C-194/01

OPINION OF MR LÉGER — CASE C-194/01

OPINION OF ADVOCATE GENERAL LÉGER delivered on 25 September 2003 1

1. In the present proceedings, brought as amended by Council Directive pursuant to Article 226 EC, the Commis- 94/31/EC of 27 June 1994 6 (herein- sion of the European Communities aims to after referred to as 'amended Directive establish that the Republic of Austria has 91/689'); and failed to fulfil its obligations under the following:

— Council Directive 75/442/EEC of 15 July 1975 on waste, 2as amended by Council Directive 91/156/EEC of 18 March 1991 3 (hereinafter referred to — Council Decision 94/904/EC of 22 as 'amended Directive 75/442'); December 1994 establishing a list of hazardous waste pursuant to Article 1(4) of Directive 91/689, 7(hereinafter referred to as 'the list of hazardous waste' or 'the LHW'). — Commission Decision 94/3/EC of 20 December 1993 establishing a list of wastes pursuant to Article la of Directive 75/442/EEC 4 (hereinafter referred to as 'the European waste catalogue' or 'the EWC);

2. The Commission considers that the Austrian authorities have not adopted the — Council Directive 91/689/EEC of 12 measures necessary to comply with the December 1991 on hazardous waste, 5 European waste catalogue, the list of hazardous waste, or Annexes I and II of amended Directive 91/689. 1 — Original language: French. 2 — OJ 1975 L 194, p. 39. 3 — OJ 1991 L 78, p. 32. 4 — OJ 1994 L 5, p. 15. 6 — OJ 1994 L 168, p. 28. 5 — OJ 1991 L 377, p. 20. 7 — OJ 1994 L 356, p. 14.

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If the measures envisaged are not in 8 — First recital in the preamble. accordance with the opinion of the com- — Third recital in the preamble. mittee, or if no opinion is delivered, the

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Commission shall, without delay, submit to 8. Article 1(4) of amended Directive the Council a proposal relating to the 91/689 defines the concept of hazardous measures to be taken. The Council shall waste as follows: act by a qualified majority.

'For the purpose of this Directive "hazar- dous waste" means: [...]'

— wastes featuring on a list to be drawn up in accordance with the procedure 6. By Commission Decision 94/3, the laid down in Article 18 of Directive Commission adopted the list laid down in 75/442/EEC on the basis of Annexes I Article 1(a) of amended Directive 75/442, and II to this Directive, not later than namely the EWC. Paragraph five of the six months before the date of imple- introductory note to Annex I of this mentation of this Directive. These Decision provides that '[t]he EWC is to be wastes must have one or more of the a reference nomenclature, providing a properties listed in Annex III. ... common terminology throughout the Com- munity with the purpose to improve the efficiency of waste management activities'.

B — Austrian law well as a list of hazardous waste. It is common ground that ÖNORM S 2100 classifies waste by a different method than that used in the European waste catalogue and the list of hazardous waste. 10. Under Austrian law, the general law on waste management is in the Bundesgesetz über die Vermeidung und Behandlung von Abfällen (Abfallwirtschaftsgesetz) of 6 June 1990 1 1(federal law on the prevention and treatment of waste). 12 13. In August 1997, the Minister of Envir- onment, Youth and Family adopted the Verordnung über die Festsetzung von gefährlichen Abfällen und Problemstoffen (Festsetzungsverordnung 1997) 1 5(decree relating to the determination of hazardous waste and harmful substances, hereinafter 11. Article 2(5) of this law, in the version referred to as 'the 1997 decree'). published in 1998, 13 states that the Minis- ter of Environment, Youth and Family is required to decide which wastes must be considered hazardous. The same provision stipulates that, to this end, the competent Minister may make certain 'ÖNORMEN' ('Ecostandards') obligatory. 'ÖNORMEN' are the standards adopted by the Austrian 14. Article 3(1) of this decree provided that standards institute. wastes referred to in ÖNORM S 2100 and reproduced in Annex I (of the said decree) should be considered hazardous. Article 3(2) of the 1997 decree, however, modified the list with effect from 1 July 2000. It stated:

III— Parties' claims and pleas in law

I I— Preliminary proceedings

19. In this action, the Commission has advanced three grounds for complaint against the Austrian authorities. 17 16. Having taken the view that Austrian legislation did not properly transpose the EWC, the LHW and amended Directives 91/689 and 75/442, the Commission issued a letter of formal notice to the Austrian 20. First, the Commission claims that the authorities on 14 July 1999. Austrian authorities have failed to trans- pose the EWC into domestic law. It argues that, under Article 249(4) EC, the decision establishing the EWC is binding on those to whom it is addressed, namely the Member States. It also points out that, according to paragraph 5 of the introductory note, the 17. In its response of 8 October 1999, the EWC constitutes a nomenclature providing Austrian Government maintained, inter a common terminology of waste, which is alia, that the EWC, the LHW, and Annexes I and II of amended Directive 91/689 had been properly transposed by ÖNORM 17 — Originally, the Commission also set out other complaints S 2100 and the 1997 decree. The Austrian against the Austrian authorities. It complained that they had excluded certain substances from the scope of amended Directive 75/442 and failed to transpose Annex I of that directive. In the event, by the time of the hearing, the Commission had expressly withdrawn these com- 16 — BGBl. 2000/178. plaints, so that this Opinion may be limited to the three heads of claim which the Commission has maintained.

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22. Further, the Commission emphasises that the LHW has never been used under Austrian law. Indeed, Article 3(2) of the 1997 decree, which provided that the LHW would apply with effect from 1 July 2000, was repealed by the 2000 decree the day before it was due to come into force. 26. As regards the second claim, the Austrian Government emphasises that it is not required by Community law to trans- pose the LHW literally. It points out that, under Article 249(3) EC, directives are 23. Thirdly, the Commission complains binding upon Member States as to the that the Austrian authorities have not result to be achieved, but not as to the form transposed Annexes I and II of amended or methods to be adopted. Thus, in this Directive 91/689. According to the Com- case, the result required by amended mission, Member States are obliged to Directive 91/689 was achieved, since transpose the whole of amended Directive ÖNORM S 2100 and the 1997 decree 91/689, including the contested Annexes. had transposed the substance of the LHW.

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27. The Austrian Government also 30. The Austrian Government therefore explains that the purpose of Article 3(2) claims that the Court should dismiss the of the 1997 decree was to abandon the application, and order the Commission to Austrian classification system (laid down in pay the costs. Article 3(1) and Annex I of the said decree) in order to move to a Community classifi- cation system (the LHW). This provision was, however, repealed in 2000, because the Austrian authorities judged progress on modifying the LHW to be unsatisfactory.

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catalogues classify waste according to binding as to the result to be achieved, 19 a origin. 18 The Austrian lists, therefore, differ decision is mandatory in respect of all its from the definitions and classification provisions. Partial or selective application system which apply at Community level. is, therefore, prohibited, 20 so that Member States to whom a decision is addressed must comply fully. Member States can only choose the legal form for implementing the decision in domestic legislation. 21

33. In my view, the merits of these first two heads of claim follow from the nature of the measures in issue.

36. It follows that, contrary to the conten- 34. It is important to emphasise that in this tions of the Republic of Austria, the case these claims do not relate a failure to Member States have no discretion in transpose a Community directive. The implementation of the EWC or the LHW. Commission is seeking to establish that the Austrian authorities have not properly implemented these 'decisions' within the meaning of the fourth paragraph of Article 249 EC. It is clear that the EWC and the LHW are decisions (of the Commission and the Council) which have been addressed to the Member States.

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measure does not follow from the author's 40. On the one hand, it should be empha- designation 22 or the method of its imple- sised that it is the deliberate choice of the mentation. 23 Thus, if the provisions of a Community legislature to enact the EWC regulation do not have general application, and the LHW in the form of decisions. We the Court takes the view that its provisions know that amended Directive 75/442 did must be seen as a bundle of individual not seek to establish a Community list of decisions. 24 Similarly, a decision which, in wastes. Article 1(a) of that directive was relation to a category of persons has legal limited to defining the concept of waste as effect in an abstract and general way, must, 'any substance or object... which the holder notwithstanding the term 'decision', be discards or is required to discard'. Never- considered a measure with general applica- theless, when amending Directive 75/442 in tion. 25 Finally, the Court may check that a 1991, the Council considered that 'common directive within the meaning of the third terminology and a definition of waste are paragraph of Article 249 EC does not needed'. The EWC was therefore adopted include a specific provision which is in the as 'a reference nomenclature providing a nature of an individual decision. common terminology throughout the Com- munity'. 28

38. In this case, the Austrian Government does not dispute that the EWC and the LHW are genuine decisions. It has not, at 41. Similarly, the fifth recital to amended any point in the proceedings, put forward Directive 91/689 states: 'it is necessary, in the proposition that the description of the order to improve the effectiveness of the legal measures in dispute is incorrect. management of hazardous waste in the Community, to use a precise and uniform definition of hazardous waste based on experience'. The LHW is also therefore intended to provide a uniform definition of the concept of hazardous waste in the 39. In any event, I consider that the EWC Community. and the LHW do not have the character- istics of a 'directive' within the meaning of the third paragraph of Article 249 EC.

47. From a legal point of view, I think that this approach is unlikely to succeed.

44. Consequently, I consider that the Republic of Austria had no discretion in the implementation of the EWC and the LHW. It was under a duty to incorporate the Community catalogues fully and accu- rately into domestic legislation. 48. According to settled case-law, the system of remedies set up by the Treaty distinguishes between the remedies pro- vided for in Articles 226 and 227 EC, for a declaration that a Member State has failed to fulfil its obligations, and those provided for in Articles 230 and 232 EC, 45. This conclusion is confirmed, more- for review of the lawfulness of measures over, by the decision in Commission v adopted by the Community institutions, or Luxembourg. 29 In that case, the Court of their failure to adopt measures. These found that the Grand Duchy of Luxem- remedies serve different purposes and are subject to different rules. A Member State cannot, therefore, plead the unlawfulness of 29 — Case C-196/01 |2002] UCR I-569. a directive as a defence in an action for a

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declaration that it has failed to fulfil its an opportunity of challenging the validity obligations arising out of its failure to of the Community catalogues under Arti- transpose the directive. 30 Nor, likewise, cle 230 EC. can it plead unlawfulness of a decision addressed to that Member State as a defence in an action for a declaration that it has failed to fulfil its obligations arising out of its failure to implement that deci- sion. 31 The Court has held that it could 51. Nevertheless, this does not mean that only be otherwise if the measure in question the defence put forward by the Republic of contained such particularly serious and Austria must be accepted. manifest defects that it could be classified as non-existent. 32

30 — See, in particular, Case C-74/91 Commission v Germany [1992] ECR I-5437, paragraph 10, and Case C-52/00 Commission v France [2002] ECR I-3827, paragraph 28, 53. It follows that the Act of Accession is and Case C-154/00 Commission v Greece [2002] ECR I-3879, paragraph 28. based on the principle of immediate and full 31 — See, in particular, Case 226/87 Commission v Greece application of provisions of Community [19881 ECR 3611, paragraphs 13 and 14; Case C-183/91 Commission v Greece [1993] ECR I-3131, paragraph 10; Case C-404/97 Commission v Portugal [2000] ECR I-4897, paragraphs 34 and 35; Case C-261/99 Commission v France [2001] ECR I-2537, paragraphs 18 and 19 and Case C-1/00 Commission v France [2001] 34 — Act concerning the conditions of accession of the Republic ECR I-9989, paragraph 100. of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the 32 — See, in particular, Case C-226/87 Commission v Greece European Union is founded (OJ 1994 C 241, p. 21), as cited above, paragraphs 15 and 16, and Commission v modified by Decision 95/1/EC, the Euratom and ECSC Germany cited above, paragraph 11. Treaties of the Council of 1 January 1995, adjusting the 33 — See, as a recent example of settled case-law, Case C-241/01 instruments concerning the accession of new Member National Farmers' Union [2002] ECR I-9079, para- States to the European Union (OJ 1995 L 1, p. 1, graph 34, and cases cited. hereinafter referred to as 'the Act of Accession').

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law in the new Member States, and that the LHW in this action. These measures are derogation from this principle is only an integral part of Community law; accord- permissible in so far as expressly provided ingly, the Republic of Austria is obliged to in the transitional provisions of the said bring them fully into force. 36 Act. 35

56. Consequently, the Austrian Govern- 36 — See this point, in another context, in Joined Cases 39/81, 43/81, 85/81 and 88/81 Halyvourgiki and Helleniki ment cannot to my mind legitimately Halyvourgia v Commission [1982] ECR 593, paragraphs 9 to 12; Meltdlurgiki Halyps v Commission cited above, challenge the lawfulness of the EWC or paragraphs 3 to 14, and Joined Cases C-63/90 and C-67/90 Portugal and Spain v Council [1992] ECR I-5073, paragraphs 31 to 34. 37 — See, in particular. Cases C-225/97 Commission v France [1999] ECR I-3011, paragraph 37; C-159/99 Commission 35 — See, by analogy, Case 258/81 Metallurgiki Halyps v v Italy [2001] ECR I-4007, paragraph 32; and C-313/99 Commission (1982) ECR 4261, paragraphs 7 and 8. Mulligan and Others [2002] ECR I-5719, paragraph 47.

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question are directly applicable, and that propose that the Court hold that, by failing individuals are therefore entitled to rely on to adopt the necessary measures to comply them directly as against a defaulting Mem- with the EWC and the LHW, the Republic ber State. 38 of Austria has failed to fulfil its obligations under both the fourth paragraph of Arti- cle 249 EC and the aforementioned deci- sions.

59. The simultaneous application of Com- munity and national lists, which are based on different classification methods, will inevitably create confusion and uncertainty with regard to the applicable law. Neither the individuals concerned nor the compe- B — The third head of claim (failure to tent authorities will be in a position to transpose Annexes I and II of amended determine precisely whether they must Directive 91/689) apply the Community catalogues or the national lists.

64. In my view, that argument has no legal tioned directive and the third paragraph of basis. Indeed, there is no provision either in Article 249 EC. amended Directive 91/689 or the Act of Accession to exclude Annexes I and II from the transposition obligation on the ground that they are part of the process of establishing the LHW. On the contrary, it seems to me that these annexes are an integral part of amended Directive 91/689 65. Consequently, I consider that the and that they must, therefore, be transposed Commission's third head of claim is also according to Article 10 of the aforemen- well founded.

V — Conclusion

66. On the basis of the foregoing, I therefore propose that the Court uphold the Commission's claim and rule that:

(1) By failing to adopt the laws, regulations and administrative provisions necessary to ensure the implementation of Commission Decision 94/3/EC of 20 December 1993 establishing a list of wastes pursuant to Article 1(a) of Council Directive 75/442/EEC, and Council Decision 94/904/EC of 22 December 1994 establishing a list of hazardous waste pursuant to Article 1(4) of Council Directive 91/689/EEC on hazardous waste, and the transposition of Annexes I and II of Council Directive 91/689/EEC of 12 December 1991 on hazardous waste, as amended by Council Directive 94/31/EC of 27 June 1994, the Republic of Austria has failed to fulfil its obligations under both the third and fourth paragraphs of Article 249 and the said decisions and directives.

(2) The Republic of Austria be ordered to pay the costs.

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