C-215/98

COMMISSION V GREECE

OPINION OF ADVOCATE GENERAL JACOBS delivered on 29 April 1999 *

1. In this case the Commission seeks a 4. The relevant provisions of the Directive declaration pursuant to Article 169 of the are as follows: EC Treaty that Greece has failed properly to implement Council Directive 91/157/ EEC of 18 March 1991 on batteries and accumulators containing certain dangerous substances. 1 'Article 6

Member States shall draw up programmes in order to achieve the following objectives:

2. In particular the Commission alleges — reduction of the heavy-metal content of that Greece has failed to implement Arti- batteries and accumulators, cle 6 of the Directive.

— promotion of marketing of batteries and accumulators containing smaller quantities of dangerous substances and/or less polluting substances,

The programmes shall be reviewed and updated regularly, at least every four years, in the light in particular of technical progress and of the economic and environ- mental situation. Amended programmes 8. Following another exchange of letters shall be communicated to the Commission without satisfactory result, the Commission in good time.' sent Greece a reasoned opinion in April 1997 and invited Greece to take the necessary measures to comply with that opinion within two months of its notifica- tion.

5. Annex I sets out the types of batteries and accumulators covered by the Directive by reference to certain amounts of mercury, cadmium, and lead. 9. The Greek Government sent a reply in December 1997 indicating that the relevant ministry had commissioned a study to be undertaken in respect of the programmes 6. In November 1995 the Commission sent provided for by Article 6. Because the Greece a letter setting out its view that the Commission considered that establishment programmes provided for by Article 6 had of those programmes was still at a pre- not yet been established. The Commission liminary stage, it decided to bring proceed- asserted that it had not received any ings pursuant to Article 169. I - 4916

COMMISSION V GREECE

15. In my view the application of the Commission is well founded. Pursuant to Article 189 of the Treaty, a directive binds 11. Greece accordingly considers that it has Member States as to the result to be made and will continue to make all possible achieved. In this instance the study and efforts to realise the programmes provided proposed legislation put forth by Greece for by Article 6. are insufficient to achieve the actual result sought by Article 6, namely the implemen- tation of certain programmes concerning batteries and accumulators. At most they provide details as to certain programmes 12. In its reply, the Commission denies whose implementation may occur in the neither the efforts undertaken by Greece to future. advance the programmes provided for by Article 6 nor the contribution of the study in question to the planning and implemen- tation of those programmes. None the less, the study only goes so far as to reach certain conclusions and proposals with a view to creating a framework for the 16. Moreover, the fact that Greece has administration of such programmes. made and may be continuing to make all possible efforts to rectify its non-compli- ance does not afford it a defence. An action based on Article 169 of the Treaty requires only an objective finding of a failure to fulfil obligations and not proof of any 13. The Commission accordingly considers inertia or opposition on the part of the that the programmes have not yet been Member State concerned. 2 established, and that the study in question can only be considered as a preliminary stage toward the realisation of the pro- 2 — Case 301/81 Commission v Belgium [1983] ECR 467, grammes provided for by Article 6. paragraph 8 of the judgment.

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