Upholding environmental law Update on infringement procedures: Waste legislation, Urban Waste Water Treatment Directive
Note: For a general outline of legal infringement procedures, see text in italics at the end of this contribution.
February 2017
Referrals to the Court of Justice of the European Union
Romania: Failure to close and rehabilitate 68 illegal landfills (1991 Landfill Directive)
The European Commission is taking Romania to the Court of Justice of the EU for its failure to close and rehabilitate 68 illegal landfills, which represent a serious risk for human health and the environment.
Despite earlier warnings from the Commission, Romania has failed to take measures against 68 non-compliant landfills, as required by EU Landfill Directive (Council Directive 1999/31/EC). Under the Directive, Member States must recover and dispose of waste in a manner that does not endanger human health and the environment, prohibiting the abandonment, dumping or uncontrolled disposal of waste. Romania was obliged to close and rehabilitate these substandard municipal and industrial landfills by 16 July 2009.
Due to insufficient progress in addressing the issue, the Commission sent an additional reasoned opinion in September 2015, urging the Romanian authorities to adequately deal with 109 uncontrolled sites, which – although not in operation – still posed a threat to human health and the environment. Some progress was made, but for 68 landfills the necessary measures - to clean them up and close them - had still not been completed by December 2016. In an effort to urge Romania to speed up the process, the Commission is bringing the Romanian authorities before the Court of Justice of the EU.
Ireland: Failure to upgrade waste water treatment infrastructure (1991 Urban Waste Water Treatment Directive)
The European Commission is taking Ireland to the Court of Justice of the EU for its failure to ensure that urban waste water in 38 agglomerations[1] across the country is adequately collected and treated to prevent serious risks to human health and the environment.
Under EU law (Council Directive 91/271/EEC), towns and cities are required to collect and treat their urban waste water, as untreated waste water can put human health at risk and pollute lakes, rivers, soil, coastal and groundwater.
The 38 agglomerations (towns, cities, settlements) with inadequate wastewater infrastructure are: Arklow, Athlone, Ballybofey/Stranorlar, Ballincollig New, Castlecomer, Cavan, Clifden, Clonakily, Cobh, Cork City, Dundalk, Enfield, Enniscorthy, Fermoy, Gaoth Dobhair, Killarney, Killybegs, Longford, Mallow, Midleton, Monksland, Navan, Nenagh, Oberstown, Pasage/Monktown, Portarlington, Rathcormac, Ringaskiddy, Ringsend, Roscommon Town, Roscrea, Shannon Town, Thurles, Tralee, Tubbercurry, Youghal and Waterford City.
The referral decision also raises additional concerns about the failure to ensure that a correct operating licence has been issued for the treatment plants serving the agglomerations of Arklow and Castlebridge.
Member States had until the end of 2000 to ensure appropriate treatment of wastewater from large agglomerations (population equivalent (p.e.) of more than 15 000), and until the end of 2005 for discharges from medium-sized agglomerations and discharges to freshwater and estuaries from small agglomerations. The Commission initiated the infringement against Ireland in September 2013, followed by warnings in September 2015 and September 2016.
According to a recent Commission report on the implementation of EU environmental policy and law in Member States, one of the main challenges Ireland faces is maintaining the important investments required for water services, given the urgent need to invest in water infrastructure.
Reasoned opinions
Austria: Waste legislation not in full conformity with EU Waste Legislation
The European Commission is urging Austria to bring its national law into full conformity with EU rules on waste (Commission Directive (EU) 2015/1127 amending the Waste Framework Directive, Directive 2008/98/EC). The Waste Framework Directive aims to minimise the negative effects of the generation and management of waste on human health and the environment. It also seeks to reduce the use of resources and focuses on prevention, reuse and recycling, thereby contributing to a more circular economy. Member States were obliged to adopt the measures necessary to comply with the Directive by 31 July 2016. After Austria missed the initial deadline, the Commission sent a letter of formal notice in September 2016. Austria adopted certain measures, but a number of points of non-conformity in the regulatory framework still remain, such as provisions regarding the energy efficiency formula and energy recovery from waste in accordance with the waste hierarchy. The Commission is now sending a reasoned opinion. Austria has two months to inform the Commission of the measures taken to address the shortcomings; otherwise, the case may be referred to the Court of Justice of the EU.
Belgium: Waste - need to revise regional measures (Wallonia) on waste management and waste prevention
The Commission is urging Belgium to adopt and update plans to prevent and manage waste, into line with the objectives of EU waste legislation (Directive 2008/98/EC) and the circular economy. Such plans and programmes are intended to reduce the impact of waste on human health and the environment, and to improve resource efficiency across the EU. Member States have to re-evaluate their waste management plans at least every six years and revise them as appropriate. Belgium failed to revise, extend or replace the existing waste management plan for the Walloon Region (Horizon 2010) and improve its component on waste prevention. As Belgium is lagging behind with the update, and the new waste documents are expected to be adopted only later this year, the Commission is sending a reasoned opinion. If Belgium fails to act within two months, the case may be referred to the Court of Justice of the EU.
Italy: Waste – need to adopt and revise regional measures on waste management in several Italian regions (Abruzzi, Basilicata, Autonomous Province of Bolzano/Bozen, Emilia-Romagna, Friuli-Venezia Giulia, Liguria, Piedmont, Sardinia and Sicily)
The Commission is urging Italy to adopt and update plans to manage waste, into line with the objectives of EU waste legislation (Directive 2008/98/EC) and the circular economy. Such plans are intended to reduce the impact of waste on human health and the environment, and to improve resource efficiency across the EU. Member States have to re-evaluate their waste management plans at least every six years and revise them as appropriate. Several Italian regions (Abruzzi, Basilicata, Autonomous Province of Bolzano/Bozen, Emilia-Romagna, Friuli-Venezia Giulia, Liguria, Piedmont, Sardinia and Sicily) failed to revise their waste management plans adopted in 2008 or earlier. The Commission is, therefore, sending a reasoned opinion. If the Italian authorities fail to act within two months, the case may be referred to the Court of Justice of the EU.
General information about infringement procedures
According to the Treaties (Treaty on European Union, Treaty on Functioning of the European Union), Member States are obliged to comply with EU legislation adopted by the legislator (European Parliament and Council), and the Commission has the right and obligation to scrutinise such compliance and where appropriate take legal action.
Opening of an infringement procedure: formal contacts between the Commission and the Member State concerned
If the Commission considers that there may be an infringement of EU law which warrants the opening of an infringement procedure, it addresses a "letter of formal notice" to the Member State concerned, requesting it to submit its observations by a specified date.
The Member State has to adopt a position on the points of fact and of law on which the Commission bases its decision to open the infringement procedure.
Issuing a Reasoned Opinion
In the light of the reply or absence of a reply from the Member State concerned, the Commission may decide to address a "Reasoned Opinion" to the Member State, clearly and definitively setting out the reasons why it considers there to have been an infringement of EU law and calling on the Member State to comply with EU law within a specified period (normally two months).
The purpose of those formal contacts is to determine whether there is indeed an infringement of EU law and, if so, to resolve the case at this stage without having to take it to the European Court of Justice.
In the light of the reply, the Commission may also decide not to proceed with the infringement procedure, for example where the Member State provides credible assurances as to its intention to amend its legislation or administrative practice.
Referral to the European Court of Justice
If the Member State fails to comply with the Reasoned Opinion, the Commission may decide to bring the case before the European Court of Justice. If the Court finds in its judgment that a Member States has failed to take the measures needed to conform.
Second referral to the European Court of Justice
If a Member State fails to comply with a judgment given against it, the Commission has the possibility to apply for a second court ruling ordering that State to pay a lump-sum fine or a penalty (Article 260 TFEU).
Examples of recent years for judgments entailing penalty payments:
- Ireland, waste water disposal in rural areas (2012)
- Belgium, Urban Waste Water Treatment Directive (2013)
- Luxembourg, Urban Waste Water Treatment Directive (2013)
- Greece, Waste Directive (2014)
- Italy, Waste Directive, Hazardous Waste Directive and Landfill Directive (2014)
- Greece, Urban Waste Water Treatment Directive (2015)
- Italy, Waste Framework Directive (2015)
- Portugal, Urban Waste Water Treatment Directive (2016)
[1] “Agglomeration“ = an area where the population and/or economic activities are sufficiently concentrated for urban waste water to be collected and conducted to an urban waste water treatment plant or to a final discharge point (article 2(4) of the Urban Waste Water Treatment Directive)