Opinion of the Advocate General — ECLI:EU:C:2005:228
Date: 2005-04-14
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 is therefore that undertakings storing, tipping or treating their own waste and undertakings collecting or transporting waste on behalf of third parties – which under Article 10 of the original Waste Directive were all subject to supervision by the competent authority – are now under the amended Waste Directive subject to an authorisation or registration requirement and are accordingly subject to appropriate periodic inspections by the competent authorities under Article 13 of that Directive. 31. It can hardly be supposed, however, that undertakings which collect or transport their own waste were meant to be excluded from this strengthening of the effectiveness of controls under the Amending Directive – whereby an authorisation or registration requirement coupled with appropriate periodic inspections replaced mere supervision. 32. Above all, the amended Waste Directive contains no specific control measure, outside of Article 12, that would apply to undertakings which collect or transport waste. If Article 12 were therefore to be construed as not extending to undertakings which collect or transport their own waste, then the level of protection and the effectiveness of controls would not only have been strengthened but would actually have been weakened by the Amending Directive, since under the original Waste Directive there was at least provision for the supervision of such undertakings by the competent authorities. Such an interpretation would also, as the Commission pointed out, sit uneasily with the 12th recital to the Amending Directive which refers to the need for waste to ‘be monitored from its production to its final disposal’. 33. The fact that an undertaking which collects or transports its own waste is in any event ‘responsible’ for same as holder of the waste, under Article 8 as well as under Article 4 of the Waste Directive as amended, until such time as the waste is consigned to a waste disposal or recovery undertaking – it is subject to the prohibition of uncontrolled disposal and the obligation to consign the waste to such an undertaking – is not, contrary to the Italian Government’s submission, an argument against the proposition that these undertakings are subject to the registration and inspection requirement under Articles 12 and 13 of this directive. For under Articles 4 and 8 of the Waste Directive as amended, undertakings which recover or dispose of their own waste are also subject to the general prohibition on uncontrolled disposal and the requirement to ensure that recovery or disposal takes place in compliance with the provisions of the directive, and yet these undertakings are subject to an authorisation or registration requirement under Articles 9, 10 and 11 of this directive and to appropriate periodic inspection under Article 12. 34. I therefore conclude that Article 12 of the Waste Directive as amended requires as a general rule that undertakings which collect or transport their own waste and are not subject to authorisation have also to be made subject to a registration requirement. 35. There still remains the question, however, as to the significance of the expression ‘on a professional basis’ in Article 12 of the Waste Directive as amended. 36. Since, as I have concluded, Article 12 of the Waste Directive as amended applies not only to undertakings operating as collectors or carriers in the waste sector but also to undertakings in other sectors which collect or transport their own waste as a purely ancillary activity, it seems inappropriate to construe the concept of ‘on a professional basis’ in primarily quantitative terms, that is, in the sense of economic advantage or profitability for the undertaking concerned. 37. The words ‘on a professional basis’, in my view, are rather intended to circumscribe to some extent the registration requirement under Article 12 of the Waste Directive as amended so that it applies not to every undertaking in which waste arises on an occasional or exceptional basis and is transported by the undertaking itself to a waste collection, recovery or disposal undertaking, but to those undertakings in which the transport or collection of their own waste is a regular/routine activity, arising virtually out of the nature of the business. 38. To that extent I concur with the view which is essentially that of both parties to these proceedings that the words ‘on a professional basis’ indicate that the collection or transport of waste is an activity which the undertaking regularly or routinely performs in the course of its business proper. 39. As regards the quantitative limit of 30 kilograms or 30 litres a day to which the registration requirement is subject under the Decree-Law in the case of undertakings which collect or transport their own hazardous waste, it is true that the expression ‘on a professional basis’ in Article 12 of the Waste Directive as amended is imprecise and so allows Member States some latitude in transposition. But since the expression ‘on a professional basis’ does not have to do with the profitability of the collection or transport of one’s own waste, as the Italian Government seems to assume, neither does Article 12 in my view permit undertakings which collect or transport their own hazardous waste in volumes of up to 30 kilograms or 30 litres a day to be given a blanket exemption from the registration requirement. 40. In other words, an undertaking that collects or transports up to 30 kilograms or 30 litres a day of its own hazardous waste can very well be considered to be an undertaking carrying on that activity as a routine activity in the course of its business. 41. Moreover, as the Commission has pointed out, Article 12 of the Waste Directive as amended is expressed in unconditional terms and contains nothing to suggest that the registration requirement is to operate only above a particular minimum quantity. Nor has the Italian Government explained on the basis of what considerations this minimum quantity was fixed. 42. In the light of the above discussion, it must therefore be concluded that the Decree-Law constitutes a breach of obligations arising out of Article 12 of the Waste Directive as amended, in so far as it provides a general exemption from the registration requirement for undertakings which collect or transport their own non-hazardous waste. It must further be concluded that the Decree-Law is incompatible with the same article in so far as it exempts from the registration requirement undertakings which collect or transport their own hazardous waste in volumes of up to 30 kilograms or 30 litres a day. 43. The Commission’s action is accordingly well founded. V – Costs 44. According to Article 69(2), the unsuccessful party is to be ordered to pay the costs. Since the Italian Republic has been unsuccessful, I propose that the costs of the proceedings be awarded against it. VI – Conclusion 45. I therefore propose that the Court should – declare that, by permitting undertakings, in accordance with Article 30(4) of Decree-Law No 22 of 5 February 1997, as amended by Law No 426 of 9 December 1998, to collect and transport their own non-hazardous waste, as a normal and regular activity, without being required to be entered in the National Register of Waste Disposal Service Providers, and to transport their own hazardous waste in quantities not exceeding 30 kg or 30 litres a day, without being required to be entered in that register, the Italian Republic has failed to fulfil its obligations under Article 12 of Directive 75/442/EEC on waste, as amended by Directive 91/156/EEC; – order the Italian Republic to pay the costs. 1 – Original language: German. 2 – OJ 1975 L 194, p. 39 (hereinafter referred to as ‘the Waste Directive’ or ‘the original Waste Directive’). 3 – OJ 1991 L 78, p. 32 (hereinafter referred to as ‘the Amending Directive’ while the Waste Directive as amended by this directive is referred to as ‘the Waste Directive as amended’). 4 – National Register of Waste Disposal Service Providers. 5 – Order of the Court of 29 May 2001 made on the basis of Article 104(3) of the Rules of Procedure in Case C‑311/99 Caterino, not published in the European Court Reports, paragraph 25.