Order — ECLI:EU:C:2004:26
Date: 2004-01-15
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Environment;Approximation of laws;Waste
Concepts: Environment;Jurisdiction of the Court of Justice;Definition of court or tribunal of a Member State
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Order 
1. Preliminary rulings — Reference to the Court — National court or tribunal for the 
purposes of Article 234 EC — fudge investigating a criminal matter — Investigating 
magistrate 
(Art. 234 EC) 
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SUMMARY — CASE C-235/02 
2. Preliminary rulings — Jurisdiction of the Court — Limits — Interpretation of a 
directive in the course of criminal proceedings for infringement of the national 
legislation transposing it — Determination of the consequences of the subsequent 
decriminalisation of the offences — Excluded 
(Art. 234 EC) 
3. Preliminary rulings — Jurisdiction of the Court — Limits — Obviously irrelevant 
questions and hypothetical questions in a context which precludes any useful 
answer — Questions not related to the subject-matter of the main proceedings 
(Art. 234 EC) 
4. Environment — Waste — Directive 75/442, as amended by Directive 91/156 — 
Definition — Substance which has been discarded — Criteria of assessment 
(Council Directive 75/442, as amended by Directive 91/156, Art. 1(a)) 
5. Environment — Waste — Directive 75/442, as amended by Directive 91/156 — 
Definition — Substance which has been discarded — Exception — Petroleum coke 
produced in an oil refinery — Effective use of that substance to meet the energy needs 
of the refinery 
(Council Directive 75/442, as amended by Directive 91/156) 
1. The judge investigating a criminal 
matter or the investigating magistrate 
constitute a court or tribunal within the 
meaning of Article 234 EC, appointed 
to give a ruling, independently and in 
accordance with law, in cases coming 
within the jurisdiction conferred on 
them by law in proceedings intended 
to culminate in decisions of a judicial 
nature. 
(see para. 23) 
2. A directive may not of itself either 
impose obligations on a private indi­
vidual and therefore be relied on as 
such against such a person, or have the 
effect, independently of a national law 
adopted by a Member State for its 
implementation, of determining or 
aggravating the liability in criminal 
law of persons who act in contraven­
tion of the provisions of that directive. 
It is not for the Court, on a reference 
for a preliminary ruling on the inter­
pretation of a directive, to interpret or 
apply national law in order to establish 
the effects of national legislation which 
no longer considers to be infringements 
the acts which gave rise to the criminal 
proceedings before the national court, 
although it is common ground that, at 
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SAETTI AND FREDIANI 
the time when those acts were estab­
lished, they could, where relevant, 
constitute offences punishable under 
national criminal law. 
(see paras 25-26) 
3. In the context of the cooperation 
between the Court of Justice and the 
national courts established by 
Article 234 EC, it is solely for the 
national court, before which the dis­
pute has been brought and which must 
assume responsibility for the sub­
sequent judicial decision to determine, 
in the light of the particular circum­
stances of the case, both the need for a 
preliminary ruling in order to enable it 
to deliver judgment and the relevance 
of the questions which it submits to the 
Court. Consequently, where the ques­
tions submitted concern the interpre­
tation of Community law, the Court of 
Justice is, in principle, bound to give a 
ruling. However, in exceptional cir­
cumstances, it falls to the Court to 
examine the conditions in which the 
case was referred to it by the national 
court, in order to decide whether it has 
jurisdiction. It may refuse to rule on a 
question referred for a preliminary 
ruling by a national court only where 
it is quite obvious that the interpre­
tation of Community law that is sought 
bears no relation to the facts of the 
main action or its purpose, where the 
problem is hypothetical, or where the 
Court does not have before it the 
factual or legal material necessary to 
give a useful answer to the questions 
submitted to it. 
(see paras 28-29) 
4. The scope of the concept of waste 
depends on the meaning of the term 
'discard' used in Article 1(a) of Direc­
tive 75/442 on waste. The use of an 
operation listed in Annex II A or 
Annex II B to that directive does not 
of itself allow a substance or object to 
be classified as waste and, conversely, 
the concept of waste does not exclude 
substances and objects which are 
capable of further economic use. The 
system of supervision and management 
established by that directive is intended 
to cover all objects and substances 
discarded by their owner, even if they 
have a commercial value and are 
collected on a commercial basis for 
recycling, reclamation or further use. 
Certain circumstances may constitute 
evidence that the holder has discarded 
a substance or object or intends or is 
required to discard it within the mean­
ing of Article 1(a) of Directive 75/442. 
That will be the case, in particular, 
where the substance used is a produc­
tion residue, that is to say a product 
not intended as such. However, a 
substance reuse of which is a certainty, 
without any prior processing, and as an 
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SUMMARY — CASE C-235/02 
integral part of the production process 
cannot be described as waste. Other 
evidence of the existence of waste 
within the meaning of that provision 
may lie in the fact that the treatment 
method for the substance in question is 
a standard waste treatment method or 
that the undertaking perceives the sub­
stance as waste and from the fact that, 
in the case of a production residue, it 
can be used only in a way that involves 
its disappearance or that its use must 
involve special measures to protect the 
environment. Those elements are not 
necessarily conclusive, and whether 
something is in fact waste must be 
determined in the light of all the 
circumstances, regard being had to the 
aim of the directive and the need to 
ensure that its effectiveness is not 
undermined. 
(see paras 33-34, 36, 39-40) 
5. Petroleum coke which is produced 
intentionally or in the course of pro­
ducing other petroleum fuels in an oil 
refinery and is certain to be used as fuel 
to meet the energy needs of the refinery 
and those of other industries does not 
constitute waste within the meaning of 
Directive 75/442 on waste, as amended 
by Directive 91/156. 
(see para. 47, operative part) 
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