JUDGMENT OF 2. 2. 1982 — CASE 71/81 JUDGMENT OF THE COURT

In Case 71/81

THE COURT composed of: J. Mertens de Wilmars, President, G. Bosco, A. Touffait and O Due (Presidents of Chambers), P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe, T. Koopmans, U. Everling, A. Chloros and F. Grévisse, Judges, Advocate General: F. Capotorti Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of the procedure, the claims, submissions and arguments of the parties may be summarized as follows:

I — Facts and written procedure

Council Directive 76/403/EEC on the disposal of polychlorinated biphenyls and polychlonnated terphenyls (hereinafter referred to as “PCB”) is one of the Community measures based on Articles 100 and 235 of the Treaty which, as part of the Community policy on the protection of the environment, aim on the one hand to abolish disparities between the laws of Member States which may, in particular by creating unequal conditions of competition, have a direct effect upon the functioning of the common market and on the other hand to achieve by means of more extensive Community rules certain objectives laid down by the Treaty.

The PCB referred to by the directive are substances particularly harmful to human health and the environment and because of their toxicity and non-degradability their disposal requires forms of control extending beyond the national framework.

Articles 2 to 10 of the directive impose the following duties on the Member States:

a) to prohibit the uncontrolled discharge, dumping and tipping of PCB (Article 2);

b) to make compulsory the disposal of waste PCB (Anicie 3) without endangering human health and harming the environment (Anicie 4);

c) to ensure, as far as possible, the regeneration of waste PCB (Anicie 5);

d) to set up establishments or undertakings which are alone authorized to dispose of PCB (Anieles 6 and 7);

e) to make the holders of PCB bear the cost of disposal (application of the “polluter pays” principle) (Article 8);

f) to make a repon every three years to the Commission on the situation of the disposal of PCB in their territory (Article 10).

Anicie 9 provides that the Member States are to lay down the special provisions with which the holders of PCB and the establishments or undertakings referred to in Anicie 6 must comply pursuant to the directive.

Regarding implementation of the directive, Anieles 11 and 12 provide as follows:

The directive was notified on 9 April 1976. The Kingdom of Belgium was thus bound to adopt the implementation provisions of national law by 9 April 1978 at the latest. At that date however the provisions for the adaptation of national law had not been adopted. The Commission states that at that date it had received no official information on the subject.

The Commission considered that the Kingdom of Belgium had therefore failed to fulfil its obligations under the Treary regarding the directive in question and in consequence it decided to initiate the procedure provided for in Anicie 169 of the Treaty. By a letter dated 3 July 1979 the Belgian Government was requested to submit its observations within a period of two months in accordance with the first paragraph of the said article.

By a letter dated 20 August 1979 the Permanent Representation of Belgium informed the Commission that, regarding “the social aspect of the question”, the problems on the disposal of PCB had been settled by the Law of 22 July 1974 and by the Royal Decree of 22 July 1976. Some months later in a letter dated 14 November 1979 the Minister tor Health and the Environment, referring to the incorporation into national law of directives in the field of the environment, stated that the fact that “the absence” of authorities in the matter was “an indirect effect of the fundamental reform of the institutions in progress in Belgium at the present time”. He added that “since it is a question of independent and exclusive powers vested in the regions” he “could not undertake the task of incorporating and implementing the EEC directives in the three regions even though he remains the sole representative at the international level”. In conclusion he requested an additional period of one year to achieve that incorporation.

Having found that the directive had still not been applied, the Commission issued on 19 May 1980 the reasoned opinion provided for in the first paragraph of Article 169 of the Treaty and transmitted it by letter of 28 May 1980 to the Belgian Government with an invitation to comply with it within a period of two months.

By a letter dated 4 June 1980 the Permanent Representation of Belgium acknowledged receipt of the reasoned opinion without giving any special answer on the substance of it.

At present, that is 16 months after the letter of 14 November 1979, requesting an additional period of one year, it does not seem that the provisions bringing the national law into line with the directive have been adopted. The Commission says it has received no further communication from the Belgian authorities on the subject.

On 2 April 1981 the Commission brought the matter before the Court pursuant to the second paragraph of Article 169 of the Treaty. The application was received at the Court Registry on 6 April.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any preparatory inquiry.

II — Conclusions of the parties

The Commission claims that the Court should:

Declare that by failing to bring into force within the prescribed period the measures needed in order to comply with Council Directive 76/403/EEC of 6 April 197b on the disposal of polychlorinated biphenyls and poly-chlorinated terphenyls, the Kingdom of Belgium has failed to fulfil one of its obligations under the EEC Treaty;

Order the Kingdom of Belgium to pay the costs.

The Kingdom of Belgium has not expressly presented any conclusions.

III — Submissions and arguments of the parties

In its application the Commission argues that the Belgian authorities admit in their letter of 20 August 1979 that the rules on PCB are not covered by the Law of 22 July 1974 on toxic waste in so far as “the regeneration of PCB contained in small objects seems impossible and the regeneration of PCB in large objects will be carried out automatically ...”. Moreover, the law prohibiting uncontrolled discharge, dumping and tipping does not cover the obligation in relation to collection, the encouragement of regeneration, the establishment of a system of licensing undertakings for the purpose of collection and the requirement that those holding PCB and not authorized to dispose of them must deliver them to a centre for destruction or reprocessing.

The binding nature of directives means that the Member States must comply with the time-limits prescribed therein for bringing into force provisions adapting national law.

In particular, compliance with the provisions of the Treaty or secondary Community law cannot depend on difficulties encountered in the alteration of the distribution of powers between central government and the regional or local authorities and there is an infringement of the Treaty by a Member State whatever the institution of the State whose acts and omissions have led to the failure to perform the obligation.

Those principles are confirmed by now well-established case-law of the Court (cf. inter alia Cases 52/75 Commission v Italy [1976] ECR 277; 10/76 Commission v Italy [1976] ECR 1359; 163/78 Commission v Italy [1979] ECR 771; 42/80 Commission v Italy [1980] ECR 3635 and 43/80 Commission v Italy [1980] ECR 3643).

In its defence the Belgian Government observes that the implementation of an environmental policy in Belgium meets with a special difficulty, namely the absence of an administrative body responsible for coordination in the matter.

The directive in question is of a general nature and its implementation requires detailed measures by numerous and independent administrative authorities In the present case the matter comes within the powers not only of the national institutions but also of the regional institutions whose powers were laid down in the special Law on institutional reforms of 8 August 1980. enacted pursuant to Anicie 127 (dl of the Constitution. Implementation of the directive thus involves not only laws emanating from the national Parliament but also decrees emanating from the regional councils.

The alteration of constitutional structures in Belgium and the process of revising the Constitution which this involves has made it impossible in recent years to draft legislative measures on the subject having regard to the uncertainty-obtaining as to the competent institutions under public law. The delay in implementing the directives is not therefore due to a process relating to existing legal or administrative rules but to the impossibility of laving down new rules before new legislative powers of a federal nature involving a fundamental alteration in the institutions of the country are established and come into operation.

The Belgian Government observes that the directive has nevertheless been the subject of measures implementing it in part.

In its reply the Commission observes that the defence supplies no concrete information concerning the periods within which the defendant will be in a position to adopt the provisions needed for implementing the directive.

In its rejoinder the Belgian Government observes that on 15 July 1981 as part of the institutional reforms it adopted measures covering the implementation of the rules of Community law in relation to the environment. The coordinating system referred to in the defence has been set up. It has been agreed that the regions will draw up as soon as possible a timetable in relation to the implementation of the Community directives. Draft laws and decrees on the subjects referred to by the directives have been prepared. Other drafts are in the course of preparation.

The Belgian Government repeats that the exceptional situation in which it finds itself should be taken into account by the Community authorities and states that it will ensure that all appropriate measures for implementing the directives will be adopted as soon as possible.

IV — Oral procedure

The parties presented oral argument at the sitting on 12 November 1981.

The Advocate General delivered his opinion at the sitting on 2 December 1981.

Decision

1. By application lodged at the Court Registry on 6 April 1981, the Commission of the European Communities brought an action for a declaration under Article 169 of the EEC Treaty that by failing to adopt within the prescribed period the provisions needed in order to comply with Council Directive 76/403/EEC of 6 April 1976 on the disposal of polychlorinated biphenyls and polychlorinated terphenyls (Official Journal L 108, p. 41), the Kingdom of Belgium has failed to fulfil its obligations under the third paragraph of Article 189 of the Treaty.

2. Article 11 of the directive provides that Member States are to bring into force the measures needed in order to comply with the directive within 24 months of its notification which expired in the present case on 9 April 1978.

3. The Belgian Government has stated that there have already been certain measures partially implementing the directive. Nevertheless it does not deny that the Kingdom of Belgium has not complied with its obligation to implement the directive completely within the prescribed period.

4. Essentially, the Belgian Government justifies its failure by the fact that important institutional reforms causing the redistribution of powers and responsibilities between the national and regional institutions are in progress, especially in the area covered by the directive in question. So long as the new institutions are not yet in a position to exercise their powers it will not be possible, according to the Belgian Government, to implement the directive fully.

5. Although those circumstances may explain the difficulty in applying the directive they do not expunge the failure of the Kingdom of Belgium to fulfil its obligations. According to established case-law of the Court a Member State mav not plead provisions, practices or circumstances in its internal legal system to justify failure to comply with obligations under Community directives.

6. It should also be pointed out that, in order that the exceptional situation referred to by his government should be taken into account, the Belgian Minister for Public Health and the Environment, in answer to the reasoned opinion provided for in the first paragraph of Article 169 of the Treaty, requested the Commission on 14 November 1979 to grant to the Kingdom of Belgium an additional period of one year to adopt the measures of national law needed to implement the directive. Those measures ought to have entered into force in April 1978, and in fact it was only on 6 April 1981 that the Commission brought the matter before the Court under the second paragraph of Article 169 of the Treaty.

7. It must therefore be held that by not adopting within the prescribed period the provisions needed to comply with Council Directive 76/403/EEC of 6 April 1976, the Kingdom of Belgium has failed to fulfil its obligations under the Treaty.

Costs

8. Article 69 (2) of the Rules of Procedure provides that the unsuccessful party is to be ordered to pay the costs if they have been asked for. Since the defendant has been unsuccessful, it must be ordered to pay the costs.

On those grounds, THE COURT hereby:

1 Declares that by not adopting within the prescribed period the provisions needed to comply with Council Directive 76/403/EEC of 6 April 1976 on the disposal of polychlorinated biphenyls and polychlorinated terphenyls (Official Journal L 108, p. 41), the Kingdom of Belgium has failed to fulfil its obligations under the Treaty;

2 Orders the Kingdom of Belgium to pay the costs.