C-174/01

COMMISSION v LUXEMBOURG

O P I N I O N O F ADVOCATE GENERAL RUIZ-JARABO C O L O M E R delivered on 25 June 2002 1

1. In this action for failure by a Member 3. In accordance with Article 3 of the State to fulfil its obligations, the Commis- Directive, Member States are required to sion seeks a declaration from the Court of take the necessary measures to ensure that Justice, under Article 226 EC, that, by used PCBs are disposed of and PCBs and failing to draw up plans for the decon- equipment containing PCBs are decontami- tamination and/or disposal of inventoried nated or disposed of as soon as possible. In equipment and of the polychlorinated bi- the case of equipment and the PCBs con- phenyls (PCB) contained therein, the Grand tained therein which are subject to inven- Duchy of Luxembourg has failed to fulfil tory in accordance with Article 4(1), its obligations under Article 11(1) of Direc- decontamination and disposal must be tive 96/59/EC of 16 September 1996 2 effected by the end of 2010 at the latest. ('Directive 96/59' or 'the Directive').

4. Under Article 4(1) to (3): The relevant provisions of Directive 96/59

3. The inventories shall comprise the fol- lowing: 5. Article 11 provides:

— the names and addresses of the holders,

' 1 . Member States shall, within three years of the adoption of this Directive, draw up:

— the location and description of the equipment,

— plans for the decontamination and/or disposal of inventoried equipment and the PCBs contained therein;

— the quantity of PCBs contained in the equipment,

6. According to the 10th recital in the preamble to the Directive, '... it is essential 8. Article 3 of that regulation provides: to know what quantities of PCBs exist in order to be able to match disposal capacity to needs;... it is therefore necessary to label equipment containing PCBs and to compile inventories of such equipment;... such inventories must be regularly updated.' ' 1 . The use of used PCBs... is prohibited. The disposal of such PCBs must be effected as soon as possible and no later than sixth months after the entry into force of this Regulation. The 16th recital states that: '... the number of PCB disposal and decontamination plants is small and their capacity limited and the disposal and/or decontamination of the PCBs inventoried must therefore be properly planned;... moreover, outlines for 2. The use of equipment which contains the collection and subsequent disposal of PCBs... is prohibited. The disposal of such non-inventoried equipment should be equipment must be effected as soon as drawn up;... such outlines may, if necess- possible and no later than six months after ary, make use of existing mechanisms the entry into force of this Regulation. concerning waste in general and need not take account of very minor quantities of PCBs which cannot be identified in prac- tice'.

3. Equipment with volumes of more than 5 dm 3 , in relation to which it is reasonable to assume that the fluids contain more than 0.005% by weight of PCBs, and the PCBs contained therein, must be inventoried.... The relevant national legislation In the case of power capacitors, the thresh- old of 5 dm includes all the separate elements of a combined set. Their use shall continue to be authorised until:

The pre-litigation procedure the inventory compiled in accordance with Article 4(1) of the Directive confirmed that there were only minimum quantities of PCBs in its national territory;

9. After various contacts had taken place, the Commission sent a letter of formal notice to Luxembourg on 4 April 2000, pursuant to Article 226 EC, calling on it to the Luxembourg authorities had been of fulfil its obligations under Articles 3, 4 and the opinion that the specification of time- 11 of Directive 96/59 and requesting it to limits in the Implementing Regulation was submit observations within two months. sufficient to comply with Article 11(1) of No reply to that letter was received. the Directive;

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COMMISSION v LUXEMBOURG

the disposal of PCBs would be dealt with in 14. The defendant Member State, for its more detail in the National Waste Manage- part, contends that the action should be ment Plan which was due to be completed dismissed and that the applicant should be at the end of 2000. ordered to pay the costs.

Analysis of the action

16. The Commission is also of the view that the planning exercise resulting from Article 11(1) of the Directive, in conjunc- tion with the 10th and 16th recitals, requires the Member States to compare the quantities of inventoried PCBs and the 13. On 23 April 2001 the Commission amount of equipment to be disposed of or brought this action, in which it seeks a decontaminated with the available disposal declaration from the Court of Justice that, or decontamination facilities. It must also by failing to draw up plans for the decon- enable the Member States to define the tamination and/or disposal of inventoried types of treatment for the various cat- equipment and the PCBs contained therein, egories of equipment and the PCBs con- the Grand Duchy of Luxembourg has failed tained therein. to fulfil its obligations under Article 11(1) of Directive 96/59, together with an order that the defendant should pay the costs. 5 — See point 6 above.

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20. The time-limits laid down in Article 3 of the Implementing Regulation are not based on any comparative analysis of the amount of equipment to be treated or of the actual capacity of that treatment. In addition, the Luxembourg authorities have 18. It is settled case-law that the question not indicated whether the decontamination whether a Member State has failed to fulfil and disposal plants that they have are able its obligations must be determined by to process the equipment in question within reference to the situation prevailing in the the time-limits specified. Member State at the end of the period laid down in the reasoned opinion, and that the Court cannot take account of any sub- sequent changes. 6Accordingly, regardless of how it should be assessed, the Lux-

21. It follows from the above that the 6—Judgments in Case C-289/94 Commission v Italy [1996] wording of the Implementing Regulation, ECR I-4405, paragraph 20; in Case C-60/96 Commission v France [1997] ECR I-3827, paragraph 15; in Joined Cases which merely reproduces the provisions of C-232/95 and C-233/95 Commission v Greece [1998) ECR I-3343, paragraph 38; and in Case C-177/01 Com- the Directive and sets time-limits for the mission v France ECR I-5137, paragraph 13. disposal of PCBs, cannot constitute a plan

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COMMISSION v LUXEMBOURG

for the purposes of Article 11(1) of the programmes enabled 99.9% of the PCBs Directive, since it does not fulfil the objec- present in Luxembourg to be disposed of. tives stated in the 10th and 16th recitals in the preamble to the Directive.

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provide for the staggering, by reference to plans within the meaning of the category of PCB or to the type of Article 11(1). 10 equipment, of the fixed time-limits within which decontamination and/or disposal must be effected in national territory or abroad; accordingly, those measures do not fulfil the planning requirement laid down in the Community provision. Moreover, in the absence of a plan, the Commission is unable to determine whether the provisions of the Directive apply in accordance with the procedures prescribed. 29. Accordingly, in view of the fact that a breach exists for as long as a Member State fails to ensure full and exact fulfilment of all the aims of a directive, 11 I must conclude that the action brought by the Commission is well founded.

The judgment of 27 February 2002 in Commission v Italy, 9in which the Court held that a defendant Member State had failed to fulfil its obligations under Direc- tive 96/59 by failing to adopt and to communicate within the required time- l i m i t t h e p l a n s p r o v i d e d for in Article 11(1), underlined the importance of such plans in the scheme of the Directive. Costs

30. In accordance with Article 69(2) of the 28. The national measures, irrespective of Rules of Procedure of the Court of Justice, their genuine effectiveness, do not therefore an order for costs must be made against the amount to an organised and coordinated defendant Member State. system of objectives or embody a compre- hensive and coherent approach, and for those reasons cannot be considered to be 10 — On the subject of the fight against water pollution, see the judgments in Case C-214/96 Commission v Spain [1998] ECR I-7661, paragraph 30, and in Case C-207/97 Com- mission v Belgium [1999] ECR I-275, paragraph 40. 11—Judgment in Case 91/79 Commission v Italy [1980] 9 — Case C-46/01 [2002] ECR I-2093. ECR 1099, paragraph 6.