Opinion of the Advocate General — ECLI:EU:C:2016:292
Date: 2016-04-21
Language of the case: Italian
Subject matter: Environment;Waste
Procedure: Reference for a preliminary ruling
Origin: Italy

summary, therefore, the answer to the second part of the question is that the Landfill Directive is not applicable to recovery, but only to the disposal of waste through its deposit onto or into the ground. C – The distinction between waste disposal and waste recovery for backfilling quarries with waste 49. Finally, in order to establish whether the specific provisions of the Landfill Directive or just the general stipulations of the Waste Directive apply to backfilling quarries with waste, it must be clarified whether, or under which conditions, this use is to be seen as waste disposal or waste recovery. 50. This question is to be answered on the basis of the currently applicable Waste Directive, as so far no waste has been deposited in the quarry. All waste coming into question must as a result be treated in accordance with the currently applicable provisions. The fact that the authorisation procedure for backfilling the quarry was initiated when the consolidated former Waste Directive was still in force cannot alter that conclusion. 51. The definition of ‘disposal’ in Article 3(19) of the Waste Directive encompasses any operation which is not recovery, even where the operation has as a secondary consequence the reclamation of substances or energy. 52. Article 3(15) of the Waste Directive defines ‘recovery’ on the other hand as any operation the principal result of which is waste serving a useful purpose by replacing other materials which would otherwise have been used to fulfil a particular function, or waste being prepared to fulfil that function, in the plant or in the wider economy. This definition — as is particularly apparent in the English version — largely corresponds to the case-law of the Court on the old Waste Directive. (24) 53. Recovery has two conditions, namely that first the waste must serve a useful purpose and secondly must replace materials which would otherwise have been used to fulfil a particular function. 54. The first condition is essential, as only a useful employment of waste can even be recognised as a recovery of waste. The use of waste for backfilling quarries seems in principle to be useful. However, the definition of disposal already shows that the reclamation of substances or energy does not preclude a disposal, (25) and that a useful employment of waste in itself is not sufficient. 55. More crucial to a recovery operation is that the waste replaces materials which would otherwise have been used to fulfil a particular function. (26) 56. The United Kingdom rightly points out this characteristic. Because of high costs, this Member State doubts that quarries would typically continue to be backfilled when no waste is available for it. The fact that backfilling may possibly be a condition of the authorisation for the quarry alters nothing, as authorisation as a general rule reflects the plans of the operator and can also normally be changed if it should emerge that backfilling would cause disproportionate costs. 57. At first glance this view is surprising, as the Court has already in principle recognised backfilling as a recovery operation. However, those cases concerned the backfilling of galleries which, without long term backfilling, were in danger of collapsing, which could result in damage on the surface. (27) Comparable risks for disused quarries are clearly much more limited. Where such risks exist, complete backfilling is probably not necessary to counter them. Contrary to Poland’s submission, it also does not appear necessary in every case to backfill a quarry in order to be able to use that land for other purposes. 58. Accordingly the United Kingdom is correct in its view that the competent national authorities must carefully assess whether other materials are in fact being replaced through backfilling a quarry with waste. An important indicator in this regard is whether the operator of the quarry has to pay for the waste used or whether he is paid for its use. In the latter case there are strong grounds for the assumption that the quarry would not be backfilled without the waste and it is therefore a case of waste disposal. (28) 59. Moreover, in his Opinion in the ASA case Advocate General Jacobs already stated that the replacing of other materials comprises a criterion which the Commission in particular emphasises, namely the suitability of the waste for the specific function. (29) Unsuitable waste cannot replace suitable other materials. Furthermore, the use of unsuitable waste can hardly be considered as useful in the sense of the first condition for recovery of waste. 60. In so far as the definition of the term backfilling in Article 1(6) of Decision 2011/753 requires the suitability of the waste, it does not thereby restrict the notion of recovery, but clarifies a characteristic of that term which was already implicit in it. A similar meaning results from the reference to the suitability of waste in recital 15 and in Article 3(2), second indent, of the Landfill Directive. 61. As the Province of Bari and the Commission submit, from the information given by the Council of State on the waste provided for backfilling doubts emerge that all of the envisaged types of waste are actually suitable. It is apparent from recital 15 of the Landfill Directive that in principle only inert waste or non-hazardous waste is eligible. It is not clear whether all of the envisaged types of waste fall under one of these categories. This question must be further clarified by the national authorities and courts. 62. The third part of the question is to be answered in the sense that backfilling a quarry with waste other than extractive waste constitutes a waste recovery operation if the competent authorities determine that the waste serves a useful purpose by actually replacing other materials, which in particular requires the suitability of the waste as a replacement for those materials. V – Conclusions 63. I therefore propose that the Court answer the questions referred for a preliminary ruling as follows: (1) Article 10(2) of Directive 2006/21/EC of the European Parliament and of the Council of 15 March 2006 on the management of waste from extractive industries and amending Directive 2004/35/EC must be interpreted as meaning that backfilling a quarry with waste other than extractive waste falls under the provisions on waste set out in Directive 1999/31/EC on the landfill of waste only when the conditions for application of that directive are met. (2) Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste is not applicable to recovery, but only to waste disposal through its deposit onto or into the ground. (3) The backfilling of a quarry with waste other than extractive waste constitutes a waste recovery operation if the competent authorities determine that the waste serves a useful purpose by actually replacing other materials, which in particular requires the suitability of the waste as a replacement for those materials. 1 Original language: German. 2 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7). 3 Judgment in Commission v Italy (C‑179/06, EU:C:2007:578). 4 Judgment in Azienda Agro-Zootecnica Franchini and Eolica di Altamura (C‑2/10, EU:C:2011:502). 5 My Opinion in Commission v Council (C‑196/13, EU:C:2014:2162, points 113 to 134). 6 Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste (OJ 1999 L 182, p. 1) as amended by Council Directive 2011/97/EU of 5 December 2011 amending Directive 1999/31/EC as regards specific criteria for the storage of metallic mercury considered as waste (OJ 2011 L 328, p. 49). 7 European Parliament and Council Directive 2006/21/EC of 15 March 2006 on the management of waste from extractive industries and amending Directive 2004/35/EC (OJ 2006 L 102, p. 15) as amended by European Parliament and Council Regulation (EC) No 596/2009 of 18 June 2009 adapting a number of instruments subject to the procedure referred to in Article 251 of the Treaty to Council Decision 1999/468/EC with regard to the regulatory procedure with scrutiny (OJ 2009 L 188, p. 14). 8 European Parliament and Council Directive 2008/98/EC of 19 November 2008 on waste and repealing certain Directives (OJ 2008 L 312, p. 3). 9 European Parliament and Council Directive 2006/12/EC of 5 April 2006 on waste (OJ 2006 L 114, p. 9). 10 Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), as amended by Council Directive 91/156/EEC of 18 March 1991 (OJ 1991 L 78, p. 32). 11 Commission Decision of 18 November 2011 establishing rules and calculation methods for verifying compliance with the targets set in Article 11(2) of Directive 2008/98/EC of the European Parliament and of the Council (OJ 2011 L 310, p. 11). 12 The Danish, Polish and Portuguese versions also seem to follow this pattern. 13 The Spanish, Dutch, Romanian and Swedish versions also seem to follow this pattern. 14 See judgments in Nike European Operations Netherlands (C‑310/14, EU:C:2015:690, paragraph 17) and in Léger (C‑528/13, EU:C:2015:288, paragraph 35). 15 Judgment in Zurita García and Choque Cabrera (C‑261/08 and C‑348/08, EU:C:2009:648, paragraph 54 with further references). 16 COM(2003) 319 final. 17 Position of the European Parliament adopted at first reading on 31 March 2004 with a view to the adoption of European Parliament and Council Directive 2004/…/EC on the management of waste from extractive industries. 18 Common Position (EC) No 23/2005 adopted by the Council on 12 April 2005 with a view to adopting Directive 2005/…/EC of the European Parliament and of the Council of … on the management of waste from extractive industries and amending Directive 2004/35/EC (OJ 2005 C 172 E, p. 1). See also Council Document 8933/04 of 28 April 2004. 19 See also judgment in ASA (C‑6/00, EU:C:2002:121, paragraph 69). 20 See the definition in Article 2(e) of the Landfill Directive, cited in point 10 above. 21 Judgment in ASA (C‑6/00, EU:C:2002:121, paragraphs 58 to 71). 22 Judgment in EU-Wood-Trading (C‑277/02, EU:C:2004:810, paragraph 45). 23 Judgment in Lapin ELY-keskus, liikenne ja infrastruktuuri (C‑358/11, EU:C:2013:142, paragraphs 56 and 57). 24 Judgment in ASA (C‑6/00, EU:C:2002:121, paragraph 69). 25 See also judgment in Commission v Luxembourg (C‑458/00, EU:C:2003:94, paragraph 43). 26 Compare Opinions of Advocate General Jacobs in ASA (C‑6/00, EU:C:2001:610, points 86 and 87) and in Palin Granit and Vehmassalon kansanterveystyön kuntayhtymän hallitus (C‑9/00, EU:C:2002:24, point 37) and the judgment in Commission v Luxembourg (C‑458/00, EU:C:2003:94, paragraph 44). 27 Compare Opinion of Advocate General Jacobs in ASA (C‑6/00, EU:C:2001:610, points 85 and 87) and the judgment AvestaPolarit Chrome (C‑114/01, EU:C:2003:448, paragraphs 36 to 38). 28 See Opinion of Advocate General Jacobs in ASA (C‑6/00, EU:C:2001:610, point 88). 29 EU:C:2001:610, point 87.