Ireland's 'systematic failure' in delivering Community waste law

In an important judgment, the European Court of Justice has held that weaknesses in administrative structures for implementing and enforcing Community environmental laws can amount to a systematic failure in the administration, and a breach of the Member State's obligation under Community law. The judgment in Commission v Ireland (Case C-494/01 26 April 2005) is significant because it is the first time that the Court has explored in detail the concept of a systematic administrative failure in the context of environmental law.

The case arose out of various complaints made to the Commission concerning the non-application in practice of waste law in Ireland. Examples included the operation of a municipal landfill without a permit, the operation of various private treatment facilities without a permit, and the unauthorised dumping of waste.

In bringing enforcement actions against Member States under the EC Treaty, the Commission has characterised three categories of infringement:

  • Failure by the Member State to notify its laws implementing a Directive within the two or three year specified time limit.

  • Failure of its laws to fully reflect the requirements of a Directive.

  • Whether or not the national laws fully reflect the Directive in question, a failure in practice to implement the Directive.

    The European Court has accepted that failure in practice is a breach of the Member State's obligations to implement a Community obligation. The Commission, though, is fairly circumspect in bring cases of actual non-implementation in practice, and has tended to concentrate on glaring examples.

    In the present case, the Commission decided not to concentrate on a single example of non-application in practice, but rolled them in together and argued that cumulatively they demonstrated that there was a systematic failure within the administration to enforce the legislation effectively. In effect, the cases brought were being presented as examples of a more "general and persistent" deficiency in the system for delivering the requirements of the Directive.

    Both the Advocate General and the European Court were prepared to accept the concept of a systematic failure of administration in this sense. In his Opinion, Advocate General Geelhoed identified three different dimensions of an infringement which together pointed to a structural failure in the delivery system.

    First, a dimension of scale, which might be indicated by infringements taking part in different localities within a Member State. Second, a dimension of time implying that infringements have taken place over some lengthy period, though it was not possible to be precise as to how long. Finally, a dimension of seriousness, referring to the degree to which the actual situation within the Member State deviates from the obligations in the Directive.

    The Advocate General concluded: "A general and structural infringement may be deemed to exist where the remedy for this situation lies not in merely taking action to resolve a number of individual cases which do not comply with the Community obligation at issue, but where this situation of non-compliance can only be redressed by the revision of the general policy and administrative practice of the Member State in respect of the subject governed by the Community measure involved."

    The European Court examined the various allegations raised by the Commission, and despite a vigorous defence by the Irish Government, found each of them proved. Each in itself represented an infringement, but the Court was satisfied there was also general failure by the Irish authorities to implement the Directive effectively.

    One of the significant aspects of a case based on a systematic failure is the status of the individual examples raised. In a normal case of infringement in practice, rectification by the Member State of the particular problem in hand before the Court decision will provide a good defence. Here, in contrast, the Court accepted that the particular examples were essentially being presented as representative of a wider problem.

    Even if a particular problem were rectified in advance, that did not prevent it still being presented to the Court as evidence of wider systematic failure. Similarly, the Court accepted that in such cases, the Commission had much greater freedom in bringing in additional, illustrative evidence at later stages during the proceedings - in standard cases, the issues and the allegations are limited and defined by the Reasoned Opinion stage, and cannot be elaborated upon at later stages.

    Both the Advocate General and the European Court provided significant observations on the question of evidential proof. As a matter of general principle, it is incumbent on the Commission to prove that the Community obligation has not been fulfilled - "It is the Commission's responsibility to place before the Court the information needed to enable the Court to establish that the obligation has not been fulfilled, and in doing so the Commission may not rely upon any presumption."

    However, the Court noted that when it came to cases of non-infringement in practice, the Commission had no independent investigatory powers in the environmental field, and was peculiarly dependent on information provided by complainants and by the Member State. It therefore followed that once the Commission had adduced sufficient evidence of allegations within a Member State, it was "primarily for the national authorities to conduct the necessary on-the-spot investigations, in the spirit of genuine cooperation and mindful of each Member State's duty to facilitate the general task of the Commission."

    Certainly it was not sufficient to merely deny the allegations, and the Member State if it wished to defend the action had to challenge in substance and in detail. There were several instances in the present case where the Court considered that the Irish Government's denials were too general, and they should have addressed the allegations in much more detail.

    Many of the allegations in the Irish case concerned illegal disposal of wastes, toleration of unlicensed sites and similar specific instances. But the Court also addressed the duty in Article 5 of the Directive on Member States to provide an integrated and adequate network of waste disposal installations. The Court was satisfied that the current Irish network was close to saturation point, and that this situation was giving rise to a high number of illegal dumps and deposits across the country. In its view Ireland had failed in its duty under Article 5.

    Advocate General Geelhord also emphasised the importance of this duty within the general scheme of the Directive requiring that waste is disposed of legally and under licenced conditions - "Proper implementation of this obligation entails the Member States taking measures both of a technical nature ensuring that there is sufficient physical capacity within the Member State to absorb waste being produced within its territory, and of an administrative nature ensuring that the various facilities operate in a coordinated manner." He also noted that the network must be able to absorb increases of waste being produced within a Member State.

    The observations concerning an adequate network of waste disposal facilities are likely to be a worry for the UK Government, especially as it is so dependent on the private sector in providing disposal capacity in many areas of waste. There have been real concerns, for example, about the adequacy of facilities for the disposal of hazardous waste (see pp 20-24 ) and, although latest figures indicate that there should be adequate capacity in the country as a whole, there are significant regional differences, and serious shortfall in some areas of the country.

    The Court did not address the extent to which the network capacity needs to be balanced through a country - Article 5 simply talks of the network allowing waste to be disposed of "in one of the nearest appropriate installations". But it is likely that, following the Irish case, the European Court would consider that a network that is sufficiently geographically unbalanced as to encourage illegal disposal does not meet the duty under Article 5.

    Richard Macrory, Professor of Environmental Law, University College, London

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