Opinion of the Advocate General — ECLI:EU:C:2006:348
Date: 2006-05-30
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
Origin: Italy

summary approach described in points 64 to 66 of this Opinion is considered appropriate, the Member State may commit errors, by using incorrect parameters or circumventing the conditions contained in Article 11 of Directive 75/442 by classifying as harmless operations whose effects are unknown. That is the situation in the present case, since, as the Court held in the judgment in Case C-103/02 Commission v Italy, cited above, the Italian Republic infringed the provision at issue by omitting to set, in the Decree of 5 February 1998 implementing Articles 31 and 33 of Legislative Decree No 22 of 5 February 1997, acceptable maximum quantities of waste with respect to qualification for the simplified procedure, and, as a result, failing to fulfil one of the conditions for the application of that procedure. 72. In short, there are in Italy recovery installations falling within Annexes I and II to Directive 85/337 which are authorised without the conduct of an environmental impact assessment, which fact constitutes an infringement of Articles 2(1) and 4(1) to (3) of that directive. Consequently, the second claim in the application is likewise well founded. VI – Costs 73. In accordance with Article 69(2) of the Rules of Procedure, the unsuccessful party must be ordered to pay the costs, if, as in the present case, they have been applied for in the other party’s pleadings. Accordingly, since the Commission’s action has been successful, the defendant should be ordered to pay the costs. VII – Conclusion 74. In the light of the foregoing, I propose that the Court of Justice should: (1) Grant the Commission’s application in full. (2) Declare that the Italian Republic has failed to fulfil its obligations under Articles 2(1) and 4(1) to (3) of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11/EC of 3 March 1997, by: (a) exempting from the environmental impact assessment procedure a plant for the incineration of combustible material derived from waste and biomass with a capacity exceeding 100 tonnes per day, located in Massafra in the province of Taranto, which is an installation included in point 10 of Annex I to the directive; (b) adopting legislation [Article 3 of the Decree of the President of the Council of Ministers of 3 September 1999 amending points (i) and (l) of Annex A to the Decree of the President of the Republic of 12 April 1996] which exempts from that assessment certain activities in Annex I to the above directive and uses an inadequate test to determine whether an activity in Annex II to the same provision may be exempted from that assessment. (3) Order the Italian Republic to pay the costs. 1 – Original language: Spanish. 2 – OJ 1985 L 175, p. 40. 3 – OJ 1997 L 73, p. 5. 4 – This term (valorización) describes the action and effect of recovering (waste) (valorizar: literally, to value). According to the dictionary of the Real Academia Española de la Lengua, ‘valorizar’ has only three meanings: to indicate the price of things, to recognise the merit of individuals and to increase the value of something. In Community law, it has acquired another meaning in connection with waste, in that it refers to any operation intended to ensure that waste materials serve a useful purpose and replace other materials which would have had to be used for that purpose, thereby encouraging the conservation of natural resources. 5 – OJ 1975 L 194, p. 39. 6 – OJ 1991 L 78, p. 32. 7 – As amended by Directive 97/11. 8 – Again, following the 1997 amendment. 9 – Article 2(3) makes it permissible, in exceptional cases, not to apply the directive. 10 – Council Directive of 12 December 1991 on hazardous waste (OJ 1991 L 377, p. 20). 11 – Article 4 provides that waste is to be recovered, in particular, ‘without risk to water, air, soil and plants and animals’, ‘without causing a nuisance through noise or odours’ and ‘without adversely affecting the countryside or places of special interest’. 12 – Law on the Istituzione del Ministero dell’ambiente e norme in materia di danno ambientale (Gazzetta Ufficiale della Repubblica Italiana – hereinafter, ‘GURI’ –, ordinary supplement No 59 of 15 July 1986). 13 – That law is entitled Disposizioni per l’adempimento di obblighi derivanti dall’appartenenza dell’Italia alle Comunità europee – Legge comunitaria 1993 (GURI, ordinary supplement to No 52 of 4 March 1994). 14 – Atto di indirizzo e coordinamento per l’attuazione dell’art. 40, comma 1, della legge 22 febbraio 1994, n. 146, concernente disposizioni in materia di valutazione di impatto ambientale (GURI, general series, No 210 of 7 September 1996, p. 28). 15 – Atto di indirizzo e coordinamento che modifica ed integra il precedente atto di indirizzo e coordinamento per l’attuazione dell’art. 40, comma 1, della legge 22 febbraio 1994, n. 146, concernente disposizioni in materia di valutazione dell’impatto ambientale (GURI, general series, No 302 of 27 December 1999). 16 – 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 (Decreto Ronchi). Testo coordinato (GURI, ordinary supplement to No 33 of 15 February 1997). 17 – Individuazione dei rifiuti non pericolosi sottoposti alle procedure semplificate di recupero ai sensi degli articoli 31 e 33 del D.Lgs. 5 febbraio 1997, n. 22 (GURI, ordinary supplement to No 88 of 16 April 1998). 18 – Case C-103/02 [2004] ECR I-9127. 19 – As the Court held in the judgment in Case C-300/89 Commission v Council [1991] ECR I-2867, paragraphs 22 and 24. 20 – I use this phrase in point 59 of the Opinion in Case C-176/03 Commission v Council [2005] ECR I-7879. 21 – Referred to in the second recital in the preamble to Directive 97/11, as the Court pointed out in the judgment of 16 March 2006 in Case C-332/04 Commission v Spain [2006] ECR I‑0000, paragraph 57. I am surprised at the ‘watered down’ interpretation of Directive 85/337 put forward at the hearing by the representative of the Italian Government, for whom, it would seem, the Single European Act and the resulting amendments to the EC Treaty and Directive 97/11 are purely incidental and insignificant. 22 – This follows from the judgments in Case C-435/97 WWF and Others [1999] ECR I-5613, paragraph 45, and Case C-201/02 Wells [2004] ECR I-723, paragraph 42. 23 – I express these ideas in my Opinions in Case C-87/02 Commission v Italy [2004] ECR I-5975 and Case C-98/04 Commission v United Kingdom [2006] ECR I-0000 respectively. 24 – Judgments in Case C-392/96 Commission v Ireland [1999] ECR I-5901, paragraphs 65 to 67; Case C-474/99 Commission v Spain [2002] ECR I-5293, paragraph 31; and Commission v Spain, cited in footnote 21, paragraph 76. 25 – The Court takes the same view in the judgments in Case C-72/95 Kraaijeveld and Others [1996] ECR I-5403, paragraph 50; Case C-301/95 Commission v Germany [1998] ECR I-6135, paragraph 45; WWF and Others, cited above, paragraphs 36 and 45; Case C-392/96 Commission v Ireland [1999] ECR I-5901, paragraph 64; and Commission v Italy, cited in footnote 23, paragraph 44. 26 – Judgments in WWF and Others, paragraph 45; and Commission v Italy, paragraph 44, both referred to in the preceding footnote. 27 – In the judgments in Kraaijeveld and Others, cited above, paragraphs 31 and 39, and Case C‑227/01 Commission v Spain [2004] ECR I-8253, paragraph 46, the Court emphasises the extent of the scope of the directive. 28 – The original French, English and German versions used the term ‘installations d’élimination’, ‘disposal installations’ and ‘Abfallbeseitigungsanlagen’ respectively, which were retained in the 1997 versions. The Italian version changed the noun ‘eliminazione’ to ‘smaltimento’, which has the same meaning. 29 – Advocate General Jacobs emphasises this point in his Opinion in Case C-6/00 ASA [2002] ECR I-1961, paragraphs 5 and 77. 30 – In the judgment in ASA, the Court expressed a similar view (paragraphs 63 and 64). See also the judgment in Case C-116/01 SITA [2003] ECR I-2969, paragraphs 40 and 41. 31 – Paragraph 69 of the judgment in ASA. See to the same effect the judgments in Case C-228/00 Commission v Germany [2003] ECR I-1439 and Case C-458/00 Commission v Luxembourg [2003] ECR I-1553, paragraphs 45 and 36 respectively. 32 – ‘Disposal’ must not be confused with ‘abandonment’, which the second paragraph of Article 4 of Directive 75/442 mentions and prohibits, together with dumping and ‘uncontrolled disposal’. See the judgment in Case C-457/02 Niselli [2004] ECR I‑10853, paragraphs 38 and 39. 33 – In the judgment in Case C-9/00 Palin GranitandVehmassalon kansanterveystyön kuntayhtymän hallitus [2002] ECR I-3533, the Court pointed out that the objective of Directive 75/442 is ‘the protection of human health and the environment against harmful effects caused by the collection, transport, treatment, storage and tipping of waste’; it also refers to the role of Article 174(2) EC, which is to ensure that Community policy provides a high level of protection for ecosystems on the basis of the precautionary principle and the principle that preventive action should be taken. The Court used an identical form of words in the judgment in Niselli, paragraph 33. 34 – For those reasons, Article 3(1)(b) of Directive 75/442, in its 1991 wording, encourages the Member States to promote ‘the recovery of waste by means of recycling, re-use or reclamation or any other process with a view to extracting secondary raw materials’, as well as its use as a source of energy. 35 – In the judgment in Case C-127/02 Landelijke Vereniging and Others [2004] ECR I‑7405, the Court, by reference to the precautionary principle, held that, if there is uncertainty as to the significance of the effects of an activity, they must be calculated (paragraph 44). 36 – It also exempts those which dispose of their own waste at the place of production. 37 – Judgment in Commission v Italy, cited in footnote 18, paragraph 27. 38 – In the judgment in Commission v Italy, cited in the preceding footnote, the Court explains the special nature of that simplified procedure (paragraph 31). 39 – Terms of Article 2(1) of Directive 85/337, as amended. 40 – In the judgment in Case C-117/02 Commission v Portugal [2004] ECR I-5517, the Court pointed out that, even if it does not reach the thresholds laid down in the provision, an activity may still have effects on the environment by virtue of ‘its nature, size or location’, in which case the relevant checks must be carried out (paragraph 82).