Case C-392/99
Commission of the European Communities
v
Portuguese Republic
«(Failure of a Member State to fulfil obligations – Directive 75/439/EEC – Disposal of waste oils – Incomplete transposition)»
Opinion of Advocate General Stix-Hackl delivered on 7 March 2002 I - 0000 Judgment of the Court (Sixth Chamber), 10 April 2003 I - 0000
Summary of the Judgment
1.. Approximation of laws – Disposal of waste oils – Directive 75/439 – Obligation on the Member States to adopt legislation under which the issue to operators of the requisite permits is expressly conditional upon compliance with the conditions laid down by the directive
(Council Directive 75/439, as amended by Directive 87/101, Art. 6(2))
2.. Actions for failure to fulfil obligations – Subject-matter of the dispute – Subject-matter determined in the course of the pre-litigation procedure – Adjustment of the subject-matter because of an amendment to Community law – Permissible – Conditions
(Art. 226 EC)
3.. Approximation of laws – Disposal of waste oils – Directive 75/439 – Obligation on the Member States to provide for periodical inspections of operators and the review of permits issued
(Council Directive 75/439, as amended by Directive 87/101, Art. 13)
4.. Approximation of laws – Disposal of waste oils – Directive 75/439 – Obligation on the Member States periodically to convey information concerning matters learnt from application of the directive – Scope
(Council Directive 75/439, as amended by Directive 87/101, Art. 17)
1. In order for Article 6(2) of Directive 75/439 on the disposal of waste oils to be implemented correctly, national legislation must expressly require, as a sine qua non for issue of a permit to use waste oils as fuel or to regenerate them, respectively, the adoption of all appropriate health protection measures and use of the best technology possible where the cost is not excessive. see paras 77-79, 89, 106-111, 213
2. The proper conduct of the pre-litigation procedure laid down in Article 226 EC constitutes an essential guarantee required by the Treaty not only in order to protect the rights of the Member State concerned, but also to ensure that any contentious procedure will have a clearly defined dispute as its subject-matter. 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 failed to fulfil the specific obligations which the Commission alleges it has breached. Thus, although the claims as stated in the application cannot in principle be extended beyond the infringements alleged in the letter of formal notice and in the operative part of the reasoned opinion, it is none the less the case that, where Community law is amended during the course of the pre-litigation procedure, the Commission has standing to seek a declaration that a Member State has failed to fulfil obligations which were created in the initial version of a directive, subsequently amended or repealed, and which were maintained in force under the new provisions. Conversely, the subject-matter of the dispute cannot be extended to obligations arising under the new version of a directive which do not correspond to those arising under the previous version of that directive, as otherwise it would constitute a breach of the essential procedural requirements of infringement proceedings. see paras 133-135
3. In order for Article 13 of Directive 75/439 on the disposal of waste oils to be implemented correctly, national legislation must require the competent authorities to carry out periodical inspections of undertakings which regenerate waste oils or use them as fuel and provide that at the time of the inspections the state of technical development and/or of the environment will be examined with a view to revising, where necessary, permits granted to those undertakings. see paras 163, 166-167, 172, 183-186, 213
4. Article 17 of Directive 75/439 on the disposal of waste oils is intended to enable both the Commission and the Member States to be informed on a periodic basis of the technical knowledge acquired by each of those States and of experience gained and results obtained through the application of the directive in the Community. The fact that a Member State has not acquired new technical knowledge over a certain period also constitutes a useful piece of information with which the Commission and the other Member States should become acquainted by virtue of Article 17 of the directive, in particular as that article does not provide for any exception to the obligation to convey the information to which it refers. Nor can compliance with the obligation laid down in Article 17 to convey information depend on the assessment made by each Member State as to whether or not it possesses knowledge worth being conveyed, as otherwise the effectiveness of that provision would be prejudiced. see paras 202, 204-205, 213
JUDGMENT OF THE COURT (Sixth Chamber)
10 April 2003 (1)
((Failure of a Member State to fulfil its obligations – Directive 75/439/EEC – Disposal of waste oils – Incomplete transposition))
In Case C-392/99,
Commission of the European Communities , represented by L. Ström and A. Caeiros, acting as Agents, with an address for service in Luxembourg,
applicant,
v
Portuguese Republic , represented by L. Fernandes and M. Telles Romão, acting as Agents,
defendant,
APPLICATION for a declaration that:
─ by failing to adopt provisions by which the competent authority, before granting a permit to undertakings which regenerate waste oils or use them as fuel, may satisfy itself that health is appropriately protected where waste oils are used as fuel and that the best available technology not entailing excessive cost is used where waste oils are regenerated or used as fuel;
─ by failing to lay down that residues from the combustion of waste oils are to be disposed of in accordance with Article 9 of Council Directive 78/319/EEC of 20 March 1978 on toxic and dangerous waste (OJ 1978 L 84, p. 43), and, from 27 June 1995, in accordance with Article 9 of Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), as amended by Council Directive 91/156/EEC of 18 March 1991 (OJ 1991 L 78, p. 32), which, pursuant to Council Directive 91/689/EEC of 12 December 1991 on hazardous waste (OJ 1991 L 377, p. 20), as amended by Council Directive 94/31/EC of 27 June 1994 (OJ 1994 L 168, p. 28), replaced Article 9 of Directive 78/319;
─ by not providing for periodical inspection of undertakings which regenerate waste oils or use them as fuel, or for examination of trends in the state of technical development and/or of the environment with a view to revising, where necessary, permits granted to those undertakings;
─ by failing to convey to the Commission information concerning technical expertise and the experience gained and results obtained through the application of measures taken pursuant to Council Directive 75/439/EEC of 16 June 1975 on the disposal of waste oils (OJ 1975 L 194, p. 23), as amended by Council Directive 87/101/EEC of 22 December 1986 (OJ 1987 L 42, p. 43),
the Portuguese Republic has failed to fulfil its obligations under Articles 6(2), 8(2)(a), 13 and 17 of Directive 75/439, as amended by Directive 87/101, and the first paragraph of Article 5 and the third paragraph of Article 189 of the EC Treaty (now the first paragraph of Article 10 EC and the third paragraph of Article 249 EC),
THE COURT (Sixth Chamber),,
composed of: J.-P. Puissochet, President of the Chamber, R. Schintgen, V. Skouris (Rapporteur), F. Macken and N. Colneric, Judges,
Advocate General: C. Stix-Hackl,
Registrar: R. Grass,
having regard to the Report for the Hearing,after hearing oral argument from the parties at the hearing on 29 November 2001, at which the Commission was represented by A. Caeiros and the Portuguese Republic by M. Telles Romão and M. João Lois, acting as Agent,
after hearing the Opinion of the Advocate General at the sitting on 7 March 2002,
gives the following
Judgment
1 By application lodged at the Court Registry on 13 October 1999, the Commission of the European Communities brought an action under Article 226 EC for a declaration that:
─ by failing to adopt provisions by which the competent authority, before granting a permit to undertakings which regenerate waste oils or use them as fuel, may satisfy itself that health is appropriately protected where waste oils are used as fuel and that the best available technology not entailing excessive cost is used where waste oils are regenerated or used as fuel;
─ by failing to lay down that residues from the combustion of waste oils are to be disposed of in accordance with Article 9 of Council Directive 78/319/EEC of 20 March 1978 on toxic and dangerous waste (OJ 1978 L 84, p. 43), and, from 27 June 1995, in accordance with Article 9 of Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), as amended by Council Directive 91/156/EEC of 18 March 1991 (OJ 1991 L 78, p. 32) (hereinafter Directive 75/442), which, pursuant to Council Directive 91/689/EEC of 12 December 1991 on hazardous waste (OJ 1991 L 377, p. 20), as amended by Council Directive 94/31/EC of 27 June 1994 (OJ 1994 L 168, p. 28) (hereinafter Directive 91/689), replaced Article 9 of Directive 78/319;
─ by not providing for periodical inspection of undertakings which regenerate waste oils or use them as fuel, or for examination of trends in the state of technical development and/or of the environment with a view to revising, where necessary, permits granted to those undertakings;
─ by failing to convey to the Commission information concerning technical expertise and the experience gained and results obtained through the application of measures taken pursuant to Council Directive 75/439/EEC of 16 June 1975 on the disposal of waste oils (OJ 1975 L 194, p. 23), as amended by Council Directive 87/101/EEC of 22 December 1986 (OJ 1987 L 42, p. 43) (hereinafter Directive 75/439),
the Portuguese Republic has failed to fulfil its obligations under Articles 6(2), 8(2)(a), 13 and 17 of Directive 75/439 and the first paragraph of Article 5 and the third paragraph of Article 189 of the EC Treaty (now the first paragraph of Article 10 EC and the third paragraph of Article 249 EC).
Legal context
Community legislation
2 Under Article 2 of Directive 87/101, which substantially amended Directive 75/439, the Member States were to take the measures necessary to comply with Directive 87/101 with effect from 1 January 1990.
3 Article 6 of Directive 75/439 provides:
1. In order to comply with the measures taken pursuant to Article 4, any undertaking which disposes of waste oils must obtain a permit. Where necessary, this permit shall be granted after examination of the installations.
2. Without prejudice to the requirements laid down by national and Community provisions with a purpose other than that of this Directive, a permit may be granted to undertakings which regenerate waste oils or use waste oils as fuel only where the competent authority has satisfied itself that all appropriate environmental and health protection measures have been taken, including use of the best technology available, where the cost is not excessive.
4 Article 8 of Directive 75/439, which relates to the use of waste oils as fuel, provides in its second paragraph: The Member States shall ... ensure that:
(a) the residues from the combustion of waste oils are disposed of in accordance with Article 9 of Directive 78/319/EEC
.
5 Article 13 of Directive 75/439 provides:
1. The undertakings referred to in Article 6 shall be inspected periodically by the Member States, particularly as regards their compliance with the conditions of their permits.
2. The competent authorities shall examine trends in the state of technical development and/or of the environment with a view to revising, where necessary, permits granted to undertakings in accordance with this Directive.
6 Article 17 of Directive 75/439 states: Each Member State shall periodically convey to the Commission information concerning its technical expertise and the experience gained and results obtained through the application of measures taken pursuant to this Directive.The Commission shall send an overall summary of such information to the Member States.
7 Article 18 of Directive 75/439 states: Every three years, Member States shall draw up a situation report on the disposal of waste oils in their respective countries and shall send it to the Commission.
8 The first indent of Article 1(c) of Directive 78/319 defines the disposal of waste as the collection, sorting, carriage and treatment of toxic and dangerous waste, as well as its storage and tipping above or under ground.
9 Article 9 of Directive 78/319 states:
1. Installations, establishments or undertakings which carry out the storage, treatment and/or deposit of toxic and dangerous waste must obtain a permit from the competent authorities. Such waste may be stored, treated, and/or deposited only by installations, establishments or undertakings holding such permits. Undertakings engaged in the carriage of toxic and dangerous waste shall be controlled by the competent authorities of the Member States.
2. The permit referred to in paragraph 1 shall cover in particular:
─ the type and quantity of waste;
─ the technical requirements;
─ the precautions to be taken;
─ the disposal site(s);
─ the methods of disposal.
This permit may also lay down the specific information to be made available at the request of the competent authorities.
3. Permits may include conditions and obligations. They may be granted for a specified period and may be renewed.
10 By virtue of Article 11 of Directive 91/689, Directive 78/319 was repealed with effect from 27 June 1995.
11 Article 1(2) of Directive 91/689 provides that Directive 75/442 applies to hazardous waste.
12 Annex II A to Directive 75/442 lists disposal operations as they occur in practice.
13 Article 9 of Directive 75/442 states:
1. For the purposes of implementing Articles 4, 5 and 7, any establishment or undertaking which carries out the operations specified in Annex II A must obtain a permit from the competent authority referred to in Article 6.
Such permit shall cover:
─ the types and quantities of waste,
─ the technical requirements,
─ the security precautions to be taken,
─ the disposal site,
─ the treatment method.
2. Permits may be granted for a specified period, they may be renewable, they may be subject to conditions and obligations, or, notably, if the intended method of disposal is unacceptable from the point of view of environmental protection, they may be refused.
National legislation
Legislation relating to the pursuit of industrial activity
14 Decreto-Lei No 109/91 of 15 March 1991 ( Diário da República I, Series A, No 62, of 15 March 1991), as amended by Decreto-Lei No 282/93 of 17 August 1993 ( Diário da República I, Series A, No 192, of 17 August 1993) (hereinafter Decree-Law No 109/91), lays down the rules applicable to the pursuit of industrial activity.
15 As is apparent from the fourth recital in its preamble, Decree-Law No 109/91 is intended to be an instrument for protection of the collective interest, in the form of both safety of technological processes and the seeking of the best conditions for the location and activity of industry, which ensure for both the industrialist and the community the multiplier effect of the activity created.
16 Article 4 of Decree-Law No 109/91, headed General safety obligation, states: Industrial activity must be carried out in such a way as to ensure safety with regard to people and property, working conditions and the environment, while having regard to the existing level of technological development ...
17 Article 5 of Decree-Law No 109/91, headed General risk-prevention obligation, provides:
1. Industrialists must pursue their activity in accordance with the applicable legislation and take preventive measures in order to eliminate or reduce risks capable of affecting people and property, working conditions and the environment.
2. Whenever there is an anomaly in the functioning of the establishment, an industrialist must take appropriate measures to correct the situation ...
18 Article 7(1), (2) and (3) of Decree-Law No 109/91 reads as follows:
1. Duly identified third parties may at any time submit a reasoned complaint, relating to the installation, alteration and operation of any industrial establishment, to the coordinating body, or to the supervisory bodies of the regional unit of the ministry concerned or the body responsible for safeguarding the rights and interests at issue, and those bodies shall forward the complaint, accompanied by a reasoned opinion, to the coordinating body.
2. The body which receives the complaint shall notify the industrialist thereof.
3. The coordinating body shall take the necessary measures, in particular by means of inspections, when investigating and making a decision on the complaint, consulting, where appropriate, the bodies responsible for safeguarding the rights and interests at issue.
19 Article 9 of Decree-Law No 109/91 provides:
1. The application for a permit to be submitted by the industrialist to the coordinating body shall be considered in conjunction with a document attesting to location approval ... and with an environmental impact study if required under the applicable legislation.
2. The coordinating body shall, where it is obligatory, seek the views of the bodies which have functions in the industrial field relating to the environment, health, and hygiene and safety at work.
...
5. Conditions and requirements imposed by the bodies referred to in paragraph 2 must form an integral part of the permit to be issued.
...
20 Article 12 of Decree-Law No 109/91 provides:
1. Responsibility for supervising observance of the statutory provisions relating to pursuit of industrial activity shall lie in particular with the coordinating body or with the regional unit of the ministry concerned, in accordance with its institutional regulations, without prejudice to the powers of the other bodies involved in the procedure for the grant of authorisation, within the framework of their respective functions.
2. The other supervisory bodies may, where necessary, request the coordinating body to impose measures on the industrialist in order to prevent risks and difficulties capable of affecting people and property, working conditions and the environment, without prejudice to observance of the provisions of international law relating to the supervision of employment relationships.
3. The industrialist shall facilitate access of all the supervisory bodies to his installations and provide them with information and assistance, sought by a reasoned request, for the purpose of the monitoring of compliance with legislation and the conditions which have been imposed on him by the coordinating body.
4. Where, in the course of supervision, one of the other supervisory bodies records a failure to comply with measures prescribed by it, it must draw up a statement thereon and inform the coordinating body, and organise and conduct the infringement procedure.
21 Article 13 of Decree-Law No 109/91, headed protective measures, states: Where situations entailing serious risk to health, the safety of persons and property, hygiene and safety of work premises, and the environment become apparent, the coordinating body and the other supervisory bodies must, individually or jointly, immediately take the measures which are necessary in each case in order to prevent or put an end to that situation, and the decision may be taken to suspend production and to close the establishment temporarily, in whole or in part, or to immobilise, by sealing, all or part of the equipment, for a maximum period of six months.
22 Article 16(1) and (2) of Decree-Law No 109/91 provides:
1. An offence punishable by a fine ... is committed in the event of:
(a) the installation, alteration or operation of an industrial establishment without prior issue of a permit as referred to in Articles 8(1) and 11;
(b) failure to comply with requirements laid down in the applicable technical rules and with measures imposed under Article 12(2).
2. An offence punishable by a fine ... is committed in the event of failure to comply with the obligations relating to recording the transfer of the establishment and to communicating the suspension of operations and the cessation of industrial activity.
23 Article 2(4)(b) of Portaria No 314/94 of 24 May 1994 ( Diário da República I, Series B, No 120, of 24 May 1994; hereinafter Implementing Order No 314/94) provides: A proposal for installation of an establishment in Class A must contain:...
(4) a risk study, except where the industrial establishment is covered by the legislation relating to the prevention of serious industrial accidents, which must indicate: ...
(b) the choice of technologies enabling the use of dangerous equipment or products to be avoided or reduced
.
24 Model procedures for the grant of industrial permits are annexed to Implementing Order No 314/94. Points 10 to 13 of Model No 2 are worded as follows:
10. Description of the safety and industrial hygiene measures, in particular with regard to the risk of fire and explosion, systems for capturing and dealing with dust, mist particles and vapour.
11. Work system: number of teams.
12. Facilities of a social nature, medical facilities at work and health facilities. ...
13. Minimum clearance height in the installation ...
25 Points 7 to 10 of Model No 3, which is also annexed to Implementing Order No 314/94, are couched in the same terms as Points 10 to 13 of Model No 2.
Legislation relating to waste management
26 Decreto-Lei No 239/97 of 9 September 1997 ( Diário da República I, Series A, No 208, of 9 September 1997; hereinafter Decree-Law No 239/97) establishes, as stated in its preamble, an independent mechanism for prior authorisation of waste management operations, not to be confused with authorisation of the activities of which those operations sometimes form part, as is the case, so far as concerns industrial waste, with industrial permits.
27 Article 4(1) of Decree-Law No 239/97 is worded as follows: Waste management shall seek, by way of priority, to prevent or reduce the production or harmfulness of waste, in particular by reusing it and altering production processes, by means of the adoption of cleaner technologies and by increasing business and consumer awareness.
28 Article 7(1) and (2) of Decree-Law No 239/97 states:
1. The abandonment of waste is prohibited, as is the production, transport, storage, treatment, recovery or disposal of waste by unauthorised bodies or in unauthorised installations.
2. The deposit of waste is prohibited except on sites, and under the conditions, laid down by a permit granted in advance.
29 Article 8(1) of Decree-Law No 239/97 states that the storage, treatment, recovery and disposal of waste shall be subject to prior authorisation.
30 In addition, it is apparent from Article 9(1) of Decree-Law No 239/97 that responsibility for authorising operations referred to in Article 8 lies with the Minister for the Environment where there is a statutory requirement for prior assessment of their environmental impact.
31 Article 10(1) of Decree-Law No 239/97 is worded as follows: The application for a permit referred to in Article 8 shall be made to the authority with competence for the final decision, accompanied by the items required:
(a) where appropriate, by the laws and regulations which govern the conduct of environmental impact assessment procedures;
(b) by the implementing order of the Minister for the Environment in the case of industrial waste, solid urban waste or other types of waste.
32 Article 18 of Decree-Law No 239/97 states: Responsibility for overseeing observance of this decree-law lies with the Institute for Waste, the Directorate-General for the Environment and the regional directorates for the environment and natural resources, other bodies with power to authorise waste management operations and the police authorities.
33 Article 19 of Decree-Law No 239/97 provides: In the event of an emergency or of serious risk to public health or the environment, the Minister for Health or the Minister for the Environment may by decision adopt appropriate protective measures, in particular by suspending any waste management operation.
34 Article 20(1) and (2) of Decree-Law No 239/97 states:
1. Breach, by the relevant responsible person, of the obligation to ensure that the way in which waste is ultimately dealt with is appropriate, under Article 6, and infringement of Articles 7(1), (3) and (4) and 8(1) and of the rules referred to in Article 15(1) of this decree-law ... constitute an offence punishable by a fine ...
2. Infringement of Articles 7(2), 16(1) and (2) and 17(1) and (2) constitutes an offence punishable by a fine ...
35 Article 21(1)(f) of Decree-Law No 239/97 is worded as follows: The infringements provided for in the preceding article may, in addition to a fine and in accordance with general legislation, be punishable by the following ancillary penalties:...
(f) suspension of permits, licences and approvals.
36 Article 24 of Decree-Law No 239/97 states:
1. Where an appropriate licence or permit has not been granted, waste storage, treatment, recovery or disposal operations which are in progress require a permit from the competent authority.
2. Permits as referred to in the preceding paragraph must be applied for by 31 December 1997 at the latest and shall be governed by Article 8 et seq. of this decree-law.
37 The ministerial implementing order referred to in Article 10(1)(b) of Decree-Law No 239/97 is Portaria No 961//98 of 10 November 1998 ( Diário da República I, Series B, No 260, of 10 November 1998; hereinafter Implementing Order No 961/98).
38 Article 3(1)(c) of Implementing Order No 961/98 states: The application for a permit shall be accompanied by:...
(c) a proposal, which must, depending on whether landfill or another waste management operation is involved, contain the items set out in Annex I or Annex II hereto which form an integral part of this implementing order.
39 Point 1(e) of Annex II to Implementing Order No 961/98 mentions, among the items to be included in the proposal envisaged by Article 3(1)(c), a descriptive statement containing particulars of the number of workers, of the work system and of facilities of a social nature, medical facilities at work and health facilities.
40 Article 8 of Implementing Order No 961/98 provides: In accordance with the legislation applicable to the right of access to documents held by public authorities, duly identified third parties may request information from the competent body or the regional directorate for the environment or submit to them a complaint concerning an installation or operations at issue.
Legislation relating to the disposal of waste oils
41 The Regulamento de Licenciamento das Actividades de Recolha, Armazenagem, Tratamento Prévio, Regeneração, Recuperação, Combustão e Incineração dos Óleos Usados (Regulation relating to the Grant of Permits for the Collection, Storage, Pretreatment, Regeneration, Reclamation, Combustion and Incineration of Waste Oils) was approved by Portaria No 240/92 of 25 March 1992 ( Diário da República I, Series B, No 71, of 25 March 1992) (hereinafter the Regulation annexed to Implementing Order No 240/92).
42 Article 3 of the Regulation annexed to Implementing Order No 240/92 states:
1. The registers of movements of waste oils, referred to in Article 3(1) and (2) of Decree-Law No 88/91 of 23 February 1991, must conform to the models published in Annex I, which forms an integral part of this regulation, and they must be completed every quarter by holders, collectors and users of those oils.
2. The entities referred to in the preceding paragraph must send the registers to the Directorate-General for Energy ...
43 Under Article 9 of the Regulation annexed to Implementing Order No 240/92, a permit is required for the pretreatment of waste oils.
44 Article 10(a), which relates to the consideration of applications for permits authorising pretreatment, provides: The application for a permit shall be accompanied by the following information:
(a) location of the unit, treatment capacity and technology for the process, which must be the best available that does not entail excessive cost
.
45 In addition, Article 12(1)(f) of the Regulation annexed to Implementing Order No 240/92 requires, with regard to authorisation of the activities of undertakings which regenerate waste oils, that the installation proposal be annexed to the application for a permit.
46 Article 13(a) states: The installation proposal shall contain the following items:
(a) a statement which describes the installation, including: a detailed description of the industrial activity, with a specification of the technological processes, production diagrams and sanitary conditions; an indication of the nominal production capacity to be created and of the envisaged daily and/or weekly production capacity; identification of the raw materials or any ancillary materials to be used, and their quantities; a quantitative and qualitative indication of liquid effluents, gaseous emissions and waste; identification of sources of emissions, in particular noise, vibration, radiation and chemical agents; a description of the apparatus, machines and other equipment and their characteristics, indicating the standards or specifications to be complied with; an indication of the proposed total power; a description of matters concerning safety organisation in relation to environmental protection, to the protection of people and property and to conditions of hygiene and safety at work; ... a description of the industrial installations, including those for storage, combustion, driving power or steam production and containers of gases under pressure; a description of the general characteristics of the construction and internal finishing of the industrial establishment; a description of the system for the supply of drinking and other water, quantifying envisaged consumption; ...
47 Article 15(a), (b) and (c) of the Regulation annexed to Implementing Order No 240/92 provides: The Directorate-General for Energy shall, within eight working days, send a copy of the items laid down by Article 12 to the following bodies for an opinion:
(a) the Directorate-General for Environmental Quality;
(b) the Directorate-General for Primary Health Care;
(c) the Inspectorate-General for Labour.
48 Article 23 of the Regulation annexed to Implementing Order No 240/92 provides that use of waste oils as fuel is conditional upon issue of a permit, which falls within the competence of the regional agencies of the Ministry for Industry and Energy.
49 Article 24 is worded as follows: The application for a permit shall be accompanied by the following items and information:
(a) a presentation of the project;
(b) a descriptive statement with an indication of the type of industry in which the combustion occurs;
(c) the power installed, in megawatts;
(d) the nature of the unit which uses the oils, for instance indirect combustion furnaces, direct combustion furnaces, steam generators and dimension parameters;
(e) the types of burners;
(f) the composition of the waste oils to be utilised;
(g) the percentage of waste oils utilised in the mixtures with other fuels and the quantities consumed;
(h) the location of the installation in relation to third parties ...;
(i) information on how combustion residues are ultimately dealt with.
50 Article 25 states: The use of waste oils as fuel shall be prohibited in the food industry, in particular in bakeries, and in cases where products of combustion come into contact with the food produced.
51 Article 2(1) of Decreto-Lei No 88/91 of 23 February 1991 ( Diário da República I, Series A, No 45, of 23 February 1991; hereinafter Decree-Law No 88/91) provides: Any tipping or landfilling of waste oils or residues resulting from their treatment which has harmful effects on the soil is prohibited.
52 In addition, Article 4(2) of Decree-Law No 88/91 provides: Waste oils may be transported, disposed of and recovered only where authorised of the Director-General for Environmental Quality.
53 Article 5 of Decree-Law No 88/91 states: Without prejudice to the powers conferred by law on other bodies, responsibility for overseeing observance of this decree-law lies with the Directorate-General for Energy and the regional agencies of the Ministry for Industry and Energy.
Legislation relating to the supervisory environmental authorities
54 Decreto-Lei No 189/93 of 24 May 1993 ( Diário da República I, Series A, No 120, of 24 May 1993; hereinafter Decree-Law No 189/93), which approved the Law establishing the Directorate-General for the Environment, provides in Article 6:
1. The tasks of inspecting and controlling potentially polluting activities shall rest with the Office for Environmental Inspection and Supervision ...
2. It shall be the task of [the Office for Environmental Inspection and Supervision]:
(a) to inspect industrial installations and sources of pollution of every kind in order to verify compliance with environmental legislation in force;
...
4. The activity of the [Office for Environmental Inspection and Supervision] shall be structured around an annual plan of ordinary inspections which shall be submitted for ministerial approval, and, where necessary, extraordinary inspections, the results of which must be communicated immediately to the supervising minister.
55 Article 3 of Decreto-Lei No 549/99 of 14 December 1999 ( Diário da República I, Series A, No 289, of 14 December 1999; hereinafter Decree-Law No 549/99), which approved the Law establishing the Inspectorate-General for the Environment, provides: It shall be the task of the Inspectorate-General for the Environment ... to ensure compliance with legal rules having an effect on the environment and with administrative law within the sphere of the departments answerable to the Minister for the Environment.
56 Article 4(1)(a) of Decree-Law No 549/99 provides: It shall be the task of [the Inspectorate-General for the Environment]:
(a) to oversee observance of laws and regulations in fields having a bearing upon the environment and to inspect establishments, premises or activities subject to those provisions
.
57 Article 13 of Decree-Law No 549/99 states:
1. The [Inspectorate-General for the Environment] and the other bodies with inspection functions are obliged to cooperate with each other in accordance with their respective legal functions and powers, using for that purpose the mechanisms which prove the most appropriate.
2. The [Inspectorate-General for the Environment] may seek from municipal councils and units answerable to other government departments information concerning procedures for the grant of permits in respect of activities having an environmental impact.
58 Article 2 of Decreto-Lei No 236/97 of 3 September 1997 ( Diário da República I, Series A, No 203, of 3 September 1997; hereinafter Decree-Law No 236/97) states:
1. The Institute for Waste shall have responsibility for implementing national waste policy and ensuring compliance with technical standards and regulations.
2. The Institute for Waste shall carry out intersectoral action, in particular with the competent bodies of the Ministries for Agriculture, Rural Development and Fisheries, for Economic Affairs and for Health, as regards agricultural, industrial and hospital waste respectively.
Pre-litigation procedure
59 By letters of 8 March 1991, 13 April 1992, 11 December 1992 and 18 April 1994, the Portuguese Government informed the Commission that Directive 75/439 had been transposed into national law by Decree-Law No 88/91, Implementing Order No 240/92, Portaria (Implementing Order) No 1028/92 of 5 November 1992 ( Diário da República I, Series B, No 256, of 5 November 1992) and Despacho conjunto (Joint Order) of the Ministries for Industry and Energy and for the Environment and Natural Resources of 26 April 1993 ( Diário da República II, No 115, of 18 May 1993).
60 After examining the national provisions notified, the Commission formed the view that they did not transpose Directive 75/439 correctly and completely. It therefore initiated the procedure laid down in Article 169 of the EC Treaty (now Article 226 EC) and, by letter of 4 July 1994, gave the Portuguese Government formal notice to submit its observations.
61 The Portuguese Government replied, justifying its position, by letter of 26 October 1994.
62 Since the Commission considered that the explanations put forward by the Portuguese Government were not satisfactory and that Community law remained infringed, on 27 November 1997 it sent the Portuguese Republic a reasoned opinion, calling on it to comply with the reasoned opinion within two months from notification thereof.
63 In its reply of 25 February 1998 the Portuguese Government adhered to its position.
64 It was in those circumstances that the Commission decided to bring the present action.
Substance
Failure to implement Article 6(2) of Directive 75/439 in so far as it makes authorisation to use waste oils as fuel conditional upon all appropriate health protection measures being taken
Arguments of the parties
65 In the first part of its first complaint, the Commission alleges that the Portuguese Republic has failed to adopt measures ensuring that issue, by the competent national authority, of the permit required under Article 6(2) of Directive 75/439 for undertakings which use waste oils as fuel is conditional upon all appropriate health protection measures being taken.
66 The Commission notes as a preliminary point that, in order to satisfy the requirement of legal certainty, it is essential that the regime for authorising the disposal of waste oils be sufficiently clear and precise to enable all the undertakings concerned to know, with the necessary certainty, that the permit application must cover matters relating to health protection and that the competent authority is required to take that criterion into consideration as a condition for authorisation. However, it is not clear to the Commission which Portuguese legislative provisions govern the submission of permit applications in the specific field of use of waste oils as fuel.
67 In particular, the Commission observes that the rules relating to authorisation of the collection, storage, pretreatment, regeneration, reclamation, combustion and incineration of waste oils, namely the Regulation annexed to Implementing Order No 240/92, do not contain any provision relating to health protection in connection with the use of waste oils as fuel, with the sole exception of Article 25 of that regulation, which merely prohibits their use as fuel in the food industry.
68 The Commission states that, even so far as concerns the undertakings which, according to the assertions of the Portuguese Government, have already obtained a permit pursuant to the Regulation annexed to Implementing Order No 240/92 after submitting an installation proposal covering matters relating to health protection, the Portuguese Government does not indicate under what provision of that regulation they were required to submit the proposal.
69 The Portuguese Government, on the other hand, contends that its national legislation enables the objective of Article 6(2) of Directive 75/439 to be achieved, which is to ensure that consideration by the competent authority of the application documentation enables it to establish, before taking a decision, whether appropriate health protection conditions are present. Contrary to the Commission's assertions, that objective may be achieved in various ways, not necessarily entailing an expressly prescribed obligation on the undertaking concerned to annex a statement covering health protection aspects to its permit application. There are, in Portuguese law, legal rules which reproduce the content of Article 6(2) of Directive 75/439, even if they do not form part of the national legislative measure designed to implement that directive.
70 According to the Portuguese Government, the reason why health protection is not expressly mentioned in the Regulation annexed to Implementing Order No 240/92 is that that regulation refers to undertakings which normally already hold a permit or which must obtain one in order to engage in a principal industrial activity. Those undertakings must accordingly comply with the provisions governing authorisation to engage in industrial activity, which take account of that aspect.
71 In this connection, the Portuguese Government cites Articles 4 and 5 of Decree-Law No 109/91, and also Article 9(2) and (5) thereof which ensures that conditions and requirements imposed by the bodies which have functions with regard to, inter alia , health, hygiene and safety at work and are consulted by the authority which issues the permit must be integrated into the permit granted. In addition, Article 13 of the decree-law provides that where, inter alia , a situation entailing serious risk to health becomes apparent, measures to prevent or remove the risk must immediately be taken.
72 The Portuguese Government also relies on Article 2(4) of Implementing Order No 314/94, which provides that an application for authorisation to set up or alter an industrial establishment must be accompanied by a risk study, submitted in accordance with the appropriate model and containing, as set out in points 10 to 13 of Model No 2 and points 7 to 10 of Model No 3 annexed to that order, a description of matters related to the organisation of hygiene and safety conditions at work.
73 According to the Portuguese Government, account should also be taken of Implementing Order No 961/98 under which, it states, the storage, treatment, recovery and disposal of waste are subject to prior authorisation of the Minister for the Environment. It also refers to Article 3(1)(c) of that order, read in conjunction with Annex II thereto, and points out that the documents which must be provided in support of the permit application include a descriptive statement containing several items capable of ensuring the adoption of health protection measures, for instance social and health facilities, medical facilities at work and, generally, all the requirements relating to the identification and treatment of waste.
74 So far as concerns Articles 4 and 5 of Decree-Law No 109/91, the Commission responds that those provisions, which impose a general safety obligation and a general risk-prevention obligation respectively, concern pursuit of industrial activity in the strict sense and do not necessarily require the undertaking concerned to annex to the permit application a description of matters related to health protection; the same is true of Article 9 of the decree-law.
75 Nor does Article 13 of Decree-Law No 109/91 impose such an obligation on the undertaking concerned. In providing for the possibility of suspending production and temporarily closing the establishment, in whole or in part, that provision appears to refer to a dangerous situation detected while the industrial activity is being pursued.
76 According to the Commission, only Implementing Order No 961/98 expressly provides that the permit application must include matters relating to health protection. However, that order cannot be taken into account in the present infringement proceedings because, by virtue of Article 2(2) of Lei (Law) No 74/98 of 11 November 1998 ( Diário da República I, Series A, No 261, of 11 November 1998), it did not enter into force until 15 November 1998, that is to say after expiry of the period laid down by the reasoned opinion.
Findings of the Court
77 First, as is apparent from its very wording, Article 6 of Directive 75/439 does not simply indicate the factors which the competent authority must take into account when issuing a permit to an undertaking which wishes to pursue an activity involving the disposal of waste oils, but makes issue of that permit expressly subject to a specific condition, namely the adoption of all appropriate environmental and health protection measures.
78 While Article 6(1) of the directive merely makes it obligatory, in order for the activity in question to be pursued, that a permit be issued, which, where necessary, is granted after the installations of the undertaking concerned have been examined, it is clear from Article 6(2) that the permit can be issued only where the competent authority has satisfied itself that all the requisite measures have been taken.
79 It is accordingly apparent that, under the authorisation system which the Member States are required, pursuant to Article 6 of Directive 75/439, to establish in their national law, implementation of the requisite measures must constitute a sine qua non for issue of the permit referred to therein.
80 Second, while the Court has held that transposition of a directive into national law does not necessarily require its provisions to be reproduced verbatim in a specific, express law or regulation and a general legal context may be sufficient, that is so only if that context effectively ensures the full application of the directive in a sufficiently clear and precise manner. The Court has pointed out that it is particularly important, in order to satisfy the requirement of legal certainty, that the provisions of a directive be implemented with unquestionable binding force, so that individuals have the benefit of a clear and precise legal situation enabling them to ascertain the full extent of their rights and duties (see, to that effect, Case C-197/96 Commission v France [1997] ECR I-1489, paragraph 15, and Case C-49/00 Commission v Italy [2001] ECR I-8575, paragraph 21).
81 It is in the light of those considerations that it must be examined whether the national provisions pleaded by the Portuguese Government implement Article 6(2) of Directive 75/439 correctly.
82 As regards, first of all, Decree-Law No 109/91, while Articles 4 and 5 may be interpreted as requiring a person who wishes to use waste oils as fuel to take appropriate safety and risk-prevention measures, they do not in any way provide that actual adoption of those measures is a precondition for grant of the permit to which that use is subject.
83 It is true that Article 9(2) and (5) of Decree Law No 109/91 provides that the authority which considers the permit application must consult bodies which have functions in the industrial field relating to the environment, health, and hygiene and safety at work, and that those bodies may impose conditions which must form an integral part of the permit to be issued.
84 However, that consultation procedure, envisaged, as stated in Article 9(2), where it is obligatory under the applicable legislation, does not in any way guarantee that only undertakings which have taken all appropriate health protection measures obtain a permit to use waste oils as fuel.
85 That finding also holds for the protective measures which the competent authorities may take under Article 13 of Decree-Law No 109/91 in reacting to situations of risk that arise while an undertaking which uses waste oils as fuel is engaging in its activity.
86 Next, as regards Article 2(4) of Implementing Order No 314/94, while the risk study required thereunder to accompany the permit application is liable to provide the competent authority with information relevant for the purposes of its appraisal, that provision likewise does not require the undertaking concerned to have taken all appropriate health protection measures in order for the permit to be issued.
87 Finally, so far as concerns the provisions of Implementing Order No 961/98 relied upon by the Portuguese Government, suffice it to state that, in accordance with settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation in the Member State as it stood at the end of the period laid down in the reasoned opinion, and that the Court may not take account of any subsequent changes (see, inter alia , Case C-473/99 Commission v Austria [2001] ECR I-4527, paragraph 13).
88 It is common ground that Implementing Order No 961/98 did not enter into force until after expiry of the period of two months laid down in the reasoned opinion. It must accordingly be acknowledged, in accordance with the case-law cited in the previous paragraph, that even if that order implements Article 6(2) of Directive 75/439 correctly, it is not relevant to the present proceedings.
89 It is thus apparent that, even if the competent authorities require, as Article 6(2) of Directive 75/439 prescribes, that an undertaking wishing to use waste oils as fuel take all appropriate health protection measures before they issue the requisite permit to it, that requirement is not laid down by a binding national provision which is sufficiently specific, precise and clear, so that, in accordance with the case-law recalled in paragraph 80 of this judgment, the article was not implemented correctly within the period laid down.
90 Consequently, the first part of the Commission's first complaint must be upheld.
Failure to implement Article 6(2) of Directive 75/439 in so far as it makes authorisation to dispose of waste oils conditional upon use of the best technology possible, where the cost is not excessive
Arguments of the parties
91 In the second part of its first complaint, the Commission alleges that the Portuguese Republic has failed to adopt measures ensuring that issue, by the competent national authority, of the permit required under Article 6(2) of Directive 75/439 both for undertakings which regenerate waste oils and for those which use them as fuel is conditional upon use of the best technology available, where the cost is not excessive.
92 As regards, first, undertakings which seek authorisation to regenerate waste oils, the Commission observes that the first item in Article 13(a) of the Regulation annexed to Implementing Order No 240/92 merely provides that the statement describing the installation is to contain a detailed description of the industrial activity, with a specification of the technological processes, and does not clearly inform the undertakings concerned that a permit for regenerating waste oils will be issued to them only if the requirement laid down in Article 6(2) of Directive 75/439, namely use of the best technology available, where the cost is not excessive, is observed. The abovementioned provision of the Regulation annexed to Implementing Order No 240/92 does not therefore set out that requirement expressly and unequivocally.
93 The Commission points out that, under Article 10(a) of the Regulation annexed to Implementing Order No 240/92, applications for permits authorising the pretreatment of waste oils must be accompanied by, inter alia , information relating to the technology for the process, which must be the best available that does not entail excessive cost, and states that it is incomprehensible why that express reference was considered appropriate by the Portuguese legislature for the procedure governing authorisation of the pretreatment of waste oils and inappropriate for the procedure governing authorisation of regeneration of the same oils.
94 As regards, second, undertakings which seek authorisation to use waste oils as fuel, the Commission states that it has not found in the legislation notified to it any reference to use of the best available technology as a condition for such authorisation.
95 The Portuguese Government observes first of all that, by virtue of Article 189 of the Treaty, directives are binding, as to the result to be achieved, upon the Member States to which they are addressed, but leave to the national authorities the choice of form and methods. Consequently, the Commission cannot impose the form or method which it considers the most appropriate for implementing a Community provision. Its only task is to check whether the national legislation corresponds to the objective which the Community legislature intended to achieve.
96 In addition, the interpretation of Article 6(2) of Directive 75/439 argued for by the Commission, under which that provision requires national legislation to lay down the objective referred to as a condition for authorisation, is, in the Portuguese Government's view, incorrect. It argues that the key point in implementing that provision is that the authorisation procedure must be conducted on the basis of information or actions enabling the competent authority to establish, before taking a decision, whether the conditions entailed by use of the best technology available, where the cost is not excessive are met.
97 The Portuguese Government submits in this connection that the concept of best technology available, where the cost is not excessive is either expressly laid down or implicit in all the procedures for issuing permits in force under its national law.
98 So far as concerns, first, the regeneration of waste oils, the Portuguese Government observes that the information which, by virtue of Article 13(a) of the Regulation annexed to Implementing Order No 240/92, the statement describing the installation must contain is sufficiently detailed to enable the bodies which issue the permit to carry out an overall assessment of the proposed process, in such a way as to determine precisely whether the installation in fact seeks to use the best available technology not entailing excessive cost. The level of detail to which proposals will be assessed is thus clear to applicants, a result which national legislation would not achieve if it merely contained an express reference to the best technology available, where the cost is not excessive.
99 The Portuguese Government also refers to Article 15 of the Regulation annexed to Implementing Order No 240/92, which states that the documentation in respect of an application for a permit to regenerate waste oils is to be sent for an opinion to, inter alia , the Directorate-General for Environmental Quality, whose powers in this regard are currently exercised by the Institute for Waste. The Portuguese Government explains that the Institute for Waste will then necessarily have to take account of the need to use the best technology available, where the cost is not excessive, by virtue of Decree-Law No 239/97, Article 4(1) of which provides that waste management is to seek, by way of priority, to prevent or reduce the production or harmfulness of waste, in particular by reuse and altering production processes, by means of the adoption of cleaner technologies.
100 The Portuguese Government accepts that, in the context of rules relating to the pretreatment of waste oils, the legislature, instead of requiring the permit application to be accompanied by a detailed statement describing the technological process, simply refers in Article 10(a) of the Regulation annexed to Implementing Order No 240/92 to the concept of use of the best available technology not entailing excessive cost. However, that is a choice of legislative technique for the national legislature to make, and not for the Commission to criticise in particular because the concept of cleaner technologies used in Article 4(1) of Decree-Law No 239/97 is, ultimately, more exacting. The Portuguese Government adds that, as clean technologies do not exist, the concept of best available technology proved to correspond more closely to reality and that, in any event, the fundamental concern underlying both concepts is the adoption of technologies which are more gentle or more respectful of the environment.
101 As regards, second, the use of waste oils as fuel, the Portuguese Government states that the objective of using the best technology available, where the cost is not excessive is laid down in the Portuguese legislation on industrial permits which covers all the industrial establishments at issue, because all are required to hold an industrial permit.
102 In particular, the Portuguese Government relies on the fourth recital in the preamble to Decree-Law No 109/91 and Article 4 thereof which provides that industrial activity must be carried out having regard to the existing level of technological development. It also refers to Article 2(4)(b) of Implementing Order No 314/94, read in conjunction with Model No 2 annexed to that order, from which it is apparent that the risk study required to accompany the installation proposal includes the choice of technologies which enable the use of dangerous equipment or products to be avoided or reduced.
103 In its reply, the Commission submits that the words having regard to the existing level of technological development, which appear in Article 4 of Decree-Law No 109/91, are vague and do not in themselves enable the measures which undertakings must adopt in order to pursue their industrial activity in accordance with the existing level of technological development to be identified with the necessary certainty. More specifically, even if the existing level of technological development is the highest, the words have regard to do not reveal how far those measures must go, in particular whether use of the best technology available is obligatory where the cost is not excessive. Furthermore, contrary to Article 6(2) of Directive 75/439, that wording does not make reference to the fact that the best available technology must be used provided that the cost is not excessive.
104 In addition, the Commission submits with regard to the arguments relating to consultation of the Institute for Waste carried out under Article 15 of the Regulation annexed to Implementing Order No 240/92 and in accordance with Decree-Law No 239/97, first, that Article 15 applies solely to the regeneration of waste oils and, second, that the reference to the adoption of cleaner technologies contained in Article 4(1) of Decree-Law No 239/97 does not necessarily mean that the best technology available is involved. Thus, it does not necessarily follow, on reading those two provisions together, that use of the best technology available is mandatory.
105 The Commission therefore concludes that the provisions relied upon by the Portuguese Government do not appear to implement adequately the condition relating to the use, in the context of the regeneration and combustion of waste oils, of the best technology available, where the cost is not excessive. It further considers that the fact that, as has been found, the legislation is scattered results in uncertainty as to the applicable legislation, contrary to the requirement of legal certainty.
Findings of the Court
106 Having regard to the purpose of Article 6(2) of Directive 75/439, as described in paragraphs 77, 78 and 79 of this judgment, it must be examined whether the Portuguese legislation provides that use of the best available technology not entailing excessive cost constitutes a sine qua non for issue of a permit to dispose of waste oils.
107 As regards the national provisions governing applications for permits to regenerate waste oils, it is true that the requisite information in the descriptive statement referred to in Article 13(a) of the Regulation annexed to Implementing Order No 240/92, such as the specification of the technological processes, is such as to enable the competent authority to establish, before taking a decision, whether the undertaking concerned has used the best available technology not entailing excessive cost. However, the information is not in itself sufficient to ensure that compliance with that requirement actually constitutes a sine qua non for issue of the permit.
108 That finding is not affected by the circumstance, referred to by the Portuguese Government, that under Article 15 of the Regulation annexed to Implementing Order No 240/92 the abovementioned descriptive statement is sent for an opinion to, inter alia , the Institute for Waste, which considers it in the light of the legislation applicable to waste management, namely Decree-Law No 239/97. Furthermore, the provisions relating to that opinion provide no indication at all as to whether it is binding.
109 It follows that the national provisions governing applications for permits to regenerate waste oils cannot be considered to ensure that use of the best technology available, where the cost is not excessive, is a sine qua non for issue of the permit required in order to engage in that activity.
110 These findings equally hold with regard to the national provisions applicable to industrial activities as a whole, which the Portuguese Government has also relied on, namely Article 4 of Decree-Law No 109/91 and Article 2(4)(b) of Implementing Order No 314/94. Neither the obligation to carry out industrial activity having regard to the existing level of technological development nor the obligation to accompany installation proposals with a risk study including the choice of technologies which enable the use of dangerous equipment or products to be avoided or reduced ensures that undertakings obtain a permit to regenerate waste oils or use them as fuel only if they use the best available technology not entailing excessive cost.
111 Since none of the national provisions invoked by the Portuguese Government ensures that the permit provided for in Article 6 of Directive 75/439 is issued to an undertaking which wishes to dispose of waste oils only if it uses the best technology available, where the cost is not excessive, as required by Article 6(2), it is clear that, for reasons essentially analogous to those set out in paragraph 89 of this judgment, the second part of the Commission's first complaint is likewise well founded.
112 The Commission's first complaint must accordingly be upheld.
Failure to implement Article 8(2)(a) of Directive 75/439
Arguments of the parties
113 In its second complaint, the Commission alleges that the Portuguese Republic has failed to implement Article 8(2)(a) of Directive 75/439 correctly, inasmuch as it failed to lay down that residues from the combustion of waste oils must be disposed of in accordance with Article 9 of Directive 78/319 and, from 27 June 1995, in accordance with Article 9 of Directive 75/442 which, pursuant to Directive 91/689, replaced Article 9 of Directive 78/319 from that date.
114 The Commission acknowledges in its application that it stated both in its letter of formal notice and in the reasoned opinion that Portuguese legislation did not include provisions designed to satisfy the obligation owed by Member States under Article 8(2)(a) of Directive 75/439 to ensure that residues from the combustion of waste oils are disposed of in accordance with Article 9 of Directive 78/319, without referring to Article 9 of Directive 75/442.
115 However, in its reply to the reasoned opinion the Portuguese Government maintained that under the applicable national legislation, residues from the combustion of waste oils are in principle regarded as hazardous waste the disposal of which is provided for by specific provisions of national legislation currently in force, in particular Decree-Law No 239/97, which implements Directives 91/156/EEC and 91/689/EEC, and Implementing Order No 818/97 [Portaria of 5 September 1997 ( Diário da República I, Series B, No 205, of 5 September 1997)] which approves the list of waste.
116 The Commission argues that, given this ground of defence put forward by the Portuguese Government, it had no choice but to examine the Portuguese legislation relied upon in order to establish whether it ensured compliance with the obligation to dispose of residues from the combustion of waste oils in accordance with Article 9 of Directive 75/442.
117 The Commission refers in support of this analysis to the judgment in Case 211/81 Commission v Denmark [1982] ECR 4547, concerning infringement proceedings in which it had pleaded the provisions of a directive for the first time in its application. The Court held in paragraph 16 of that judgment that the Commission had merely replied to a ground of defence raised by the Danish Government in response to the reasoned opinion and that, in so doing, it had amended neither the definition nor the basis of the alleged infringement.
118 In any event, the Commission submits that, since 27 June 1995, the date on which Directive 78/319 was repealed by Directive 91/689, the reference in Article 8(2)(a) of Directive 75/439 to Article 9 of the repealed directive must be understood as a reference to Article 9 of Directive 75/442.
119 The Commission points out, first, that Directive 91/689 which, as provided in Article 1(2) thereof, renders Directive 75/442 applicable to hazardous waste, subject to its own provisions, does not contain any provision at all preventing application of Article 9 of Directive 75/442 to the disposal of residues from the combustion of waste oils.
120 Second, comparison of the wording of Article 9 of Directive 78/319 and Article 9 of Directive 75/442 reveals that their content is largely identical and that they have the same objective, namely to make the disposal of residues from the combustion of waste oils subject to prior grant of a permit and to specify the matters which the permit must cover.
121 Accordingly, relying on the judgment in Case C-365/97 Commission v Italy [1999] ECR I-7773, at paragraphs 39 and 40, the Commission maintains that the fact that it referred to Article 9 of Directive 75/442 for the first time in the application does not render the complaint inadmissible since the complaint concerns obligations arising under that directive which were already applicable under Directive 78/319.
122 As to the merits, the Commission states that it is clear from the Portuguese Government's replies to the letter of formal notice and to the reasoned opinion that the Portuguese legislation prior to Decree-Law No 239/97 and Implementing Order No 818/97 did not require, before 27 June 1995, residues from the combustion of waste oils to be disposed of in accordance with Article 9 of Directive 78/319 or, after that date, in accordance with Article 9 of Directive 75/442.
123 The Portuguese Government challenges the admissibility of the Commission's complaint. In its submission, the complaint relates to new facts, upon which it did not have the opportunity to state its view in the pre-litigation procedure, and its rights of defence have thus been infringed. It maintains that the pre-litigation procedure was concerned with implementation of Directive 75/439 and that alone, and that the transposition of Article 9 of Directive 75/442 into domestic law was not put in issue at any time.
124 Although the Portuguese Government considers that the Commission could not properly include in its application the question of implementation of Directive 75/442, it none the less wishes to state that the provisions of Article 9 of that directive are fully implemented in its national legislation.
125 In support of its assertion it cites, first, Articles 2 and 4(2) of Decree-Law No 88/91, which make the transport, disposal and recovery of waste oils subject to prior authorisation of the Director-General for Environmental Quality, thereby implementing Article 8(2)(a) of Directive 75/439.
126 Second, the Portuguese Government points out that, from 1997, it is Articles 8(1) and 9(1) of Decree-Law No 239/97 which have made the disposal of residues from the combustion of waste oils subject to prior authorisation, thereby establishing a rule forming the basis for implementation of Article 9 of Directive 75/442.
127 Finally, the Portuguese Government submits that the conditions to which grant of prior authorisation to carry out such disposal is subject are apparent from Annexes I and II to Implementing Order No 961/98, to which Article 3(1)(c) of that order refers and which prescribe the production of documents regarding, in particular, technical requirements in relation to the installation, safety precautions to be taken, disposal sites and the method of treatment used.
128 In its reply, the Commission states that it has been unable, upon examination of the legislation referred to by the Portuguese Government in its defence, to find national provisions correctly transposing Article 9 of Directive 78/319 or Article 9 of Directive 75/442.
129 First of all, Articles 2 and 4(2) of Decree-Law No 88/91 cannot be taken into account since they do not lay down specific provisions with regard to the disposal of residues from the combustion of waste oils.
130 As regards the provisions of Decree-Law No 239/97 relied upon by the Portuguese Government, the Commission points out that none of them lays down the items which must accompany an application for prior authorisation to carry out the waste disposal operations.
131 Finally, the Commission takes the view that Implementing Order No 961/98 transposes appropriately the rules laid down in Article 9 of Directive 75/442, but that it cannot be taken into account in the present case because it entered into force after expiry of the period laid down in the reasoned opinion.
Findings of the Court
─ Admissibility
132 It is settled case-law that the purpose of the pre-litigation procedure laid down in Article 226 EC is to give the Member State concerned an opportunity to comply with its obligations under Community law or to avail itself of its right to defend itself against the complaints made by the Commission (see, inter alia , Case C-1/00 Commission v France [2001] ECR I-9989, paragraph 53).
133 It is also settled case-law that the proper conduct of that pre-litigation procedure constitutes an essential guarantee required by the Treaty not only in order to protect the rights of the Member State concerned, but also to ensure that any contentious procedure will have a clearly defined dispute as its subject-matter. 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 failed to fulfil the specific obligations which the Commission alleges it has breached (see, inter alia , the order in Case C-266/94 Commission v Spain [1995] ECR I-1975, paragraphs 17 and 18, and Case C-365/97 Commission v Italy , cited above, paragraph 35).
134 Thus, although the claims as stated in the application cannot in principle be extended beyond the infringements alleged in the letter of formal notice and in the operative part of the reasoned opinion, it is none the less the case that, where Community law is amended during the course of the pre-litigation procedure, the Commission has standing to seek a declaration that a Member State has failed to fulfil obligations which were created in the initial version of a directive, subsequently amended or repealed, and which were maintained in force under the new provisions (see Case C-365/97 Commission v Italy , paragraph 36).
135 Conversely, the subject-matter of the dispute cannot be extended to obligations arising under the new version of a directive which do not correspond to those arising under the previous version of that directive, as otherwise it would constitute a breach of the essential procedural requirements of infringement proceedings (see, to that effect, Case C-365/97 Commission v Italy , paragraph 39).
136 It is in the light of this case-law that it should be examined whether, in the present case, the lack of consistency between the reasoned opinion and the application, in so far as the reasoned opinion refers exclusively to implementation of the obligations flowing from Article 9 of Directive 78/319, whereas the application also refers to the obligations arising under Article 9 of Directive 75/442, constitutes a ground rendering the Commission's second complaint inadmissible.
137 First of all, by virtue of Article 11 of Directive 91/689, that directive replaced Directive 78/319 from 27 June 1995.
138 Directive 91/689, as provided in Article 1(2) thereof, extended the application of Directive 75/442 to hazardous waste, subject to its own provisions. Since Directive 91/689 does not contain any other provision in this connection, from 27 June 1995 Article 9 of Directive 75/442 became applicable to residues from the combustion of waste oils, thereby replacing Article 9 of Directive 78/319.
139 It follows that, from that date, the reference in Article 8(2)(a) of Directive 75/439 to Article 9 of the repealed Directive 78/319 must be understood as a reference to Article 9 of Directive 75/442, so that, on a proper construction of Article 8(2)(a) of Directive 75/439, from 27 June 1995 the requirements relating to the disposal of residues from the combustion of waste oils which are envisaged by that provision are those laid down in Article 9 of Directive 75/442.
140 However, in light of the criteria established by the case-law cited in paragraphs 134 and 135 of this judgment, it still remains to determine whether the obligations arising under Article 9 of Directive 75/442 were already laid down by Article 9 of Directive 78/319.
141 Article 9(1) of Directive 75/442, like Article 9(1) and (2) of Directive 78/319, contains an obligation on the Member States to make the activities of undertakings which dispose of residues from the combustion of waste oils subject to a permit, together with a non-exhaustive list of the matters which the permit is to cover.
142 In addition, Article 9(2) of Directive 75/442 takes up the wording of Article 9(3) of Directive 78/319, in so far as both those provisions lay down that permits may be granted for a specified period, be renewed and be subject to conditions and obligations.
143 However, Article 9(2) of Directive 75/442, unlike Article 9(3) of Directive 78/319, provides for the possibility of refusing a permit, if the intended method is unacceptable from the point of view of environmental protection.
144 Thus, in order to implement the permit regime laid down in Article 9 of Directive 75/442 for the disposal of residues from the combustion of waste oils, the Member States are required to provide not only for the possibility of issuing permits that are valid for a specified period, renewable and subject to conditions and obligations, as was already the case under Article 9 of Directive 78/319, but also for the possibility of refusing a permit, if the environmental protection requirement is not met.
145 It is thus apparent that, by referring to Article 9 of Directive 75/442 for the first time in its application, the Commission extended the subject-matter of the dispute, in so far as that article imposes on the Member States an obligation additional to those already flowing from Article 9 of Directive 78/319, the provision referred to in the reasoned opinion.
146 It follows that the complaint alleging that Article 8(2)(a) of Directive 75/439 has not been implemented correctly is admissible only in so far as it concerns, before 27 June 1995, the obligations flowing from Article 9 of Directive 78/319 and, from that date, the obligations arising under Article 9 of Directive 75/442 which were already owed by the Member States under Article 9 of Directive 78/319.
─ Substance
147 First of all, the provisions of Decree-Law No 88/91 do not transpose into Portuguese law the obligations flowing from Article 8(2)(a) of Directive 75/439 in relation to the disposal of residues from the combustion of waste oils. Suffice it to state, first, that the authorisation procedure provided for in Article 4(2) of that decree-law concerns only waste oils, and not residues from their combustion, and second, that Article 2 of the decree-law equally does not lay down an authorisation procedure for the disposal of residues from the combustion of waste oils, but only a prohibition on the tipping and landfilling of waste oils and residues from their treatment.
148 Nor can Articles 8 and 9 of Decree-Law No 239/97 be regarded as measures appropriately implementing Article 8(2)(a) of Directive 75/439, since they merely make the disposal of residues from the combustion of waste oils subject to prior authorisation of the Minister for the Environment, without establishing the detailed rules of that procedure and, therefore, without complying with the requirements of the provisions to which Article 8(2)(a) of Directive 75/439 refers.
149 As the Portuguese Government itself acknowledges, those detailed rules were prescribed only by Implementing Order No 961/98. For the reasons set out in paragraphs 87 and 88 of this judgment, that order cannot be taken into consideration in the present proceedings.
150 Accordingly, the inevitable conclusion is that the Portuguese Republic failed to adopt, within the period laid down, the provisions needed in order to comply with the obligations flowing, before 27 June 1995, from Article 9 of Directive 78/319 and, from that date, with those arising under Article 9 of Directive 75/442 which were already owed by the Member States under Article 9 of Directive 78/319.
151 Since the requirements relating to the disposal of residues from the combustion of waste oils, envisaged by Article 8(2)(a) of Directive 75/439, were not correctly transposed into Portuguese law, the Commission's second complaint must be upheld, within the limits previously set out.
Failure to implement Article 13(1) of Directive 75/439
Arguments of the parties
152 In the first part of its third complaint, the Commission alleges that the Portuguese Republic has failed to implement the obligation, laid down in Article 13(1) of Directive 75/439, to inspect periodically undertakings which regenerate waste oils or use them as fuel, particularly as regards their compliance with the conditions of their permits.
153 In its application, the Commission states that in the pre-litigation procedure the Portuguese Government did not deny that the Regulation annexed to Implementing Order No 240/92 contained no provision at all providing for periodical inspection of undertakings which dispose of waste oils, in particular in order to ensure compliance with the conditions of their permits, and did not put forward other national provisions which could ensure compliance with this inspection obligation, laid down in Article 13(1) of Directive 75/439.
154 In its defence and rejoinder, the Portuguese Government challenges the Commission's contentions and pleads various national provisions which, in its submission, are intended to ensure compliance with that obligation.
155 First of all, it refers to Article 5 of Decree-Law No 88/91, which provides that responsibility for overseeing observance of the provisions of that decree-law lies with the Directorate-General for Energy and the regional agencies of the Ministry for Industry and Energy, and adds that, in accordance with Article 18 of Decree-Law No 239/97, every undertaking which regenerates waste oils or uses them as fuel may, at any time, be subject to inspection or scrutiny by the foregoing bodies or by the Institute for Waste, the regional directorates for the environment, the Inspectorate-General for the Environment, the municipal authorities or the police authorities.
156 The Portuguese Government explains that, as is apparent from Decree-Law No 239/97, those bodies consult each year on an action plan for the regular inspection of waste management installations and, where irregularities come to light, may, depending on their gravity, adopt the measures provided for in Articles 19, 20 and 21 of the decree-law, that is to say adopt protective measures or impose fines or ancillary penalties.
157 The Portuguese Government points out with regard to the Institute for Waste in particular that, as is apparent from Article 2 of Decree-Law No 236/97, it has responsibility for implementing national waste policy and ensuring compliance with technical standards and regulations, and carries out intersectoral action concerning, inter alia , industrial waste.
158 The Portuguese Government pleads, in addition, the legislation on industrial permits, in particular Article 12 of Decree-Law No 109/91 which makes express provision for overseeing observance of the statutory provisions relating to the pursuit of industrial activity. In this context it also points out that under Article 7 of that decree-law, and Article 8 of Implementing Order No 961/98, third parties are able to submit complaints relating to the installation, alteration and operation of any industrial establishment to the competent authorities, which are required to take the necessary measures, in particular by means of inspections.
159 The Portuguese Government refers furthermore to Article 6 of Decree-Law No 189/93, from which it is apparent that it is the task of the Office for Environmental Inspection and Supervision to carry out inspections of industrial installations enabling compliance with environmental legislation in force to be verified. This involves both ordinary inspections, carried out in accordance with an annual plan, and, where necessary, extraordinary inspections.
160 Finally, the Portuguese Government relies on Articles 3 and 4(1)(a) of Decree-Law No 549/99, which relate to the functions and powers of Inspectorate-General for the Environment, the body which has taken up the duties previously exercised by the Office for Environmental Inspection and Supervision. It also refers, in this context, to Article 13 of Decree-Law No 549/99, which provides that that body and the other bodies with inspection functions are under a duty to cooperate with each other, using for that purpose the mechanisms which appear the most appropriate, and states that, in its opinion, such mechanisms include the annual drawing up of action plans.
161 The Commission takes the view that none of the national provisions cited by the Portuguese Government ensures that undertakings covered by Article 13(1) of Directive 75/439 are subject to systematic inspections carried out on a periodic basis.
162 In particular, it submits that it does not necessarily follow from Article 12 of Directive 109/91 that inspection is periodical, and points out that Article 7 of that decree-law and Article 8 of Implementing Order No 961/98 do not indicate either that inspection of the undertakings must satisfy that condition. The fact that, in accordance with Article 7(1) and (3) of Decree-Law No 109/91, the body which has the complaint before it must take the necessary measures, in particular by means of inspections, when acting upon the complaint demonstrates, on the contrary, that scrutiny is dependent, in this case, on the submission of the complaint and that it is therefore occasional and relates solely to undertakings which are the subject of such complaints.
Findings of the Court
163 Directive 75/439, as is apparent from Article 6 thereof read in conjunction with Article 13, obliges the Member States to establish in their national legal orders machinery for supervising undertakings which dispose of waste oils, and sets out the minimum requirements which that machinery must satisfy, as regards its subject-matter and the conditions governing its operation.
164 More specifically, the undertakings concerned must be subject to scrutiny both under the authorisation procedure which precedes the commencement of operations for the disposal of waste oils, in accordance with Article 6 of Directive 75/439, and in the course of those operations on a periodical basis, as is clear from Article 13(1) of the directive.
165 The effect of Article 6 of the directive, in conjunction with Article 13(1), is that, in both cases, the scrutiny must relate to compliance with the conditions of the permits, which means that, both under the procedure for issue of the initial permit and in the course of the periodical inspections carried out subsequently, the competent authorities must satisfy themselves that all appropriate environmental and health protection measures have been taken, including use of the best technology available where the cost is not excessive.
166 The provisions of national law cited in this connection by the Portuguese Government do not satisfy the requirements arising from Article 13(1) of Directive 75/439, as described above.
167 First of all, the provisions relating to the supervisory powers of the various bodies, namely Article 5 of Decree-Law No 88/91, Article 18 of Decree-Law No 239/97, Article 12 of Decree-Law No 109/91, Article 2 of Decree-Law No 236/97 and Article 6 of Decree-Law No 189/93, merely allow the competent authorities to carry out inspections, periodic where appropriate, without imposing an obligation upon them in this regard.
168 Even if, as the Portuguese Government contends, it follows from those provisions that every undertaking which disposes of waste oils may be inspected at any time, the fact remains that they do not ensure that the undertakings concerned are in fact inspected periodically. Furthermore, the inspections covered by them relate only to compliance with the provisions of the various applicable decree-laws, and not specifically to compliance with the conditions of the permits, in accordance with the obligation which arises under Article 13(1) of Directive 75/439, read in conjunction with Article 6 thereof.
169 Next, in accordance with the case-law recalled in paragraph 87 of this judgment, the provisions of Decree-Law No 549/99 which have been pleaded by the Portuguese Government in this context cannot be taken into consideration in the present proceedings because that decree-law did not enter into force until 14 December 1999, that is to say after expiry of the period laid down in the reasoned opinion.
170 As to the obligation on the competent authorities to act upon complaints of third parties by taking the necessary measures, in particular by inspecting the installations of the undertakings concerned, which results from Article 7 of Decree-Law No 109/91, it must be stated that that obligation does not satisfy any of the requirements flowing from the Community legislation. As the Commission has rightly observed, the inspections referred to in Article 7 of that decree-law are random, inasmuch as they are dependent on submission of a complaint and concern solely the undertaking which is the subject of the complaint.
171 Furthermore, for the reasons stated in paragraphs 87 and 88 of this judgment, Article 8 of Implementing Order No 961/98, which is also pleaded in this connection, cannot be taken into consideration in the present proceedings.
172 Finally, as regards the possibility, provided for in Articles 19, 20 and 21 of Decree-Law No 239/97, of adopting protective measures or imposing fines or ancillary measures should inspections conducted at waste management installations reveal serious irregularities, suffice it to state that such measures cannot in any case be regarded as appropriate implementation of Article 13(1) of Directive 75/439 since they do not ensure that compliance with the conditions of permits is checked periodically.
173 It therefore follows from the foregoing considerations that Article 13(1) of Directive 75/439 was not correctly implemented by the Portuguese Republic.
Failure to implement Article 13(2) of Directive 75/439
Arguments of the parties
174 In the second part of its third complaint, the Commission alleges that the Portuguese Republic has failed to implement the obligation, laid down in Article 13(2) of Directive 75/439, to examine trends in the state of technical development and/or of the environment with a view to revising, where necessary, permits granted to undertakings which regenerate waste oils or use them as fuel.
175 The Portuguese Government contends that the relevant applicable national legislation ensures periodical and systematic monitoring of the activity of undertakings which dispose of waste oils, in such a way that developments in the technological and environmental fields are assessed in the most effective manner for achieving the objectives referred to in Article 13(2) of Directive 75/439, since it provides that installations are subject to inspections enabling the competent authorities to impose at any time modifications considered more consonant with technical and scientific progress and to suspend authorisations granted to the undertakings concerned.
176 The Portuguese Government refers in this regard to Decree-Law No 239/97, in particular to the transitional arrangements laid down by Article 24 under which undertakings that hold an authorisation to conduct waste management operations are obliged to adapt to new requirements imposed in the meantime by national legislation. In the Portuguese Government's submission, since the new legislation that has been published essentially amounts to the transposition into national law of the Community legislation adapting the existing regulatory framework to technical and scientific progress, it must be accepted that there is constant adaptation to trends in the state of technical development and/or of the environment. It adds that Decree-Law No 239/97 makes express provision for overseeing observance of the rules which it lays down and Article 18 of the decree-law sets out the competences for that purpose.
177 The Portuguese Government observes furthermore that the general legislation concerning industrial permits provides for supervision in respect of the rules governing the pursuit of industrial activity. In this connection, it invokes Articles 12 and 13 of Decree-Law No 109/91, the second of which prescribes protective measures in the event of serious risk to health, the safety of persons and property, hygiene and safety of work premises and the environment.
178 In addition, by virtue of Article 16 of Decree-Law No 109/91 breach of the rules applicable to permits to engage in industrial activity constitutes an offence punishable by a fine and, under Article 8(1) of Decree-Law No 239/97, in conjunction with Articles 20(1) and 21(1)(f) thereof, ancillary penalties such as the suspension of permits, licences and approvals may also be imposed for failure to comply with the rules governing authorisation of the storage, recovery and disposal of waste.
179 The Commission states that it cannot endorse the Portuguese Government's contention that, since the new legislation that has been published essentially amounts to the transposition into national law of the Community legislation adapting the existing regulatory framework to technical and scientific progress, it should be accepted that there is constant adaptation to trends in the state of technical development and/or of the environment. In its submission, that argument effectively renders Article 13(2) of Directive 75/439 purposeless.
180 According to the Commission, Article 13(2) obliges the competent authorities of the Member States continuously to assess developments in the technological and/or environmental fields. This means, for example, that if, at a given moment, the assessment carried out were to establish that, notwithstanding the conditions imposed when the permit was granted, the environmental situation had deteriorated or could deteriorate in the area where the undertaking disposing of waste oils had established itself or that, in the meantime, new products or equipment resulting from technology more modern than that which existed when the permit was granted had been put on the market, the competent authority could revise the permit granted in order to strengthen the protection of health and/or the environment.
181 Finally, the Commission contends with regard to the provisions of Decree-Laws No 109/91 and No 239/97 relied upon by the Portuguese Government, that the obligation to assess developments in the technological and/or environmental fields cannot be complied with fully if recourse is had, solely or mainly, to supervision and/or protective measures.
Findings of the Court
182 The obligation owed by national authorities under Article 13(2) of Directive 75/439, which forms an integral part of the supervisory machinery established by Articles 6 and 13 of that directive, as described in paragraphs 163, 164 and 165 of the present judgment, constitutes the necessary complement to the obligation laid down in Article 6(2) of the directive.
183 While Article 6(2) requires the competent authorities to verify, in the course of the procedure for issuing a permit, whether undertakings have taken all appropriate environmental and health protection measures, including use of the best technology available where the cost is not excessive, when they commence operations for the disposal of waste oils, Article 13(2) obliges those authorities to make sure, in the context of the periodical inspections which they are required to carry out under Article 13(1), that the conditions for the disposal of waste oils are adapted continuously to trends in the state of technical development and/or of the environment.
184 It is thus apparent that that provision is addressed to the competent national authorities, imposing an obligation upon them constantly to revise, and to adapt to trends in the state of technical development and/or of the environment, permits granted to undertakings which dispose of waste oils.
185 Accordingly, the Portuguese Government's argument that the adaptation required by that provision is already ensured by the continuous development of provisions of national law, in particular when they implement the Community provisions, cannot be upheld.
186 In the light of the purpose of Article 13(2) of Directive 75/439, as described in the preceding paragraphs, it is also apparent that the specific provisions of national law pleaded by the Portuguese Government cannot be regarded as measures appropriately implementing that article. An obligation to revise or adapt permits granted in the light of trends in the state of technical development and/or of the environment is not imposed by Article 12 of Decree-Law No 109/91 and Article 18 of Decree-Law No 239/97, which empower the competent authorities to oversee observance of the rules governing the pursuit of industrial activity, Article 13 of Decree-Law No 109/91, which provides for the possibility of taking protective measures in the event of risk to the environment or health, or Article 16 of Decree-Law No 109/91, and Article 8(1) of Decree-Law No 239/97 in conjunction with Articles 20(1) and 21(1)(f) thereof, which provide for the possibility of imposing penalties for failure to comply with the rules governing authorisation of the storage, recovery and disposal of waste.
187 In view of the foregoing considerations, the Commission's third complaint, alleging a failure to implement Article 13 of Directive 75/439, must be upheld in its entirety.
Failure to convey the information envisaged in Article 17 of Directive 75/439
Arguments of the parties
188 The Commission states in its application that, as Directive 75/439 was transposed into Portuguese law between February 1991 and April 1993, the national implementing legislation has been applied for a sufficiently long period to enable the Portuguese Government to obtain and to convey to it the information referred to in Article 17 of that directive.
189 However, the Portuguese Government still has not forwarded to it the report which it planned to send, according to its reply to the reasoned opinion, before the end of September 1998 and which it described as a more complete report on the transposition and implementation of the directive during 1995, 1996 and 1997, drawn up in accordance with Decision 94/741/EC, thereby ensuring full compliance with Article 17 of the directive.
190 The Commission states that the Portuguese Government has not denied that it failed to comply with that obligation. In its reply to the reasoned opinion, it justified the lack of information by contending that the frequency with which information had to be conveyed was not defined and that it did not consider that it had acquired information concerning technical expertise in applying its national legislation implementing Directive 75/439.
191 The Commission submits, however, that the fact that a Member State considers that it has not acquired information concerning technical expertise over a certain period does not dispense it from notifying the Commission thereof within the framework of the periodical communication of information provided for in Article 17 of Directive 75/439 and that, if Member States were able to decide by themselves whether it was necessary to transmit information to it, the effectiveness of that article could be prejudiced.
192 The Commission adds that if the Member States were not required also to make known that they have failed to acquire information concerning technical expertise during the reference period, it could not know that that failure is the very reason for the lack of communication and it would be obliged to initiate a procedure under Article 226 EC for infringement of the obligation imposed by Article 17 of Directive 75/439, in order to obtain the relevant information.
193 As to the word periodically in Article 17 of Directive 75/439, the Commission submits that it means that the Member States are required to convey the information in question to it at regular intervals. Since the precise duration of those intervals is, however, not specified, they must be reasonable and their reasonableness must be determined on the basis of the nature of the information required by Article 17. According to the Commission, it transpires that the Portuguese Government has never forwarded any of the information referred to in that article.
194 To rebut this complaint, the Portuguese Government states first of all that, as regards the obligation laid down in Article 18 of Directive 75/439 to forward every three years a situation report on the disposal of waste oils, a first report, entitled Report on the application of Directive 87/101/EEC of 22 December 1986, was communicated to the Commission on 14 August 1995.
195 With regard to the period from 1995 to 1997, the Portuguese Government refers to a report drawn up in accordance with Commission Decision 94/741/EC of 24 October 1994 concerning questionnaires for Member States' reports on the implementation of certain directives in the waste sector (implementation of Council Directive 91/692/EEC) (OJ 1994 L 296, p. 42), which it annexed to its defence and notified to the Commission by letter of 29 November 1999.
196 The Portuguese Government explains that the delay in notification of that report to the Commission was due above all to the need to compare and validate information gathered by means of two existing data collection systems: first, the system provided for in Article 3 of the Regulation annexed to Implementing Order No 240/92, which states that the registers of movements of waste oils, referred to in Article 3(1) and (2) of Decree-Law No 88/91, must be completed quarterly by holders, collectors and users of those oils and, second, the system established by Portaria (Implementing Order) No 792/98 of 22 September 1998 ( Diário da República I, Series B, No 219, of 22 September 1998) approving the model registration form for industrial waste.
197 The Portuguese Government explains that, under Implementing Order No 792/98, producers of industrial waste are obliged to complete the registration form, identifying the waste in accordance with the European Waste Catalogue, and to submit it annually, before 15 February of the year following the year to which the figures relate, to the regional directorate for the environment for the area within which the installation in question falls. It adds that the regional directorates for the environment are responsible for validating and processing the information included in the registration forms and that information must be sent annually to the Institute for Waste, before 30 September of the year following the year to which the figures relate.
198 The Commission states in reply, so far as concerns the first report on the application of Directive 87/101, referred to by the Portuguese Government, that the report, which lists and describes the national legislation implementing that directive, does not contain the information referred to in Article 17 of Directive 75/439.
199 As regards, next, the report drawn up in accordance with Decision 94/741, relating to the period from 1995 to 1997, the Commission explains that that decision adopted the questionnaire referred to in Article 18 of Directive 75/439, as amended by Article 5 of Council Directive 91/692/EEC of 23 December 1991 standardising and rationalising reports on the implementation of certain directives relating to the environment (OJ 1991 L 377, p. 48) in conjunction with point (a) of Annex VI thereto. It also notes that Article 18, as amended, provides that at intervals of three years Member States shall send information to the Commission on the implementation of [Directive 75/439] in the form of a sectoral report which must be drawn up on the basis ... of a questionnaire or outline drafted by the Commission in accordance with the procedure laid down in Article 6 of Directive 91/692/EEC, and that the first report shall cover the period 1995 to 1997 inclusive.
200 The Commission points out that the Portuguese Government has not specified the elements of that report which, although it was drawn up under Article 18, could, in its view, constitute the information relating to experience gained and results obtained by the competent authorities through the application of Directive 75/439 to which Article 17 thereof refers. In any event, even though certain elements of that report could be considered to constitute such information, the Commission notes that that information had not been conveyed to it, pursuant to Article 17 of Directive 75/439, on expiry of the period which it granted to the Portuguese Republic for complying with the reasoned opinion.
201 Finally, in response to the Portuguese Government's argument that the delay in notification of the report drawn up in accordance with Decision 94/741 was attributable, in particular, to the need to compare and validate information gathered by means of the two data collection systems existing under Portuguese legislation, the Commission recalls the settled case-law according to which a Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with the obligations and time-limits laid down in a directive.
Findings of the Court
202 It is to be observed at the outset that Article 17 of Directive 75/439 is intended to enable both the Commission and the Member States to be informed on a periodic basis of the technical knowledge acquired by each of those States and of experience gained and results obtained through the application of the directive in the Community.
203 In the light of the purpose of that article, the Portuguese Government's argument based on the fact that it considers that it has not acquired technical knowledge in applying its national legislation transposing Directive 75/439 into national law must be rejected.
204 The fact that a Member State has not acquired new technical knowledge over a certain period also constitutes a useful piece of information with which the Commission and the other Member States should become acquainted by virtue of Article 17 of Directive 75/439, in particular as that article does not provide for any exception to the obligation to convey the information to which it refers.
205 Nor can compliance with the obligation laid down in Article 17 of Directive 75/439 to convey information depend on the assessment made by each Member State as to whether or not it possesses knowledge worth being conveyed, as otherwise the effectiveness of that provision would be prejudiced.
206 It should also be remembered that Article 17 of Directive 75/439 imposes on the Member States the obligation to disclose not only any technical knowledge that may have been acquired, but also experience gained and results obtained through the application of the measures brought into force in national law in order to implement that directive.
207 Finally, as is clear from the file, on expiry of the period laid down in the reasoned opinion seven years had already elapsed since the adoption of the first measure transposing Directive 75/439 into Portuguese law, namely Decree-Law No 88/91, which entered into force on 23 February 1991.
208 In the light of the long period of time which thus elapsed, the Portuguese Government cannot legitimately plead the fact that the frequency with which information must be conveyed under the obligation imposed by Article 17 of Directive 75/439 is not specified as justification for its failure to perform that obligation.
209 So far as concerns the two reports relied upon by the Portuguese Government, it must be stated that neither of them can be regarded as satisfying the obligation to convey information in Article 17 of Directive 75/439.
210 As the Commission has observed without being contradicted by the Portuguese Government, the report on the application of Directive 87/101 cannot be regarded, from the point of view of its content, as a report for the purposes of Article 17 of Directive 75/439, since it contains only a description of the national provisions implementing Directive 75/439, and not the technical knowledge, experience and results specifically required under that article.
211 As to the report drawn up in accordance with Decision 94/741, suffice it to state that, even if it could be regarded as satisfying the requirements arising under Article 17 of Directive 75/439, it cannot be taken into consideration in the present infringement proceedings because it was communicated to the Commission after expiry of the period laid down in the reasoned opinion.
212 It follows that the Commission's fourth complaint, alleging a failure to convey the information prescribed in Article 17 of Directive 75/439, must also be upheld.
213 In view of all the foregoing considerations, it must be found that:
─ by failing to adopt, within the prescribed period, provisions requiring the competent authority, before granting a permit to undertakings which regenerate waste oils or use them as fuel, to satisfy itself that health is appropriately protected where waste oils are used as fuel and that the best available technology not entailing excessive cost is used where waste oils are regenerated or used as fuel;
─ by failing to lay down, within the prescribed period, that residues from the combustion of waste oils are to be disposed of in accordance with the obligations flowing from Article 9 of Directive 78/319 and, from 27 June 1995, in accordance with the obligations arising under Article 9 of Directive 75/442 which were already owed by the Member States under Article 9 of Directive 78/319;
─ by not providing, within the prescribed period, for periodical inspection of undertakings which regenerate waste oils or use them as fuel, or for examination of trends in the state of technical development and/or of the environment with a view to revising, where necessary, permits granted to those undertakings;
─ by failing to convey to the Commission information concerning technical expertise and the experience gained and results obtained through the application of measures taken pursuant to Directive 75/439,
the Portuguese Republic has failed to fulfil its obligations under Articles 6(2), 8(2)(a), 13 and 17 of Directive 75/439.
Costs
214 Under Article 69(2) of the Rules of Procedure of the Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has applied for costs and the Portuguese Republic has essentially been unsuccessful, the latter must be ordered to pay the costs.
On those grounds,
THE COURT (Sixth Chamber)
hereby:
1. Declares that:
─ by failing to adopt, within the prescribed period, provisions requiring the competent authority, before granting a permit to undertakings which regenerate waste oils or use them as fuel, to satisfy itself that health is appropriately protected where waste oils are used as fuel and that the best available technology not entailing excessive cost is used where waste oils are regenerated or used as fuel;
─ by failing to lay down, within the prescribed period, that residues from the combustion of waste oils are to be disposed of in accordance with the obligations flowing from Article 9 of Council Directive 78/319/EEC of 20 March 1978 on toxic and dangerous waste and, from 27 June 1995, in accordance with the obligations arising under Article 9 of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991, which were already owed by the Member States under Article 9 of Directive 78/319;
─ by not providing, within the prescribed period, for periodical inspection of undertakings which regenerate waste oils or use them as fuel, or for examination of trends in the state of technical development and/or of the environment with a view to revising, where necessary, permits granted to those undertakings;
─ by failing to convey to the Commission information concerning technical expertise and the experience gained and results obtained through the application of measures taken pursuant to Council Directive 75/439/EEC of 16 June 1975 on the disposal of waste oils, as amended by Council Directive 87/101/EEC of 22 December 1986,
the Portuguese Republic has failed to fulfil its obligations under Articles 6(2), 8(2)(a), 13 and 17 of Directive 75/439, as amended by Directive 87/101;
2. Dismisses the remainder of the application;
3. Orders the Portuguese Republic to pay the costs.
Puissochet
Schintgen
Skouris
Macken
Colneric
Delivered in open court in Luxembourg on 10 April 2003.
R. Grass
J.-P. Puissochet
Registrar
President of the Sixth Chamber
1 – Language of the case: Portuguese.
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