C-230/00

OPINION OF MR MISCHO — CASE C-230/00

OPINION OF ADVOCATE GENERAL MISCHO delivered on 8 March 2001 1

1. By this action the Commission seeks a obligations under Article 249 EC and the declaration that, by failing to adopt the above directives. laws, regulations and administrative provi- sions necessary to transpose in full Article 9 of Council Directive 75/442/EEC of 15 July 1975 on waste, 2 as amended by Council Directive 91/156/EEC of 18 March 1991, 3 Articles 3, 4, 5 and 7 of Council Directive 76/464/EEC of 4 May 1976 on pollution 2. In this regard, the Commission states, caused by certain dangerous substances without being contradicted by the defen- discharged into the aquatic environment dant, that the legislation applicable in both of the Community, 4Articles 3, 4, 5, 7 and the Flemish and Walloon regions uses a 10 of Council Directive 80/68/EEC of system of tacit authorisation in respect of 17 December 1979 on the protection of the abovementioned directives. groundwater against pollution caused by certain dangerous substances,5 Articles 3, 4, 9 and 10 of Council Directive 84/360/ EEC of 28 June 1984 on the combating of air pollution from industrial plants, 6 and Articles 2 and 8 of Council Directive 3. That means that in both regions, if the 85/337/EEC of 27 June 1985 on the assess- competent authority fails to respond to a ment of the effects of certain public and request for authorisation within a certain private projects on the environment,7 the time, the request is deemed to be refused. Kingdom of Belgium has failed to fulfil its On the other hand, in case of appeal, authorisation is deemed to be granted in the absence of a response from the compe- tent authority within the prescribed time.

12. It points, instead, to the efforts cur- rently being made by the relevant autho- rities in order to remedy the situation. 8. They all have the purpose, amongst However, these efforts have not yet borne other things, of regulating authorisation fruit. for various activities affecting the environ- ment. Also, they all have in common, firstly, the setting out of detailed require- ments as to the information which must be 13. It must be pointed out, however, that it included in such authorisation and sec- is settled case-law 10 that whether there has ondly, the guarantees to be made use of by been a failure to fulfil obligations must be the competent authority, which is required determined at the expiry of the time-limit to determine, by means of various inquiries, set by the reasoned opinion. In this case, certain information before it is entitled to the time-limit was two months from noti- grant authorisation. fication of the reasoned opinion, which took place by letter dated 18 December 1998.

9. I am of the view that the requirement of an express measure laid down by the case- 14. It follows that the failure to fulfil law I have cited applies to all of these obligations is made out and it is appro- directives. priate to grant the Commission's applica- tion. 8 —Case C-360/87 Commission v Italy [1991] ECU 1-791, paragraph 30. 9 — Case C-131/88 Commission v Germany |1991] ECR I-825, 10 — See, for example. Case C-200/88 Commission v Greece paragraph 38. [1990] ECR I-4299.

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OPINION OF MR MISCHO — CASE C-230/00

Conclusion

15. In those circumstances I propose that the Court should declare that: