C-139/00

2. The Commission has also asked the 1 — Original language: French. Court to order the Kingdom of Spain to 2 — OJ 1989 L 163, p. 32; hereinafter also referred to as 'the Directive'. pay the costs.

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I — Legal framework comply with this Directive before 1 December 1990'.

3. Council Directive 84/360/EEC of 28 June 1984 on the combating of air 6. Article 2 of Directive 89/369 provides: pollution from industrial plants 3 lays down measures and procedures aimed at prevent- ing and/or reducing air pollution caused by industrial plants within the European Com- munity. 'Without prejudice to Article 4 of Directive 84/360/EEC, Member States shall take the necessary measures to ensure that the con- ditions laid down in Articles 3 to 10 of this Directive are attached to the prior auth- orisation required to operate all new municipal waste incineration plants under 4. Directive 89/369 sets out the obligations Article 3 of Directive 84/360/EEC and arising out of Directive 84/360 with regard under Article 8 of Directive 75/442/EEC.'4 to new municipal waste incineration plants, establishing rules governing the authori- sation, equipping and operation of such plants. 7. Article 6 of Directive 89/369 states:

'1. The following measurements shall be 5. Under Article 1(5) of Directive 89/369, taken at new municipal waste incineration '"new municipal waste incineration plant" plants: means a municipal waste incineration plant for which authorisation to operate is granted as from the date specified in Article 12(1)'. (a) concentrations of certain substances in the combustion gases:

— concentrations of the heavy m e t a l s r e f e r r e d to in (ii) the residence time of the combus- Article 3(1), of HF, and of tion gases at the minimum tem- SO2, in the case of plants of a perature of 850 °C specified in nominal capacity equal to, or Article 4(1) must be the subject of greater than, 1 tonne/h, appropriate verifications at least once when the incineration plant is first brought into service and under the most unfavourable oper- ating conditions envisaged.

•— concentrations of total dust, of HCl, of CO and of oxygen in the case of plants of a nominal capacity of less than 1 tonne/h,

3. All the measurement results shall be recorded, processed and presented in an appropriate fashion so that the competent authorities can verify compliance with the — concentrations of organic com- conditions laid down, in accordance with pounds (expressed as total car- procedures to be decided upon by those bon) in general; authorities.

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4. The sampling and measurement pro- mum temperature is maintained at all times cedures used to satisfy the obligations during these operations and as long as the imposed by paragraph 1 and the location waste is in the combustion chamber.' of the sampling or measurement points shall require the prior approval of the competent authorities.

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1995. It is apparent from the documents in Commission asked the Spanish authorities the case that on 26 June 1995 the Com- to let it have their observations on the mission addressed a letter of formal notice complainants' statements. to the Kingdom of Spain without taking account of the Spanish authorities' reply of 19 December 1994.

15. On 20 February 1997, the Spanish authorities sent the Commission a letter, which failed however to respond to the complainants' assertions. They provided 12. On 20 November 1995, at a meeting the Commission with the integrated waste held in Madrid (Spain), the Commission management plan for the Canary Islands. examined the issues with the Spanish auth- Consequently, by letter of 4 April 1997, the orities. In the course of that meeting, the Commission again asked the Spanish auth- Spanish authorities indicated that, with the orities to submit their observations. entry into service of the new incineration plant at Mendo on the island of La Palma, it had been possible to close four of the five furnaces which were the subject of the complaint. They indicated further that, in the absence of alternative solutions, the 16. By letter of 16 June 1997, the Spanish incineration plant at Barlovento was still in authorities informed the Commission that operation, while pointing out that the the integrated waste management plan had Canary Islands authorities had given a been approved by the Island Council of La commitment to resolve the problem in the Palma on 4 April 1997. course of 1996.

22. By letter of 28 May 1999, the Com- mission asked the Spanish authorities to supply it with a copy of the integrated 20. By letter of 6 August 1998, the Spanish waste management plan for the island of La authorities asked for the time-limit for Palma, to confirm the timetable for closure replying to the reasoned opinion to be of the incineration furnaces and to provide extended by one month. The extension was it with information on the measures taken granted by the Commission, the new time- to comply with a decision of the Ministerial limit for replying to the reasoned opinion Department of Trade and Industry. thus becoming 24 October 1998. The first reply to the reasoned opinion is to be found in a letter of 20 November 1998, to which is attached a note from the Island Council of La Palma supplying information on the progress of work on the integrated waste management plan for the island and on the 23. In reply to that letter, the Spanish various measures taken concerning waste authorities dispatched to the Commission, collection and treatment. on 21 June 1999, a copy of the integrated waste management plan for the island of La Palma, approved on 2 October 1998, together with a preliminary study by the University of La Laguna, dated 10 June 1999, setting out a proposed work plan for implementing measures to monitor emissions and immissions from the incin- 21. By letter of 3 February 1999, the eration furnaces. Spanish authorities sent the Commission additional information, that information being, according to the Commission, as follows. Firstly, the incineration plants at Mazo and Barlovento had started to oper- ate although they had not received the authorisation required for them to be 24. Concluding from the information fur- brought into service. Secondly, the Dinoze nished by the Kingdom of Spain that the furnaces used in these two incineration infringements referred to in the reasoned plants had not been designed in accordance opinion had not been made good, the with Community rules concerning new Commission decided to bring the present municipal waste incineration plants and action.

28. The plants had first of all been granted, on 24 April 1990, a 'land-use authorisa- tion' by the General Directorate of Urban Planning of the Ministerial Department of Arguments of the parties Land-Use Planning of the Government of the Canary Islands. The facilities were declared in that authorisation to be in the public interest and it was also stated that 26. The Spanish Government maintains the final plans would have to conform with that throughout the pre-litigation phase the technical descriptions to be attached to the Commission recognised that an auth- the authorisation. Secondly, the plants had orisation had been granted, stating in this undergone the compulsory formality of connection that 'the authorisation granted definition of the activity and assessment for the installation of the furnaces did not of any corrective measures that might be lay down the operating conditions required required, performed by the Island Council by the Directive'.5 Now, however, the of La Palma on 9 January 1992. Commission is asserting before the Court that no authorisation had been given for the furnaces installed at Mazo and Barlo- vento to be brought into service.

29. The Spanish Government maintains therefore that the Commission has amended its complaint concerning 27. The Spanish Government contends that Article 2 of Directive 89/369, contrary to that assertion is contrary to the position the Court's settled case-law to the effect taken by the Commission during the pre- that the Commission's reasoned opinion litigation phase and represents, moreover, a and its application must be based on the misinterpretation of the report of 30 No- same complaints as those stated in the letter vember 1998 drawn up by the Ministerial of formal notice initiating the pre-litigation Department of Trade and Industry of the procedure. Since the complaint as formu- Government of the Canary Islands and sent lated in the pre-litigation phase and the

complaint set out in the application do not subject-matter of the action and that of the correspond, the present action is thus pre-litigation procedure should tally is inadmissible. justified on the ground that the possibility given to the State concerned to submit its observations constitutes an essential guar- antee intended by the Treaty, adherence to 30. According to the Commission, the which is an essential formal requirement of requirement that its reasoned opinion and the procedure under Article 226 EC. its application to the Court be based on the same complaints cannot be carried so far as to mean that in every case the statement of the subject-matter of the dispute in the reasoned opinion and the forms of order sought in the application must be exactly 34. If the Spanish Government itself recog- the same. nised in its reply to the reasoned opinion that the three incinerator furnaces on the island of La Palma were brought into service without authorisation to operate having previously been granted, it can 31. The Commission maintains that the hardly accuse the Commission of infringing case-law in question, concerning cases the rights of the defence. where the subject-matter has been stated more narrowly in the application than in the preceding phase, has been extended to cover cases where, at the application or reply stage, the forms of order sought are reformulated to take account of the argu- 35. The Commission maintains, therefore, ments submitted by the Member State in that as its application simply reformulates the reply to the reasoned opinion or in the its complaints concerning failure to fulfil defence. obligations to take account of the argu- ments put forward by the Spanish Govern- ment in its reply to the reasoned opinion, that application did not widen the subject- 32. It maintains that the said case-law matter of the dispute. applies here, since account has been taken in the application of the arguments sub- mitted by the Spanish authorities in their reply of 3 February 1999 to the reasoned opinion. According to the Commission, it can be seen from the report that although 36. The Spanish Government submits in its an authorisation to operate should have rejoinder that to accept the Commission's been granted, this had not been done. argument would amount to infringing the rights of the defence. The Commission has not, in its view, simply reformulated the subject-matter of the dispute but rather has submitted a different complaint, based on a 33. The Commission adds that, under misinterpretation by the Commission of the settled case-law, the requirement that the report.

41. This change in the way the complaint is presented should not be taken as an exten- sion or alteration of the subject-matter of the dispute but as a reformulation designed 38. According to the same case-law how- to adjust the Commission's response in the ever, that requirement cannot be carried so light of the information given in the reply far as to mean that in every case the to the reasoned opinion. statement of complaints in the letter of formal notice, the operative part of the reasoned opinion and the form of order sought in the application must be exactly the same, provided that the subject-matter of the proceedings has not been extended or altered but simply limited. 8 42. It should be stressed in this connection that the complaint formulated by the Commission in the letters of formal notice, the reasoned opinion and the application concerns the Kingdom of Spain's failure to fulfil its obligations under Article 2 of the 39. I take the view that while, in the Directive. present case, the subject-matter of the dispute has not been limited, it has not been extended or altered either.

43. While the Commission may have inter- preted information subsequently received, and in particular the Spanish Government's 40. It is true that, during the pre-litigation reply of 3 February 1999 to the reasoned procedure, the infringement with which the opinion, as constituting an acknowledge- Commission charges the Kingdom of Spain ment by that government that no auth- orisation had been granted, the fact remains that the aim pursued through its 7 —See, in particular, Case C-11/95 Commission v Belgium complaints, namely compliance with the [1996] ECR I-4115, paragraph 73. obligations under Article 2 of the Directive, 8 — See, in particular, Case C-191/95 Commission v Germany remains essentially unchanged. [1998] ECR I-5449, paragraph 56.

47. Nor has the Kingdom of Spain been deprived of the ability to comply with its obligations. Whether the infringement at issue is an absence of authorisation or the Prior authorisation to operate existence of improper authorisation, the

9 — Sec, in particular, the order in Case C-266/94 Commission v 51. The Commission recalls that, under SPAIN [1995] ECR I-I975, paragraph 16. Article 2 of the Directive, new incineration

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plants require 'prior authorisation... to 55. The Commission considers that the operate', which is subject to the conditions authorisation of 24 April 1990 is not a laid down in Articles 3 to 10 of that prior authorisation to operate, within the directive. meaning of Article 2 of the Directive, but rather an authorisation associated with land-use planning, the purpose of which is to grant the right, not to operate, but to build furnaces.

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tive, prior authorisation to operate was 61. On the contrary, it is stated there that already required under Article 3 of Direc- the authorisation granted does not relieve tive 84/360 and Article 8 of Directive the beneficiary of the obligation to obtain a 75/442. The new feature introduced by municipal licence. According to the Spanish Article 2 is that henceforth the Member Government's statements at the hearing, States are required to ensure that the the municipal licence is the measure cor- conditions laid down in the Directive are responding, in Spanish law, to the auth- attached to that authorisation. orisation required under Directives 84/360 and 75/442. It maintains that the only basic authorisation that is genuinely compulsory for the installation of pollution-causing industrial facilities is the municipal auth- orisation to install, open and operate facilities granted under Reglamento 59. To comply with the provisions of 2414/1961 de Actividades Molestas, Insa- Directives 84/360 and 75/442 the prior lubres, Nocivas y Peligrosas (regulation on authorisation to operate must, essentially, activities that constitute a nuisance or are be granted by a competent authority health-endangering, harmful or dangerous) responsible for ensuring, in particular, that of 30 November 1961. 12 measures have been taken to counter the risk of air pollution.

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63. There can be no doubt therefore that from municipal waste incineration plants) the authorisations granted in 1990 do not of 11 September 1992. 14 constitute prior authorisations to operate, within the meaning of Directives 84/360 and 75/442, and that the municipal licence on the strength of which the furnaces in question were brought into service in January and May 1992 should have been 66. The Commission does not share that subject to the body of rules established by interpretation. In its view it would reduce the Directive. the content of Article 2 of the Directive to an obligation on the part of the Member States to incorporate the Directive in their legal systems, without entailing that non- application of Article 2 in a specific case such as that at issue in the present proceed- Compliance with the Directive of the prior ings could be regarded as a breach of authorisation to operate obligations.

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tection of the environment provided for in conditions laid down in Articles 3 to 10 of the 11th recital in the preamble to the the Directive are attached to the prior Directive. It adds that incorporation of the authorisation required to operate all new Directive in the Spanish legal system took municipal waste incineration plants. place after the dates of the authorisations concerned.

72. In maintaining that the obligation aris- ing out of this provision of the Directive 69. The two series of arguments developed has been fulfilled through the adoption of by the Spanish Government need to be Decree 1088/1992 transposing that provi- examined in turn. sion, the Spanish Government asserts that it has adopted a national legal framework designed to ensure that the Directive is fully effective, without however establishing that the obligation concerned had in fact been fulfilled in the case of the incineration plants at issue. 70. On the first point, concerning trans- position of the Directive by means of Decree 1088/1992, it should be remem- bered that, under the third paragraph of Article 249 EC, directives are binding, as to the result to be achieved, upon each 73. Furthermore, even supposing that the Member State to which they are addressed. transposition of the Directive by means of That obligation involves, for each Member Decree 1088/1992 complies with Article 2 State to which a directive is addressed, the of the Directive, it has to be pointed out adoption, within the framework of its that that decree was adopted on 11 Sep- national legal system, of all the measures tember 1992, that is to say after the necessary to ensure that the directive is time-limit for transposition of the Directive fully effective, in accordance with the and after the months of January and May objective which it pursues. 15 1992, when the furnaces were brought into service.

77. It will be remembered that, according 81. There is again no reference in the to the Commission, the competent auth- authorisations of 9 January 1992 to any orities did not take periodic measurements, such requirements on which entry into in the new waste incineration plants, in service of the furnaces would be dependent. respect of the parameters prescribed by The Spanish Government has not moreover Article 6 of the Directive; nor did they give disputed that operation of the plants was prior authorisation for the sampling and affected by this shortcoming. measurement procedures, determine the location of the measurement points con- cerned or lay down any measurement programme. 82. This complaint must therefore be upheld.

78. Examination of the content of the authorisations of 9 January 1992 has revealed nothing to indicate that they were 83. That disregard of the obligations laid granted subject to the carrying-out of such down in Articles 6 and 7 of the Directive

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leads me to conclude that the authori- to the Court's settled case-law that the sations granted on 9 January 1992 lack the question whether a Member State has essential features which they must, under failed to fulfil its obligations must be Article 2 of the Directive, exhibit in order determined by reference to the situation to qualify as 'prior authorisations to oper- prevailing at the end of the period laid ate'. It follows that, in authorising oper- down in the reasoned opinion, and sub- ation of the furnaces in question without sequent changes cannot be taken into ensuring compliance with each of the con- account by the Court. 16 ditions laid down in Article 2 of the Directive, the Kingdom of Spain has failed to fulfil its obligations under that provision.

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Conclusion

90. In the light of the foregoing considerations, I therefore propose that the Court should declare that:

(1) by failing to take the measures necessary in order to ensure, with regard to the three incineration furnaces located at Mazo and Barlovento on the island of La Palma (Spain), the application of:

— Article 2 of Council Directive 89/369/EEC of 8 June 1989 on the prevention of air pollution from new municipal waste incineration plants, inasmuch as the three furnaces are operating without authorisation having been issued in accordance with that article;

the Kingdom of Spain has failed to fulfil its obligations under the said provisions of Council Directive 89/369.

(2) the Spanish Government is ordered to pay the costs.

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