Judgment of the Court (Third Chamber) of 10 June 2010 – Commission v Portugal

(Case C-37/09)

Failure of a Member State to fulfil its obligations – Environment – Management of waste illegally tipped – Directive 2006/12/EC – Directive 80/68/EEC

1.                     Action for failure to fulfil obligations – Proof of failure – Burden of proof on the Commission – Presumptions – Not permissible (Art. 226 EC) (see para. 28)

2.                     Environment – Waste – Directive 2006/12 – Duty of the Member States to ensure that waste is recovered or disposed of – Obligation to achieve a result – Discretion of the Member States concerning the measures to be taken – Limits (European Parliament and Council Directive 2006/12, Art. 4) (see paras 35-39, 44)

3.                     Environment – Waste – Directive 2006/12 – Duties of the Member States in respect of holders of waste – Meaning of holder of waste – Holders of unauthorised waste-tips – Included (Art. 174(2), EC; European Parliament and Council Directive 2006/12, Art. 8) (see paras 46-51, 53-55)

4.                     Approximation of laws – Protection of groundwater – Directive 80/68 – Scope – Actions leading to indirect discharges of substances in list II of the Directive – Included (Art. 174(2), EC; Council Directive 80/68, Arts 3 and 5) (see paras 64-66)

5.                     Approximation of laws – Protection of groundwater – Directive 80/68 – Duty of the Member States to limit the introduction into groundwater of substances in list II of the Directive – Obligation to make subject to prior investigation any direct discharge of those substances – Waste put into landfill although no technical precautions taken to avoid polluting that water – Failure to fulfil obligations (Council Directive 80/68, Arts 3(b), and 5) (see paras 74-78)

Re:

Failure of a Member State to fulfil its obligations – Infringement of Articles 4 and 5 of Directive 2006/12/EC of the European Parliament and of the Council of 5 April 2006 on waste (OJ 2006 L 114, p. 9), which codified Directive 75/442/EEC on waste and Articles 3 and 5 of Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances (OJ 1980 L 20, p. 43) – Landfill of waste in disused quarries – ‘dos Limas, dos Linos e dos Barreiras’ quarries (Lourosa) – Lack of scrutiny.

Operative part

The Court:

1.

Declares that, by failing to adopt all the measures necessary in connection with the management of waste illegally placed in the old quarries of Limas and Linos, situated in the commune of Lourosa, the Portuguese Republic has failed to fulfil its obligations under Articles 4 and 8, respectively, of Directive 2006/12/EC of the European Parliament and of the Council of 5 April 2006 on waste, which codified Directive 75/442/EEC on waste and Articles 3 and 5 of Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances;

2.

Dismisses the remainder of the action;

3.

Orders the Republic of Portugal to bear its own costs and to pay two-thirds of the costs incurred by the Commission. Orders the Commission to bear one-third of its own costs.