C-46/01
ECLI:EU:C:2001:672
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OPINION OF MR LÉGER — CASE C-46/01
OPINION OF ADVOCATE GENERAL LÉGER delivered on 6 December 2001 1
1. By application dated 22 January 2001, Member States shall ensure that inventories the Commission of the European Commu- are compiled of equipment with PCB vol- nities brought an action, pursuant to umes of more than 5 dm3, and shall send Article 226 EC, seeking a declaration that, summaries of such inventories to the Com- by failing to draw up and forward to the mission at the latest three years after the Commission, by 16 September 1999, the adoption of this Directive. In the case of plans, outlines and summary inventories power capacitors, the threshold of 5 dm referred to in Articles 11 and 4(1) of shall be understood as including all the Council Directive 96/59/EC of 16 Septem- separate elements of a combined set.' ber 1996 on the disposal of polychlorinated biphenyls 2 and polychlorinated terphenyls (PCB/PCT), 3the Italian Republic has failed to fulfil its obligations under those provi- sions. 4. Article 11 of the directive provides:
2. Under Article 1 of the directive, '[t]he purpose of this Directive is to approximate 'Member States shall, within three years of the laws of the Member States on the the adoption of this Directive, draw up: controlled disposal of PCBs, the decon- tamination or disposal of equipment con- taining PCBs and/or the disposal of used PCBs in order to eliminate them completely on the basis of the provisions of this Directive'. — plans for the decontamination and/or disposal of inventoried equipment and the PCBs contained therein;
3. Article 4(1) of the directive provides that '[i]n order to comply with Article 3, — outlines for the collection and sub- sequent disposal of equipment which is not subject to inventory in accordance 1 — Original language: French. 2 — Hereinafter 'PCBs'. with Article 4(1), as referred to in 3 — OJ 1996 L 243, p. 31, 'the directive'. Article 6(3).
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2. Member States shall communicate these inventories referred to in Articles 4(1) and plans and outlines to the Commission 11 of the directive, Italy failed to fulfil its without delay.' obligations under those provisions.
5. By letter of 10 April 2000, the Commis- 9. The Italian Government argues firstly sion, pursuant to Article 226 EC, notified that the directive was transposed by legis- the Italian Republic that, by failing to draw lative Decree No 209 of 22 May 1999. 4 up and forward to the Commission the Article 3 of the decree requires holders of plans, outlines and summary inventories equipment with PCB volumes of more than referred to in Articles 4(1) and 11 of the 5 dm 3 , including power capacitors, to directive, it had failed to fulfil its obli- report biennially. The first deadline there- gations under those provisions. fore was set at 31 December 1999 at the latest. The reports constitute the basis for drawing up the inventories and summaries referred to in Article 4 of the directive. The Italian Government acknowledges that, to date, the requirement to communicate has not been complied with. 6. The Commission therefore called on the Italian Government to submit its observa- tions within a period of two months from the date of receipt of the letter, drawing its attention to the fact that it would deliver a reasoned opinion if no observation was submitted to it. 10. Secondly, it submits that the delay in relation to the periods laid down in the directive for forward documentation to the Commission, referred to in Article 11 of the directive, is due to the difficulty in drawing up a full inventory of existing PCBs in the absence of standardised 7. The Commission, not having received methods of establishing analytically the any response to the letter, delivered a presence of PCBs. reasoned opinion on 3 August 2000. The opinion received no response.
11. In that connection, the Italian Govern- ment points out that the standardised 8. In its action, the Commission submits methods of analysis, which are essential that, by failing to draw up and forward to it, by 16 September 1999 at the latest, the appropriate plans, outlines and summary 4 — GURI No 151 of 30 June 1999, p. 23.
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for uniform determination of the presence level for establishing the presence of PCBs. of substances falling within the Community On that point, it notes that, under definition of a PCB, within the meaning of Article 10(a) of the directive, before the Article 2 of the directive, were adopted Commission fixes the reference methods of only in Commission Decision 2001/68/EC measurement to determine the PCB content of 16 January 2001 establishing two refer- of contaminated materials, measurements ence methods of measurement for PCBs were effected by referring to reference pursuant to Article 10(a) of Council Direc- methods in force either in Italy or the tive 96/59/EC. 5 United States of America. Therefore, as a result of existing methods, the absence of a European reference method would never have prevented the Member States from drawing up the documentation required by the directive. According to the Commis- 12. The Italian Government adds that, sion, the Italian Government was therefore pending the adoption of Decision 2001/68, in a position to do so. the Ministry of the Environment none the less instructed an organisation to draw up an inventory of the equipment referred to in the obligation to communicate and of the PCBs contained in it. Therefore, it considers that it is in a position to comply with the provisions of Article 4 of the directive as soon as possible and requests 15. It should be noted that the Italian the Commission to abandon these proceed- Government admits that it has not com- ings. plied with the obligation to forward to the Commission the summary inventories referred to in Article 4(1) of the directive or the plans for the decontamination and/or disposal of inventoried equipment and the PCBs contained therein and outlines for the 13. The Commission replies by emphasis- collection and subsequent disposal of ing that the Italian Government admits that equipment which is not subject to inven- it has failed to fulfil the obligations in tories referred to in Article 11(1) of the Articles 4(1) and 11 of the directive. directive.
14. The Commission considers that the Italian Government cannot rely, in order to justify the alleged failure to fulfil its obligations, on the fact that, as at 16. As regards the question whether the 16 September 1999, there was not yet in delay can be justified, as the Italian Gov- existence a reference method at European ernment maintains, by the absence of standardised methods allowing analyses to be carried out uniformly, those methods 5 — OJ 2001 L 23, p. 31. having been adopted only recently by the
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Commission, it should be observed that, to await a European standard to be under Article 10(a) of the directive, adopted on this. measurements effected before the establish- ment of reference methods remained valid.
18. The plea in law raised by the Italian Government is thus not capable of exemp- ting it from the obligation to draw up and forward to it the appropriate plans, out- 17. The directive therefore allowed lines and summary inventories required by Member States to carry out the necessary the directive. The failure to fulfil obli- analyses for the performance of tasks gations alleged by the Commission is there- required of them by it, without the need fore proved.
Conclusion
19. Consequently, I propose that the Court should find that:
(1) By failing to draw up the appropriate plans, outlines and summary inventories referred to in Articles 4(1) and 11 of Council Directive 96/59/EC of 16 September 1996 on the disposal of polychlorinated biphenyls and polychlorinated terphenyls, and in failing to forward, by 16 September 1999 at the latest, those documents to the Commission, the Italian Republic has failed to fulfil its obligations under those provisions.
(2) The Italian Republic shall pay the costs.
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