanctions to be no more amicus curiae which proposes a solution on than mere suggestions which have not the the basis of its knowledge and understand- slightest bearing on the decision ultimately ing of the case. And in any event, that to be taken by the Court. power is already enjoyed by any other parties which may have taken part in the proceedings, namely the Member States and the other institutions. In my view, if the Treaty provides that, once an action under 90. The third reason is merely a corollary Article 171 has been brought, the Commis- to the second. The Community legislature sion must specify the form and amount of did not wish to lay down rigid rules under the penalty it considers appropriate, it must which each type of infringement would be looking for something more than a mere attract a predetermined sanction.

89. The second reason has to do with the regards the imposition and setting of the very nature of the procedure under Arti- coercive sanction, it would also take over cle 171(2). As I have pointed out, the the task of assessing considerations of purpose of that procedure is not to punish political expediency, which would seriously the Member State for failing to fulfil its upset the existing division of powers obligations but to encourage it to discharge between the institutions of the Union.

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clearly exceeds the bounds of its discre- nity law complies with the principle of tion. 3 0 proportionality, it must be ascertained whether the means which it employs are suitable for the purpose of achieving the desired objective and whether they do not go beyond what is necessary to achieve it. 32 In the context of the procedure under Article 171(2), the Court must establish 95. Within the framework of the present whether, within the broad margin of dis- proceedings, the fact is that limited review cretion necessarily involved in any assess- by the Community judicature is inherent in ment of expediency, the Commission's the very act of exercising the discretion proposal is suitable and proportionate in necessary to determine what is expedient in relation to the objective it pursues, which is the context of the three choices set out in quite simply to bring to bear upon the point 93. Accordingly, the Court must defendant Member State effective persua- ensure that it does not substitute its own sion to comply with the judgment estab- assessment for that carried out by the lishing an infringement of the Treaty. Commission so as not to distort the most important aspect of the judicial function it performs. It will of course have to verify the correctness of the facts and ensure that the proposal for a sanction is not vitiated by a manifest error. It is less likely that the mere 97. The Court of Justice has likewise held act of specifying and setting a sanction will that the prohibition of discrimination be such as to amount, even technically, to requires that comparable situations are an 'infringement such as a misuse of not treated in a different manner unless powers, or that, in so doing, the Commis- the difference in treatment is objectively sion will manifestly exceed the bounds of justified. 3 3Under the present procedure, its discretion. The judicial review of a the Court of Justice must ensure that proposal for a sanction of this kind must different sanctions are not applied to seek rather to ensure observance of the infringements which are in principle com- principles of proportionality and equal parable, unless the Commission can give treatment. 31 sound reasons for such differentiation.

101. As regards the obligations arising from the judgment in Case C-45/91, the 99. I am now able to express my views on original proposal from the Commission the proposal for a sanction put forward by sought the following orders: the Commission.

(a) that a sanction be imposed on the (c) The proposal for a sanction put forward Hellenic Republic; by the Commission

100. In the interests of transparency, the (b) that that sanction take the form of a Commission has made public two docu- penalty payment; ments (a communication and a memoran- dum) concerning, respectively, the applica- tion of Article 171 of the EC Treaty and the method of calculating the periodic penalty payment provided for therein. The very (c) that the amount of the penalty payment nature of the present proceedings prevents be EUR 24 600 per day payable from me from expressing a general view on the the day on which the judgment was lawfulness of the criteria contained in those delivered until such time as the State two documents. I shall instead examine concerned had fully complied with the whether, in so far as those criteria have judgment establishing its failure to been applied to this case, the limits I fulfil obligations. defined above have been observed. This does not mean of course that I consider the communication and the memorandum to 34 — As indeed the Court of Justice has held in proceedings be entirely without legal effect. On the relating to the European civil service. See, inter alia, Case contrary, they are, in my opinion, binding 148/73 Louwage and Another v Commission [1974] ECR 81, paragraph 12, and Case 25/83 Buick v Commis- on the institution from which they emanate sion [1984] ECR 1773, paragraph 15. to such an extent that it must not venire 35 — See in this connection, in the context of the policy on State aids, T. Jestaedt and U. Häsemeyer: 'Die Bindungswirkung contra factum proprium; any breach of that von Gemeinschaftsrahmen und Leitlinien im EG-Beihilfen- recht', Europäische Zeitschrift für Wirtschaftsrecht, 1995, principle might be relied upon in legal p. 787 et seq.

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108. As regards the form of sanction and the amount that may be considered 'appro- 105. I therefore consider that the approach priate to the circumstances', I would repeat consisting in an individual assessment of that the starting point must of necessity be whether each of the obligations arising the Commission's proposal, subject, where from the judgment establishing a breach appropriate, to the limited judicial exam- has been fulfilled is to be preferred, in so far ination I referred to above. The problem as those obligations are sufficiently auton- lies in the fact that, in this case, the omous to be fulfilled separately. Commission has proposed two amounts.

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First of all, a penalty payment of EUR 24 110. It is therefore appropriate to examine 600 per day for Greece's infringements, the Commission's proposal that a periodic taken together, and, subsequently, a series penalty payment of EUR 24 600 per day be of penalty payments for the individual imposed. provisions infringed, amounting in total to EUR 32 800 per day.

111. The criteria applied by the Commis- sion in calculating that amount are as follows: the seriousness of the infringe- ment; the duration of the infringement; and the 'ability to pay' factor.

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39 — See, in this connection, J. Díez-Hochleitner: 'La respuesta del TUE al incumplimiento de las sentencias del Tribunal de Justicia por los Estados miembros', Revista de institu- ciones europeas, 1993, pp. 837-899, in particular p. 879. 40 — However, it is strange that, in calculating each Member State's 'ability to pay', regard has been had to the number 115. I therefore provisionally conclude that of votes it has on the Council (see paragraph 4 of the Communication, point 14 above). the Commission's proposal that a pecuni- 41 — The concept of 'will', when applied to a State, is always metaphorical. An infringement for which the central authorities of a State cannot be held responsible, for example, would still be regarded as an example of that 42 — E. Garcia de Enterria and T.-R. Fernández: Curso de State's 'unwillingness to comply'. derecho administrativo, vol. I, Madrid, 1989, p. 743.

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ary penalty of EUR 24 600 per day be — for infringement of Article 5 of Direc- imposed on the Hellenic Republic in order tive 78/319: 12.5%; to prompt it to comply with the judgment in Case C-45/91 is appropriate to the circumstances for the purposes of Arti- cle 171(2) of the EC Treaty. — for infringement of Article 12 of Direc- tive 78/319: 12.5%.

116. However, as I explained earlier, in the case of both the proposal from the Com- mission and the judgment of the Court of Justice, preference is to be given to an Or, expressed in euro per day: approach which makes it possible to con- sider individually whether each of the obligations arising from the judgment establishing a breach has been fulfilled, in so far as they are sufficiently independent to be fulfilled separately. — for infringement of Article 4 of Direc- tive 75/442: 12 300;

of the infringements fall within the broad sanctions relating to the obligation to discretion it enjoys in this context, except dispose of waste (Article 4 of Directive as regards the infringement of Article 12 of 75/442 and Article 5 of Directive 78/319) Directive 78/319. That article provides that should be imposed, since — as I have Member States are to draw up and keep up already said — they incorporate the obli- to date plans for the disposal of toxic and gations to draw up plans (Article 6 of dangerous waste. As I explained earlier, Directive 75/442 and Article 12 of Direc- Article 5 of the same directive requires that tive 78/319). The sanctions relating to the the obligation to dispose of such waste be latter obligations will be purely notional, in fulfilled in accordance with a plan. From the sense that they will be used to calculate that point of view, fulfilment of the obliga- any reduction that is to be applied in the tion contained in Article 5 inevitably dis- event of partial fulfilment, that is to say if charges the obligation contained in Arti- the Member State concerned draws up cle 12. It seems illogical for the same plans but fails to dispose of waste in relative importance to be attached to both accordance with them. It follows from this the whole and the part. The weighting that the coercive sanction to be imposed applied to the infringement of the obliga- should be made up as follows: tion to draw up plans for the treatment of toxic waste should therefore be reduced by the same proportion as exists between the values for Articles 4 and 6 of Directive 75/442, that is to say from unity to half. In the case of Article 12 of Directive 78/319, the value will have to be reduced from 12.50% to 6.25%. With a view to avoiding any reformatio in pejus, this downward adjustment of the figure for relative ser- — for infringement of Article 4 of Direc- iousness will involve a proportionate reduc- tive 75/442: 12 300 tion of the total amount for the infringe- ment. The amount of EUR 24 600 per day will have to be reduced by 6.25%, that is to say by EUR 1 537.50 per day. This gives the following correction:

VI — Conclusion

122. In view of the foregoing, I propose that the Court of Justice:

(1) declare that, inasmuch as it has not yet fulfilled its obligations with regard to adoption of the measures necessary to ensure that waste and toxic and dangerous waste in the Chania area are disposed of without endangering human health or harming the environment, and with regard to the drawing up of plans for the disposal of waste and toxic and dangerous waste for that area, the Hellenic Republic has failed to comply with the judgment of 7 April 1992 in Case C-45/91 Commission v Greece;

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(2) impose on the Hellenic Republic a penalty payment of EUR 15 375 per day payable from the date of notification of the judgment bringing the present proceedings to an end until the infringements cease;