C-423/00

OPINION OF MR RUIZ-JARABO — CASE C-423/00

OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 11 October 2001 1

1. The European Commission is seeking a that the operators of certain industrial declaration from the Court of Justice that establishments take all measures necessary the Kingdom of Belgium has failed to fulfil to prevent major accidents and to limit its obligation to transpose into national law their consequences (Article 5(1)), draw up Council Directive 96/82/EC of 9 December prevention policies (Article 7(1)), produce 1996 on the control of major-accident safety reports (Article 9(1)), and draw up hazards involving dangerous substances emergency plans (Article 11(1)). ('the directive'). 2

4. Article 24 grants Member States a maxi- mum period of 24 months, from the date on which the directive entered into force, 3 I — Legal framework to adopt the laws, regulations and adminis- trative provisions necessary to comply with the directive and to inform the Commission thereof. In accordance with Article 25, the directive entered into force on 3 February 1997, so that the period in question there- 2. According to Article 1, the directive is fore expired on the same date in 1999. aimed at the prevention of major accidents which involve dangerous substances, and the limitation of their consequences for man and the environment, with a view to ensuring high levels of protection through- out the Community in a consistent and effective manner.

I I — Facts

3. More specifically, the directive imposes 5. On 3 February 1999, the European on Member States the obligation to ensure Commission had still not been informed

6. In those circumstances, the Commission concluded that the defendant Member State 8. The Walloon authorities enclosed with had not brought the requisite measures into their reply a copy of the cooperation force, in breach of its obligations. Accord- agreement between the federal government ingly, by letter of 20 August 1999, the and the three Belgian regional authorities Commission gave the Belgian Government on the control of major-accident hazards two months' notice to submit observations. involving dangerous substances ('the coop- The Belgian Government replied to the eration agreement'). That agreement had Commission on 27 October 1999, enclos- been approved by a decree on which the ing an order which had been adopted by Walloon Parliament had voted on the Government on 4 March 1999, and a 8 December 1999 and which, according Decree-Law which had been adopted by to the reply, would be published in the the Brussels-Capital Regional Council on Moniteur belge soon, whereupon the Com- 22 April 1999. 4The aforementioned provi- mission would be notified immediately. sions listed, pursuant to Article 4 of the The Walloon Government also informed Decree-Law of 5 June 1997, 5the Class IA, the Commission that, on 11 March 1999, it IB, II and III installations for which an adopted the decree on environmental auth- 'environmental authorisation' is required. orisations, the implementing provisions of which were in an advanced stage of draft- ing which meant, in the Walloon Govern- ment's opinion, that the block of legislation on environmental protection could reason- ably be expected to be in force by January 2001.

10. At a bilateral meeting, held on 8 September 2000, the Belgian Govern- ment, despite its earlier view on the trans- position of the directive in the Walloon 13. The Commission is seeking a declar- Region, stated that it considered the coop- ation from the Court of Justice that the eration agreement to be sufficient to ensure Kingdom of Belgium has infringed the that effect would be given to the directive in directive in that it failed to bring into force that region. the measures necessary to transpose the directive into national law, or, at least, to inform the Commission of its implemen- tation.

11. Finally, by letter of 26 September 2000, the Belgian authorities communicated to the Commission the Decree of the Flemish 14. In the defence, the Kingdom of Belgium Parliament of 17 July 2000, which states that, pursuant to paragraph 3(b) of approved the cooperation agreement. Article 92A of the Special Law of 8 August 1980 on institutional reforms, 6in order to transpose the directive, the federal govern- ment and the three regions were required to enter into a cooperation agreement, signed on 21 June 1999 and published in the Moniteur belge on 12 October 2000. 7

12. As the Commission was not satisfied by 6 — Moniteur belge, 15 August 1980, p. 9434. the information which it had received, it 7 — Page 34451.

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COMMISSION v BELGIUM

15. Furthermore, in accordance with the 18. On 19 June 2001, the Belgian Govern- first paragraph of Article 92A, that agree- ment's agent lodged at the Court a copy of ment would not take full effect until it had the Law of 22 May 2001 1 1approving the been approved by all the parties, which the cooperation agreement, together with a Walloon Region did on 16 December letter addressed to the Commission to the 1999. 8 the Flemish Region on 17 July effect that the action should be withdrawn 2000. 9and the Brussels-Capital Region on in the light of the aforementioned law. 20 July 2000. 10

IV — The infringement that when the period prescribed in the reasoned opinion expired, 12 that agree- ment had not yet entered into force so that, on that date, the defendant was undeniably in breach of its obligations 21. The defendant Member State has and the Court must so hold since any altered to some extent the line of its defence subsequent changes are irrelevant and, like in the judicial stage vis-à-vis the arguments the special institutional features of the it put forward in the pre-litigation stage. In Kingdom of Belgium, and the ensuing the pre-ligation stage, in addition to the difficulties in bringing the cooperation cooperation agreement, it cited certain agreement into force, cannot be taken into regional measures relating to activities for account. 13 which an 'environmental authorisation' is required. In these proceedings, however, the Kingdom of Belgium's defence has centred exclusively on the agreement between the federai government and the three regions, without any reference to the aforementioned measures, thereby impli- citly admitting that the agreement is not sufficient to fulfil the requirements of the directive, which is precisely the Commis- sion's claim. The case before the Court of Justice is restricted to the main head of V — Costs claim relating only to the cooperation agreement.

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