OPINION OF ADVOCATE GENERAL

RUIZ-JARABO COLOMER delivered on 25 June 2002 (1)

Grand Duchy of Luxembourg

((Action for failure by a Member State to fulfil its obligations – Waste management – Disposal of polychlorinated biphenyls – Inventoried equipment))

In this action for failure by a Member State to fulfil its obligations, the Commission seeks a declaration from the Court of Justice, under Article 226 EC, that, by failing to draw up plans for the decontamination and/or disposal of inventoried equipment and of the polychlorinated biphenyls (PCB) contained therein, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 11(1) of Directive 96/59/EC of 16 September 1996 (2) (Directive 96/59 or the Directive).

The relevant provisions of Directive 96/59

The aim of Directive 96/59 is to approximate the laws of the Member States on the controlled disposal of polychlorinated biphenyls (PCB). (3)

In accordance with Article 3 of the Directive, Member States are required to take the necessary measures to ensure that used PCBs are disposed of and PCBs and equipment containing PCBs are decontaminated or disposed of as soon as possible. In the case of equipment and the PCBs contained therein which are subject to inventory in accordance with Article 4(1), decontamination and disposal must be effected by the end of 2010 at the latest.

Under Article 4(1) to (3):

3. The inventories shall comprise the following:

the names and addresses of the holders,

the location and description of the equipment,

the quantity of PCBs contained in the equipment,

the dates and types of treatment or replacement carried out or envisaged,

the dates of declaration.

If a Member State has already compiled a similar inventory, a new one shall not be required. Inventories shall be regularly updated.

Article 11 provides:

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

outlines for the collection and subsequent disposal of equipment which is not subject to inventory in accordance with Article 4(1), as referred to in Article 6(3).

According to the 10th recital in the preamble to the Directive, ... it is essential to know what quantities of PCBs exist in order to be able to match disposal capacity to needs; ... it is therefore necessary to label equipment containing PCBs and to compile inventories of such equipment; ... such inventories must be regularly updated. The 16th recital states that: ... the number of PCB disposal and decontamination plants is small and their capacity limited and the disposal and/or decontamination of the PCBs inventoried must therefore be properly planned; ... moreover, outlines for the collection and subsequent disposal of non-inventoried equipment should be drawn up; ... such outlines may, if necessary, make use of existing mechanisms concerning waste in general and need not take account of very minor quantities of PCBs which cannot be identified in practice.

The relevant national legislation

Directive 96/59 was transposed into national law by means of the Grand-Ducal Regulation of 24 February 1998 on the disposal of PCBs and PCTs (the Implementing Regulation). (4)

Article 3 of that regulation provides:

3. Equipment with volumes of more than 5 dm³, in relation to which it is reasonable to assume that the fluids contain more than 0.005% by weight of PCBs, and the PCBs contained therein, must be inventoried ... . In the case of power capacitors, the threshold of 5 dm³ includes all the separate elements of a combined set. Their use shall continue to be authorised until:

31 December 2005, if they contain in excess of 0.5% by weight of PCBs;

31 December 2010, if they are assumed to contain less than or equivalent to 0.05% by weight of PCBs. Disposal or decontamination must be effected at the latest before expiry of the respective time-limits specified above.

The pre-litigation procedure

After various contacts had taken place, the Commission sent a letter of formal notice to Luxembourg on 4 April 2000, pursuant to Article 226 EC, calling on it to fulfil its obligations under Articles 3, 4 and 11 of Directive 96/59 and requesting it to submit observations within two months. No reply to that letter was received.

On 25 July 2000, the Commission sent Luxembourg a reasoned opinion, again pursuant to Article 226 EC, requiring compliance with Articles 3, 4 and 11 of the Directive within a further period of two months.

By letter dated 3 August 2000, Luxembourg replied to the letter of formal notice of 4 April, claiming that:on the basis of an inventory carried out in 1984, it had disposed of virtually all the PCBs in its territory prior to the entry into force of Directive 96/59;the inventory compiled in accordance with Article 4(1) of the Directive confirmed that there were only minimum quantities of PCBs in its national territory;the Luxembourg authorities had been of the opinion that the specification of time-limits in the Implementing Regulation was sufficient to comply with Article 11(1) of the Directive;the disposal of PCBs would be dealt with in more detail in the National Waste Management Plan which was due to be completed at the end of 2000.

In the light of the information provided, the Commission decided to limit its action against the Grand Duchy of Luxembourg to the complaint relating to the lack of a decontamination and/or disposal plan for the inventoried equipment and the PCBs contained therein.

The action for failure to fulfil obligations

On 23 April 2001 the Commission brought this action, in which it seeks a declaration from the Court of Justice that, by failing to draw up plans for the decontamination and/or disposal of inventoried equipment and the PCBs contained therein, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 11(1) of Directive 96/59, together with an order that the defendant should pay the costs.

The defendant Member State, for its part, contends that the action should be dismissed and that the applicant should be ordered to pay the costs.

Analysis of the action

The Commission claims that the Implementing Regulation does not constitute a decontamination or disposal plan for the purposes of Article 11(1) of the Directive, which must be interpreted in the light of the 10th and 16th recitals in its preamble. (5) The Commission submits that Article 3 of the Implementing Regulation merely lays down time-limits for the use of plant containing PCBs and fails to specify the methods for the disposal or decontamination of inventoried equipment and the PCBs contained therein.

The Commission is also of the view that the planning exercise resulting from Article 11(1) of the Directive, in conjunction with the 10th and 16th recitals, requires the Member States to compare the quantities of inventoried PCBs and the amount of equipment to be disposed of or decontaminated with the available disposal or decontamination facilities. It must also enable the Member States to define the types of treatment for the various categories of equipment and the PCBs contained therein.

The defendant Government contends that the Implementing Regulation lays down time-limits for the disposal and/or decontamination of equipment and PCBs in accordance with the provisions of the Directive. Furthermore, the measures adopted by Luxembourg to dispose of PCBs prior to the entry into force of the Directive, which continue to apply, are sufficient to achieve the required outcome and render unnecessary the drawing-up of plans for decontamination and/or disposal. In any event, such plans would now form part of the National Waste Management Plan, which was adopted on 15 December 2000 and communicated to the Commission on 15 January 2001. The Luxembourg authorities add that the small quantity of PCBs still in their national territory have, for the most part, a low chlorine concentration which means that they can be disposed of in conventional dangerous waste incinerators, in relation to which there are no availability problems in Luxembourg.

It is settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion, and that the Court cannot take account of any subsequent changes. (6) Accordingly, regardless of how it should be assessed, the Luxembourg Waste Management Plan cannot be taken into consideration since it was notified to the Commission after the time-limit in question had expired.

It should be noted that the Implementing Regulation and the reply from the Luxembourg authorities to the letter of formal notice both completely fail to evaluate the disposal and decontamination facilities available either nationally or abroad. Those documents equally fail to specify the types of treatment carried out by reference to the category of equipment or to the PCBs contained therein; nor do they specify approximate time-limits for carrying out that treatment.

The time-limits laid down in Article 3 of the Implementing Regulation are not based on any comparative analysis of the amount of equipment to be treated or of the actual capacity of that treatment. In addition, the Luxembourg authorities have not indicated whether the decontamination and disposal plants that they have are able to process the equipment in question within the time-limits specified.

It follows from the above that the wording of the Implementing Regulation, which merely reproduces the provisions of the Directive and sets time-limits for the disposal of PCBs, cannot constitute a plan for the purposes of Article 11(1) of the Directive, since it does not fulfil the objectives stated in the 10th and 16th recitals in the preamble to the Directive.

Accordingly, on the basis of a formal interpretation of the obligations under Article 11(1) of the Directive, and in the light of the requirement of particular precision and accuracy where environmental measures are transposed into national law, (7) it must be concluded that the Grand Duchy of Luxembourg has failed to fulfil those obligations.

It is still necessary to examine whether the measures taken by the defendant Government prior to the entry into force of the Directive can be regarded as instruments ensuring adequate transposition of the objectives laid down in the Directive.

The Luxembourg Government states that since 1986 it has been developing a number of programmes on the basis of an inventory carried out in 1984, the aim of which was to dispose of PCBs. Those programmes enabled 99.9% of the PCBs present in Luxembourg to be disposed of.

The Commission, for its part, is of the opinion that since the 1984 inventory only covers pure PCBs it does not comply with Article 4 of the Directive. Accordingly, programmes drawn up pursuant to an incomplete and inaccurate inventory cannot be taken into account in order to determine whether the obligation of result laid down by the Directive has been fulfilled.

It should be stated first of all that, even if the measures taken by the defendant Member State could be regarded objectively as sufficient to achieve the results required by the Directive, they would not make up for the failure to draw up and communicate the plans in question, a requirement which pursues a different and specific aim and is an essential mechanism of the Directive. (8)

Despite the fact that the measures taken by Luxembourg share with the Directive the aim of disposing of PCBs, they do not enable the treatment capacity of the available plants to be assessed or provide for the staggering, by reference to the category of PCB or to the type of equipment, of the fixed time-limits within which decontamination and/or disposal must be effected in national territory or abroad; accordingly, those measures do not fulfil the planning requirement laid down in the Community provision. Moreover, in the absence of a plan, the Commission is unable to determine whether the provisions of the Directive apply in accordance with the procedures prescribed. The judgment of 27 February 2002 in Commission v Italy, (9) in which the Court held that a defendant Member State had failed to fulfil its obligations under Directive 96/59 by failing to adopt and to communicate within the required time-limit the plans provided for in Article 11(1), underlined the importance of such plans in the scheme of the Directive.

The national measures, irrespective of their genuine effectiveness, do not therefore amount to an organised and coordinated system of objectives or embody a comprehensive and coherent approach, and for those reasons cannot be considered to be plans within the meaning of Article 11(1). (10)

Accordingly, in view of the fact that a breach exists for as long as a Member State fails to ensure full and exact fulfilment of all the aims of a directive, (11) I must conclude that the action brought by the Commission is well founded.

Costs

In accordance with Article 69(2) of the Rules of Procedure of the Court of Justice, an order for costs must be made against the defendant Member State.

Conclusion

I propose that the Court should declare that, by failing to draw up plans for the decontamination and/or disposal of inventoried equipment and the polychlorinated biphenyls contained therein, the Grand Duchy of Luxembourg has failed to fulfil its obligations under Article 11(1) of Council Directive 96/59/EC of 16 September 1996 on the disposal of polychlorinated biphenyls and polychlorinated terphenyls (PCB/PCT). I also propose that the Court should order the defendant Member State to pay the costs.

1 – Original language: Spanish.

2 – Council Directive on the disposal of polychlorinated biphenyls and polychlorinated terphenyls (PCB/PCT) (OJ 1996 L 243, p. 31).

3 – Polychlorinated biphenyls are a distinct group of chemical products which, due to their heat conducting qualities, high dielectric constant, and non-flammability, are used in the manufacture of sealed systems for transformers and power capacitors, heating systems and hydraulic equipment.

4 – . Mémorial A No 26 of 3 April 1998, p. 400.

5 – See point 6 above.

6 – Judgments in Case C-289/94 Commission v Italy [1996] ECR I-4405, paragraph 20; in Case C-60/96 Commission v France [1997] ECR I-3827, paragraph 15; and in Joined Cases C-232/95 and C-233/95 Commission v Greece [1998] ECR I-3343, paragraph 38.

7 – Judgments in Case 247/85 Commission v Belgium [1987] ECR 3029, paragraph 9, and in Case 262/85 Commission v Italy [1987] ECR 3073, paragraph 9.

8 – In regard to the Community legislation against pollution of the aquatic environment by dangerous substances, see the Opinion of Advocate General Tesauro in Joined Cases C-232/95 and C-233/95 Commission v Greece (cited in footnote 6), point 7.

9 – Case C-46/01 [2002] ECR I-2093.

10 – On the subject of the fight against water pollution, see the judgments in Case C-214/96 Commission v Spain [1998] ECR I-7661, paragraph 30, and in Case C-207/97 Commission v Belgium [1999] ECR I-275, paragraph 40.

11 – Judgment in Case 91/79 Commission v Italy [1980] ECR 1099, paragraph 6.