CELEX: 62002CJ0103
Failure of a Member State to fulfil obligations
Directives 75/442/EEC and 91/689/EEC
'Quantity of waste'
Exemption from permit requirement

By its action, the Commission of the European Communities is seeking a declaration from the Court that, by adopting the Decree
of 5 February 1998 relating to the identification of non-hazardous waste subject to simplified recovery procedures under Articles
31 and 33 of Legislative Decree No 22 of 5 February 1997, which:
–
contrary to Article 10 and the second subparagraph of Article 11(1) of Council Directive 75/442/EEC of 15 July 1975 on waste
(OJ 1975 L 194, p. 39), as amended by Council Directive 91/156/EEC of 18 March 1991 (OJ 1991 L 78, p. 32) (‘Directive 75/442’),
allows establishments and undertakings which recover non-hazardous waste to be exempt from the requirement for a permit, without
that exemption being subject to the conditions: (1) relating to prior fixing of the maximum quantity of waste, and (2) referred
to in Article 4 of Directive 75/442 concerning the quantities of waste treated by establishments which are exempt from the
permit requirement,
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contrary to the first indent of the second subparagraph of Article 11(1) of Directive 75/442, does not define precisely the
types of waste covered by the exemption from the permit requirement and, consequently, in breach also of Article 3 of Council
Directive 91/689/EEC of 12 December 1991 on hazardous waste (OJ 1991 L 377, p. 20), owing to the lack of clarity and precision
in the decree in question, allows, in certain cases, establishments or undertakings which recover certain types of dangerous
waste to be exempt from that requirement on the basis of the less stringent criteria laid down for non-hazardous waste,
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contrary to Articles 9 and 11, read in the light of Article 1(e) and (f) of Directive 75/442 and Annexes II A and II B thereto,
amended by Commission Decision 96/350/EC of 24 May 1996 (OJ 1996 L 135, p. 32), defines certain disposal activities as ‘environmental
recovery’ activities, thereby allowing those establishments and undertakings which carry out disposal operations other than
their own waste disposal at the place of production to be exempted from the permit requirement, as if they were carrying out
recovery operations,
the Italian Republic has failed to fulfil its obligations under Articles 1, 9, 10 and 11 of Directive 75/442 and Article 3
of Directive 91/689.
Legal framework
Community legislation
Directive 75/442
The object of Directive 75/442 is to ensure that waste is disposed of or recovered and to encourage the adoption of measures
aimed at restricting the production of waste, particularly by promoting clean technologies and products which can be recycled
and re-used.
Article 1 of that directive defines inter alia ‘waste’, ‘disposal’ and ‘recovery’.
Article 4 of Directive 75/442 provides:
‘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:
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without risk to water, air, soil and plants and animals,
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without causing a nuisance through noise or odours,
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without adversely affecting the countryside or places of special interest.
Member States shall also take the necessary measures to prohibit the abandonment, dumping or uncontrolled disposal of waste.’
Articles 9 to 11 of Directive 75/442 specify the cases where a permit from the competent authority is necessary for waste
disposal and recovery operations. Those operations are listed in Annexes II A and II B, respectively, to that directive, as
amended by Decision 96/350.
Article 9(1) of Directive 75/442 provides that, for the purposes of application of Article 4 thereof, any establishment or
undertaking which carries out the operations specified in Annex II A to that directive must obtain a permit from the competent
authority.
‘Such permit shall cover:
–

the types and quantities of waste,
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the technical requirements,
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the security precautions to be taken,
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the disposal site,
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the treatment method.’
Article 9(2) of Directive 75/442 provides:
‘Permits may be granted for a specified period, they may be renewable, they may be subject to conditions and obligations,
or, notably, if the intended method of disposal is unacceptable from the point of view of environmental protection, they may
be refused.’
Article 10 of that directive, relating to recovery operations referred to in Annex II B thereto provides:
‘For the purposes of implementing Article 4, any establishment or undertaking which carries out the operations referred to
in Annex II B must obtain a permit.’
Article 11 of that directive provides for the possibility for exemption from the permit requirement applicable to all waste
except for hazardous waste, which is the subject of specific provisions:
‘1.

… the following may be exempted from the permit requirement imposed in Article 9 or Article 10:
(a)
establishments or undertakings carrying out their own waste disposal at the place of production
and
(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.
2.

The establishments or undertakings referred to in paragraph 1 shall be registered with the competent authorities.
3.

Member States shall inform the Commission of the general rules adopted pursuant to paragraph 1.’
Directive 91/689
Directive 91/689 on hazardous waste provides, in Article 3(1) and (2):
‘1.

The derogation referred to in Article 11(1)(a) of Directive 75/442/EEC from the permit requirement for establishments or undertakings
which carry out their own waste disposal shall not apply to hazardous waste covered by this Directive.
2.

In accordance with Article 11(1)(b) of Directive 75/442/EEC, a Member State may waive Article 10 of that Directive for establishments
or undertakings which recover waste covered by this Directive:
–
if the Member State adopts general rules listing the type and quantity of waste and laying down specific conditions (limit
values for the content of hazardous substances in the waste, emission limit values, type of activity) and other necessary
requirements for carrying out different forms of recovery,  and
–
if the types or quantities of waste and methods of recovery are such that the conditions laid down in Article 4 of Directive
75/442/EEC are complied with.’
National legislation
The Decree of the Ministero del Ambiente (Minister for the Environment) of 5 February 1998 relating to the identification
of non-hazardous waste subject to simplified recovery procedures under Articles 31 and 33 of Legislative Decree No 22 of 5
February 1997 (ordinary supplement No 72 to GURI No 88 of 16 April 1998) (‘the Decree’) transposes Directives 91/156 and 91/689
into the national legal order.
Article 5(1) of that decree, entitled ‘Environmental recovery’, provides:
‘Environmental recovery activities defined in Annex 1 consist in restoration of damaged areas for productive or social purposes
through measures of morphological remodelling.’
Article 7 of that decree, entitled ‘Quantities’, reads as follows:
‘1.
Without prejudice to the provisions specifically laid down in the annexes, the maximum annual quantities of waste which can
be used in the course of recovery activities regulated by this decree shall be determined by the annual treatment capacity
of the installation in which the activity is carried out, after deduction of any raw material used, while ensuring that the
activity poses no risk to human health or to the environment.
…
2.
In the case of energy recovery activities referred to in annex 2, the maximum quantity of waste shall be defined by reference
to the calorific value of the waste, the nominal thermal rating of the installation where the energy recovery operation is
carried out and the estimated period of operation for each recovery installation.
3.
The quantities of waste intended to be recovered each year must be indicated in the notice of commencement of activity, stating
that the conditions laid down in the present article will be observed. ’
Pre-litigation procedure
By letter of formal notice of 28 February 2000, the Commission informed the Italian authorities that, in adopting the Decree,
the Italian Republic had failed to fulfil its obligations under Articles 1, 9 10 and 11 of Directive 75/442 and Article 3
of Directive 91/689.
Pursuant to Article 226 EC, the Commission requested the Italian authorities to submit any observations they might have within
two months of the date of receipt of the letter of formal notice.
The Italian authorities responded in two letters dated 3 and 26 May 2000.
Taking the view that the replies submitted by the Italian authorities were not satisfactory on certain points, on 11 April
2001 the Commission sent a reasoned opinion to the Italian Government, asking it to take the measures necessary to comply
with it within two months of notification thereof.
The Italian authorities responded by letter of 17 August 2001.
Since it was not satisfied with that response, the Commission decided to bring the present action.
The first plea: the maximum quantities of waste which may be exempt from the permit requirement
Arguments of the parties
La Commission maintains that Article 7 of the Decree infringes Article 11 of Directive 75/442 because it does not fix a maximum
quantity of waste intended for recovery which may be exempt from the permit requirement but, on the contrary, provides for
a relative quantity which depends on the annual treatment capacity of each installation concerned.
The Commission states that the interpretation advocated by the Italian Republic jeopardises the objective of protecting human
health and the environment referred to in Article 4 of Directive 75/442 by allowing recovery undertakings to be exempt from
the permit requirement even though they treat considerable quantities of waste. Such an approach means that the normal permit
application procedure does not in practice apply.
The Italian Government, for its part, maintains that the Member States are not required to fix absolute maximum quantities.
The wording of Article 11 of Directive 75/442 does not contain any express provision to that effect.
The Italian Government argues, on the contrary, that, according to the wording of the second subparagraph of Article 11(1),
in order for the exemption to apply, it is sufficient that one of the two conditions contained in the two indents of that
paragraph is met. The second condition requires the Member States to define either the types or the quantities of waste concerned
in order to ensure compliance with the health and environmental protection requirements provided for in Article 4 of Directive
75/442. The word ‘or’ in the phrase ‘types or quantities of waste’ supports this analysis.
Where that condition is met, and the requirements laid down in Article 4 of that directive are thus complied with, it is not
necessary to fulfil the condition laid down in the first indent of the second subparagraph of Article 11(1) thereof. The two
conditions are not cumulative; they cover two distinct cases and must therefore be viewed as alternatives at the discretion
of the Member States.
The Italian Government observes that the provisions of the Decree viewed as a whole and, in particular, those relating to
the determination of relative maximum quantities, are aimed at achieving a high degree of environmental protection and better
serve that objective than the fixing of an absolute maximum quantity. In the Italian Government’s view, if it were not possible
for large-capacity installations to recover waste beyond an absolute threshold but to have to dispose of that waste, that
would run counter to the general principles of Directive 75/442.
Findings of the Court
In order to ascertain whether the Italian Republic correctly applied Directive 75/442, it is appropriate to consider whether
that directive requires the Member States to fix absolute maximum quantities of waste for recovery which may be the subject
of an exemption from the permit requirement or whether the Member States may provide for relative quantities according to
the treatment capacity of each installation. In that connection, it is appropriate to examine the actual wording of the second
subparagraph of Article 11(1) of Directive 75/442.
First, the wording of that provision shows that the exemption from the permit requirement is subject to two conditions being
satisfied. Since each of the conditions is preceded by a dash and the two conditions are joined by the conjunction ‘and’,
it is clear that the two conditions are cumulative and are not alternatives, contrary to the contention of the Italian Government.
Next, it is appropriate to define the scope of the obligation to fix a quantity as required by the first condition, since
Member States are bound by that condition as they are by the second condition.
The first condition provides expressly for the adoption by the competent authorities of rules for each type of activity laying
down ‘the types and quantities of waste and the conditions under which’ the activity may be exempted from the permit requirement.
Although the words ‘absolute maximum quantities’ are not expressly used, it is clear from the actual wording of the provision
that ‘quantities’ refers to an upper threshold applicable to each type of waste, beyond which recovery operations may not
be exempted from the permit requirements but must have a permit.
The overall scheme of Directive 75/442, moreover, militates in favour of that interpretation. That directive establishes an
ordinary procedure which involves the requirement to obtain the permit referred to in Articles 9 and 10 thereof. By providing
for an exemption from that requirement under certain conditions, Article 11 establishes a simplified procedure. The latter
procedure is an exception and must be as easy as possible to apply and monitor, which would not be the case if the quantities
of waste could vary in relation to each installation.
The Italian Government’s argument that the Decree’s provisions better serve the objective of environmental protection than
those laid down in Directive 75/442 is not relevant.
As the Court has previously held, the obligation to ensure the full effectiveness of a directive, in accordance with its objective,
cannot be interpreted as meaning that the Member States are released from adopting transposing measures where they consider
that their national provisions are better than the Community provisions concerned and that the national provisions are therefore
more likely to ensure that the objective pursued by the directive is achieved. According to the Court’s case-law, the existence
of national rules may render transposition by specific legislative or regulatory measures superfluous only if those rules
actually ensure the full application of the directive by the national authorities (see, inter alia, Case C‑194/01
Commission
v
Austria
[2004] ECR I-0000, paragraph 39). Accordingly, it is not open to the Member States to derogate from the rules imposed by
Directive 75/442 by replacing the maximum quantities by type of waste which may be recovered without a permit with relative
quantities which vary in relation to the capacity of each recovery installation.
It is, moreover, inaccurate to maintain, as the Italian Government does, that the Commission’s interpretation runs counter
to the objective of Directive 75/442 in that it would result in large-scale installations being able to recover only a low
quantity of waste corresponding to the maximum quantities and their having to dispose of the rest. There is nothing to prevent
those undertakings from recovering quantities of waste higher than those maximum quantities, provided they do so within the
confines of the permit scheme.
Accordingly, the Court finds that, by failing to fix in the Decree the maximum quantities of waste, by type of waste, which
may be recovered under the permit exemption scheme, the Italian Republic has failed to fulfil its obligations under Articles
10 and 11(1) of Directive 75/442.
The second plea: imprecise definition of the types of waste covered by exemption from the permit requirement
Arguments of the parties
The Commission puts forward two complaints: first, some of the descriptions in the technical standards contained in Annexes
1 and 2 to the Decree define the types of waste in an extremely vague manner; second, the codes of the European Waste Catalogue
(‘EWC codes’) are often not used or, when they are, they do not correspond to the definitions given in the headings to the
technical standards. The result is that some types of hazardous waste may be included in the non-hazardous waste category,
thereby allowing those establishments and undertakings which treat them to be exempt from the permit requirement in reliance
on the less stringent criteria which apply to non-hazardous waste.
The Commission illustrates its complaint by referring to three examples.
As its first example, the Commission states that technical standard 5.9 in Annex 1 to the Decree, concerning ‘pieces of dielectric,
semi-dielectric and metallic covered optical fibre cable’, makes no reference to the EWC code.
Next, technical standard 7.8 in Annex 1 to the Decree, which refers to ‘waste comprising refractory material, waste comprising
refractory material from furnaces in which high-temperature processes are carried out’, is accompanied by a series of EWC
codes which do not make it clear whether waste coating materials from metallurgical processes involving aluminium fall within
that provision, and are confusing as to what is hazardous and what is non-hazardous waste.
Lastly, technical standard 3.10 in Annex 1 to the Decree, which refers to ‘spent silver oxide batteries’, carries an incorrect
reference to EWC Code 160605, which corresponds to ‘other batteries and accumulators’, included in the non-hazardous waste
category. Given the mercury content of such batteries, the correct code is EWC Code 160603, ‘mercury dry cells’, which is
in the hazardous waste category. The Commission observes, in this connection, that code 160603 was amended by Commission Decision
2000/532/EC of 3 May 2000 (OJ 2000 L 226, p. 3), which introduced a reference to ‘mercury-containing batteries’.
The Italian Government states that the three examples examined by the Commission are isolated cases and that the Commission
made an unfair general assumption that there was no definition or an incorrect definition of the types of waste covered by
the exemption from the permit requirement.
Regarding technical standard 3.10 relating to spent silver oxide batteries, the Italian Government maintains that the description
of the standard and the EWC code attributed to it must be read in conjunction with examination of the origin and chemical
and physical characteristics of the waste itself. In that particular case, classification of the waste in question under an
EWC code for non-hazardous waste corresponds fully to the chemical and physical characteristics indicated in the Decree, namely,
‘a steel casing containing silver oxides and/or silver salts exceeding 1%, zinc and nickel not exceeding 9% and 55% respectively’.
Findings of the Court
By its second plea, the Commission complains generally that the Italian Republic did not define precisely the types of non-hazardous
waste intended for recovery under the simplified procedure. The technical standards relating to those types of waste are expressed
in an extremely vague manner and the EWC codes are either omitted or incorrect. The Commission refers to three technical standards
in support of its complaint.
The Court finds that the Commission refers to only three specific cases and does not adduce any evidence allowing the Court
to ascertain whether the plea is well founded in so far as it refers to all the technical standards contained in the Decree.
The examination of the plea must, accordingly, be restricted to the three cases mentioned.
Regarding technical standard 5.9, the Court notes that the Italian Government first indicated to the Commission, in response
to the letter of formal notice and the reasoned opinion, that it was planning to include an EWC code and then, in its statement
in defence, stated that the EWC codes had indeed been adopted pursuant to Decision 2000/532/EC.
Although the Italian Government maintains that the EWC codes adopted by it are intended to reflect the codes provided for
in Decision 2000/532, with which the Member States had to comply by 1 January 2002, that is, a date subsequent to the facts
complained of, it is clear that the Italian Government has not denied that it should have adopted an EWC code for the waste
in question before that date, in accordance with the provisions of Directive 75/442.
The Court finds that since the Italian Republic had still not attributed an EWC code to technical standard 5.9 when the time-limit
fixed in the reasoned opinion expired, the failure to fulfil obligations alleged by the Commission in respect of that technical
standard is established.
With respect to the Commission’s complaint concerning technical standard 7.8, suffice it to note that the Italian Government
indicated in its statement in defence that the EWC codes used were to be amended as soon as possible. It follows that the
Italian Government has not contested the lack of conformity of the codes used with the requirements of Directive 75/442 and
the Court finds that the failure to fulfil obligations alleged by the Commission has been shown in so far as regards that
technical standard.
The third case relates to technical standard 3.10. The Italian Government has not responded to the Commission’s assertion
that the batteries in question contained mercury. It merely stated that the description in the Decree of the technical characteristics
of the product do not mention mercury which, in its view, justified the use of an EWC code corresponding to non-hazardous
waste.
The Court finds that, in so far as the batteries in question contained mercury, the Commission was right in considering that
they were hazardous waste and that the appropriate EWC code was 160603, applicable to mercury dry cells, rather than code
160605, applicable to other batteries and accumulators and used for non-hazardous waste. Nevertheless, it was for the Commission
to adduce evidence that the batteries in question contained mercury, which is not apparent from the documents produced for
the Court. In the absence of such evidence, the Commission’s plea concerning technical standard 3.10 must be rejected.
In the light of the foregoing considerations, the Court finds that, by failing to define precisely the types of waste relating
to technical standards 5.9 and 7.8 in Annex 1 to the Decree, the Italian Republic has failed to fulfil its obligations under
Article 11(1) of Directive 75/442 and Article 3 of Directive 91/689.
The third plea: definition of certain waste disposal activities as recovery activities
Arguments of the parties
The Commission complains that the Italian Republic presented disposal operations as recovery operations, thereby infringing
Articles 9 and 11 of Directive 75/442 concerning the permit scheme, read in the light of Article 1(e) and (f) of that directive
and Annexes II A and II B thereto, which define those operations.
The operations in question are referred to in Article 5 of the Decree. Their purpose is to restore damaged areas for productive
or social purposes through morphological remodelling measures, which include landfill covering.
The Commission takes the view that the operations associated with the restoration of damaged areas for productive or social
purposes through measures of morphological remodelling were incorrectly classified under category R 10 of Annex II B to Directive
75/442. That category covers land treatment resulting in benefit to agriculture or ecological improvement and, in the Commission’s
view, refers rather to the use of sludge in agriculture.
As regards landfill covering operations, which consist simply of disposing of waste on top of waste already present, the Commission
maintains that these are not, strictly speaking, recycling or recovery activities falling under point R 5 of Annex II B to
Directive 75/442, as the Italian Republic incorrectly classified them. In the Commission’s view, landfill covering falls under
point D 1 of Annex II A to that directive, relating to disposal operations and entitled ‘Deposit into or onto land (e.g. landfill,
etc.)’.
The Italian Government, by contrast, maintains that classification of ‘environmental recovery’ operations under category R 10,
‘land treatment resulting in benefit to agriculture or ecological improvement’, is correct.  Environmental recovery operations
are aimed at rehabilitating the environment and therefore do fall within that category. Rehabilitation of the environment
must not be confused with a disposal operation.
As to ‘landfill covering’, the Italian Government states that, like ‘environmental recovery’, this is not a disposal operation
but rather a rehabilitation activity in the true sense of the term.
In its reply, the Commission considers, in the light of the Court’s recent case-law on the difference between ‘recovery’ and
‘disposal’, that certain morphological remodelling measures referred to in Article 5 of the Decree may be viewed as falling
within category R 10.
The Commission maintains, on the other hand, that the use of waste and drilling sludge containing up to 50 kg/t of hydrocarbons
and 300 kg/t of diesel oil or oil which is slightly toxic, as described in technical standards 7.14 and 7.15, cannot be described
as environmental recovery.
Findings of the Court
The Court notes that it follows from the Commission’s reply that the Commission is maintaining its complaint only as regards
the use of waste and drilling sludge corresponding to technical standards 7.14 and 7.15 of the Decree. The use of such waste
is not, in the Commission’s view, a recovery operation but rather a disposal operation.
The Commission does not state the precise reason why it is maintaining its plea as regards that waste, but confines itself
to indicating that it contains very high levels of hydrocarbons or diesel oil or oil which is slightly toxic. It thus seems
to consider that the waste in question contains hazardous substances which preclude its being used for recovery purposes.
The Court has held, however, that the hazardous or non-hazardous nature of the waste is not, of itself, a relevant criterion
for assessing whether a waste treatment operation must be classified as ‘recovery’ within the meaning of Article 1(f) of
Directive 75/442. The essential characteristic of a waste recovery operation is that its principal objective is that the waste
serve a useful purpose in replacing other materials which would have had to be used for that purpose, thereby conserving natural
resources (Case C-6/00
ASA
[2002] ECR I-1961, paragraphs 68 and 69).
It follows that the mere fact that the waste in question contains high quantities of hydrocarbons and diesel oil or oil which
is slightly toxic does not preclude its being used for recovery purposes.
Moreover, as the Advocate General stated in point 36 of his Opinion, the Commission has admitted that landfill covering may
be considered to be a recovery operation inter alia for the purposes of technical standard 4.4. The activities referred to
in technical standards 7.14 and 7.15 are described in a manner identical or almost identical to such operations.
It must therefore be held that the Commission has not shown that the Italian Republic incorrectly classified waste disposal
operations as waste recovery operations and the third plea must be rejected in its entirety.
Costs
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. However, under Article 69(3) of those Rules, where each party succeeds on
some and fails on other heads, the Court may order that the costs be shared or that the parties bear their own costs. In this
case, since the parties have each been partially unsuccessful in their claims, each must be ordered to bear its own costs.
On those grounds, the Court (First Chamber) hereby:
1.
Declares that, by failing to fix, in the Decree of 5 February 1998 relating to the identification of non-hazardous waste subject
to simplified recovery procedures under Articles 31 and 33 of Legislative Decree No 22 of 5 February 1997, maximum quantities
of waste by type of waste which may be recovered under the permit exemption scheme, the Italian Republic has failed to fulfil
its obligations under Articles 10 and 11(1) of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council
Directive 91/156/EEC of 18 March 1991;
2.
Declares that, by failing to define precisely the types of waste relating to technical standards 5.9 and 7.8 of Annex 1 to
that decree, the Italian Republic has failed to fulfil its obligations under Article 11(1) of Directive 75/442, as amended,
and Article 3 of Council Directive 91/689/EEC of 12 December 1991 on hazardous waste;
3.
Dismisses the remainder of the action;
4.
Orders each party to pay its own costs.
Signatures.
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Language of the case: Italian.