C-120/01

OPINION OF MR MISCHO — CASE C-120/01

O P I N I O N O F ADVOCATE GENERAL MISCHO delivered on 28 May 2002 1

1. By application registered at the Court 3. According to Article 3 of the Directive: Registry on 16 March 2001, the Commis- sion of the European Communities has brought an action against Ireland under Article 226 EC for a declaration that, by failing by 16 September 1999 to prepare and communicate to the Commission the 'Without prejudice to their international plans, outlines and summaries required obligations, Member States shall take the pursuant to Article 11 and Article 4(1) of necessary measures to ensure that used Council Directive 96/59/EC on the disposal PCBs are disposed of and PCBs and equip- of polychlorinated biphenyls and poly- ment containing PCBs are decontaminated chlorinated terphenyls (PCB/PCT), 2 that or disposed of as soon as possible. For the Member State has failed to fulfil its obli- equipment and the PCBs contained therein, gations under the directive. which are subject to inventory in accord- ance with Article 4(1), decontamination and/or disposal shall be effected at the latest by the end of 2010.'

4. The provisions in respect of which the Commission considers that Ireland has failed to fulfil its obligations are the following:

2. The purpose of Directive 96/59 (here- inafter 'the Directive') is, as stated by Article 1, '... to approximate the laws of the Member States on the controlled dis- posal of PCBs, the decontamination or disposal of equipment containing PCBs 'Article 4 and/or the disposal of used PCBs in order to eliminate them completely on the basis of the provisions of this Directive.' 1. In order to comply with Article 3, 1 — Original language: French. Member States shall ensure that inventories 2 — OJ 1996 L 243, p. 31. are compiled of equipment with volumes of I - 6740

— outlines for the collection and sub- 7. That allegation of irregularities in the sequent disposal of equipment which is pre-litigation procedure, which, according not subject to inventory in accordance to settled case-law of the Court, may in fact with Article 4(1), as referred to in lead to the infringement proceedings being Article 6(3). declared inadmissible, makes it necessary

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for me to examine first of all, and with the After taking note of these observations, the utmost care, the way in which that pro- Commission may, if necessary, deliver a cedure was conducted. Reasoned Opinion under Article 226 of the EC Treaty. It may also deliver a Reasoned Opinion if those observations fail to reach it within the time stated.'

8. If that examination confirms that the irregularities complained of by Ireland do exist, or indeed brings others to light, I will then have to go on to consider whether or not, given their seriousness and their effect 10. The Irish Government responded to on the Court's exercise of its jurisdiction that letter of formal notice by letter of under Article 226 EC, the irregularities 7 June 2000, registered at the Secretariat- thus identified must result in the appli- General of the Commission on 13 June cation being dismissed as inadmissible. 2000.

Environmental Protection Agency was, on 25 July 2000. In that opinion, the specifically, to adopt a National Hazardous Commission, having reiterated the obli- Waste Management Plan. gations that Article 4 and Article 11 of the Directive impose on Member States and having noted that Ireland did not dispute these, expressed itself in the following terms: 13. It indicated that a draft of that plan had existed since September 1999 and that the public consultation to which it gave rise had ended, so that it would be finalised and adopted in the following months. 'Since Ireland did not communicate to the Commission, in accordance with Article 11 and Article 4(1) of the Directive, the abovementioned plans, outlines and sum- 14. According to the Irish Government, maries, and since the Commission was in that plan met the requirements of possession of no other information Article 11(1), first indent, of the Directive enabling it to conclude that Ireland had and would be notified to the Commission prepared these plans, outlines and sum- as soon as possible. maries, it was compelled to assume that Ireland had thus failed to fulfil its obli- gations under the abovementioned provi- sions of the Directive. It therefore gave the Irish Government the opportunity, by letter ref. SG (2000) D 102975 of 7 April 2000, 15. Moreover, again according to the letter in accordance with the procedure laid of 7 June 2000, measures intended to fulfil down in Article 226 of the Treaty, to the requirements of Article 11(1), second submit within a period of two months its indent, of the Directive were on the point of observations on these infringements of the being finalised and would be forwarded to provisions of the Directive. the Commission.

19. Without referring explicitly to its reply to the letter of formal notice, the Irish Government indicated that it had sent the For the above reasons, the Commission Commission copies of the two notifications having, by letter of 7 April 2000, given the received by the Environmental Protection Irish Government the opportunity to sub- Agency. mit its observations, hereby declares as its reasoned opinion delivered pursuant to the first paragraph of Article 226 of the Treaty establishing the European Community that, by failing by 16 September 1999 to prepare and communicate to the Commission the plans, outlines and summaries required 20. It explained that, while available infor- pursuant to Article 11 and Article 4(1) of mation suggests that the disposal of PCBs Council Directive 96/59/EC on the disposal has largely been achieved in Ireland, the of polychlorinated biphenyls and poly- Environmental Protection Agency never- chlorinated terphenyls (PCB/PCT), Ireland theless considered that the notifications has failed to fulfil its obligations under that received did not accurately reflect the Directive. situation with respect to holdings of PCBs and had therefore decided to engage con- sultants to identify all holders of contami- nated equipment and to compile a full inventory. Those consultants began their study in 2001. Pursuant to the second paragraph of Article 226 of the EC Treaty, the Commis- sion requests Ireland to take the measures necessary to comply with this Reasoned Opinion within two months following notification thereof.' 21. With respect to the plan that was to be drawn up under Article 11(1), first indent, of the Directive, the Irish Government stated that the National Hazardous Waste Management Plan would be adopted in the 18. By letter of 12 December 2000, the following month and submitted to the Irish Government responded to that rea- Commission. I - 6744

6. Ireland replied by letter of 7 June 2000 8. By letter of 14 December 2 0 0 0 (Annex 2), enclosing a copy of the Waste (Annex 4) Ireland responded to the rea-

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soned opinion. It indicated that further 27. It concludes from this that, where a work was needed for the purpose of com- Member State puts forward a defence in its piling a complete inventory, and that a reply to the letter of formal notice, as study would commence early in 2001. It Ireland did in respect of Article 4(1) of the further indicated that the plan referred to in Directive, or furnishes reasons for the delay Article 11 of the Directive would be and specifies the way in which it intends to catered for by Ireland's National Hazard- remedy the default, as Ireland did in respect ous Waste Management Plan, which was of the obligations under Article 11 of the expected to be adopted and published Directive, but the Commission asserts in its within the next month. It also indicated reasoned opinion that no such reply has that the outline referred to in Article 11 of been received to its letter of formal notice, the Directive would be submitted to the the Commission is not entitled to rely on Commission shortly. that reasoned opinion as the basis for bringing an action.

9. Since then the Commission has received no further communication from Ireland on this matter.' 28. According to the Irish Government, the Commission 'must abandon its proceedings to the extent that they rely on that reasoned opinion', without prejudice, of course, to notification of a fresh reasoned opinion which takes into account the previously 25. Having thus assembled all the facts on neglected response — a reasoned opinion the basis of which Ireland's challenge to the that could then itself be followed by an admissibility of the action must be evalu- application to the Court. ated, I must set out the arguments that were exchanged on this issue during the written procedure.

34. Since it has been established that the Commission wrongly stated in its reasoned opinion that it had not received any reply 30. In its rejoinder, the Irish Government to its letter of formal notice, it seems to me states that is is not true to say, as the that, if one is looking for a precedent that Commission has done, that it did not raise might provide food for thought, then there any defence on the substance in its reply to can be no avoiding a comparison of this the letter of formal notice. case with Case C-266/94, cited above.

31. It points out that it had on that occasion informed the Commission of the obligation laid down in the Irish legislation 35. In that case, as in the one before us, the for holders of PCBs to submit information Commission had sent a letter of formal making it possible for the Environmental notice in which it noted that it had not Protection Agency to compile an inventory received any communication from the and had indicated that it was in the process Member State in question on the measures of adopting the plans required by the it had adopted in order to ensure the Directive. transposition of a directive.

32. It thus considers, first, that if the Commission had taken that reply into consideration, 'it is quite likely that it 36. In its response to that letter, the would have engaged in further correspon- Kingdom of Spain had acknowledged that dence with Ireland before issuing a Rea- the national provisions necessary to ensure soned Opinion' and, second, that its rights transposition were not yet in force but of defence were infringed. mentioned the provisions already adopted and soon to be adopted to ensure, as a transitional measure, the fulfilment of cer- 3 — Case C-266/94 Commission v Spain (1995] ECR I-1975. tain obligations imposed by that directive.

39. In its application, the Commission claimed that communication problems 17 The proper conduct of the pre-liti- were the cause of its failure to refer to the gation procedure constitutes an essen- reply to the letter of formal notice and in its tial guarantee required by the Treaty rejoinder it claimed that its application, not only in order to protect the rights unlike the reasoned opinion, had taken into of the Member State concerned, but consideration the arguments put forward also so as to ensure that any conten- by the Kingdom of Spain, with the result tious procedure will have a clearly that the provisions of the directive for defined dispute as its subject-matter. which the Kingdom of Spain had adopted transitional tranposition measures were excluded from the subject-matter of the application. 18 It is only on the basis of a properly conducted pre-litigation procedure that the contentious procedure before the Court will enable the latter to judge whether the Member State has in fact 40. The Court none the less declared the failed to fulfil the specific obligations application to be inadmissible, reasoning in the following terms: which the Commission alleges it has breached.

'15 T h e p r o c e d u r e l a i d d o w n in 19 In the present case, the reasoned Article 169 of the Treaty comprises opinion wrongly stated that the letter two consecutive stages, the pre-liti- of formal notice sent by the Commis-

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sion had not yet elicited an official 24 In this case, although communication reply from the Kingdom of Spain. problems had given rise to a misunder- standing concerning the reasoned opinion, there was nothing to prevent the Commission withdrawing that opinion and examining the response of the Kingdom of Spain to the letter of 20 The Commission therefore did not take formal notice. The Commission could account, at the stage of the reasoned then, if appropriate, have delivered a opinion, of the resolutions submitted further reasoned opinion specifying the by the Kingdom of Spain in reply to its complaints which it intended to main- letter of formal notice, which, as the tain. Commission moreover acknowledged, transposed some of the provisions of the directive.

42. Thus, it may be understood either as 45. Moreover, confirmation of the import- making the proper conduct of the pre- ance the Court attaches to the proper litigation procedure an absolute require- conduct of the pre-litigation procedure is ment, non-compliance with which auto- to be found in the judgment of 23 October matically entails the inadmissibility of the 1997 in Commission v France, 4in which it action, or as making the response to the is stated as follows: irregularity of that procedure depend on the consequences to which it gave rise, and it would then be only because in the case before it 'the parties only began to define with precision the nature and the scope of 'In that regard, it must be remembered that their dispute at the stage of the reply and the aim of the pre-litigation procedure the rejoinder' that the Court dismissed the provided for by Article 169 of the Treaty action as inadmissible. is to give the Member State an opportunity to justify its position or, if appropriate, to enable it to comply of its own accord with the requirements of the Treaty. The proper conduct of that procedure thus constitutes an essential guarantee which is required not only in order to protect the rights of the 43. That second hypothesis, however, sits Member State concerned but also to ensure uneasily with the traditional case-law that any contentious procedure will have a which, while it strictly forbids the Com- clearly defined dispute as its subject-matter mission to widen the subject-matter of its (see the order of 11 July 1995 in Case application, has, on the other hand, always C-266/94 Commission v Spain [1995] authorised the withdrawal of certain com- ECR 1-1975, paragraph 17). It is therefore plaints, that is to say, the narrowing of that necessary, in assessing the admissibility of subject-matter, which is precisely what the the application, to examine the conduct of Commission did in that case, since, sub- the pre-litigation procedure.' sequent to the reasoned opinion, it with- drew its complaint that the Kingdom of Spain had not transposed certain provisions of the directive, namely, those that had given rise to transitional measures. 46. The terms used in that judgment were subsequently taken up in the judgment of 19 May 1998 in Commission v Nether- lands, 5 in which, although the Court declined to consider the failure in the originating application to take account of any new matters of fact and law raised in the response to the reasoned opinion to be a 44. It seems to me, therefore, that the order ground for declaring the infringement pro- in Commission v Spain, cited above, should ceedings inadmissible, it did so only after be interpreted as making the proper con- having noted that there was no dispute that duct of the pre-litigation procedure a self- sufficient requirement, breach of which can only result in the application being inad- 4 — C-159/94 Commission v France [19971 ECR I-5815. missible. 5 — C-3/96 Commission v Netherlands [1998] ECR I-3031.

51. The conduct of the Commission, apart from the fact that, so it seems to me, it in 48. Whereas, in Commission v Spain, cited itself calls for a sanction, has also infringed above, the Commission, having become Ireland's rights of defence. Ireland, when it aware, by the time it brought the action, received the reasoned opinion, was entitled that the reasoned opinion was wrongly to consider that — however surprising it based on the Kingdom of Spain's failure to might appear — the arguments that it had reply to the letter of formal notice, had put forward in reply to the letter of formal recognised its error and tried to minimise notice had not been examined by the the consquences thereof, in the present case Commission. Yet subsequently, in its appli- the Commission, far from admitting the cation, the Commission informed Ireland, erroneous nature of what it stated in the at the same time as the Court, that those reasoned opinion, is trying with surprising arguments had, at the stage of the reasoned self-assurance to conceal the error that it opinion, been rejected after being exam- committed. We thus read in the appli- ined. cation, following an account of the content of Ireland's reply to the letter of formal notice, that '[N]or being satisfied with this response, the Commission notified on 25 July 2000 a Reasoned Opinion...'. 6 52. It can therefore in no way be excluded that if the reasoned opinion had dealt with 6 — Emphasis added. the merits of Ireland's arguments, that

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Member State might have chosen to 56. That pre-litigation phase must, to respond to that opinion other than by adopt the terms used in that judgment, repeating, essentially, the content of its constitute a serious attempt to settle the first reply. dispute, that is to say, to render an application to the Court unnecessary.

58. I none the less continue to believe that, 54. It seems to me, therefore, that it can so far as the Commission is concerned, properly be said that Ireland was placed, precisely because it is the guardian of the from the perspective of equality of arms, in Treaties, its conduct must be beyond a situation detrimental to its defence. reproach. In view of this, it has the duty to examine thoroughly the arguments set out in the reply to the letter of formal notice and, if these are not such as to alter its position, to refute them in a convincing manner. 55. Taking a slightly different approach, one might also point out that it is clear from the case-law, and in particular from the judgment of 23 February 1988 in Commission v United Kingdom, 7that the pre-litigation procedure cannot be under- stood as a mere succession of procedural steps which the Commission must follow in 59. In other words, although, unfor- order to gain access to the Court. tunately, the pre-litigation procedure too often gives the impression of being a dialogue of the deaf, the Commission must 7 —Case 353/85 Commission v United Kingdom [1988] ECR not be responsible in any way for that 817. absence of constructive dialogue.

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COMMISSION v IRELAND

60. In the case before us the situation is 64. As regards the obligations created by precisely the opposite. The Commission Article 4(1) of the Directive, I find it was not content with ignoring the argu- difficult to consider that Ireland would ments presented by the Irish Governmment. have fulfilled them by laying down an It first of all claimed, in the reasoned obligation for all economic operators to opinion, that it had not received the letter declare to the Environmental Protection in which those arguments were set out, and Agency the equipment in their possession then presented, in the application, a new containing PCB volumes of more than 5 version of the facts in the light of which the dm 3 and by communicating to the Com- arguments were not such as to satisfy it. mission the two notifications received to that effect.

68. Moreover, it is precisely because it was the first indent, which concern the draw- not possible, on the basis of those two ing-up of a plan for the decontamination notifications alone, to compile an inventory and/or disposal of inventoried equipment claiming to reflect the true situation that and the PCBs contained therein, and those the Irish Government, in reply to the letter set out in the second indent, which concern of formal notice, sent the notifications the drawing-up of outlines for the collec- themselves and not, as that letter asked of tion and subsequent disposal of equipment it, a summary of an inventory which, in which is not subject to an inventory in fact, did not exist. accordance with Article 4(1), and as referred to in Article 6(3).

COMMISSION v IRELAND

Article 4(1) of the Directive, particularly 76. Be that as it may, I have to observe that since Article 11(1), first indent, refers to the plan described by the Irish Government 'inventoried' equipment. entered into operation after the expiry of the period of two months laid down in the reasoned opinion, which was notified, I would recall, in 2000.

75. It must none the less be recognised that following the argument of the Commission would result in seriously curtailing the period of three years that Article 4(1) of the Directive grants to the Member States for compiling the inventory in question. Since the plan itself must be drawn up 77. With respect to the second series of within a period of three years, to state that obligations, Ireland states it complied with it cannot be drawn up until the inventory it by means of the Hazardous Waste has been compiled amounts by implication Management Plan, while the Commission to depriving the national authorities of part claims that it can find nothing in that plan of the three-year period granted to them to prove that the required outline has been under Article 4(1) and, like it or not, drawn up. There again, without even need- therefore leads to the result that the draft- ing to scrutinise that plan, I can only note ing of that article may be perceived as that the time-limit set in the reasoned misleading. opinion was not respected.

Conclusion

78. On the basis of the foregoing, I propose that the Court should dismiss the application as inadmissible and order the Commission to pay the costs.