C-196/01
ECLI:EU:C:2001:707
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OPINION OF MR LÉGER — CASE C-196/01
OPINION OF ADVOCATE GENERAL LÉGER delivered on 13 December 2001 1
1. Under Article 226 EC, the Commission 'For the purposes of this Directive: of the European Communities requests the Court to make a declaration that the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 1(a) of Council Directive 75/442/EEC of 15 July 1975 on waste, 2as amended by Council Directive 91/156/EEC of 18 March 1991, 3 and Commission Decision 94/3/EC of (a) "waste" shall mean any substance or 20 December 1993 establishing a list of object in the categories set out in wastes pursuant to Article 1(a) of Directive Annex I which the holder discards or 75/442. 4 intends or is required to discard.
The Commission, acting in accordance with the procedure laid down in 2. Directive 75/442, as amended by Direc- Article 18, will draw up, not later than tive 91/156, 5 sets out the Community rules 1 April 1993, a list of wastes belonging governing the management of waste in the to the categories listed in Annex I. This Community. list will be periodically reviewed and, if necessary, revised by the same pro- cedure.'
3. Article 1(a) of Directive 75/442 pro- vides: 4. The Commission adopted the list referred to in that provision, entitled 'European Waste Catalogue', 6by Decision 1 — Original language: French. 94/3. 2 — OJ 1975 L 194, p. 39. 3 — OJ 1991 L 78, p. 32. 4 — OJ 1994 L 5, p. 15. 5 — 'Directive 75/442'. 6 — 'The EWC'.
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5. The third recital in the preamble to 8. Under the first indent of point 1 of that Directive 91/156 states that 'common ter- circular: minology ... [is] needed in order to improve the efficiency of waste management in the Community'.
'This circular has two objectives
6. According to point 5 of the introductory note of the annex to Decision 94/3: — to introduce a Luxembourg waste nomenclature
'The EWC is to be a reference nomen- — to take over the European Waste clature providing a common terminology Catalogue (EWC).' throughout the Community with the pur- pose to improve the efficiency of waste management activities.'
9. Considering that Directive 75/442 and Decision 94/3 had not been correctly trans- posed into Luxembourg law, the Commis- sion initiated the infringement procedure. Having given the Grand Duchy of Lux- embourg notice to submit its observations, 7. The EWC was incorporated into Lux- the Commission, on 25 July 2000, embourg law by the ministerial circular of delivered a reasoned opinion requesting 20 November 1998 introducing a waste Luxembourg to adopt the necessary meas- nomenclature, adopted by the Minster for ures to comply therewith within two the Environment. 7 months of notification of the opinion. Since the Grand Duchy of Luxembourg failed to do so, the Commission brought the present 7 — Mémorial A 1998, p. 2548, 'the ministerial circular'. action.
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10. The Commission claims that the Court 13. According to the Commission, the should: Grand Duchy of Luxembourg has failed to respect the obligatory nature of Decision 94/3, first, by incorporating the EWC by means of a ministerial circular which is binding on the administrative authorities but not on third parties and, second, by introducing alongside the EWC a purely — declare that the Grand Duchy of Lux- Luxembourg nomenclature, distinct from embourg has failed to fulfil its obli- the EWC and having the effect of excluding gations under Article 1(a) of Directive the use of the EWC for a large number of 75/442 and Decision 94/3, operations in which the classification of waste is taken into account.
— order the Grand Duchy of Luxembourg to pay the costs. 14. The Luxembourg Government observes that the entry into force of a Grand Ducal regulation ensuring full and accurate use of the EWC is set down for 1 January 2002 and that the environmental 11. The Commission observes that, in authorities are preparing all the measures acquiring an EWC, the Community sought required to ensure the exclusive use of the to have common terminology and a defini- EWC from that date. The Luxembourg tion of waste in order to improve the Government also indicates that the minis- efficiency of waste management in the terial circular will shortly be repealed. Community, as indicated in the third recital Consequently, it requests that the Commis- in the preamble to Directive 91/156 and sion withdraw its action. point 5 of the introductory note of the annex to Decision 94/3.
12. The Commission recalls that under Article 2 thereof, Decision 94/3 is The failure to fulfil obligations addressed to the Member States and that, under the fourth paragraph of Article 249 EC, a decision is to be binding in its entirety upon those to whom it is addressed. There- fore, the Grand Duchy of Luxembourg was under an obligation to incorporate the 15. The Luxembourg Government does not EWC into its domestic law. dispute that it has failed to comply with its I-572
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obligations under Article 1(a) of Directive 19. The Luxembourg Government indi- 75/442 and Decision 94/3. cated that a draft Grand Ducal regulation was drawn up with a view to full and accurate use of the EWC and that that regulation was adopted by the Luxembourg Government on 6 September 2001 and will come into force on 1 January 2002, the date from which the EWC alone will be used. A draft Grand Ducal regulation on the disposal of waste was adopted by the 16. On the contrary, it has indicated that it Luxembourg Government on 20 July 2001. intended to respond appropriately to the The ministerial circular is to be repealed action brought by the Commission with the imminently. dual concern of avoiding an order being made against it and guaranteeing proper and uniform application of the Community legislation.
20. Since the obligations under Directive 17. In any event it is settled case-law that 75/442 and Decision 94/3 had not been the question whether a Member State has complied with by the date laid down in the failed to fulfil its obligations must be reasoned opinion, the action brought by the determined by reference to the situation Commission is well founded. For the same prevailing in the Member State at the end reasons, the Commission cannot be criti- of the period laid down in the reasoned cised for not acceding to the Grand Duchy opinion and that subsequent changes can- of Luxembourg's request to withdraw the not be taken into account by the Court. 8 action.
18. The period laid down by the Commis- sion in the reasoned opinion sent to the Grand Duchy of Luxembourg expired on 21. Under Article 69(2) of the Rules of 25 September 2000. Procedure of the Court of Justice, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the 8 — See, in particular. Cases C-71/99 Commission v Germany successful party's pleadings, which is the [2001] ECR I-5811, paragraph 29, and C-110/00 Commis- sion v Austria [2001] ECR I-7545, paragraph 13. situation in the present proceedings.
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Conclusion
22. Consequently, I propose that the Court should:
(1) declare that the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 1(a) of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991, and Commission Decision 94/3/EC of 20 December 1993 establishing a list of wastes pursuant to Article 1(a) of Directive 75/442;
(2) order the Grand Duchy of Luxembourg to pay the costs.
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