**Case C-387/07**

**MI.VER Srl**

**and**

**Daniele Antonelli**

**v**

**Provincia di Macerata**

(Reference for a preliminary ruling from the Tribunale di Ancona)

(Waste – Concept of ‘temporary storage’ – Directive 75/442/EEC – Decision 2000/532/EC – Possibility of mixing together items of waste covered by different codes – Concept of ‘mixed packaging’)

Summary of the Judgment

1.        *Environment – Disposal of waste – Directive 75/442 – Disposal and recovery of waste*

*(Council Directive 75/442, as amended by Regulation No 1882/2003, Art. 4, first para.; Commission Decision 2000/532)*

2.        *Environment – Disposal of waste – Directives 75/442 and 91/689 – Decision establishing a list of wastes*

*(Council Directives 75/442, as amended by Regulation No 1882/2003, Art. 1(a)) and 91/689, Art. 1(4); Commission Decision 2000/532)*

1.        Directive 75/442 on waste, as amended by Regulation No 1882/2003, and Decision 2000/532 replacing Decision 94/3 establishing
a list of wastes pursuant to Article 1(a) of Directive 75/442 on waste and Decision 94/904 establishing a list of hazardous
waste pursuant to Article 1(4) of Directive 91/689 on hazardous waste do not preclude a producer of waste mixing together
items of waste covered by different codes in the list annexed to Decision 2000/532 during their temporary storage, pending
collection, on the site where they are produced.

However, the Member States are required to adopt measures requiring producers of waste to sort and store waste separately
during its temporary storage, pending collection, on the site where it is produced, using, for that purpose, the codes from
that list, if they consider such measures to be necessary to achieve the objectives laid down in the first paragraph of Article
4 of Directive 75/442, which provides that Member States are to 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.

(see paras 24, 27, operative part 1)

2.        Decision 2000/532 replacing Decision 94/3 establishing a list of wastes pursuant to Article 1(a) of Directive 75/442 on waste
and Decision 94/904 establishing a list of hazardous waste pursuant to Article 1(4) of Directive 91/689 on hazardous waste
does not contain any stipulation relating to the temporary storage of waste, pending collection, on the site where it is produced.
It is merely designed to establish a waste nomenclature in accordance with Article 1(a) of Directive 75/442 and Article 1(4)
of Directive 91/689 on hazardous waste and does not create any obligation.

Nevertheless, since the national rules repeat the list of waste annexed to Decision 2000/532, code 15 01 06 corresponding
to ‘mixed packaging’ may be used to cover waste consisting of packaging of various materials grouped together.

(see paras 29, 33, operative part 2)

JUDGMENT OF THE COURT (Second Chamber)

11 December 2008 (*)

(Waste – Concept of ‘temporary storage’ – Directive 75/442/EEC – Decision 2000/532/EC – Possibility of mixing together items of waste covered by different codes – Concept of ‘mixed packaging’)

In Case C‐387/07,

REFERENCE for a preliminary ruling under Article 234 EC, from the Tribunale di Ancona (Italy), made by decision of 26 July
2007, received at the Court on 13 August 2007, in the proceedings

**MI.VER Srl,**

**Daniele Antonelli**

v

**Provincia di Macerata,**

THE COURT (Second Chamber),

composed of C.W.A. Timmermans, President of the Chamber, J.‐C. Bonichot, J. Makarczyk, P. Kūris (Rapporteur) and C. Toader,
Judges,

Advocate General: J. Mazák,

Registrar: L. Hewlett, Principal Administrator,

having regard to the written procedure and further to the hearing on 11 September 2008,

after considering the observations submitted on behalf of:

–        the Provincia di Macerata, by L. Filippucci, procuratore,

–        the Italian Government, by I.M. Braguglia, acting as Agent, assisted by G. Fiengo, avvocato dello Stato,

–        the Netherlands Government, by C. Wissels and Y. de Vries, acting as Agents,

–        the Commission of the European Communities, by J.‐B. Laignelot and D. Recchia, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

**Judgment**

1        This reference for a preliminary ruling relates to the interpretation of Council Directive 75/442/EEC of 15 July 1975 on waste
(OJ 1975 L 194, p. 39), as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council of 29 September
2003 (OJ 2003 L 284, p. 1; ‘Directive 75/442’), and of Commission Decision 2000/532/EC of 3 May 2000 replacing Decision 94/3/EC
establishing a list of wastes pursuant to Article 1(a) of Council Directive 75/442/EEC on waste and Council Decision 94/904/EC
establishing a list of hazardous waste pursuant to Article 1(4) of Council Directive 91/689/EEC on hazardous waste (OJ 2000
L 226, p. 3).

2        The reference has been made in an action brought by MI.VER Srl (‘MI.VER’) and Mr Antonelli against an injunction issued by
the Provincia di Macerata following a summons issued on 18 November 2005 finding an infringement of Paragraph 15 of Legislative
Decree No 22 transposing Directives 91/156/EEC on waste, 91/689/EEC on hazardous waste and 94/62/EC on packaging and packaging
waste (decreto legislativo No 22, attuazione delle direttive 91/156/CEE sui rifiuti, 91/689/CEE sui rifiuti pericolosi e 94/62/CE
sugli imballaggi e sui rifiuti di imballaggio) of 5 February 1997 (ordinary supplement to the *GURI* No 38 of 15 February 1997), as amended by Legislative Decree No 389 of 8 November 1997 (*GURI* No 261 of 8 November 1997; ‘Legislative Decree No 22/97’).

**Legal context**

*Community legislation*

3        Article 1 of Directive 75/442 states as follows:

‘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.

The Commission, acting in accordance with the procedure laid down in Article 18, will draw up, not later than 1 April 1993,
a list of wastes belonging to the categories listed in Annex I. This list will be periodically reviewed and, if necessary,
revised by the same procedure;

(b)      “producer” shall mean anyone whose activities produce waste (“original producer”) and/or anyone who carries out pre-processing,
mixing or other operations resulting in a change in the nature or composition of this waste;

(c)      “holder” shall mean the producer of the waste or the natural or legal person who is in possession of it;

(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 II, A;

(f)      “recovery” shall mean any of the operations provided for in Annex II, B;

(g)      “collection” shall mean the gathering, sorting and/or mixing of waste for the purpose of transport.’

4        Article 4 of that directive 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:

–        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.

Member States shall take the necessary measures to prohibit the abandonment, dumping or uncontrolled disposal of waste.’

5        Annex II A to Directive 75/442 lists the disposal operations and includes in that list storage pending any of the other disposal
operations, ‘excluding temporary storage, pending collection, on the site where it is produced’. That same exclusion also
appears, in Annex II B to that directive listing recovery operations, with reference to storage pending any of the other recovery
operations.

6        By Decision 2000/532, the Commission adopted a list of wastes pursuant to Article 1(a) of Directive 75/442 and Article 1(4)
of Council Directive 91/689/EEC of 12 December 1991 on hazardous waste (OJ 1991 L 377, p. 20). In that list, annexed to that
decision, wastes are classified under headings corresponding to a code. The heading ‘mixed packaging’ corresponds to code
15 01 06. That list also includes a heading ‘composite packaging’ corresponding to code 15 01 05.

7        Composite packaging is defined in Article 2(1)(a) of Commission Decision 2005/270/EC of 22 March 2005 establishing the formats
relating to the database system pursuant to Directive 94/62/EC of the European Parliament and of the Council on packaging
and packaging waste (OJ 2005 L 86, p. 6), as ‘packaging made of different materials which cannot be separated by hand, none
exceeding a given percentage by weight’.

*National legislation*

8        The Community legislation was transposed into Italian law by Legislative Decree No 22/97. Paragraph 6(1)(a) of that decree
adopts the definition of waste contained in Directive 75/442 by referring to its Annex A which contained, in the original
version of that decree, a ‘European Waste Catalogue’, which was replaced by a list of wastes which, like that established
by Decision 2000/532, classifies waste by headings corresponding to codes. The heading ‘mixed waste’ corresponds, as in Decision
2000/532, to code 15 01 06.

9        Paragraph 6(1)(m) of Legislative Decree No 22/97 defines temporary storage as the accumulation of waste, pending collection,
on the site where it is produced. It determines the conditions of temporary storage, in particular its maximum duration before
recovery or disposal, and provides in particular that that storage must be carried out in respect of homogenous types of waste
and in conformity with the relevant technical rules. Annexes B and C to Legislative Decree No 22/97 list disposal operations
and recovery operations respectively, which include storage pending those operations, with the same exclusion as that laid
down in Directive 75/442 with regard to temporary storage.

10      Paragraph 15 of Legislative Decree No 22/97 provides that the transport of waste carried out by bodies or undertakings must
be accompanied by an identification form containing details, inter alia, of the name and address of the producer or holder,
the origin, type and quantity of the waste, its destination, the date of transport and the route to be taken and the name
and address of the recipient. The identification form contains a heading designed in particular to describe the waste and
state its European code. In accordance with Paragraph 20 of Legislative Decree No 22/97, the provinces are empowered to review
the application of the relevant legislation. Administrative penalties are laid down in Paragraph 52 of that decree, in particular
in respect of cases of failure to comply with the provisions of Paragraph 15 thereof.

**The dispute in the main proceedings and the questions referred for a preliminary ruling**

11      During a check carried out on 17 November 2005, the provincial police of Macerata ascertained that a lorry driven by Mr Antonelli
was transporting waste consisting of different types of packaging, such as nylon bags, polystyrene boxes, pallets and cardboard
packaging. That load was accompanied by an identification form bearing the code 15 01 06 corresponding to ‘mixed packaging’.
Taking the view that that code could not be used in respect of the waste being transported, which was packaging of various
materials grouped together, the investigating officers issued summonses alleging infringement of Paragraph 15 of Legislative
Decree No 22/97 against, firstly, the producer of the waste and, secondly, Mr Antonelli and MI.VER, the lorry driver and waste
transporter respectively. Following the administrative procedure, the Provincia di Macerata issued an injunction against Mr
Antonelli and MI.VER, ordering them jointly to pay the total sum of EUR 540. On 4 December 2006, Mr Antonelli and MI.VER brought
an action against that injunction before the Tribunale di Ancona.

12      Before that court, the applicants in the main proceedings submitted that the code stated on the identification form was correct
and, in the alternative, that only the producer of the waste was liable for any error. The Provincia di Macerata submitted
that, during temporary storage, waste covered by different codes could not be mixed. Otherwise it would be waste management,
which requires authorisation. It submitted in addition that, even if such a mixture of waste were permitted, code 15 01 06
corresponding to ‘mixed waste’ applies only to packaging made of ‘separate components of different materials’ and not to waste
packaging of various materials grouped together.

13      Being uncertain as to whether producers of packaging waste are obliged to separate waste into categories using the relevant
codes on the list annexed to Decision 2000/532 before passing them to the transporter or final destination, the Tribunale
di Ancona decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘1.      Is the notion of ‘temporary storage’ in terms of Directive 75/442/EEC ... such as to permit a producer to mix together items
of waste covered by different respective codes in the European Waste Catalogue, as provided for in ... Decision 2000/532 ...?

2.      If the answer is in the affirmative, may ... Code 15 01 06, ‘mixed packaging’, be used to cover waste consisting of packaging
of various materials grouped together, or does that code refer exclusively to packaging made of various materials or made
up of separate components of different materials?’

**The questions referred**

*Admissibility*

14      The Commission, in its written observations, questions the relevance of the questions referred to the resolution of the dispute
in the main proceedings, since, firstly, Paragraph 15 of Legislative Decree No 22/97, breach of which constitutes the infringement
giving rise to the main proceedings, deals with the transport of waste and, secondly, only Mr Antonelli and MI.VER, and not
the producer of the waste at issue, have, according to the decision for reference, brought an action against the injunction
relating to that infringement.

15      It is to be observed in that regard that the presumption that questions referred by national courts for a preliminary ruling
are relevant may be rebutted only in exceptional cases, where it is quite obvious that the interpretation which is sought
of the provisions of European Union law referred to in the questions bears no relation to the actual facts of the main action
(see, inter alia, Case C‐415/93 *Bosman* [1995] ECR I‐4921, paragraph 61, and Joined Cases C‐222/05 to C‐225/05 *Weerd and Others* [2007] ECR I‐4233, paragraph 22).

16      In the present case, although the decision for reference does not indicate the consequences in law which may follow, with
regard to the resolution of the dispute in the main proceedings, from the answers given to the questions referred, it is apparent
from that decision and from the written and oral observations of the Provincia di Macerata that it has imposed an administrative
penalty on both the producer and the transporter of the waste at issue on the view that they were jointly liable for the infringement
alleged, which is contested by Mr Antonelli and MI.VER. Accordingly, it does not appear that the interpretation which is sought
of Community law bears no relation to the actual facts of the main action, which, moreover, the Commission accepted at the
hearing.

17      Consequently, the two questions referred by the Tribunale di Ancona are admissible.

*Substance*

The first question

18      By its first question, the referring court essentially asks whether Directive 75/442 and Decision 2000/532 are to be interpreted
as meaning that a producer of waste is permitted to mix together items of waste covered by different codes in the list annexed
to that decision during their temporary storage, pending collection, on the site where they are produced or, on the contrary,
that as early as that stage the waste must be sorted and stored separately using those codes as guidance for that purpose.

19      The Provincia di Macerata and the Italian Government take the view that the concept of temporary storage implies that the
producer of waste must, in order to store it temporarily, sort it into categories in accordance with the codes from the list
annexed to Decision 2000/532.

20      They observe, essentially, that it follows from the case-law of the Court (Joined Cases C‐175/98 and C‐177/98 *Lirussi and Bizzaro* [1999] ECR I‐6881, paragraph 54) that temporary storage, although preceding waste management proper and therefore not requiring
authorisation, must be regulated by the Member States in such a way as to achieve the objectives of Directive 75/442 with
regard to protection of human health and the environment. To accept that producers of waste can, without authorisation, mix
waste covered by different codes could be hazardous and would limit its actual and full recovery, which would run contrary
both to the objectives laid down by that directive and to the purpose of the codification laid down in Decision 2000/532.

21      In that regard, it should be pointed out that temporary storage is mentioned only in Annexes II A and II B to that directive,
listing waste disposal operations and waste recovery operations respectively. It is apparent from those annexes, points D
15 and R 13 thereof respectively, that temporary storage, pending collection, on the site where it is produced, is excluded
from the list of operations classified as disposal operations or recovery operations in Directive 75/442. It must be defined,
as the Court noted in paragraph 45 of the judgment in *Lirussi and Bizzaro*, as the operation preparatory to waste management within the meaning of Article 1(d) of that directive.

22      Decision 2000/532, by which the list of wastes established pursuant to Article 1(a) of Directive 75/442 and Article 1(4) of
Directive 91/689 was adopted, does not lay down in addition any measure relating to the temporary storage of waste, pending
collection, on the site where it is produced.

23      Accordingly, it must be held that neither Directive 75/442 nor Decision 2000/532 requires the Member States to adopt measures
requiring producers of waste to sort and store waste separately, using, for that purpose, the codes from the list annexed
to that decision during its temporary storage, pending collection, on the site where it is produced.

24      However, in the judgment in *Lirussi and Bizzaro*, the Court held that the national competent authorities are required to ensure that temporary storage operations comply with
the obligations resulting from Article 4 of Directive 75/442, which provides, in the first paragraph thereof, that Member
States are to 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. As the Court held in paragraph 53 of that judgment,
in so far as waste, even waste which is stored temporarily, can cause serious harm to the environment, the provisions of Article
4 of Directive 75/442, which are intended to implement the principle of precaution, also apply to temporary storage.

25      However, as the Court has already held on several occasions, the first paragraph of Article 4 of Directive 75/442 does not
specify the actual content of the measures which are to be taken to ensure that waste is recovered or disposed of without
endangering human health and without using processes or methods which could harm the environment, but is binding on the Member
States as to the objective to be achieved, whilst leaving to the Member States a margin of discretion in assessing the need
for such measures (see, inter alia, Case C‐365/97 *Commission* v *Italy* [1999] ECR I‐7773, paragraph 67; Case C‐420/02 *Commission* v *Greece* [2004] ECR I‐11175, paragraph 21; and Case C‐135/05 *Commission* v *Italy* [2007] ECR I‐3475, paragraph 37).

26      It follows that, although Directive 75/442 does not require Member States to adopt specific measures requiring producers of
waste to sort and store waste separately using, for that purpose, the codes from the list annexed to that decision during
its temporary storage, pending collection, on the site where it is produced, Member States are required to adopt such measures
if they consider them necessary to achieve the objectives laid down in the first paragraph of Article 4 of that directive.

27      In view of the foregoing considerations, the answer to the first question must be that Directive 75/442 and Decision 2000/532
do not preclude a producer of waste mixing together items of waste covered by different codes in the list annexed to that
decision during their temporary storage, pending collection, on the site where they are produced. However, the Member States
are required to adopt measures requiring producers of waste to sort and store waste separately during its temporary storage,
pending collection, on the site where it is produced, using, for that purpose, the codes from that list, if they consider
such measures to be necessary to achieve the objectives laid down in the first paragraph of Article 4 of that directive.

The second question

28      By its second question, the referring court asks whether, if the answer to the first question is in the affirmative, code
15 01 06 of the list annexed to Decision 2000/532 corresponding to ‘mixed packaging’ may be used to cover waste consisting
of packaging of various materials grouped together, or whether it refers exclusively to packaging consisting of various materials
or made up of separate components of different materials.

29      As has been observed in paragraph 22 of this judgment, Decision 2000/532 does not contain any stipulation relating to the
temporary storage of waste, pending collection, on the site where it is produced. It is merely designed to establish a waste
nomenclature in accordance with Article 1(a) of Directive 75/442 and Article 1(4) of Directive 91/689 and does not create
any obligation.

30      Nevertheless, since that nomenclature is repeated in the Italian rules, it is necessary to answer the second question and
to interpret the concept of ‘mixed packaging’ corresponding to code 15 01 06 of the list annexed to that decision in order
to ensure a uniform interpretation of that concept, in the event that the referring court should find that it is applicable
to the main proceedings, having regard, in particular, to the answer given to the first question (see to that effect, inter
alia, Case C‐217/05 *Confederación Española de Empresarios de Estaciones de Servicio* [2006] ECR I‐11987, paragraph 20, and the case-law cited).

31      In that regard, it is appropriate to observe that Decision 2000/532, since it merely establishes a waste nomenclature, does
not define the concepts corresponding to the various codes of the list of waste annexed thereto. Conversely, Decision 2005/270
does give a certain number of definitions, including that of ‘composite packaging’, which is relevant inasmuch as Decision
2000/532 lists code 15 01 05 corresponding to that type of packaging. Composite packaging is thus defined in Article 2(1)(a)
of Decision 2005/270 as ‘packaging made of different materials which cannot be separated by hand, none exceeding a given percentage
by weight’.

32      Since that definition of composite packaging corresponds to what the referring court describes as packaging comprising ‘separate
components of different materials’ and since different codes are allotted in the list annexed to Decision 2000/532 to that
type of packaging and to mixed packaging, it follows therefrom that the concept of mixed packaging does not cover packaging
comprising ‘separate components of different materials’, but does apply to waste packaging of various materials grouped together.

33      Consequently, the answer to the second question must be that, since the national rules repeat the list of waste annexed to
Decision 2000/532, code 15 01 06 corresponding to ‘mixed packaging’ may be used to cover waste consisting of packaging of
various materials grouped together.

**Costs**

34      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
of those parties, are not recoverable.

On those grounds, the Court (Second Chamber) hereby rules:

1.      **Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Regulation (EC) No 1882/2003 of the European Parliament
and of the Council of 29 September 2003, and Commission Decision 2000/532/EC of 3 May 2000 replacing Decision 94/3/EC establishing
a list of wastes pursuant to Article 1(a) of Council Directive 75/442 on waste and Council Decision 94/904/EC establishing
a list of hazardous waste pursuant to Article 1(4) of Council Directive 91/689/EEC on hazardous waste do not preclude a producer
of waste mixing together items of waste covered by different codes in the list annexed to Decision 2000/532 during their temporary
storage, pending collection, on the site where they are produced. However, the Member States are required to adopt measures
requiring producers of waste to sort and store waste separately during its temporary storage, pending collection, on the site
where it is produced, using, for that purpose, the codes from that list, if they consider such measures to be necessary to
achieve the objectives laid down in the first paragraph of Article 4 of Directive 75/442, as amended by Regulation No 1882/2003.**

2.      **Since the national rules repeat the list of waste annexed to Decision 2000/532, code 15 01 06 corresponding to ‘mixed packaging’
may be used to cover waste consisting of packaging of various materials grouped together.**

[Signatures]

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- Language of the case: Italian.