61989J0366

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Acts of the institutions ° Directives ° Implementation by the Member States ° Inadequacy of a practice consistent with the objectives of the Directive ° Necessity for clear and precise transposition

(EEC Treaty, Art. 189, third para.)

In the case of the implementation of a directive into the internal legal order of a Member State, the existence of a practice consistent with the objectives of protection referred to by the directive cannot relieve a Member State of the obligation to transpose that directive by provisions appropriate for the purpose of creating a situation which is sufficiently precise, clear and transparent in order to enable individuals to know their rights and their obligations. In order to ensure the full application of directives, not only in fact but also in law, the Member States must provide for a precise statutory framework in the sector in question. Thus, a provision of a directive which requires national authorities to act in a specified manner cannot be regarded as properly transposed where the Member State in question has not adopted any specific measures for implementing the provision and has confined itself to affirming that that conduct resulted generally from the application of the rules of good management which its administrative authorities are required to observe.

In Case C-366/89,

Commission of the European Communities, represented by Gianluigi Campogrande, Legal Adviser, acting as Agent, and, by Lucio Gussetti and Vittorio Di Bucci, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Nicola Annecchino, of its Legal Service, Wagner Centre, Kirchberg,

applicant,

v

Italian Republic, represented by Professor Luigi Ferrari Bravo, Head of the Department for Legal Affairs at the Ministry of Foreign Affairs, acting as Agent, assisted by Pier Giorgio Ferri, Avvocato dello Stato, with an address for service in Luxembourg at the Italian Embassy, 5, rue Marie-Adélaïde,

defendant,

APPLICATION for a declaration that, first by persisting, despite the judgment of the Court of 17 December 1981 in Joined Cases 30/81 to 34/81 Commission v Italy [1981] ECR 3379, in failing to adopt the measures required to comply with Council Directive 75/439/EEC of 16 June 1975 on the disposal of waste oils (OJ 1981 L 194, p. 23), and in particular Articles 4, 6, 12 and 15 thereof, the Italian Republic has failed to fulfil its obligations under Article 171 of the EEC Treaty, and secondly, by precluding the exportation of those oils to other Member States within the framework of its system of collection of those oils, it has failed to fulfil its obligations under Article 34 of the EEC Treaty,

THE COURT,

composed of: G.C. Rodríguez Iglesias, President of Chamber, acting for the President, M. Zuleeg and J.L. Murray (Presidents of Chambers), G.F. Mancini, R. Joliet, F.A. Schockweiler, J.C. Moitinho de Almeida, F. Grévisse and D.A.O. Edward, Judges,

Advocate General: M. Darmon,

Registrar: L. Hewlett, Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 15 December 1992,

after hearing the Opinion of the Advocate General at the sitting on 3 February 1993,

gives the following

Judgment

1 By application lodged at the Court Registry on 4 December 1989, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that, first, by persisting, despite the judgment of the Court of 17 December 1981 in Joined Cases 30/81 to 34/81 Commission v Italy [1981] ECR 3379, in failing to adopt the measures required to comply with Council Directive 75/439/EEC of 16 June 1975, on the disposal of waste oils (OJ 1981 L 194, p. 23, hereinafter "the Directive"), and in particular Articles 4, 6, 12 and 15 thereof, the Italian Republic has failed to fulfil its obligations under Article 171 of the EEC Treaty, and secondly, by precluding the exportation of those oils to other Member States in the framework of its system of collection of those oils, it has failed to fulfil its obligations under Article 34 of the EEC Treaty.

2 The Directive has, in particular, as its objective the protection of the environment against the harmful effects of the discharge, deposit or processing of waste oils.

3 In order to attain that objective Article 3 of the Directive provides that the disposal of waste oils should be carried out by recycling, that is to say by regeneration and/or combustion other than for destruction.

4 Article 4 of the Directive provides:

"Member States shall take the necessary measures to ensure the prohibition of:

1. any discharge of waste oils into internal surface waters, ground water, coastal waters and drainage systems;

2. any deposit and/or discharge of waste oils harmful to the soil and any uncontrolled discharge of residues resulting from the processing of waste oils;

3. any processing of waste oils causing air pollution which exceeds the level prescribed by existing provisions."

5 Article 6(1) of the Directive provides:

"... any undertaking which disposes of waste oils must obtain a permit."

6 Pursuant to Article 6(2) of the Directive,

"This permit shall be granted by the competent authorities after examination of the installations, if necessary. These authorities shall impose the conditions required by the state of technical development."

7 Under Article 12 of the Directive,

"The undertakings referred to in Article 6 shall be inspected periodically by the competent authorities, particularly as regards to their compliance with the conditions of their permits."

8 Finally, Article 15 of the Directive requires each Member State "periodically [to] convey to the Commission information concerning its technical expertise and the experience gained and results obtained through the application of measures taken pursuant to the Directive".

9 In the judgment in Commission v Italy, cited above, the Court declared that by failing to adopt within the prescribed period the provisions needed in order to comply with the Directive, the Italian Republic had failed to fulfil its obligations under the Treaty.

10 Following that judgment, the Italian Republic adopted Decree No 691 of 23 August 1982 (GURI No 270 of 30 September 1982, p. 7081, hereinafter "Decree No 691") and informed the Commission of this.

11 Considering that the Decree in question did not implement the judgment of the Court, the Commission initiated against the Italian Republic the procedure provided for under Article 169 of the Treaty.

12 After proceedings before the Court had been initiated, the Italian Republic, by Decree No 95 of the President of the Italian Republic of 27 January 1992 (GURI No 38 of 15 February 1992, p. 5) adopted the measures required in order to implement Article 4 of the Directive and to prevent an infringement of Article 34 of the EEC Treaty. Subsequently, the Commission, at the hearing, withdrew the complaints relating to those provisions and maintained only those relating to Articles 6, 12 and 15 of the Directive.

13 Reference is made to the Report for Hearing for a fuller account of the facts, the procedure and the written observations submitted the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

Article 6 of the Directive

14 The Commission complains that the Italian Republic has failed to fulfil its obligations under Article 6 of the Directive. Whether concerning the permit provided for under Article 3(3) of Decree No 691, for undertakings which dispose of used oils via non-industrial incineration or the permit provided for under Article 4 or 6 of Decree No 1741 of 2 November 1933 concerning the rules on importation, processing and deposit and distribution of mineral oils and carburants (GURI No 301 of 30 December 1933, p. 5995, hereinafter "Decree No 1741"), for undertakings disposing of used oils by regeneration, the competent authority is not bound, before granting those permits, to examine the installations or to impose the conditions required by the state of technical development as required by Article 6, paragraph 2 of the Directive.

15 The Italian Republic contends that those obligations are merely the application of the rules of proper management which, generally, the administrative authorities are required to observe, even in the absence of an express legislative provision, in so far as they are reasonably necessary in order to meet the objectives of the permit.

16 On this point it should first be noted that, according to the recitals in the preamble to the Directive, the protection of the environment should be ensured by an efficient and coherent system providing for a system of permits for undertakings which dispose of waste oils and appropriate inspection procedures.

17 It should next be stressed that the existence of a practice consistent with the protective aims of a directive cannot relieve a Member State of the obligation to transpose that directive into its domestic law by provisions appropriate for the purpose of creating a situation which is sufficiently precise, clear and transparent in order to enable individuals to know their rights and their obligations. In order to ensure the full application of directives, not only in fact but also in law, the Member States must provide for a precise statutory framework in the sector in question (see, in particular, Case C-339/87 Commission v Netherlands [1990] ECR I-851).

18 A provision of a directive which requires national administrative authorities to act in a specified manner cannot be regarded as properly transposed where the Member State in question has not adopted any specific measure for implementing the provision and has confined itself to stating that that conduct resulted generally from the application of the rules of good management by which its administrative authorities are required to observe.

19 In those circumstances, it must be held that Article 6 of the Directive has not been correctly transposed into Italian law.

Article 12 of the Directive

20 The Commission complains that the Italian Republic has not taken the necessary steps to ensure that the periodic inspection of the undertakings entrusted with the disposal of waste oils, within the meaning of Article 12, is carried out.

21 The Commission contends that since Decrees No 691 and No 1741 do not impose any obligation on the competent administrative authorities as regards the conditions laid down in Article 6(2) of the Directive for granting permits, the Italian system is not in a position to impose, and the authorities are not in a position to carry out, the periodic inspection of those undertakings, particularly as regards the observance of those conditions.

22 The Italian Government considers that that complaint should be dismissed on account of its generic nature and the absence of any proof whatsoever.

23 That argument cannot be accepted.

24 Article 12 of the Directive relates to the inspection of undertakings which have obtained a permit in accordance with Article 6. Since the permit for disposing of waste oils by regeneration or non-industrial incineration is not, as pointed out above, made subject by the Italian legislation to the conditions laid down by Article 6, the undertakings in question cannot be inspected as provided for under Article 12.

25 It must therefore be held that the Italian Republic has failed to fulfil its obligations under Article 12 of the Directive.

Article 15 of the Directive

26 The Commission complains that the Italian Republic did not periodically convey to the Commission its technical expertise and the experience gained and results obtained through the application of measures taken pursuant to the Directive, although the mandatory consortium for the collection of used oils provided for under Article 4 of Decree No 691 has existed since 1983 and has been operational since 1985.

27 The Italian Republic, whilst pointing out that it was not in possession of the definitive information to be conveyed to the Commission, does not dispute that Article 15 of the Directive has not been transposed into Italian law.

28 It must therefore be held that the Commission' s application is also well founded in so far as it relates to Article 15 of the Directive.

29 Having regard to the foregoing considerations, it must be held that, by persisting, despite the judgment of the Court of 17 December 1981, cited above, in failing to adopt the measures required to comply with Council Directive 75/439/EEC, and in particular Articles 6, 12 and 15 thereof, the Italian Republic has failed to fulfil its obligations under Article 171 of the Treaty.

Costs

30 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Italian Republic has been unsuccessful, it must be ordered to pay the costs.

On those grounds,

THE COURT

hereby:

1. Declares that, by persisting, despite the judgment of the Court of 17 December 1981 in Commission v Italy (Joined Cases 30/81 to 34/81), in failing to adopt the measures required to comply with Council Directive 75/439/EEC of 16 June 1975 concerning the disposal of waste oils, and in particular Articles 6, 12 and 15 thereof, the Italian Republic has failed to fulfil its obligations under Article 171 of the Treaty;

2. Orders the Italian Republic to pay the costs.