C-178/98

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— promotion of research aimed at redu- of the relevant programmes. The letter cing the dangerous-substance content remained unanswered. and favouring the use of less polluting substances in batteries and accumula- tors, and research into methods of recycling,

5. Accordingly, the Commission sent the French Government a letter of formal notice 2 on 3 July 1995 under the procedure — separate disposal of spent batteries and provided for in Article 169 of the EC accumulators covered by Annex I. Treaty, in which it stated that, according to the information available to it, the French Republic had failed to fulfil its obligations under Article 6 of the Directive and requested the French Government to submit its observations on the infringement The first programmes shall cover a four- within two months. year period starting on 18 March 1993. They shall be communicated to the Com- mission by 17 September 1992 at the latest.

6. The French authorities replied to the The programmes shall be reviewed and letter of formal notice by letter of 19 Sep- updated regularly, at least every four years, tember 1995 addressed to the Commission, in the light in particular of technical in which they stated that a decree transpos- progress and of the economic and environ- ing the Directive into national law was mental situation. Amended programmes about to be adopted. Specifically, they shall be communicated to the Commission stated that the decree was before the in good time.' Conseil d'État (Council of State).

7. In addition, by letter of 9 April 1996 the I I I— Facts French authorities sent the text of a draft decree to the Commission and stated that programmes under Article 6 of the Direc- tive had been drawn up and would be 4. On 22 December 1992, the Commission signed within a month or two. sent a letter to the French Government reminding it of its obligations under Arti- cle 6 of the Directive and requesting a copy 2 — Letter SG(95) D/8446 of 3 July 1995.

9. By letter of 12 June 1997, the French Republic informed the Commission that 12. The Commission bases its action on the the draft decree transposing the Directive third paragraph of Article 189 of the EC into national law had been put before the Treaty and on the first paragraph of Prime Minister and that the draft envisaged Article 5 of the same Treaty according to that the necessary arrangements would be which the Member States to which a in place by 1 January 1998. directive is addressed are required to achieve the result provided for therein within the time-limit laid down. It also observes that the Court has consistently held that a Member State cannot rely on provisions, practices or circumstances 10. As stated by the French Government in existing in its internal legal order in order its defence and acknowledged by the Com- to justify its failure to comply with the mission in its reply, the French Republic obligations and time-limits laid down by a finally adopted measures transposing the Community directive. Finally, the Commis- Directive into national law. Specifically, sion points out in support of its action that, Decree No 97-1328 of 30 December 1997 according to the case-law of the Court, a was adopted and, according to the Com- Member State cannot rely on the fact that mission, communicated to it on 20 January the laws, regulations and administrative 1998. provisions necessary for the general trans- position of a directive into national law have not yet been adopted in order to justify another failure to fulfil obligations relating to a specific obligation under the same directive. 11. Taking the view that that transposition of the Directive into national law as such had no bearing on the present procedure, that the French Government had failed to

4 — The Commission none the less analytically examines, as a subsidiary point, the measures which the French Govern- ment relies upon in its defence, where it contends that they meet the objectives of Article 6. As regards the measures relating to the first objective established by Article 6 of the Directive, the Commission points out: (i) that it is not in a position to verify the 14. Nor did the French Republic inform it existence of a 'programme' set up by French manufacturers as no measure of such a nature, adopted or coordinated by in the course of the pre-litigation procedure the Member State, was communicated to it; (ii) that the first of any measures which could be considered objective of Article 6 of the Directive does not concern only 'general purpose batteries' but all batteries and accumula- to be a programme within the meaning of tors; {iii)-that a simple request by producers to ban the sale of certain batteries does not constitute a programme within Article 6 of the Directive, but merely the abovementioned meaning; and (iv) that the project referred to measures which were at a referred to to extend the life of lead batteries, whose terms and timetable remain unknown, appears to aim to reduce preparatory stage.

same time, it states that indicating heavy-metal content is a separate obligation deriving from Article 4(2) of the Direc- tive and that the objective established by Article 6 is not limited to batteries but also applies to accumulators. As regards the measures pertaining to the third objective laid down by Article 6, the Commission repeats its criticism concerning the absence of initiatives and coordination by the French Government itself with regard to many of the measures adopted and observes that these measures too do not fulfil the requirements of a programme in that they lack quantitative planning and a timetable. As for the action

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for their implementation, elements which 17 September 1992), within the period the Court has held are essential if particular prescribed by the reasoned opinion or measures are to be regarded as pro- before the Commission lodged its reply. grammes. Furthermore, that omission is of a substan- tive rather than purely formal nature.

16. As regards the measures being drafted and the agreements which are to be con- 19. On those grounds, the Commission cluded for the organisation of disposal requests the Court, first, to declare that, networks, the Commission states that it is by failing to adopt and/or communicate all evident that those measures have not yet the necessary measures, the French Repub- been adopted and points out that the drafts lic has failed to comply with Article 6 of of measures to be adopted are of no the Directive and, secondly, to order that relevance when finding a past failure to State to pay the costs. fulfil obligations.

5 — Joined Cases C-282/96 and C-283/96 Commission v France [1997] ECR I-2929. In that judgment the Court held, inter alia, that, by failing to adopt within the periods prescribed the laws, regulations and administrative measures necessary to comply with the Directive, the French Republic had failed to comply with its obligations under Article 11 thereof. 18. Finally, the French Republic did not in Article 11 provides: ' 1 . Member States shall take the measures necessary to comply with this Directive before any event inform it of the content of any 18 September 1992. They shall forthwith inform the Commission thereof. 2. Member States shall communicate programme covering the objectives listed in to the Commission the texts of the provisions of national law which they adopt in the field governed by this Directive. Article 6 of the Directive within the period The Commission shall inform the other Member States prescribed by that article (that is to say by thereof.'

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— first, that a programme to reduce mercury content set up by French 23. So far as concerns the third objective, manufacturers has resulted, since the French Government maintains that 1993, in the elimination of mercury industry, producers, local authorities and from cylindrical and prismatic general businesses have taken measures concerning purpose batteries. In this way, the use the collection of batteries and accumula- of mercury is now limited to certain tors. The French Government specifically

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— the Ministry of the Environment has 25. As for the fifth objective, the French researched the impact of batteries and Government states that, in addition to the accumulators that are not subject to the

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Directive and come into contact with 28. As regards the Commission's assertion the treatment processes for household that the information regarding the mea- waste through the collection of the sures taken is general and brief, the French latter. Government states in its rejoinder that following in-depth research it has gathered, for two of the five objectives mentioned in . the Directive, additional numerical data covering the whole of France.

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31. As regards the separate disposal of concerning disposal prospects for the spent batteries and accumulators covered coming years; by Annex I to the Directive, the French Government points out that France now has sufficient facilities to treat all spent batteries and accumulators. Drawing a distinction between the categories estab- lished by the Directive, the French Govern- — finally, approximately 85% of non- ment cites data according to which: portable lead accumulators are recy- cled, a percentage that has remained constant since 1993.

obligations under Article 6 of the Directive. are to draw up programmes in order to It is therefore necessary to determine very achieve the five objectives listed in that precisely what those obligations are, given paragraph. that the parties put forward different approaches for their interpretation.

34. The Court has to a considerable extent 36. The Court has held that 'it follows defined these obligations already, in its from the wording of Article 6 and the recent judgments in Case C-298/97 Com- general scheme of the Directive that the mission v Spain 7 and Case C-347/97 Com- various problems posed by specific waste mission v Belgium. 8 I will rely mainly on such as batteries and accumulators are to those judgments in examining whether in be resolved according to a precise time- the present case the French Republic has table. In this respect, it must be pointed out failed to fulfil its two obligations under that, even if certain results relating to the Article 6 of the Directive, namely (a) the objectives of the Directive have been obligation to draw up programmes in order achieved before the expiry of the period to attain the objectives referred to in the prescribed thereby for the implementation first paragraph of Article 6 and (b) the of programmes, that does not excuse a obligation to communicate those pro- Member State from drawing up the pro- grammes to the Commission pursuant to grammes required'. 9 the second and third paragraphs of that article.

37. Characteristically, the Court has stated (a) The obligation to draw up programmes that the measures adopted by the Member States must not constitute 'a series of

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legislative provisions or ad hoc measures Directive's specific objectives. On the con- which do not possess the characteristics of trary, the Directive lays down a dynamic an organised and coordinated system of process for the continued reduction of objectives such as to make it possible to dangerous substances, namely mercury regard them as programmes within the and heavy metals, pending their definitive meaning of Article 6'. 10 ban. 12

38. Moreover, the Court has held that national programmes must contain the specific elements of the 'programme' envi- saged by Article 6 of the Directive. Thus, those programmes must provide that they 40. In the present case, it is clear that the 'be reviewed and updated regularly, at least French Government did not draw up the every four years', that is to say they must programmes envisaged by Article 6 of the contain 'a precise timetable for [their] Directive. The measures which the French review... in step with technical progress Government states it has drawn up could and the economic and environmental situa- not be considered programmes within the tion'. 11 meaning of Article 6. Moreover, the French Government itself expressly acknowledges that those measures are not in the form of programmes.

39. In that regard, as I also observed in my Opinion in Commission v Belgium, cited above in footnote 8, it follows from the use of the terms 'reduction' and 'promotion' in the first paragraph of Article 6 and from the fact that that article provides for a succession of programmes covering four- The truth is that most of the measures are year periods that no quantitative limit has not expressed in quantitative terms, nor are been set for the definitive attainment of the they accompanied by a specific timetable, which is necessary if they are to be regarded 10 — See Case C-347/97 Commission v Belgium, paragraph 23, cited above in footnote 8. 11 — See Case C-347/97 Commission v Belgium, paragraph 20, 12 — See my Opinion in Case C-347/97 Commission v Belgium, cited above in footnote 8. cited above in footnote 8 (point 34).

as programmes. 13 Moreover, the French in the reasoned opinion, and subsequent Government itself states in its rejoinder changes may not be taken into account. 14 that it carried out in-depth research to gather additional numerical data, ulti- mately for only two of the Directive's five objectives. That statement shows that the measures were not, as a general rule, based on quantified actions whose results were monitored, checked, reviewed and updated on the basis of a timetable, as the concept of a programme would require. In any 42. The French Republic counters, in spite event, it is evident that the measures as a of the above, that since the objectives at whole ignore the specific provisions of the issue are covered by those measures, the Directive and do not follow the particular failure to comply with Article 6 of the timetable established by Article 6, that is to Directive is purely a matter of form. say, successive four-year programmes start- However, this is not a valid argument. ing on 18 March 1993. First, as I have already mentioned, the Court has held that the objectives of Article 6 can be achieved only through the programmes specifically provided for by that article. 15Secondly, as far as content is concerned, the measures that the French Government states have been adopted to attain the five specific objectives listed in the Directive do not appear to establish a systematic and dynamic process for the reduction of dangerous substances, namely mercury and heavy metals, leading to their definitive elimination; in any event, the measures have failed to eliminate those substances, a failure also made apparent by 41. Furthermore, the French Government's the French Government's reference to mea- reference to measures which are to be sures being drawn up, evidently because it adopted in the future or are in the process is still necessary to adopt measures. More- of being worked out not only constitutes an over, the failure as yet to achieve all the acknowledgment of the present absence of specific objectives set out by Article 6 is such measures and need for their adoption also apparent from the fact that, in its but also cannot be considered relevant to observations, the French Government this case. The Court has consistently held sometimes refers to the objectives as having that the question whether a Member State been achieved and at other points asks that has failed to fulfil its obligations must in it be acknowledged that the aims of that every case be determined by reference to article are covered by measures of a differ- the situation prevailing in the Member ent nature, some of which have proven State at the end of the period laid down particularly effective.

43. It should also be noted that some of the provisions of the directive are properly measures which the French Government implemented in national law'. 9 has relied on to contend that it achieved the objectives laid down by Article 6 16 were adopted, as it states itself, 17 by trade bodies. Thus, despite the actions taken by Ademe — whose participation, as is also stated by the French Government, was limited to the implementation of only a certain number of those measures — it is clear that the French Government did not adopt the necessary programmes on the basis of coordinating, and legally binding, provisions of national law, as required by the Court's case-law. 1 8That absence of central regulation which could ensure in a 44. Generally, the impression is given that, legally binding way that measures were rather than contesting the substance of the planned in accordance with specific complaints which the Commission has requirements set by Article 6 of the Direc- made against it, the French Government tive is not in any way compatible with the in reality attempts to emphasise the various aims of the Directive, which, moreover, initiatives taken and efforts made in France expressly obliges the Member States to with regard to the specific objectives of draw up programmes. Furthermore, in Article 6 of the Directive, whilst being fully view of the mention in the preamble to aware that the obligations deriving from the Directive of the need to approximate that article have not been fulfilled within the laws of the Member States by setting up the time-limit or in an appropriate manner. programmes and communicating them to the Commission, division of the specific national programmes into initiatives and measures to be taken by non-government agencies with a different breadth of powers is a fortiori excluded. Moreover, as the Court has held, 'each Member State is free to delegate powers to its domestic autho- rities as it sees fit and to implement directives by means of measures adopted by regional or local authorities. That divi- sion of powers does not, however, release it from the obligation to ensure that the 45. In my view, the above general observa- tions suffice for it to be found that the French Republic has failed to fulfil its obligation under Article 6 of the Directive to set up programmes, and a detailed 16 — See point 20 et seq. above. 17 — See, for example, point 6 of its defence. 18 — See, by way of example, Case 239/85 Commission v 19 — See Case C-131/88 Commission v Germany [1991] ECR Belgium 11986] ECR 3645, paragraph 7. I-825, paragraph 71.

20 — The following, entirely subsidiary, observations could be an activity falling within the scope of Article 7 of the made on each group of measures individually: Directive which states: ' 1 . Member States shall ensure the efficient organisation of separate collection and, where 1. With regard to the measures relating to the first appropriate, the setting up of a deposit system. . .'. objective referred to in Article 6 of the Directive, as the Commission correctly points out, first, even after taking 4. As regards the discussion groups invoked by the French account of the matters relied on by the French Government Government in contending that measures have been taken in its rejoinder, the measures do not appear to be to cover the fourth objective laid down by Article 6 of the programmes within the meaning of Article 6 or pro- Directive, the Commission correctly points out, first, that grammes which accord with the timetable laid down by the activities of those groups relate only indirectly to the that article. Second, those measures apply only to a specific objectives of the Directive and, secondly, that the second category of batteries, whereas the Directive also requires group began its work approximately four years after the that measures be taken with regard to accumulators. expiry of the period prescribed by the Directive.

2. So far as concerns the measures mentioned relating to 5. As regards the measures relating to achievement of the the second objective set out ín the Directive, the 'cam- fifth objective laid down by Article 6, it should be pointed paign' referred to does not appear to take the form of an out that, even if it is accepted that they produced or are appropriate programme, whilst, as the Commission also producing positive results, it cannot be concluded from the points out, its objective of having the heavy-metal content matters relied on by the French Government that they are indicated indeed appears to fall within the scope of measures which are coordinated within the framework of Article 4(2) of the Directive. the specific programmes required by Article 6.

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21 — As regards the latter obligation, see point 28 and footnote 5 above. Moreover, it should be noted that the 22 — See Case C-431/92 Commission v Germany [1995] ECR I- failure to communicate programmes is a 2189, paragraph 23. 23 — See, by way of example, Case C-8/97 Commission v fortiori acknowledged in the very assertion Greece [1998] ECR I-823, paragraph 8, and Case of the French Government that the failure C-298/97 Commission v Spain, cited in footnote 7 above, paragraph 14. to fulfil obligations under Article 6 is 24 — See, by way of example, Case C-294/96 Commission v limited to the purely formal matter of a Belgium [1997] ECR I-1781 and Case C-255/93 Commis- sion v France, cited above in footnote 13, paragraph 29. failure to publish programmes.

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51. Finally, in so far as the French Republic ing the programmes designed to attain the has not reviewed programmes at least every objectives of the Directive'. 25 four years pursuant to the third paragraph of Article 6 of the Directive or communi- cated in good time the measures which it claims to have adopted with regard to the requisite programmes, it has not commu- nicated amended and updated programmes 54. It follows from the foregoing that, by under that paragraph, nor could it have communicating belatedly, as it itself admits, done so. the measures which it adopted and, a fortiori, by not communicating the pro- grammes required by Article 6 of the Directive, the French Republic has, on that basis alone, failed to fulfil its obligations under Article 6.

25 — See Case C-347/97, cited above in footnote 8, paragraph 17. As I pointed out in my Opinion in that case (points 46, 47 and 48), the communication of programmes has direct 53. That obligation is a substantive obliga- and important consequences for the effective implementa- tion of the material obligations flowing from Article 6 of tion and not a formal one in that, first, it is the Directive. The Directive was adopted under Arti- cle 100a of the EC Treaty and is therefore intended to in itself a specific obligation expressly bring about approximation of provisions laid down by provided for by the second paragraph of law, regulation or administrative action in Member States which have a direct impact on the establishment and Article 6 of the Directive and, secondly, it functioning of the internal market. In particular, as stated in the preamble to the Directive, the approximation of allows the Commission to monitor national laws is necessary because 'any disparity between the laws measures. Moreover, as the Court held in or administrative measures adopted by the Member States on the disposal of batteries and accumulators could create Commission v Belgium, 'it is important that barriers to trade and distort competition in the Community and may thereby have a direct impact on the establishment the Member States under such an obliga- and functioning of the internal market'. The monitoring of programmes, national measures and other action by the tion notify the Commission of the measures national authorities in the sphere covered by the Directive which they intend to adopt or carry out in is therefore particularly important. For such monitoring to be possible, not only must the programmes required by the sectors concerned. It is only in the light Article 6 of the Directive be drawn up, but they must also be communicated to the Commission. Accordingly, the of such specific figures and timetables that specific obligations which flow from Article 6 of the the Commission can then assess whether Directive cannot be regarded as satisfied until the action taken at national level is brought to the notice of the the measures envisaged in pursuance of the Commission. Directive actually contribute to implement- 26 — See points 28 and 46 of my Opinion.

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

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