C-60/01

OPINION OF MR ALBER — CASE C-60/01

O P I N I O N O F ADVOCATE GENERAL ALBER delivered on 31 January 2002 1

I — Introduction I I — Relevant legislation

2. Directives 89/369 and 89/429, which supplement Council Directive 84/360/EEC of 28 June 1984 on the combating of air pollution from industrial plants, 4lay down specific standards applicable respectively to new and existing plants for the incineration of municipal waste. New plants within the meaning of Directive 89/369 are plants granted authorisation on or after 1 De- 1. In these proceedings for failure to fulfil cember 1990, as provided by Article 1(5) in obligations, the Commission claims that conjunction with Article 12 of the direc- the French Republic failed to adopt all the tive. All plants granted authorisation pre- measures necessary to ensure that all waste viously are covered by Directive 89/429. incineration plants operated in France met the requirements laid down in Council Directive 89/369/EEC of 8 June 1989 on the prevention of air pollution from new municipal waste incineration plants 2and in Council Directive 89/429/EEC of 21 June 1989 on the reduction of air pollution from existing municipal waste 3. Article 4(1) of Directive 89/369 pro- incineration plants 3 upon expiry of the vides: period prescribed for their implementation. Although France concedes that the require- ments laid down in the directives have not in fact been met at some plants, it still considers that it has adopted all the legis- lative and administrative measures necess- ary under the directives. 'All new municipal waste incineration plants must be designed, equipped and 1 — Original language: German. 2 — OJ 1989 L 163, p. 32. 3 — OJ 1989 L 203, p. 50. 4 — OJ 1984 L 188, p. 20.

1. (a) By 1 December 1996, existing municipal waste-incineration plants with a capacity of at least six tonnes per hour must comply with the following combus- tion conditions: the gases resulting from the combustion of the waste must be raised, In accordance with Article 13 of Directive after the last injection of combustion air 84/360/EEC, Member States shall take and even under the most unfavourable appropriate measures to ensure that the conditions, to a temperature of [at] least

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850 °C for at least two seconds in the with a capacity of more than six tonnes of presence of at least 6% oxygen. However, waste per hour did not meet the require- in the event of major technical difficulties, ments laid down in the ministerial order. 6 the provisions concerning the two-second period shall be implemented at the latest when the furnaces are replaced.

7. The Commission received a complaint regarding the waste incineration plant at Maubeuge and registered it under Number 99/4014. 10. On 28 April 1999 the Commission consequently sent to the French Republic a letter of formal notice alleging that it had failed to adopt the measures necessary to 8. The Commission also learnt of a survey ensure that all waste incineration plants in of 1 December 1996 compiled by the French Ministry of Regional Planning and the Environment which showed that 6 — The French Government explained in its defence that that list related to existing plants alone. approximately 40 waste incineration plants 7 — I-TEQ/m3 stands for 'international toxicity equivalents per cubic metre of exhaust gas'. For the determination of toxicity equivalents in dioxins and furans, see the third sentence of Article 7(2) of, and Annex I to, Council Direc- tive 94/67/EC of 16 December 1994 on the incineration of 5 — JORF, 8 March 1991, p. 3330. hazardous waste (OJ 1994 L 365, p. 34).

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France were being operated in accordance it had made in the letter of formal notice with the conditions laid down by Directives and setting a two-month time-limit for 89/369 and 89/429. implementing the necessary measures.

13. By letter of 21 October 1999 the Com- 15. The Commission brought an action on mission sent to the French Republic a 12 February 2001. It claims that the Court reasoned opinion reiterating the complaint should:

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1. declare that, by failing to adopt all the 2. order the Commission to pay the costs. necessary and appropriate measures to ensure either that all incineration plants currently operating in France are operated in accordance with the combustion conditions laid down by Directives 89/369 and 89/429 or that they ceased to operate by the due date, 17. A hearing has not been held. namely 1 December 1990 as regards new plants and 1 December 1996 as regards existing plants, the French Republic has failed to fulfil its obli- gations under Article 4(1) of Directive 89/369, Articles 2(a) and 4 of Directive 89/429 and the third paragraph of Article 249 EC; V — Arguments of the parties

18. The Commission submits that the French Republic has failed to fulfil its obligations under Directives 89/369 and 89/429 and under Article 249 EC. 2. order the French Republic to pay the Article 4(1) of Directive 89/369 and costs. Article 2 ( a ) , in c o n j u n c t i o n with Article 4(1), of Directive 89/429 imposed minimum standards governing the combus- tion process in waste incineration plants which had to be met from 1 December 1990 as regards new plants and from 1 December 1996 as regards existing plants with a capacity of at least six tonnes of waste per hour.

16. The French Republic claims that the Court should:

22. The French Government contends that it has properly transposed the directives into national law and has done everything to implement the provisions. 25. However, from 1996 the ministry responsible for environmental protection implemented a 'rigorous programme' to ensure that the requirements laid down in the ministerial order were met. As a result, 23. It explains that the plants covered by the number of plants operating unlawfully the directives are classified plants for the fell from 40 in 1996 to seven at the end of purposes of Law No 76-663 of 19 July 1999 and to two when the rejoinder was 1976. 8 Article 23 of that Law (now Article lodged in August 2001. In view of the time L.514-1 of the Code de l'environnement required to refit the plants and the volume (Environment Code)) provided for adminis- of waste, it had not been possible, however, trative penalties in the event of a failure to to shut down the waste incineration plants comply with the legislative provisions. The concerned with immediate effect. prefect may thus specify a period of time 9 — In this connection the French Government cites the judg- ment in Case 68/88 Commission v Greece [1989] ECR 8 — JORF, 20 July 1976, p. 4320. 2965.

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26. The wording of Article 2 of Directive plant at Maubeuge will have continued for 89/429 10 gives rise only to an obligation on six years if the work is completed in 2002. the Member States to ensure that the plants Only the plant at Le Havre will not meet are subject to specific rules and that those the standards required in the foreseeable rules are observed. future. All in all, there can therefore be no question of a protracted period or signifi- cant deterioration in the environment.

30. The French Government also maintains that the Commission is claiming that it has exceeded the limit value of 10 ng I-TEQ/m3 for dioxins although that limit value has 28. The French Government states that not even been prescribed by the directive. four years elapsed between 1 December That quantity of dioxins is admittedly a 1996 and the expiry of the period laid recognised precautionary value. However, down in the reasoned opinion. 12 Upon the Commission has not furnished any expiry of the period, only seven plants still scientific evidence to show that increased did not meet the requirements laid down in dioxin emissions necessarily indicate that the directive. Such non-compliance of the the combustion conditions laid down in the directives are not being met. Dioxin emissions currently still exceed the above- 10 — The French version of the first paragraph of Article 2 of Directive 89/429 reads: '... les États membres prennent les mentioned value at three plants (Dijon, mesures appropriées pour que l'exploitation des instal- C h a m b é r y and B e n e s s e - M a r e m n e ) lations existantes d'incinération des déchets municipaux soit soumise ... au plus tard le 1er décembre 1996, aux although no infringement of the directives mêmes conditions que celles imposées aux installations d'incinération nouvelles ...'. has been recorded. 11 — Commission v Italy [19991 ECR I-7773, paragraphs 67 and 68. 12 — In fact only three, not four, years elapsed between 1 December 1996 and the expiry in December 1999 of 13 — The Commission relies on the judgment in Case C-384/97 that period. Commission v Greece [2000] ECR I-3823, paragraph 35.

36. In the form of order sought by it, the VI — Legal assessment Commission seeks rather a declaration that the French Republic has failed to adopt all the measures necessary and appropriate in order to ensure either that all incineration plants currently operating in France are A — Subject-matter of the action 14 — See inter alia Case C-127/99 Commission v Italy [2001] ECR I-8305, paragraph 38, and Case C-207/00 Commis- sion v Italy [2001] ECR I-4571, paragraph 27. 33. The Commission's application is 15 — Settled case-law; see, for example, Case C-365/97 Com- mission v Italy, cited in footnote 11, ECR I-5688, para- drafted in very general terms. Furthermore, graph 23.

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operated in accordance with the combus- the negative wording of the form of order tion conditions laid down in Directives sought, the Commission effectively shifts 89/369 and 89/429 or that they ceased to the burden of proof onto the Member State. operate by the due date.

38. The French authorities admittedly ought to have at their disposal, on the 17 — The fact that the French authorities themselves apparently accept that there is a relationship between compliance with basis of the communications concerning combustion conditions and dioxin emissions shows that that inference is not sheer invention. Accordingly, it is m e a s u r e m e n t r e s u l t s p u r s u a n t to stated on the internet site of the Ministry of Regional Planning and the Environment: Article 6(3) of Directive 89/369, the data 'Ainsi, pour les usines d'incinération, le respect des con- necessary for presenting such a case. How- ditions de combustion imposées par la réglementation assure une réduction des émissions des dioxines ou de leurs ever, under the general rules governing précurseurs... Les valeurs mesurées en France pour les proceedings for failure to fulfil obligations, incinérateurs d'ordures ménagères de grosse capacité, en conditions normales de fonctionnement, et respectant les it is first for the Commission to adduce conditions d'exploitation fixées par l'arrêté ministériel du 25 janvier 1991 sont comprises entre 1 et 10 ng/m (les evidence of the infringement 16 and not for installations non conformes ont ou avaient des rejets de l'ordre de 10 à 100 ng/m3) ...' the Member State to adduce evidence (http://www.environnement.gouv.fr/actua/cominfos/dos- showing that there is no infringement. By dir/DIRPPR/dioxine/infodiox.htm) A relationship is also established in the directives between compliance with specific combustion conditions and dioxin emissions. Under Article 4(3) of Directive 89/369 and the corresponding provision of Directive 89/429, 16 —See Case C-147/00 Commission v france [2001] ECR Member States may authorise combustion conditions I-2387, paragraph 27, and Case C-214/98 Commission v different from those laid down in Article 4(1) if equivalent Greece [2000] ECR I-9601, paragraph 42. emission levels for dioxins and furans are obtained.

40. After the French Government had con- 43. The application still requires clarifica- ceded in its response to the reasoned tion on a second point. The Commission opinion that the combustion conditions at seeks a declaration by the Court regarding seven plants did not in any event meet the all plants 'currently' operating ('actuelle- requirements, in the application the Com- ment en fonctionnement') in France. In this mission no longer had to infer that the regard, the application adopted the word- combustion conditions were not complied ing of the operative part of the reasoned with from the fact that the limit value had opinion. In the context of the reasoned been exceeded in order to prove the failure opinion the wording was in fact accurate. to fulfil obligations. Accordingly, in para- However, it is the date of expiry of the graph 33 of the application, in the section period specified in the reasoned opinion headed 'Law', it stated that it could be which is relevant for the Court when it concluded from the French Government's determines whether or not there has been a response that numerous plants had been failure to fulfil obligations. 18 operating in breach of the combustion conditions laid down in the directives and at least seven were continuing to operate notwithstanding their non-compliance with those conditions. 44. If the form of order sought by the Commission were taken literally, the Court would have to take as the basis for its deliberations the date on which the action 41. Even if one wished to regard the was brought or even the date of its own exceeding of the value of 10 ng I-TEQ/m3 decision. At the time of its decision at any as an independent complaint on the part of rate, the Court will not, however, have any the Commission, the latter did not retain up-to-date information as to whether or the complaint as such in the application. not all the plants have been refitted. The Although in setting out the facts the Com- Commission would, furthermore, be unsuc- mission repeated the inference that it had cessful in its action if the failure to fulfil made in the pre-litigation procedure linking obligations has been remedied after the end dioxin emissions to the combustion con- of the period laid down. ditions, it did not in its legal arguments conclude from that inference that there was any containing wider failure to fulfil obli- gations. The complaint made by the Com- mission in the application now relates only to the fact that seven plants have been 45. The form of order sought cannot there- operating in breach of the combustion fore be taken literally, but must be inter- conditions. Regarded in that light, the preted in accordance with the objective subject-matter is sufficiently specific. actually pursued by the Commission. The action can sensibly only be seeking to obtain a declaration by the Court in respect of the time at which the two-month period from service of the reasoned opinion 42. At the same time, it is apparent from expired. these observations that the Commission did not in its reply withdraw part of its action, as maintained by the French Government. 18 — See the references in ECR I-5689, footnote 14.

47. The French Government concedes that (1) Adequate account and sufficient proof at the material time seven waste inciner- of the infringement of Directives 89/369 ation plants were in any event operating and 89/429 without complying with the combustion conditions laid down in the directives. However, it presents two arguments in defence against the complaint that it has failed to fulfil its obligations under the directives and under the third paragraph of 50. The Commission claims that the French Article 249 EC. Republic has failed to ensure observance of the combustion rules laid down in Directive 89/369 and Directive 89/429 when new plants should have been operating in accordance with those rules from 1 De- 48. Its first argument is that the Commis- cember 1990 and existing plants from sion complained of a failure to observe a 1 December 1996. limit value for dioxin emissions of 10 ng I-TEQ/m which had not been laid down in the directives. It is true that the directives do not set any such limit value. However, as already established, the Commission's complaint in fact concerns the failure to comply with the combustion conditions, 51. The French Government has admitted not the fact that that emission value was that seven plants did not meet the require- exceeded. 19 ments at the material time. However, it has not been established whether these were new plants within the meaning of Directive 89/369, or existing plants to which the deadline specified in Article 4(1)(a) of 49. The French Republic states secondly Directive 89/429 applies. It is consequently that the infringement on the part of the open to question whether the Commission has set out and proved adequately the allegation that both directives have been 19 — See above, point 40. infringed.

(2) Responsibility of the French Republic for the failure on the part of the waste (a) None of the plants run directly or incineration plants' operators to observe indirectly by the State the rules

57. Admittedly, this issue arises only where the party directly responsible, disregarding regulatory measures, is not actually subject 54. The Treaty infringement is attributable to direct State influence. Should, on the to the French Republic if it is founded on a other hand, the plants be operated by local breach of its obligations. or regional authorities themselves, the

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59. The Court has on a number of occa- sions been concerned with the extent to which a Member State can be held respon- 62. The Court set out a similar line of sible for actions by private individuals or reasoning in Commission v Italy 26 referred situations which conflict with the require- to by the French Government. In that case ments of Community law.

22 — Commission v France, cited in footnote 21. 20 — Case C-236/99 Commission v Belgium [2000] ECR 23 — Commission v France, cited in footnote 21, paragraph 32. I-5657, paragraphs 22 and 23 with further references. 24 — Commission v France, cited in footnote 21, paragraphs 33 21 — See Case 249/81 Commission v Ireland [1982] ECR 4005, 'Buy Irish', patagraph 15, and the Opinion of Advocate to 35. General Lenz in Case C-265/95 Commission v France 25 — Opinion in Case C-265/95, cited in footnote 21, point 45. [1997] ECR I-6959, point 9. 26 — Cited in ECR I-5688, footnote 11.

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the Commission complained inter alia that 64. In those cases the Court therefore the Italian authorities had taken no action concluded that there had been a failure to against fly-tipping in the San Rocco valley fulfil obligations from the fact that the and that Italy had thus infringed Council Member State had exercised improperly the Directive 75/442/EEC of 15 July 1975 on discretion conferred on it as regards the waste 27 in its original version and as measures to be adopted. amended by Directive 91/156/EEC. 28The Member States were required by those provisions to adopt the measures necessary to ensure that waste is disposed of without endangering human health and without harming the environment.

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67. In the abovementioned judgments the 69. In order to find a failure to fulfil Court held that there was a failure to fulfil obligations attributable to the Member obligations attributable to the Member State, it was sufficient in those judgments State where the quality of individual bath- for the Member State to have failed to ing waters did not meet the required achieve a result, namely the attainment of a standards after expiry of the period pre- certain environmental state. In other scribed. The Member States' argument that words, an 'obligation de résultat' was owed they had done everything to ensure com- by the Member States. Unlike the first set of pliance with the values was rejected by the cases, the second set was of course con- Court as follows: cerned with the achievement of very spe- cific quantitative objectives. In addition, under the Bathing Water Directive Member States were granted a period of ten years to improve water quality.

'The Directive ... requires the Member States to ensure that certain results are achieved and, apart from the derogations 70. It is therefore to be concluded from provided for, does not allow them to rely previous case-law that the question on particular circumstances to justify a whether Member States are required only failure to fulfil that obligation ...' 33 to take action, the choice of measures to be taken being at their discretion, or whether they must ensure that a certain result is achieved depends on the specific form that the Member States' obligations take.

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72. It follows that directives typically sation is required for new municipal waste impose on Member States the very require- incineration plants. ment to achieve a result. In order to attain uniform conditions in the common market it is often insufficient for there to be the same legal framework in all Member States; instead, the provisions also have to be enforced in order to create in practice 75. Under Article 13 of Directive 84/360 the uniform conditions sought. It is some- Member States are under a general obli- what unusual for a directive to require only gation progressively to adapt pollutant- that Member States take action without the emitting industrial plants to current tech- simultaneous achievement of a certain nology. Directives 89/369 and 89/429 give result. tangible form to that obligation by laying down specific requirements for municipal waste incineration plants, derogations from which are permissible only in very limited circumstances (second sentence of Article 4(1)(a) and Article 4(3) of Directive 89/429 and Article 4(3) of Directive 89/369).

73. As is clear from the preambles to Directives 89/369 and 89/429, those direc- tives form part of an overall Community 76. In that connection the second para- strategy to protect the environment and to graph of Article 2 of Directive 89/429 reduce air pollution. They are connected makes it clear that the matter does not with various action programmes and other end on the adoption of the relevant provi- legal instruments. Municipal waste incin- sions, as could be assumed if the first eration plants were already dealt with in paragraph of that provision were read in Directive 75/442 on waste and Directive isolation. On the contrary, the national 84/360 on the combating of air pollution authorities must see to it that the provisions from industrial plants before the directives are actually implemented. at issue in these proceedings were adopted.

81. On those grounds Directives 89/369 78. Account should also be taken of the and 89/429 are to be interpreted as requi- fact that the number of plants concerned is ring Member States in all circumstances to limited, in the present case some 70 plants ensure compliance with the combustion of such capacity in France. Under the conditions in plants which are overseen by relevant Community legislation and the their authorities. In the event of non-com- national implementing provisions, authori- pliance with those conditions, they cannot sation is required for the construction and as a rule plead as a defence that they have operation of those plants. They are subject adopted the measures necessary to prompt to regular inspection by the authorities of the operators of the plant to comply with the Member States. It is open to the the conditions. authorities in particular to shut down plants if the statutory conditions governing their operation are not met.

strates that it was objectively impossible to which did not meet the conditions of the meet the objectives laid down in the direc- directives should not have been allowed to tive within the specified period. The Court begin operating in the first place. did not in any event entirely rule out such a possibility in the judgments on the Direc- tive concerning the quality of bathing water. 38 It has also examined in a different context the extent to which force majeure 85. The authorities did not order that the may constitute an absolute obstacle to the plants at issue in this case be shut down. fulfilment of obligations under a direc- On that issue the French Government has tive. 39 submitted that such a measure was imposs- ible on account of the volume of waste generated. However, it has not explained why it would not have been possible, in the event of individual plants being shut down 83. The French Government has listed a and until such time as they could be series of measures which it has taken since refitted, temporarily to transport the waste 1996 for rendering the waste incineration to neighbouring plants or to dispose of it by plants compliant. In some cases the auth- landfill. orities, as the ultimate measure, ordered that deposits be made of the sums required for modernisation ('consignation'). How- ever, that submission is by no means sufficient to demonstrate that it was objec- (e) In the alternative, examination of the tively impossible to refit within the pre- measures adopted by the French authorities scribed period, or shut down, plants oper- ating in breach of the directives.

88. The French Republic cannot counter that argument by relying on the fact that only few plants were still failing to meet the 90. Furthermore, the fact that the compet- requirements of the directives on expiry of ent authorities, in spite of their knowing the period specified in the reasoned that the plants were in breach of the opinion. In view of the risks to human directives, for no apparent reason took health arising as a result of dioxins being specific action against the plant operators released from each individual emitting only after considerable delay signifies that plant into the environment and therefore they exercised their discretion improperly. into the food chain, the total number of It is apparent from the French Govern- plants operating in breach of the directives ment's communication of 11 February is immaterial to determining whether there 2000 that the operators of the plants at has been a failure to fulfil obligations. 41 La Rochelle, Douchy, Maubeuge, Rouen and Le Havre were not given deadlines for carrying out the refitting until the decisions of the respective prefects in May and July 1998, that is to say not until one-and-a-half years after the date by which existing plants should have been refitted. In part, use was 89. On 1 December 1996, 40 out of a total made of an order requiring the deposit of a of some 70 plants did not meet the sum ('consignation') only after further requirements of the directives. When the delay, in the case of Le Havre in July 2001. period prescribed in the reasoned opinion No plant was ever ordered to be shut down expired, the breach by the seven plants at and alternative methods of disposal were issue in this case had already been continu- never adopted. ing for three years if they were existing plants. New plants should already have been complying with the requirements of Directive 89/369 for nine years. In the rejoinder of 20 August 2001, the French Government still indicated that the plants at Le Havre and Maubeuge, as before, had 91. In the alternative it must therefore be not been fully refitted. Also, the dioxin found that the French authorities in any emissions released by those two plants in event failed to take effective action in due some instances were eight to ten times time to deal with the condition, which did not comply with the directives, of the incineration plants at issue in this case 40 — See Commission v Italy, cited in footnote 11, ECR I-5688, and have therefore failed to fulfil their paragraph 68. obligations under Directives 89/369 and 41 — Commission v Italy, cited in footnote 11, ECR I-5688, paragraph 70. 89/429.

(2) order the French Republic to pay the costs.

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