Opinion of the Advocate General — ECLI:EU:C:2004:306
Date: 2004-05-18
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;Approximation of laws;Waste
Procedure: Action for failure to fulfil obligations - successful;Action for failure to fulfil obligations - unfounded
Origin: Italy

Summary of the Judgment 1. Environment – Waste – Directive 75/442 on waste – Recovery of waste – Exemption from permit – Conditions – Fixing of types and quantities of waste – Concept of quantity of waste – Interpretation – Reference to an upper threshold applicable to each type of waste (Council Directive 75/442, Arts 9, 10 and 11(1), second subpara.) 2. Acts of the institutions – Directives – Implementation by Member States – Necessity of complete transposition – Existence of national rules rendering transposition by specific legislative or regulatory measures superfluous – Whether permitted – Conditions 3. Environment – Waste – Directive 75/442 on waste – Annexes IIA and IIB – Distinction between elimination operations and recovery operations – Classification as recovery operation – Conditions – Hazardous waste – Criterion not relevant (Council Directive 75/442, Art. 1(f)) 1. The concept of quantity of waste, referred to in the second subparagraph of Article 11(1) of Directive 75/442 on waste, as amended by Directive 91/156, which provides for the possibility of an exemption from the permit requirement for the recovery of non-hazardous waste, must be interpreted as referring 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, although the words ‘absolute maximum quantities’ are not expressly used in that provision. 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. (see paras 30-31) 2. 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. 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. Accordingly, it is not open to the Member States to derogate from the rules imposed by Directive 75/442 on waste, as amended by Directive 91/156, 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. (see para. 33) 3. 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 on waste, as amended by Directive 91/156. 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. Accordingly, the mere fact that waste contains high quantities of hydrocarbons and diesel oil or oil which is slightly toxic does not preclude its being used for recovery purposes. (see paras 62-63)