Opinion of the Advocate General — ECLI:EU:C:2009:264
Date: 2009-04-23
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;Waste
Procedure: Reference for a preliminary ruling
Origin: Italy

summary, it must therefore be stated that there may perfectly well be reasons not to base the cost regime for the disposal of urban waste on precise accounting of the costs generated by the individual waste producer. 3. Flexibility in the application of the ‘polluter pays’ principle 52. However, it must be asked whether the ‘polluter pays’ principle applicable under Article 15 of the Waste Framework Directive allows those reasons to be taken into consideration. 53. The Court has signalled that there is some flexibility in the implementation of the ‘polluter pays’ principle. It has linked the obligation to bear costs partially not to causation, but to the fact that the polluter has contributed to the creation of waste or pollution. (25) 54. It is consistent with this not to require precise cost accounting, but to take as a basis membership of a group which is collectively responsible for the environmental pollution. This is clearly in keeping with the ‘polluter pays’ principle if it has been established that all members of the group contributed to the pollution, but the respective individual contributions and the costs to be apportioned thereto cannot be clearly determined. In the same way it can be an expression of collective responsibility jointly to cover a risk affecting all the members of the group, as the Court has recognised, for example, in the case of oil spills at sea. (26) 55. In my view, the legal basis for a more flexible implementation of the ‘polluter pays’ principle lies in the principle of proportionality. That principle is one of the general principles of Community law (27) which the Member States must observe in implementing and applying Community law. (28) 56. Under the principle of proportionality, a measure may not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by it; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued. (29) 57. In implementing the ‘polluter pays’ principle, the Member States must in particular assess the advantages and disadvantages of the different regulatory options. In this connection, they can and must take account of the abovementioned considerations. The outcome of that assessment depends largely on local circumstances, such as geographical conditions, the type of settlement, the state of development of the existing waste collection and disposal system or the assessment of the risk of illegal waste disposal. It will also be important whether a more precise calculation of the individual costs can in practice be expected to lead to sufficiently appreciable differences in the cost burden or whether the individual waste producers have to pay just as much as before, despite expensive waste monitoring, or even more, on account of higher monitoring costs. 58. The assessment therefore calls for complex decisions based on prognoses. In this regard, in principle the Member States enjoy a wide margin of assessment and action (discretion). (30) However, Italy and the Municipality of Casoria are incorrect in their view that Article 15 of the Waste Framework Directive is too imprecise for individuals to be able to rely on an infringement of that provision. The broad discretion enjoyed by the Member States admittedly means that such an infringement is unlikely, but, if the competent authorities exceed the discretion available to them, individuals may rely on that infringement of Community law. 59. The substantive test for finding an infringement is whether the competent authorities manifestly fail to comply with the requirements of the ‘polluter pays’ principle. A complex assessment can be called into question as a rule only if no reasonable basis is evident. (31) However, since the implementation of the ‘polluter pays’ principle is at issue, not any reasonable consideration is sufficient, but the relevant factor is whether there is a reasonable link to the causal contribution of the waste producer. 60. The contested Italian cost regime must be assessed on that basis. 4. Use of an area as an allocation factor 61. Under the applicable Italian law, the amount of the contribution to costs is based first on the size of the premises and open land used and secondly on a waste productivity coefficient estimated according to the use of the property. 62. Neither factor gives any obvious cause for objection per se. The size of the area used and the type of use in principle allow plausible assumptions to be made as to the expected waste volumes, in particular if corresponding empirical values are available. 63. While the factors lead to a standardised cost regime which does not take account of the actual quantity of waste, the competent national authorities may nevertheless conclude, after assessing the advantages and disadvantages of a more precise allocation of costs, that this system is preferable. 5. Consideration of revenue-earning capacity 64. However, it is still not clear that there can be no objection to the contribution made to costs by the applicant hotels. The contribution is based crucially on the coefficient estimated according to the use of the property. In 2006 this was eight times higher, and in 2007 nine times higher, than the coefficient for private residential property. With regard to the basis for this estimate, the referring court merely stated that the applicant hotels claimed in the national proceedings that it was based not on their waste-producing capacity, but on their revenue-earning capacity. 65. The revenue-earning capacity of a waste producer has no direct connection with the amount of waste he produces. It cannot be ruled out that high-revenue undertakings produce particularly large amounts of waste, but the same applies to the contrary assumption. High revenue may be based specifically on resource-saving behaviour. 66. Revenue-earning capacity cannot as a social factor justify higher contributions either. The aim of the ‘polluter pays’ principle is that all social strata tailor their behaviour so as to harm the environment as little as possible. It would therefore be incompatible with that principle to exempt certain groups from paying the costs connected with the environmental pollution they cause on the basis of greater need or less ability to pay. However, that does not preclude such costs from being taken into consideration in the assessment of any social support measures, in particular to the extent that environmental pollution is an unavoidable part of life. This would safeguard the incentive function of the ‘polluter pays’ principle. 67. Revenue-earning capacity is therefore a manifestly unsuitable criterion for the implementation of the ‘polluter pays’ principle. 6. Other criteria put forward 68. In the main proceedings, the applicant hotels have claimed that consideration must also be given to room occupancy rates, the presence or absence of restaurant services, the seasonal nature of the business and the impact of areas used for services and not occupied. 69. These criteria may allow inferences to be drawn as regards the expected quantity of waste and would not therefore be manifestly unsuitable for implementing the ‘polluter pays’ principle. However, it would also not be manifestly wrong to refrain from applying these criteria. They do not therefore necessarily have to be taken into consideration in assessing contributions to costs. V – Conclusion 70. I therefore suggest that the question referred for a preliminary ruling be answered as follows: The ‘polluter pays’ principle laid down in Article 15 of Directive 2006/12/EC on waste is to be interpreted as precluding domestic rules which impose on individuals costs for the disposal of waste which are manifestly inappropriate because those individuals do not have any reasonable link with the causing of waste. 1 – Original language: German. 2 – OJ 2006 L 114, p. 9. 3 – OJ 1975 L 194, p. 39, last amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council of 29 September 2003 adapting to Council Decision 1999/468/EC the provisions relating to committees which assist the Commission in the exercise of its implementing powers laid down in instruments subject to the procedure referred to in Article 251 of the EC Treaty (OJ 2003 L 284, p. 1). 4 – OJ 2008 L 312, p. 3. 5 – GURI No 288, 9 December 1993, supplemento ordinario No 108, evidently amended several times subsequently. 6 – GURI No 38, 15 February 1997, supplemento ordinario No 33. 7 – GURI No 88, 14 April 2006, supplemento ordinario No 96. 8 – GURI No 129, 4 June 1999, supplemento ordinario No 107. 9 – See, for example, Case C‑134/95 USSL No 47 di Biella [1997] ECR I‑195, paragraph 17; Joined Cases C‑37/96 and C‑38/96 Sodiprem and Others [1998] ECR I‑2039, paragraph 22; Case C‑9/99 Échirolles Distribution [2000] ECR I‑8207, paragraphs 15 and 16; Case C-60/05 WWF Italia and Others [2006] ECR I-5083, paragraph 18; and Case C-439/06 citiworks [2008] ECR I-3913, paragraph 21. 10 – See Case C‑295/05 Asemfo [2007] ECR I‑2999, paragraph 32 et seq.; Case C‑467/05 Dell’Orto [2007] ECR I‑5557, paragraph 41 et seq.; and Case C‑345/06 Heinrich [2009] ECR I-0000, paragraph 30 et seq. 11 – See the first recital in the preamble to the Waste Framework Directive. 12 – Case C‑188/07 [2008] ECR I-4501, paragraph 80. 13 – See my Opinion in Commune de Mesquer (cited in footnote 12), point 122 et seq. 14 – See point 1 of the annex to Council Recommendation 75/436/Euratom, ECSC, EEC of 3 March 1975 regarding cost allocation and action by public authorities on environmental matters (OJ 175 L 194, p. 1). 15 – See point 4(b) of the annex to Recommendation 75/436 (cited in footnote 14). 16 – Opinion of Advocate General Jacobs in Case C-126/01 GEMO [2003] ECR I‑13769, point 60. See also point 2 of the annex to Recommendation 75/436 (cited in footnote 14). 17 – Case C‑293/97 Standley and Others [1999] ECR I‑2603, paragraph 52. 18 – Case C‑292/97 Karlsson and Others [2000] ECR I‑2737, paragraph 39; Case C‑344/04 IATA and ELFAA [2006] ECR I‑403, paragraph 95; Case C‑300/04 Eman and Sevinger [2006] ECR I‑8055, paragraph 57; and Case C‑227/04 P Lindorfer v Council [2007] ECR I‑6767, paragraph 63. 19 – Case C‑444/00 Mayer Parry Recycling [2003] ECR I‑6163, paragraph 79. See also point 1 of the annex to Recommendation 75/436 (cited in footnote 14). 20 – Commune de Mesquer (cited in footnote 12), paragraph 72. 21 – Standley and Others (cited in footnote 17), paragraph 51. 22 – See my Opinion in Commune de Mesquer (cited in footnote 12), point 120. 23 – That was the situation underlying the judgments in Case C‑1/03 Van de Walleand Others [2004] ECR I‑7613, paragraph 54 et seq., and Commune de Mesquer (cited in footnote 12), paragraph 69 et seq. Those cases concerned the imposition of the costs of pollution-related accidents on certain polluters. 24 – This risk does not exist in the same form in the case of pollution-related accidents, such as those in Van de Walleand Others (cited in footnote 23) and Commune de Mesquer (cited in footnote 12). 25 – Standley and Others (cited in footnote 17) and Commune de Mesquer (cited in footnote 12). 26 – Commune de Mesquer (cited in footnote 12), paragraph 81. 27 – Case 25/70 Köster, Berodt & Co. [1970] ECR 1161, paragraphs 21 and 22; Case 137/85 Maizena and Others [1987] ECR 4587, paragraph 15; Case C‑331/88 Fedesa and Others [1990] ECR I‑4023, paragraph 13; Case C‑310/04 Spain v Council [2006] ECR I‑7285, paragraph 97; and Joined Cases C‑37/06 and C‑58/06 Viamex Agrar Handel [2008] ECR I-69, paragraph 33. 28 – Case C‑2/92 Bostock [1994] ECR I‑955, paragraph 16; Case C‑107/97 Rombi and Arkopharma [2000] ECR I‑3367, paragraph 65; Case C‑101/01 Lindqvist [2003] ECR I‑12971, paragraph 87; Case C‑540/03 Parliament v Council [2006] ECR I‑5769, paragraph 105; and Case C‑305/05 Ordre des barreaux francophones et germanophone and Others [2007] ECR I‑5305, paragraph 28. With regard to the need for domestic rules implementing or supplementing the Sixth VAT Directive to comply with the principle of proportionality, see inter alia Joined Cases C-286/94, C-340/95, C-401/95 and C-47/96 Molenheide and Others [1997] ECR I-7281, paragraph 48, and C‑25/07 Sosnowska [2008] ECR I-0000, paragraph 23. 29 – See, to this effect, Köster, Berodt & Co., paragraphs 28 and 32, Fedesa and Others, paragraph 13, and Viamex Agrar Handel, paragraph 35 (all cited in footnote 27); Case 265/87 Schräder HS Kraftfutter [1989] ECR 2237, paragraph 21; and Case C‑189/01 Jippes and Others [2001] ECR I‑5689, paragraph 81. 30 – See to this effect, for example, Case C‑77/02 Steinicke [2003] ECR I‑9027, paragraph 61, and Case C‑144/04 Mangold [2005] ECR I‑9981, paragraph 63, both concerning objectives pursued in the field of employment, and my Opinion in Commune de Mesquer (cited in footnote 12), point 125. 31 – With regard to complex assessments by the Community legislature, see my Opinion of 10 March 2009 in Case C‑558/07 S.P.C.M. and Others which is pending before the Court, point 77, with further references.