C-392/99

OPINION OF MRS STIX-HACKL — CASE C-392/99

OPINION OF ADVOCATE GENERAL STIX-HACKL delivered on 7 March 2002 1

I — Introduction I I — Legal Framework

A — Community Law

1. In the present proceedings the Commis- sion seeks a declaration that the Portuguese Republic has failed to fulfil its obligations under Articles 6(2), 8(2)(a), 13 and 17 of Council Directive 75/439/EEC of 16 June 1975 on the disposal of waste oils, as Directive 75/439 amended by Council Directive 87/101/EEC of 22 December 1986, 2the first paragraph of Article 10 EC and the third paragraph of Article 249 EC. 3. Directive 75/439 governs the disposal of waste oils, its aim being to protect the environment from the harmful effects of discharging, depositing and treating waste oils. 3In order to achieve this aim Member States were obliged, under the original version of Articles 2 to 4 of that directive, to take the necessary measures to ensure the safe collection and disposal of waste oils and to ensure that, as far as possible, 2. The Commission's claims relate to the their disposal was carried out by recycling. permit procedure applicable to certain undertakings which dispose of waste oils, the conditions governing the disposal of residues from the combustion of waste oils, the inspection procedure for undertakings which dispose of waste oils and the duty to convey information to the Commission. 4. Directive 75/439 was amended by Direc- tive 87/101, the principal aim of which was

1 — Original language: German. 2 — OJ 1987 L 42, p. 43. 3 — See the third recital in the preamble to the directive.

'1. In order to comply with the measures taken pursuant to Article 4, any undertak- ing which disposes of waste oils must obtain a permit. Where necessary, this permit shall be granted after examination of the installations.

8. Article 13 of Directive 75/439, as amended by Directive 87/101, provides: 2. Without prejudice to the requirements laid down by national and Community provisions with a purpose other than that '1. The undertakings referred to in Article 6 of this Directive, a permit may be granted shall be inspected periodically by the to undertakings which regenerate waste oils Member States, particularly as regards their or use waste oils as fuel only where the compliance with the conditions of their competent authority has satisfied itself that permits.

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2. The competent authorities shall examine 1 1 . Council Directive 9 1 / 6 8 9 / E E C of trends in the state of technical development 12 December 1991 on hazardous w a s t e 5 and/or of the environment with a view to repealed and replaced Directive 78/319 revising, where necessary, permits granted with effect from 27 June 1995. 6 to undertakings in accordance with this Directive.'

12. Article 9 of Directive 78/319 provided 9. Article 17 of Directive 7 5 / 4 3 9 , as as follows: amended by Directive 87/101, reads as follows:

— the precautions to be taken;

— the disposal site(s); 15. Article 9 of Directive 75/442, as amended by Directive 91/156, reads as follows:

— the methods of disposal. ' 1 . For the purposes of implementing Articles 4, 5 and 7, any establishment or undertaking which carries out the oper- ations specified in Annex II A must obtain a This permit may also lay down the specific permit from the competent authority information to be made available at the referred to in Article 6. request of the competent authorities.

3. Permits may include conditions and Such permit shall cover: obligations. They may be granted for a specified period and may be renewed.'

— the types and quantities of waste,

13. Article 1(2) of Directive 91/689 pro- vides as follows:

— Portaria No 314/94 of 24 May 1994 (hereinafter 'Implementing Order No 314/94') on the content of appli- cations for the establishment of indus- 16. Provisions relating to waste oils: trial plants.

— Decreto-Lei No 88/91 of 23 February 1991 (hereinafter 'Decree-Law No 88/91'), by which, pursuant to Article 1, Directive 87/101 is trans- 18. Provisions on waste: posed into domestic law;

9 — The provisions of national law are set out below with a — Decreto-Lei No 239/97 of 9 September reference to their content. 1997 (hereinafter 'Decree-Law I - 3380

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No 239/97') on the carriage, storage, III — Facts, pre-litigation procedure and treatment, recovery and disposal of court proceedings waste;

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there had been an infringement of the as fuel and that the best available Treaty, it sent a reasoned opinion to the technology not entailing excessive Portuguese Republic on 27 November 1997 cost is used where waste oils are alleging various infringements of Directive regenerated or used as fuel; 75/439, as amended by Directive 87/101, and requiring the Portuguese Republic to take the necessary measures within a period of t w o m o n t h s — t h a t is t o say by 27 January 1998. The Portuguese Govern- ment's letter in reply was dated 25 February 1998. — by failing to lay down that residues from the combustion of waste oils are to be disposed of in accordance w i t h A r t i c l e 9 of D i r e c t i v e 78/319/EEC and, from 27 June 24. As the Commission had come to the 1995, in accordance with Article 9 conclusion that the Portuguese Republic of Directive 75/442/EEC, which, as had failed to comply with its obligations, it amended by Directive 91/156/EEC brought proceedings against the Portuguese and p u r s u a n t to Directive Republic before the Court of Justice under 91/689/EEC, replaced Article 9 of Article 226 EC, by a pleading dated Directive 78/319/EEC; 8 October 1999 which was lodged at the Court Registry on 13 October 1999.

25. The Commission claims that the Court should: — by failing to provide for periodical inspection of undertakings which regenerate waste oils or use them as fuel, or for examination of trends in the state of technical development and/or of the environ- 1. declare that: ment with a view to revising, where necessary, permits granted to those undertakings;

2. order the Portuguese Republic to pay the costs. 27. The Commission argues that it is mandatory for the grant of a permit by the competent national authority to under- takings which use waste oils as fuel to be contingent on health protection being ensured. For reasons of legal certainty, the relevant rules on permits must be clear and IV — Consideration of the Commission's precise so that the undertakings concerned heads of claim are made aware that health protection measures are a precondition of their per- mits.

A — First head of claim

28. The Commission then states that it is not, however, clear to itwhich of the 26. In its first head of claim the Commis- sion alleges that the Portuguese Republic 10 — In contrast to its reasoned opinion, the Commission is has failed to adopt provisions which ensure objecting to the rules on permits for undertakings which regenerate waste oils only with regard to the recjnireincnt that undertakings which regenerate waste of use oí the best technology available whereas it is oils or use them as fuel will be granted a objecting to the rules on permits lor undertakings which use waste oils as fuel with regard to ensuring hoth use of permit only if the criteria stipulated in the best technology availahle and the protection of health.

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various provisions mentioned by the Por- 32. In the opinion of the Portuguese Gov- tuguese Government are intended to apply ernment, the essential point is whether an to permits for undertakings which use application for a permit to use waste oils as waste oils as fuel. fuel does actually include — without its being necessary for a specific description to be expressly prescribed — the elements necessary to enable the competent auth- ority to determine whether health protec- tion is assured. 29. Part VI of the Waste Oils Regulation Annexed to Implementing Order No 240/92 merely prohibits the use of waste oils as fuel in the food industry and is therefore insufficient.

12 — Articles 4 and 5 of Decree-Law No 109/91 on the pursuit 11 — See in particular the judgment in Case C-96/95 Commis- of industrial activity. sion v Germany [1997] ECR I-1653. 13 — Article 9 of Decree-Law No 109/91.

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permit. Finally, the rules contained in its 37. The Portuguese Government relies first industrial law provide that appropriate of all, with regard to undertakings which safeguard measures must be taken by the regenerate waste oils, essentially on the authorities immediately in the event of a provisions contained in the Portuguese serious health risk. 14 Waste Oils Regulation: this provides, first, that the installation plan which has to be attached to an application for a permit must include a detailed description of the industrial activity concerned and a specifi- cation of the technical processes used, 16 thereby enabling the permit authority to 35. The Portuguese Government also refers establish whether there is indeed an inten- to a provision which requires a risk assess- tion to make use of the best technology ment to be submitted 15 and to Implement- available. Secondly, the application file also ing Order No 961/98, which makes it has to be referred to the Institute for Waste necessary to obtain a permit from the for an opinion. 17This institute is obliged to Environment Minister before storing, pro- have regard to the technology criterion. cessing, recovering or disposing of waste. The objective here is to avoid or reduce the An application for such a permit must also harmfulness of waste, in particular by contain elements which ensure that appro- recycling and by adapting manufacturing priate health protection measures are processes using 'appropriate technology'. 18 taken.

39. Under Article 6(1) of Directive 75/439, as amended by Directive 8 7 / 1 0 1 , any undertaking that disposes of waste oils must obtain a permit which, where necess- ary, is granted after examination of the 42. The implementation of Article 6(2) installations. In the case of undertakings must now first be examined with regard which regenerate waste oils or use them as to the health protection precondition for a fuel, Article 6(2) imposes special conditions permit. for the permit: permits may fundamentally be granted to those undertakings 'only where the competent authority has satisfied itself that all appropriate environmental and health protection measures have been taken, including use of the best technology available, where the cost is not excessive'.

4 3 . The provisions of industrial law cited by the Portuguese Government in this respect contain a general obligation to have regard in particular to human safety and avert danger to people during the course of industrial activity. However, this does not 40. This means that the permit procedure ensure that permits are granted only to under national law must be designed in undertakings which have taken all appro- such a way that an undertaking which priate health protection measures. regenerates waste oils or uses them as fuel may obtain a permit from the competent authority only if it has taken the necessary measures. It is therefore a material precon- dition for a permit.

44. Furthermore, whilst the measures of protection provided for under Portuguese industrial law do allow the authorities to react to hazardous situations which arise 4 1 . National provisions which require an during the course of an undertaking's application for a permit to contain appro- operations, they do not affect the permit priate documents and information do allow procedure which precedes the commence- the authority to determine whether or not ment of operations by an undertaking.

46. Finally, as far as Implementing Order No 961/98 is concerned, it is sufficient to state that, in accordance with settled case- law of the Court of Justice, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that Member State at the end of the period laid 49. The new permit application rules con- down in the reasoned opinion. 2 1 Portugal cerning a risk assessment and — for does not deny that Implementing Order u n d e r t a k i n g s which regenerate waste N o 961/98 was not a d o p t e d until oils — installation plans do certainly again 10 November 1998 — after the end of provide essential information for examin- the period prescribed, which expired on ation of an application, but they do not in 27 January 1998 — so this order is not themselves ensure that use of the 'best relevant to the present proceedings, as the technology available' actually constitutes a Commission has correctly stated. precondition for a permit.

47. None of the provisions cited by Por- tugal do therefore lay down, in accordance 5 0 . N o r can such a precondition be with Article 6(2) of Directive 75/439, as inferred from the right of the Institute for amended by Directive 87/101, that it is an Waste to give an opinion on an application essential condition for the grant of a permit for a permit, especially as it has not been claimed that such an opinion is binding and the objectives only make general mention 21 — S e e , amongst other authorities, the judgment in Case of 'appropriate technology' and not of 'the C-435/99 Commission v Portugal| 2 0 0 0 | ECR I-11179, paragraph 16. best technology available'.

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Directive 91/156, for the first time in its recovery of waste oils require a permit from application originating the proceedings. the Director-General for Environmental Quality. 23

57. None of the provisions cited by Por- tugal in the pre-litigation procedure cor- 61. Since 1997, moreover, under Decree- responded to implementation of Article 9 Law No 239/97 the storage, treatment, of Directive 75/442, as amended by Direc- recovery and disposal of waste have tive 91/156, that is to say to the disposal of required prior authorisation 24 which, as residues from the combustion of waste oils. far as residues from the combustion of waste oils are concerned, is granted by the Environment Minister. 25 Under Imple- menting Order No 961/98 26 an application for such a permit must include documents relating in particular to technical provisions 58. Implementing Order No 961/98 would, affecting the plant, the safety precautions on the other hand, constitute appropriate to be taken, the disposal location and the implementation, but it did not enter into treatment method used. force until after the expiry of the period laid down in the reasoned opinion and therefore cannot be taken into account.

2. Analysis

59. The Portuguese Government contests the admissibility of this complaint on the part of the Commission on the grounds that implementation of Directive 75/442, as (a) The permissibility of the reference to amended by Directive 91/156, was not the Article 9 of Directive 75/442, as amended subject of the reasoned opinion. These are by Directive 91/156, being made for the 'new matters of fact' by which Portugal's first time in the Commission's application rights of defence are infringed.

67. The Commission's view that the refer- ence in Article 8(2)(a) must now be con- strued as a reference to Article 9 of Direc- t i v e 7 5 / 4 4 2 , as a m e n d e d by Directive 91/156, can therefore be endorsed 64. As is apparent from the recitals in its in this respect. p r e a m b l e , Directive 9 1 / 6 8 9 r e p l a c e d Directive 78/319; it did so with effect from the repeal of the latter on 27 June 1 9 9 5 . 2 7 It would therefore seem justifiable in this respect henceforth to construe the reference t o D i r e c t i v e 7 8 / 3 1 9 c o n t a i n e d in 68. The issue which remains to be exam- Article 8(2)(a) of Directive 75/439, as ined, however, is the scope of the subject- amended by Directive 87/101, as a refer- matter of the dispute in the reasoned ence to Directive 91/689. opinion and in the application lodged by the Commission.

65. In so far as Directive 91/689 does not 69. It is established case-law of the Court contain any specific provisions, and in of Justice that the letter of formal notice accordance with the reservation clause and the reasoned opinion delimit the sub- ject-matter of the dispute, so that it cannot thereafter be extended. Otherwise the 2 7 — Article 11 of Directive 91/689, as amended by Directive Member State concerned would be denied 94/31. an opportunity to submit its observations,

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which constitutes an essential guarantee 72. The judgment in Commission v Italy intended by the Treaty, adherence to which concerned the amendment of a directive is an essential formal requirement of the during the pre-litigation procedure by procedure for a declaration that a Member which m a n y of its p r o v i s i o n s were State has failed to fulfil its obligations tightened up. The Court ruled that a under the Treaty. Consequently, the rea- complaint of non-implementation based soned opinion and the proceedings brought on a directive in its amended version (not by the Commission must be based on the the version referred to in the reasoned same complaints as those set out in the opinion) is admissible only in so far as it- letter of formal notice. 2 8 concerns obligations which were already in existence under the original version referred to in the reasoned opinion. 30

71. In the present case, the pre-litigation procedure under Article 226 EC was initi- ated by the Commission's letter of formal notice dated 4 July 1994. During the course 74. Consideration should rather be given to of the pre-litigation procedure, Article 9 of the extent to which the obligations which Directive 78/319, to which reference is apply under Article 8(2)(a) of Directive made in Article 8(2) of Directive 75/439, 75/439, as amended by Directive 87/101, to as amended by Directive 87/101, and on the disposal of residues from the combus- which the Commission relied both in its tion of waste oils, and which are now letter of formal notice and in its reasoned derived — according to the Commission's opinion, was repealed, and replaced by application — from Article 9 of Directive Article 9 of Directive 75/442, as amended 75/442, as amended by Directive 91/156, by Directive 91/156. already applied under Article 9 of Directive 78/319. 28 — See the judgment in Case C-191/95 Commission v Germany [1998] ECR I-5449, paragraph 55. 29 —Judgment in Case C-365/97 (cited in rontnnre 22), para- 30 — See Commission vItaly, cited above, paragraphs 36 and graph 36; emphasis added. 39.

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78. Since, so far as concerns the possibility of refusing a permit under Article 9(2) of 77. Like Article 9(1) of Directive 75/442, Directive 75/442, as amended by Directive as amended by Directive 91/156, therefore, 91/156, the implementation obligation Article 9(1) and (2) of Directive 78/319 owed by the Member State concerned has does not contain any preconditions for the been extended to this extent compared with grant of permits but, in addition to the the obligation under Article 9(3) of Direc- obligation to obtain a permit, sets out tive 78/319 referred to in the reasoned individual matters which such permits opinion, an infringement in this respect is should include. N o power to refuse a not to be examined in the present proceed- permit if the preconditions for a permit ings.

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(b) Infringement of Article 8(2)(a)

80. As the complaint is partially inadmiss- ible, the following analysis is correspond- 83. Decree-Law No 88/91 does not contain ingly restricted. any appropriate implementation measures as Article 2 thereof, which relates to residues from the combustion of waste oils, does not provide for a permit procedure for the disposal of such residues but only imposes a prohibition on the tipping and 81. It follows from Article 8(2)(a) of Direc- landfilling of waste oils and residues result- t i v e 7 5 / 4 3 9 as a m e n d e d by ing from their treatment, whilst Article 4

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does contain a permit procedure but one from 27 June 1995, in conjunction with which covers only waste oils and not Article 9 of Directive 75/442 as amended residues from their combustion. by Directive 91/156, which are to be adjudicated upon here have not been appropriately implemented by Decree-Law N o 239/97 either.

84. Articles 8 a n d 9 of D e c r e e - L a w N o 239/97 merely provide that the disposal 87. The Commission's second head of of residues from the combustion of waste claim is therefore well founded to the oils requires a prior permit from the restricted extent described and inadmissible Environment Minister as they are 'waste'. as to the remainder.

90. So far as concerns the annual schedule 94. It further submits that industrial law of periodical inspections of refuse process- gives third parties the right to lodge a ing plants which is mentioned by the complaint, 35 which would be followed by Portuguese Government, the Commission appropriate steps, in particular by inspec- did concede at the hearing that this was not tions. 3 6 just a purely administrative practice but it still doubts whether Article 13(1) has been properly implemented.

95. The Portuguese Government also slates that the Office for Environmental Inspec- tion and Supervision, which is responsible 91. The Portuguese Government first cites for inspecting industrial installations and provisions contained in various decree-laws other sources of pollution, is obliged inter regulating the overseeing of compliance alia to carry out both regular inspections in with the decree-laws in question. 32 accordance with an annual schedule to be approved by the minister and ad hoc inspections, the outcome of which must be notified to the minister with responsi- bility for supervision in the sector. 37

92. Furthermore, the Institute for Waste's duties include implementing national pol- 33 — Articles 2(1) and 13(2) of Decree-Law No 236/97. 34 — Articles 19 to 21 of Decree-Law No 239/97. 35 — Article 7 of Decree-Law No 109/91 in conjunction with Article 8 of Implementing Order No 961/98. 32 — Article 5 of Decree-Law No 88/91, Article 12 of Decree- 36 — Article 7(2) of Implementing Order No 9 6 1 / 9 8 . Law No 109/91 and Article 18 of Decree-Law No 239/97. 37 — Article 6(4) of Decree-Law No 189/93.

97. Article 13(2) requires Member States to keep developments in the technical field under permanent examination so that if, for example, more modern plant or equip- 100. Furthermore, if there should be a ment should come onto the market, a serious risk to public health or the environ- permit which has been granted to an ment, the Environment or Health Minister undertaking may be amended accordingly. is obliged to take interim protective meas- The authorities must also examine environ- ures; rights to exercise general control and mental developments so that, if the envi- take appropriate protective measures are ronmental situation should deteriorate in also afforded under industrial law. 38 the vicinity of an undertaking, its permit can be amended accordingly. Reliance on inspection procedures alone is not sufficient to ensure fulfilment of the obligation to examine trends in the state of technical development and the environment.

101. Finally, various legal provisions pre- scribe penalties which may be imposed where infringements (of those provisions) take place. 39

98. In the opinion of the Portuguese Gov- 38 — Article 19 of Decree-Law No 239/97 and Articles 12 and ernment there will be constant adaptation 13 of Decree-Law No 109/91. 39 — Article 16 of Decree-Law No 109/91, Articles 20(1) and to trends in the state of technical develop- 8(1) of Decree-Law No 239/97.

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2. Analysis concerning the scope of the Institute for Waste's duties are inadequate for the same reasons.

40 — See the seventh and eighth recitals. 41 — See above, point 46.

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does not follow therefrom that provision of technical development and/or of the has been made for periodical inspection of environment. undertakings which dispose of waste oils or t h a t such inspections are specifically directed at compliance with the conditions of permits. In so far as the Portuguese Government has also made reference to Decree-Law N o 549/99 with regard to the function of the Directorate-General for the Environment, it must be stated that the period laid down in the reasoned opinion 109. It is necessary to dismiss at the outset expired before that decree-law entered into the general argument put forward by the force. 42 Portuguese Government that the necessary adaptation is ensured by continuing change in national legal provisions, particularly those implementing Community provi- sions. First, there is an obligation to implement Community legislation irrespec- tive of Article 13(2) and, second, this 107. It can be seen from the foregoing that provision is specifically concerned with a Article 13(1) of Directive 7 5 / 4 3 9 , as permanent ability to revise permits inas- amended by Directive 87/101, was not much as relevant developments could make properly transposed into Portuguese law. it necessary for the competent authorities to make individual adjustments to permits.

114. When considered in this light, the time which has elapsed since the enactment 1. Arguments of the parties between February 1991 and April 1993 of the national provisions intended, according to the Portuguese view, to implement Directive 7 5 / 4 3 9 , as amended by Directive 87/101, is in any event sufficient to enable the experience and knowledge 112. It is the view of the Commission that resulting from the application of those Portugal has infringed Article 17 of Direc- provisions to be assembled and conveyed. tive 75/439, as amended by Directive 87/101, by failing to convey to it infor- mation concerning technical expertise and the experience gained and results obtained through the application of measures taken pursuant to the directive. 115. The first report submitted by the Portuguese Government lists the national provisions implementing the directive in question and describes them but does not contain the information to which Article 17 113. The Commission argues with regard refers. The same applies to its second to the Portuguese Government's assertion report; although certain elements of the that it has not acquired any technical second report could be regarded as infor- knowledge that there is still a duty to mation within the meaning of that article, convey information even if a Member State they were in any event not conveyed to the should be of the opinion that it does not Commission until after the period laid have any technical knowledge, because this down in the reasoned opinion had expired. too constitutes information which is worth conveying to it. Otherwise it would fall to a Member State to decide whether it is necessary to convey information, which would frustrate the intention of Article 17 and deprive the Commission of control over compliance with the duty to convey 116. The Portuguese Government states in information. The Commission states, with its defence that it has not acquired any regard to the fact that the directive does not technical knowledge and that the intervals

120. Under Article 17, moreover, infor- 2. Analysis mation on the experience gained and results obtained is to be conveyed in addition to information relating to technical expertise and it would seem improbable once a certain amount of time has passed that no technical knowledge has been acquired nor experience gained or results obtained 118. The Commission is correct in stating through the application of measures taken that the fulfilment of an obligation to pursuant to the directive. convey information, as laid down in Article 17 of Directive 75/439, as amended by Directive 87/101, cannot depend upon whether the Member State considers that it has knowledge which is worth conveying. A Member State could otherwise argue that it has not acquired any knowledge, a claim 121. The argument that the directive does which would probably be difficult to refute not specify the frequency with which in most cases as a subjective assessment is information is to be conveyed is not a involved. Furthermore, the Commission persuasive one either. Between the date on could not actually gauge whether a which the first Portuguese measure Member State which has not conveyed designed to implement the directive, information is in breach of its obligation Decree-Law No 88/91 of 23 February to convey that information or is merely of 1991, entered into force and the expiry of the opinion that it does not have any the period laid down in the reasoned knowledge worth conveying. This would opinion, a period of almost seven years

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elapsed without any information being supposed to be reports under Article 18 43 conveyed in accordance with Article 17. of Directive 75/439, as amended by This means that, without it being necessary Directive 87/101. Implementation of to consider in greater detail the issue of the Article 18 is not the subject-matter of the frequency of reports, there obviously can- present Treaty infringement proceedings, not be any question of Portugal having however, so that there is also no need to fulfilled its obligation to convey infor- consider the extent to which the obligations mation periodically. under that article were fulfilled by the reports cited by the Portuguese Govern- ment.

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VI — Conclusion

127. In light of the foregoing, I recommend that the Court should:

(1) declare that:

—by failing to adopt provisions by which the competent authority, before granting a permit to undertakings which regenerate waste oils or use them as fuel, may satisfy itself that health is appropriately protected where waste oils are used as fuel and that the best available technology not entailing excessive cost is used where waste oils are regenerated or used as fuel;

(2) dismiss the remainder of the application;

(3) order the Portuguese Republic to pay the costs.

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