Opinion of the Advocate General — ECLI:EU:C:2007:179
Date: 2007-03-22
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;Waste
Procedure: Action for failure to fulfil obligations - successful
Origin: Italy

Summary of the Judgment 1. Environment – Waste – Directive 75/442 – Concept of waste (Art. 174(2) EC; Council Directive 75/442, as amended by Directive 91/156, Art. 1(a)) 2. Environment – Waste – Directive 75/442 – Concept of waste (Council Directive 75/442, as amended by Directive 91/156, Art. 1(a)) 3. Environment – Waste – Directive 75/442 – Scope (Council Directive 75/442, as amended by Directive 91/156, Arts 1(a) and 2(1)) 4. Environment – Waste – Directive 75/442 – Scope (Council Directive 75/442, as amended by Directive 91/156, Arts 1(a) and 2(1)) 1. Whether a substance or object is to be classified as ‘waste’ for the purposes of Article 1(a) of Directive 75/442 on waste, as amended by Directive 91/156, is to be inferred primarily from the holder’s actions and the meaning of the term ‘discard’. Those terms must be interpreted in the light not only of the fundamental aim of the directive, which, according to the third recital in the preamble thereto, is ‘the protection of human health and the environment against harmful effects caused by the collection, transport, treatment, storage and tipping of waste’, but also of Article 174(2) EC, which provides that Community policy on the environment is to aim at a high level of protection and be based on the precautionary principle and on the principles that preventive action should be taken. It follows that those terms, and thus the concept of ‘waste’, cannot be interpreted restrictively. (see paras 32-33) 2. Whether a substance is in fact ‘waste’ within the meaning of Article 1(a) of Directive 75/442 on waste, as amended by Directive 91/156, must be determined in the light of all the circumstances, account being taken of the aim of the directive and the need to ensure that its effectiveness is not undermined. Thus, certain circumstances may constitute evidence that the holder has discarded a substance or object, or intends or is required to discard it, within the meaning of that provision. That is the case in particular where a substance is a production or consumption residue, that is to say, a product which it was not, as such, sought to produce, the method of treatment or use of a substance being inconclusive as to its classification as waste or otherwise. In addition to the criterion of whether a substance constitutes a production residue, a relevant criterion for determining whether or not that substance is waste within the meaning of the directive is the degree of likelihood that that substance will be re-used without any prior processing. If, beyond the mere possibility of re-using the substance, there is also a financial advantage for the holder in so doing, the likelihood of such re-use is high. In such circumstances, the substance in question must no longer be regarded as a burden which its holder seeks to ‘discard’, but as a genuine product. Consequently, the mere fact that the materials in question will be re-used does not support the inference that they do not constitute ‘waste’ within the meaning of the directive. What subsequently happens to an object or a substance is not in itself determinative of its nature as waste, which, in accordance with Article 1(a) of the directive, is defined in terms of the holder of that object or substance discarding it or intending or being required to discard it. Whilst it is true that, in certain situations, goods, materials or raw materials resulting from an extraction or manufacturing process, the primary aim of which is not their production, may be regarded not as residue, but as by-products which their holder does not seek to ‘discard’, within the meaning of Article 1(a) of the directive, but which he intends to exploit or market on terms advantageous to himself in a subsequent process – including, as the case may be, in order to meet the needs of economic operators other than the producer of those substances – that applies only if such re-use is a certainty, does not require any further processing prior to re-use and forms an integral part of the process of production or use. (see paras 34, 36, 38-39, 41, 49-50) 3. Since Directive 75/442 on waste, as amended by Directive 91/156, does not provide any single decisive criterion for discerning whether the holder intends to discard a given substance or object, Member States are free, in the absence of Community provisions, to choose the modes of proof of the various matters defined in the directives which they are transposing, provided that the effectiveness of Community law is not thereby undermined. Thus Member States may, for example, define different categories of waste, in particular to facilitate the organisation and control of waste management, provided that the obligations arising under the directive or other provisions of Community law relating to such waste are complied with and that the exclusion of any categories from the scope of legislation enacted in order to transpose obligations under the directive is in compliance with Article 2(1) of the directive. (see para. 44) 4. Article 1(a) of Directive 75/442 on waste, as amended by Directive 91/156, not only sets out the definition of the concept of ‘waste’ for the purposes of the directive, but also – in conjunction with Article 2(1) – defines the scope of the directive. Article 2(1) lists the forms of waste that are excluded from the scope of the directive, as well as those that may be excluded, and the circumstances in which that is possible, whereas in principle the directive covers all waste which corresponds to the said definition. Any provision of national law which limits in general terms the scope of the obligations arising under the directive, to a greater degree than is permitted under Article 2(1), thus necessarily disregards the scope of the directive. (see para. 54)