Opinion of the Advocate General — ECLI:EU:C:2005:309
Date: 2005-05-26
Language of the case: Spanish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;Approximation of laws;Waste;Pollution
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: Spain

Summary of the Judgment 1. Environment — Waste — Directive 75/442 — Meaning — Substance which is discarded — Livestock effluent — Excluded — Conditions — Carcasses of animals being reared which die on the farm — Included (Council Directive 75/442, as amended by Directive 91/156, Art. 1(a)) 2. Environment — Waste — Directive 75/442 — ‘Other legislation’ for the purposes of Article 2(1)(b) — Community or national legislation — Conditions (Council Directive 75/442, as amended by Directive 91/156, Art. 2(1)(b)) 3. Environment — Assessment of the effects of certain projects on the environment — Directive 85/337 — Projects of the classes listed in Annex II to be made subject to assessment — Member States’ discretion — Scope and limits (Council Directive 85/337, as amended by Directive 97/11, Arts 2(1), 4(2), and Annex II) 4. Environment — Protection of waters against pollution caused by nitrates from agricultural sources — Directive 91/676 — Scope — Livestock effluent — Included — Use of livestock effluent as agricultural fertiliser — Excluded from the system of protection of groundwater established by Directive 80/68 (Council Directives 80/68, Art. 5, and 91/676) 1. The scope of the term ‘waste’, for the purposes of Directive 75/442 on waste, as amended by Directive 91/156, turns on the meaning of the term ‘discard’ in the first subparagraph of Article 1(a) of that directive. In that regard, in certain situations, goods, materials or raw materials resulting from an extraction or manufacturing process, the primary aim of which is not the production of that item, may be regarded not as a residue but as a by-product which the undertaking does not seek to ‘discard’, within the meaning of that provision, but intends to exploit or market on terms which are advantageous to it, in a subsequent process, without any further processing prior to reuse. In such a case, the provisions of that directive, which are intended to regulate the disposal or recovery of waste, do not apply to goods, materials or raw materials which have an economic value as products regardless of any form of processing and which, as such, are subject to the legislation applicable to those products, provided that their reuse is not a mere possibility but a certainty, without any further processing prior to reuse, and as part of the continuing process of production. Therefore, livestock effluent may, on the same terms, fall outside classification as waste, if it is used as soil fertiliser as part of a lawful practice of spreading on clearly identified parcels and if its storage is limited to the needs of those spreading operations. The fact that such effluent is not used on land forming part of the same agricultural holding as that which generated it, but to meet the needs of other economic operators, is, in that regard, irrelevant. On the other hand, carcasses of animals being reared, where those animals died on the farm and were not slaughtered for human consumption, may in no case be used in conditions which would enable them not to be defined as waste within the meaning of that directive. The holder of those carcasses is certainly obliged to discard them, with the result that that matter must be regarded as waste. (see paras 57-58, 60-62, 64) 2. The term ‘other legislation’, in Article 2(1)(b) of Directive 75/442 on waste, as amended by Directive 91/156, can refer to both Community legislation and national legislation covering a category of waste mentioned in that provision, provided that such legislation, Community or national, relates to the management of that waste as such and that it results in a level of protection of the environment at least equivalent to that aimed at by that directive. (see para. 69) 3. Article 4(2) of Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 97/11, provides that the Member States are to determine through a case‑by‑case examination or thresholds or criteria which they set whether the projects listed in Annex II to that directive should be made subject to an impact assessment. That provision has, in essence, the same scope as that of Article 4(2) of Directive 85/337, in its original version. It does not alter the general rule, set out in Article 2(1) of that directive, that projects likely to have significant effects on the environment, by virtue, inter alia, of their nature, size or location, are to be made subject to an assessment of their effects on the environment. (see paras 91-92) 4. The system of protection of waters from pollution by livestock effluent is not based, at Community level, on Directive 80/68 on the protection of groundwater against pollution caused by certain dangerous substances but on Directive 91/676 concerning the protection of waters against pollution caused by nitrate from agricultural sources. The latter’s specific purpose is to counter water pollution resulting from the spreading or discharge of livestock effluent and from the excessive use of fertilisers. The scheme of protection for which it provides involves precise management measures which the Member States must impose on farmers and which take into account the more or less vulnerable nature of the environment receiving the effluent. If Article 5 of Directive 80/68 were interpreted as meaning that the Member States must subject to prior investigation, involving, in particular, a hydrogeological survey, any use of livestock effluent as agricultural fertiliser, the scheme of protection established by Directive 80/68 would be substituted in part for that specifically instituted by Directive 91/676. (see paras 101-102)