# C_2005217EN.01002702.xml

| 3.9.2005 | EN | Official Journal of the European Union | C 217/27 |
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3.9.2005

EN

Official Journal of the European Union

C 217/27

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Action brought on 23 June 2005 by the Commission of the European Communities against the Italian Republic

(Case C-263/05)

(2005/C 217/54)

Language of the case: Italian

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 23 June 2005 by the Commission of the European Communities, represented by M. Kontantinidis and L. Cimaglia, of its Legal Service, acting as Agents.

The Commission claims that the Court should:

| 1. | declare that, by having adopted and maintained in force a provision (Article 14 of Decree-Law No 138 of 8 July 2002, converted into Law No 178 of 8 August 2002) that provides for the exclusion from the ambit of Decree-Law No 22/97, which transposed into Italian national law Council Directive 91/156/EEC (1) of 18 March 1991 amending Directive 75/442/EEC (2) on waste, substances or objects intended for operations for the disposal or recovery of waste not expressly listed in Annexes B or C to Legislative Decree No 22/97, and also goods, substances or residual production materials which the holder intends or is required to discard, when they may be and are reused in a production or consumption cycle, on condition that they have undergone no prior treatment and that they do not harm the environment or, if when they have undergone prior treatment, the latter is not one of the recovery operations listed in Annex C to Legislative Decree No 22/97, the Italian Republic has failed to fulfil its obligations under Article 1(a) of Directive 75/442/EEC on waste, as amended by Directive 91/156/EC; |
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1.

declare that, by having adopted and maintained in force a provision (Article 14 of Decree-Law No 138 of 8 July 2002, converted into Law No 178 of 8 August 2002) that provides for the exclusion from the ambit of Decree-Law No 22/97, which transposed into Italian national law Council Directive 91/156/EEC (1) of 18 March 1991 amending Directive 75/442/EEC (2) on waste, substances or objects intended for operations for the disposal or recovery of waste not expressly listed in Annexes B or C to Legislative Decree No 22/97, and also goods, substances or residual production materials which the holder intends or is required to discard, when they may be and are reused in a production or consumption cycle, on condition that they have undergone no prior treatment and that they do not harm the environment or, if when they have undergone prior treatment, the latter is not one of the recovery operations listed in Annex C to Legislative Decree No 22/97, the Italian Republic has failed to fulfil its obligations under Article 1(a) of Directive 75/442/EEC on waste, as amended by Directive 91/156/EC;

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| 2. | order the Italian Republic to pay the costs. |
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2.

order the Italian Republic to pay the costs.

Pleas in law and main arguments

The references made in Article 14(1)(a) and (b) of Law No 178/2002 to ‘disposal and recovery activities’ and to ‘disposal and recovery operations’ respectively is followed in both cases by the addition of ‘in accordance with Annexes B and C to Legislative Decree No 22’.

Such an addition, which does not however appear in the text of subparagraph (c) of that article, would seem to draw a distinction between, on the one hand, disposal or recovery operations in general and, on the other, those specifically referred to in Annexes B and C to Legislative Decree No 22/97.

In the light of such a distinction, it is quite apparent from a reading of Article 6(1)(a) of Legislative Decree No 22/97 in conjunction with Article 14(a) and (b) of Law No 178/2002 that the effect of the latter provision is to circumscribe the scope of the concept of waste, which might not include all the materials, substances or goods falling within the categories in Annex A that the holder sends for, or subjects to, any disposal or recovery operation or intends to, but might rather include only those in respect of which disposal or recovery operations among those expressly listed in Annexes B and C to Legislative Decree No 22/97 have been carried out or are contemplated.

In the system defined by the Italian legislature, in which the concept of waste is made to depend incontrovertibly on those conditions, all those materials, substances or goods referred to in annex A that the holder sends for, or subjects to, or intends to send for or subject to, disposal operations not listed in Annex B to Legislative Decree No 22/97 or recovery operations not listed in Annex C thereto are therefore excluded from classification as waste, and as a result from being subject to the rules on the management of waste.

The Commission takes the view that that exclusion constitutes an improper restriction of the concept of waste and therefore of the ambit of the Italian legislation on the management of waste. As a matter of fact, the effect of the interpretation put forward by the Italian legislature is to limit the application of the provisions of the directive to those cases alone which are identified in the Italian legislation, excluding from its ambit other cases, not deductively foreseeable, which could on the contrary be subject to it and in relation to which a broad interpretation of the concept of waste, such as that affirmed in paragraph 36 of the judgment in Palin Granit, is essential. The adoption of such a position by the Italian legislature runs counter to the provisions of the directive, from which a provision of national law may not derogate.

Palin Granit

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(1)  OJ L 78 of 26/03/1991, p.32

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(2)  OJ L 194 of 25 July 1975, p. 39

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