# C_2005205EN.01001201.xml

| 20.8.2005 | EN | Official Journal of the European Union | C 205/12 |
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Action brought on 16 June 2005 by the Commission of the European Communities against the Italian Republic

(Case C-255/05)

(2005/C 205/22)

Language of the case: Italian

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 16 June 2005 by the Commission of the European Communities, represented by M. Konstantinidis, acting as Agent, and by F. Louis and A. Capobianco, lawyers.

The Commission claims that the Court should:

| — | declare that the Italian Republic has failed to fulfil its obligations under Article 2(1) and Article 4(1) 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,( 1 ) as amended by Council Directive 97/11/EC of 3 March 1997,( 2 ) and 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 )
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inasmuch as it did not subject, prior to granting construction consent, the project for the third ASM Brescia incinerator line, which is a plant listed in Annex I to Directive 85/337/EEC, as amended, to an environmental impact assessment in accordance with Articles 5 to 10 of Directive 85/337/EEC, as amended; and —
inasmuch as it did not make the application for a permit to operate the third Brescia incinerator line available at one or more locations accessible to the public for an appropriate period to enable it to comment thereon before the competent authority reached a decision, and did not make available to the public that decision and a copy of the permit; | — | inasmuch as it did not subject, prior to granting construction consent, the project for the third ASM Brescia incinerator line, which is a plant listed in Annex I to Directive 85/337/EEC, as amended, to an environmental impact assessment in accordance with Articles 5 to 10 of Directive 85/337/EEC, as amended; and | — | inasmuch as it did not make the application for a permit to operate the third Brescia incinerator line available at one or more locations accessible to the public for an appropriate period to enable it to comment thereon before the competent authority reached a decision, and did not make available to the public that decision and a copy of the permit; |
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| — | inasmuch as it did not subject, prior to granting construction consent, the project for the third ASM Brescia incinerator line, which is a plant listed in Annex I to Directive 85/337/EEC, as amended, to an environmental impact assessment in accordance with Articles 5 to 10 of Directive 85/337/EEC, as amended; and | | | | |
| — | inasmuch as it did not make the application for a permit to operate the third Brescia incinerator line available at one or more locations accessible to the public for an appropriate period to enable it to comment thereon before the competent authority reached a decision, and did not make available to the public that decision and a copy of the permit; | | | | |

| — | order the Italian Republic to pay the costs. |
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Pleas in law and main arguments

ASM Brescia SpA operates an incinerator which comprises two lines and was authorised in 1993. Before 1993, however, ASM Brescia SpA developed a ‘third line’ of waste incinerators.

The third line of the Brescia incinerator is classified as a plant which carries out recovery operations as provided for in Point R 1 of Annex IIB to Directive 75/442//EEC and has a capacity of over 100 tonnes per day. As such, it should have been subject to the environmental impact assessment (‘EIA’) procedures within the meaning of Directive 85/337/EEC, as amended.

However, the development project for the third line was never subject either to the EIA procedure or to specific examination (checks that an EIA is required). That has also been confirmed by the Italian authorities. The Italian legislation does not, in fact, provide for a general EIA requirement for waste processing plants in accordance with the provisions of Directive 85/337/EEC, but contains wide exceptions which restrict considerably the scope of that directive.

The Commission submits that the exclusion of plants which carry out recovery activities from the EIA procedures has no basis in Community legislation and is therefore a clear infringement thereof.

With regard to Article 12 of Directive 2000/76/EC, the Commission complains that the Italian authorities did not publish the application for a permit to operate the third incinerator line and the respective authorisation measure in accordance with the provisions of that article.

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( 1 )  OJ L 175 of 05.07.1985, p. 40.

( 2 )  OJ L 73 of 14.03.1997, p. 5.

( 3 )  OJ L 332 of 28.12.2000, p. 91.

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