CELEX: 62005CJ0255
Failure of a Member State to fulfil obligations
Assessment of the effects of certain projects on the environment
Waste recovery
Implementation of the ‘third line’ of the Brescia waste incinerator
Publicity for the application for a permit
Directives 75/442/EEC, 85/337/EEC and 2000/76/EC

1       By its application, the Commission of the European Communities requests that the Court declare that:
–       by not making the project to implement a ‘third line’ of the incinerator belonging to ASM Brescia SpA (‘the third incinerator
line’) – an installation covered by Annex I to Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects
of certain public and private projects on the environment (OJ 1985 L 175, p. 40), as amended by Council Directive 97/11/EC
of 3 March 1997 (OJ 1997 L 73, p. 5) (‘Directive 85/337’) – subject to the environmental impact assessment procedure provided
for in Articles 5 to 10 of that directive before construction consent was given, and
–       by not making the application for a permit to operate the third incinerator line available for an appropriate period at one
or more locations accessible to the public to enable it to comment on the application before the competent authority reached
a decision and by not making the decision on that application, including a copy of the permit, available to the public,
the Italian Republic has failed to fulfil its obligations under Articles 2(1) and 4(1) of Directive 85/337 and Article 12(1)
of Directive 2000/76/EC of the European Parliament and of the Council of 4 December 2000 on the incineration of waste (OJ
2000 L 332, p. 91).

Legal context

Community legislation
Directive 75/442
2       Article 1 of Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), as amended by Commission Decision
96/350/EC of 24 May 1996 (OJ 1996 L 135, p. 32) (‘Directive 75/442’), is worded thus:
‘For the purposes of this Directive:
(a)       “waste” shall mean any substance or object in the categories set out in Annex I which the holder discards or intends or is
required to discard.
…
(d)       “management” shall mean the collection, transport, recovery and disposal of waste, including the supervision of such operations
and aftercare of disposal sites;
(e)       “disposal” shall mean any of the operations provided for in Annex IIA;
(f)       “recovery” shall mean any of the operations provided for in Annex IIB;
…’
3       Under Article 4 of Directive 75/442:
‘Member States shall take the necessary measures to ensure that waste is recovered or disposed of without endangering human
health and without using processes or methods which could harm the environment, and in particular:
–       without risk to water, air, soil and plants and animals,
–       without causing a nuisance through noise or odours,
–       without adversely affecting the countryside or places of special interest.
…’
4       Under Article 9(1) of Directive 75/442:
‘For the purposes of implementing Articles 4, 5 and 7, any establishment or undertaking which carries out the operations specified
in Annex IIA must obtain a permit from the competent authority referred to in Article 6.
…’
5       According to Article 10 of Directive 75/442:
‘For the purposes of implementing Article 4, any establishment or undertaking which carries out the operations referred to
in Annex IIB must obtain a permit.’
6       Article 11(1) of Directive 75/442 provides:
‘Without prejudice to Council Directive 78/319/EEC … the following may be exempted from the permit requirement imposed in
Article 9 or Article 10:
…
(b)      establishments or undertakings that carry out waste recovery.
This exemption may apply only:
–       if the competent authorities have adopted general rules for each type of activity laying down the types and quantities of
waste and the conditions under which the activity in question may be exempted from the permit requirements,
and
–       if the types or quantities of waste and methods of disposal or recovery are such that the conditions imposed in Article 4
are complied with.’
7       Annex IIA to Directive 75/442, headed ‘Disposal operations’, is intended to list disposal operations such as they occur in
practice. It is stated in that annex that, in accordance with Article 4 of the directive, waste must be disposed of without
endangering human health and without the use of processes or methods likely to harm the environment.
8       Annex IIB to Directive 75/442, headed ‘Recovery operations’, is intended to list those operations as they occur in practice.
In that annex it is likewise stated that, in accordance with Article 4 of the directive, waste must be recovered without endangering
human health and without the use of processes or methods likely to harm the environment.
Directive 85/337
9       Article 1(2) and (3) of Directive 85/337 is worded thus:
‘2.      For the purposes of this Directive:
“project” means:
–       the execution of construction works or of other installations or schemes,
–       other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources;
“developer” means:
the applicant for authorisation for a private project or the public authority which initiates a project;
“development consent” means:
the decision of the competent authority or authorities which entitles the developer to proceed with the project.
3.      The competent authority or authorities shall be that or those which the Member States designate as responsible for performing
the duties arising from this Directive.’
10     Under Article 2(1) and (2) and the first subparagraph of Article 2(3) of Directive 85/337:
‘1.      Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant
effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for
development consent and an assessment with regard to their effects. These projects are defined in Article 4.
2.      The environmental impact assessment may be integrated into the existing procedures for consent to projects in the Member States,
or, failing this, into other procedures or into procedures to be established to comply with the aims of this Directive.
…
3.      Without prejudice to Article 7, Member States may, in exceptional cases, exempt a specific project in whole or in part from
the provisions laid down in this Directive.’
11     Article 3 of Directive 85/337 provides:
‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual
case and in accordance with Articles 4 to 11, the direct and indirect effects of a project on the following factors:
–       human beings, fauna and flora;
–       soil, water, air, climate and the landscape;
–       material assets and the cultural heritage;
–       the interaction between the factors mentioned in the first, second and third indents.’
12     Article 4(1) of Directive 85/337 provides:
‘Subject to Article 2(3), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5
to 10.’
13     Point 10 of Annex I to Directive 85/337 mentions waste disposal installations for the incineration or chemical treatment as
defined in Annex IIA to Directive 75/442 under heading D9 of non-hazardous waste with a capacity exceeding 100 tonnes per
day.
Directive 2000/76
14     According to Article 3(12) of Directive 2000/76, for the purposes of this directive:
‘“permit” means a written decision (or several such decisions) delivered by the competent authority granting authorisation
to operate a plant, subject to certain conditions which guarantee that the plant complies with all the requirements of this
Directive. A permit may cover one or more plants or parts of a plant on the same site operated by the same operator’.
15     Article 4(1) of Directive 2000/76 is worded thus:
‘Without prejudice to Article 11 of Directive 75/442/EEC or to Article 3 of Directive 91/689/EEC, no incineration or co-incineration
plant shall operate without a permit to carry out these activities.’
16     Article 12(1) of Directive 2000/76, relating to access to information and public participation, is worded thus:
‘Without prejudice to Council Directive 90/313/EEC and Directive 96/61/EC, applications for new permits for incineration and
co-incineration plants shall be made available at one or more locations accessible to the public, such as local authority
offices, for an appropriate period to enable it to comment on them before the competent authority reaches a decision. That
decision, including at least a copy of the permit, and any subsequent updates, shall also be made available to the public.’

National legislation
17     Article 6 of Law No 349 of 8 July 1986 establishing the Ministry of the Environment (GURI No 59 of 15 July 1986) transposed
Directive 85/337 into Italian law. Subsequently, Article 40 of Law No 146 of 22 February 1994 concerning provisions on the
assessment of environmental impact (ordinary supplement to GURI No 52 of 4 March 1994) entrusted the Italian Government with
the task of defining, by an express policy and coordination measure, the conditions, criteria and technical standards for
the application of the environmental impact assessment procedure to projects covered by Annex II to that directive.
18     Article 1(3) of the Decree of the President of the Republic of 12 April 1996 entitled ‘Policy and coordination measure for
the implementation of Article 40(1) of Law No 146 of 22 February 1994 concerning provisions on the assessment of environmental
impact’ (GURI No 210, p. 28) (‘the DPR’) states:
‘The projects referred to in Annex A are subject to the environmental impact assessment procedure.’
19     Article 3(1) of the Decree of the President of the Council of Ministers of 3 September 1999 entitled ‘Policy and coordination
measure amending and supplementing the earlier policy and coordination measure for the implementation of Article 40(1) of
Law No 146 of 22 February 1994 concerning provisions on the assessment of environmental impact’ (GURI No 302 of 27 December
1999, p. 17) (‘the DPCM’), which amended the initial version of Annex A to the DPR, is worded thus:
‘In Annex A to the DPR of 12 April 1996, points (i), (l) ... are replaced by the following points:
(i)       Installations for the disposal and the recovery of hazardous waste through the operations in Annex B and points R1 to R9 of
Annex C to Legislative Decree No 22 of 5 February 1997 [GURI No 38 of 15 February 1997, ‘the Legislative Decree’] excluding
recovery installations subject to the simplified procedures of Articles 31 and 33 of that legislative decree ...
(l)       Installations for the disposal and the recovery of non-hazardous waste, with a capacity exceeding 100 tonnes per day, through
the incineration and treatment operations in points D2 and D8 to D11 of Annex B and points R1 to R9 of Annex C to [the Legislative
Decree], excluding recovery installations subject to the simplified procedures of Articles 31 and 33 of that legislative decree
...’
20     The provisions of the Legislative Decree, which describe the characteristics of waste and the operations for which the simplified
procedure may be used, were adopted in order to transpose Article 11 of Directive 75/442.
21     It is apparent, in particular from Article 33(1) of the Legislative Decree, that, subject to compliance with certain technical
standards, waste recovery operations may be carried out on the expiry of a period of 90 days from notification of the commencement
of those operations to the province which has territorial jurisdiction.
22     Article 33(2) of that decree specifies, for both hazardous waste and non-hazardous waste, the content of the technical standards.
23     According to Article 33(3) of that decree, the province enters the undertakings which notify it of the commencement of operations
in a special register and, within the period provided for in Article 33(1), it checks on its own initiative that the necessary
conditions are met.
24     Lastly, it is apparent from Article 33(4) of the Legislative Decree that, as soon as the province notices that the technical
standards and the conditions referred to in Article 33(1) have not been complied with, it has to make a reasoned order prohibiting
the commencement or continuation of the operations, unless the party concerned complies with the legislation in force in the
period previously laid down by the authorities.

The pre-litigation procedure
25     By letter of 28 April 2003, the Commission requested information from the Italian Republic, inter alia in respect of the application
of the procedures provided for by Directives 85/337 and 2000/76 to the third incinerator line.
26     That Member State indicated, first, that it had excluded the project for the third incinerator line from the environmental
impact assessment procedure since it is covered by the exception referred to in point l of Annex A to the DPR, as amended
by the DPCM, and, secondly, that it had carried out various measures to publicise the project and various consultative measures
in accordance with Article 12 of Directive 2000/76.
27     In the light of the answers provided by the Italian Republic, which it deemed to be unsatisfactory, the Commission initiated
the pre-litigation procedure by sending a letter of formal notice dated 19 December 2003.
28     By letter of 8 June 2004, the competent Italian authorities informed the Commission of the willingness on the part of the
operator of the third incinerator line to make that incinerator line, the putting into service of which had been authorised
in December 2003, subject to an impact assessment.
29     Then, by a reasoned opinion of 9 July 2004, the Commission called on the Italian Republic to take the necessary measures to
comply in particular with the obligations under Directive 85/337 within a period of two months from the receipt of that opinion.
30     In a letter of 31 January 2005, the Italian Republic confirmed that the operator of the third incinerator line had submitted
a formal request for an environmental impact assessment, which had been published on 11 December 2004. Then, by letter of
3 May 2005, it produced documents on the stage which the ongoing assessment procedure had reached and stated that it was nearing
the end.
31     As the Commission was of the opinion that the position adopted by the Italian Government in the letters of reply mentioned
above was unsatisfactory, it brought this action under the second paragraph of Article 226 EC.

The action

Admissibility
Arguments of the parties
32     The Italian Republic submits that the Commission’s action is inadmissible on account of its lack of legal interest in bringing
proceedings. The Commission has no interest in demanding the performance of an obligation which has already been fulfilled.
Given the positive view on the environmental compatibility of the third incinerator line which is apparent from the Interministerial
Decree of 3 June 2005, adopted at the end of the assessment procedure which was initiated under the circumstances noted in
paragraph 30 of this judgment, the delay in carrying out the environmental impact study caused no harm to the environment.
There was only a state of procedural irregularity connected with the absence of an environmental impact study, which has been
remedied.
33     The Italian Republic adds that the Commission is calling for compliance with illogical obligations and has, consequently,
exceeded its powers by acting in disregard of the principles of good administration and of proportionality.
34     The Commission states that it retains a direct, specific and real interest in this action. As regards its interest in pursuing
the action on account of infringement of Directive 85/337, it submits that it is of little importance that the competent authorities
carried out an assessment of the environmental impact of the third incinerator line because that assessment does not meet
the requirements of the directive. It is before consent is given that projects likely to have significant effects on the environment
by virtue, inter alia, of their nature, size or location have to be subject to a development consent procedure and an assessment
with regard to their effects.
35     According to the Commission, the mere fact that the operator of the third incinerator line was willing to request that that
installation be made subject to an environmental impact assessment when it had already been constructed and put into service
is consequently irrelevant, particularly because the request for assessment was submitted only on 7 December 2004 and the
assessment was not carried out until after the expiry of the period laid down in the reasoned opinion.
36     Furthermore, the Commission submits that it is apparent from the case-law of the Court that when the Commission exercises
its powers under Article 226 EC it does not have to show that there is a specific interest in bringing an action.
Findings of the Court
37     According to settled case-law, when exercising its powers under Article 226 EC, the Commission does not have to show that
there is a specific interest in bringing an action. The Commission’s function is to ensure, of its own motion and in the general
interest, that the Member States give effect to Community law and to obtain a declaration of any failure to fulfil the obligations
deriving therefrom with a view to bringing it to an end (see Case C‑333/99
Commission
v
France
[2001] ECR I‑1025, paragraph 23; Case C‑394/02
Commission
v
Greece
[2005] ECR I‑4713, paragraphs 14 and 15 and the case-law cited; and Case C‑33/04
Commission
v
Luxembourg
[2005] ECR I‑10629, paragraph 65).
38     Furthermore, it is for the Commission to determine whether it is expedient to take action against a Member State and what
provisions, in its view, the Member State has infringed, and to choose the time at which it will bring an action for failure
to fulfil obligations; the considerations which determine its choice of time cannot affect the admissibility of the action
(see Case C‑35/96
Commission
v
Italy
[1998] ECR I‑3851, paragraph 27, and
Commission
v
Luxembourg
, paragraph 66).
39     The Court must consider whether or not there has been a failure to fulfil obligations as alleged, without its being part of
its role to take a view on the Commission’s exercise of its discretion (see Case C‑474/99
Commission
v
Spain
[2002] ECR I‑5293, paragraph 25, and
Commission
v
Luxembourg
, paragraph 67).
40     In any event, even if the carrying-out of a subsequent assessment regarding the environmental impact of the third incinerator
line were capable of bringing the alleged failure to fulfil obligations to an end, clearly such an assessment had not been
initiated at the end of the period laid down in the reasoned opinion, the date by reference to which the situation prevailing
in the Member State has to be examined with a view to determining whether it has failed to fulfil its obligations (see, inter
alia, Case C‑433/03
Commission
v
Germany
[2005] ECR I‑6985, paragraph 32).
41     It follows from the above considerations that the plea of inadmissibility concerning the Commission’s lack of legal interest
in bringing proceedings must be rejected.

Substance
42     In support of its action, the Commission relies on two heads of complaint.
The first head of complaint: breach of Articles 2(1) and 4(1) of Directive 85/337
–       Arguments of the parties
43     According to the Commission, the third incinerator line, which is categorised as an installation carrying out recovery operations
within the meaning of Annex IIB to Directive 75/442, and has a capacity exceeding 100 tonnes per day, is covered by point
10 of Annex I to Directive 85/337 and should therefore have been made subject to the environmental impact assessment procedure
before being authorised and then constructed. The Commission maintains that, if the project was not subject to an environmental
impact assessment, that was on account of the Italian legislation itself which does not require that waste recovery installations
subject to the simplified procedures be made subject to such an assessment.
44     The Commission adds that, in so far as it excludes from the environmental impact assessment procedure all installations carrying
out waste recovery operations which are granted an authorisation under the simplified procedure, the DPCM infringes the obligations
which stem from Directive 85/337.
45     The Italian Republic does not admit the failure to fulfil obligations of which it is accused and states that it adopts, in
its defence, the arguments which it expounded in Case C‑486/04
Commission
v
Italy
[2006] ECR I‑11025.
46     Thus, its main submission is that, in so far as the third incinerator line carries out waste recovery and is subject to the
simplified procedures put in place by Articles 31 and 33 of the Legislative Decree, provisions which were adopted for the
purpose of transposing Article 11 of Directive 75/442, it is not covered by the environmental impact assessment procedure.
By establishing, first, a link between Directive 85/337 and Directive 75/442 as regards the technical terms used concerning
waste and by referring, second, to the actual wording of point 10 of Annex I and of point 11(b) of Annex II to Directive 85/337,
which rely on the single concept of waste disposal, the Italian Republic concludes that the latter directive excludes waste
recovery installations from its scope.
47     The Italian Republic also submits that the amendments made to Directive 75/442 by Council Directive 91/156/EEC of 18 March
1991 (OJ 1991 L 78, p. 32) had the aim of laying down a common terminology and a harmonised definition of waste, enabling
comparison of the various provisions which, both at national and at Community level, deal with waste. Therefore, when Directive
97/11 refers to the concept of waste, the terms and definitions which it uses are bound to be borrowed from the legislation
specific to that sector, namely Directive 91/156.
48     The Italian Republic adds that, where, so far as waste recovery is concerned, the emissions do not exceed the limits permitted
by the Community legislation, it is not necessary to implement the assessment procedure inasmuch as the very aim of waste
recovery is to protect the environment.
49     In a statement in intervention of 7 April 2006, the United Kingdom of Great Britain and Northern Ireland supports the form
of order sought by the Italian Republic in respect of the first head of complaint.
–       Findings of the Court
50     It should be noted at the outset that, in Case C‑486/04
Commission
v
Italy
, the Court held that the Italian Republic had failed to fulfil its obligations under Articles 2(1) and 4(1), (2) and (3)
of Directive 85/337 by adopting Article 3(1) of the DPCM, allowing projects for the recovery of hazardous waste and of non-hazardous
waste with a capacity exceeding 100 tonnes per day which are covered by Annex I to Directive 85/337 and are subject to a simplified
procedure for the purpose of Article 11 of Directive 75/442 to avoid the environmental impact assessment procedure provided
for in Articles 2(1) and 4(1) of Directive 85/337.
51     The failure to fulfil obligations which is alleged by the Commission in this head of complaint is merely the result of the
application to a specific case of national legislation which has, as was stated in the preceding paragraph, already been found
to be contrary to Community law.
52     The application of that legislation, by virtue of which waste recovery installations covered by the simplified procedures
referred to in Articles 31 and 33 of the Legislative Decree are not subject to the environmental impact assessment procedure,
has resulted in no environmental impact study being required for the third incinerator line, although it falls within the
category of disposal installations for the incineration or chemical treatment of non-hazardous waste with a capacity exceeding
100 tonnes per day in point 10 of Annex I to Directive 85/337. As such, before being authorised, the third incinerator line
should have undergone the environmental impact assessment procedure, since projects which fall within Annex I must undergo
a systematic assessment under Articles 2(1), 4(1) and 5 to 10 of that directive (see Case C‑486/04
Commission
v
Italy
, paragraph 45).
53     In view of the above, it must be held that, by not making the project to implement the third incinerator line subject to the
environmental impact assessment procedure provided for in Articles 5 to 10 of Directive 85/337 before consent was given for
its construction, the Italian Republic has failed to fulfil its obligations under Articles 2(1) and 4(1) of that directive.
The second head of complaint: breach of Article 12(1) of Directive 2000/76
–       Arguments of the parties
54     The Commission alleges that, in breach of the provisions of Article 12 of Directive 2000/76, the Italian Republic did not
make public either the application for an authorisation to operate the third incinerator line or the corresponding authorisation.
55     The Italian Republic submitted, in the course of the pre-litigation procedure, that Article 12 does not apply to this case,
since no application for an authorisation to operate the third incinerator line was made. That line was the subject only of
a declaration of 24 July 2003 that it was being put into service, in accordance with the procedure laid down by the Legislative
Decree.
–       Findings of the Court
56     It is apparent from Article 33(1) of the Legislative Decree that waste recovery operations may be carried out on the expiry
of a period of 90 days from notification of the commencement of those operations to the province which has territorial jurisdiction.
In that period, under Article 33(3) of the Legislative Decree, the relevant provincial authorities check on their own initiative
whether the necessary conditions for recovery to be carried out are met.
57     In the present case, the third incinerator line was the subject, under the simplified procedure established by the Legislative
Decree, of a declaration in respect of the commencement of operations dated 24 July 2003. That declaration was followed by
two decisions taken by the competent provincial authorities, a prohibition against commencing of 21 October 2003 and then
an authorisation of 19 December 2003.
58     It is apparent from Article 12(1) of Directive 2000/76 that applications for new permits have to be made available at locations
accessible to the public for an appropriate period to enable it to comment on them before the competent authority reaches
a decision. That decision, including at least a copy of the permit, and the subsequent updates also have to be made available
to the public.
59     The purpose of that provision, as is apparent in particular from the 31st recital in the preamble to Directive 2000/76, is
to ensure the transparency of the process by allowing the public to be involved in decisions to be taken following applications
for the grant of authorisations.
60     Therefore, it must be held that the concept of ‘application for a new permit’ must be given a meaning which fully satisfies
the objective pursued by Article 12(1) of Directive 2000/76. Accordingly, that term must be construed broadly as covering
any procedure comparable to a procedure for granting permits or authorisation.
61     The declaration in respect of the commencement of operations referred to in paragraph 56 of this judgment to which the third
incinerator line gave rise must, having regard to its characteristics and in particular to the role allotted to the provincial
authorities, be equated with an application for a new permit for the purposes of Directive 2000/76.
62     As such, that declaration should have been made available at one or more locations accessible to the public, for a period
which would have enabled the public to make comments to the competent provincial authorities before the expiry of the 90-day
period which is given to those authorities to check whether the necessary legal conditions for recovery to be carried out
are met. It is common ground that, in disregard of the provisions of Article 12(1) of Directive 2000/76, the declaration in
question was not publicised.
63     Moreover, the decisions taken by the province concerned as regards the third incinerator line, namely the prohibition against
commencing and the authorisation mentioned in paragraph 57 of this judgment, were not, contrary to the requirements of Article
12(1) of Directive 2000/76, made available to the public either.
64     In view of the above, it must be held that, by not making the declaration in respect of the commencement of the operations
of the third incinerator line available at one or more locations accessible to the public for an appropriate period, to enable
the public to comment on it before the competent authority reached a decision, and by not making the decisions relating to
that declaration, including a copy of the authorisation, available to the public, the Italian Republic has failed to fulfil
its obligations under Article 12(1) of Directive 2000/76.

Costs
65     Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been
applied for in the successful party’s pleadings. Since the Commission has applied for costs and the Italian Republic has been
unsuccessful, the latter must be ordered to pay the costs.
66     Pursuant to Article 69(4) of the Rules of Procedure, the United Kingdom must bear its own costs.
On those grounds, the Court (Second Chamber) hereby:
1.
Declares that, by not making the project to implement a ‘third line’ of the incinerator belonging to ASM Brescia SpA subject
to the environmental impact assessment procedure provided for in Articles 5 to 10 of Council Directive 85/337/EEC of 27 June
1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive
97/11/EC of 3 March 1997, before consent was given for its construction, the Italian Republic has failed to fulfil its obligations
under Articles 2(1) and 4(1) of that directive;
2.
Declares that, by not making the declaration in respect of the commencement of the operations of the ‘third line’ of that
incinerator available at one or more locations accessible to the public for an appropriate period, to enable the public to
comment on it before the competent authority reached a decision, and by not making the decisions relating to that declaration,
including a copy of the authorisation, available to the public, the Italian Republic has failed to fulfil its obligations
under Article 12(1) of Directive 2000/76/EC of the European Parliament and of the Council of 4 December 2000 on the incineration
of waste;
3.
Orders the Italian Republic to pay the costs;
4.
Orders the United Kingdom of Great Britain and Northern Ireland to bear its own costs.
[Signatures]
*
Language of the case: Italian.