Opinion of the Advocate General — ECLI:EU:C:2019:520
Date: 2019-06-20
Language of the case: Italian
Subject matter: Environment;Approximation of laws;Waste
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary The Italian legislation concerning the authorisation of bioliquids as fuel for power plants complies with EU law In its judgment of 24 October 2019, Prato Nevoso Termo Energy (C‑212/18), the Court confirmed that the Italian legislation governing the authorisation of the use of bioliquids derived from the treatment of used vegetable oils as a power source for a power plant is, in principle, not contrary to either Directive 2008/98 (1) on waste or Directive 2009/28 (2) on the promotion of the use of energy from renewable sources. In this case, Prato Nevoso Termo Energy Srl (‘Prato Nevoso’), which operates a thermal and electrical power plant, applied to the Province of Cuneo (Italy) for authorisation to replace methane, as the power source for its plant, with a bioliquid, namely a vegetable oil derived from the collection and chemical treatment of used cooking oils. The competent national authority rejected that application, in accordance with the applicable Italian legislation, on the grounds that that vegetable oil is not included in the national list containing the categories of fuels derived from biomass that may be used in a plant producing atmospheric emissions without having to comply with the rules on energy recovery from waste. The Italian legislation therefore has the effect that the bioliquid derived from the chemical treatment of used frying oils must be considered as waste and not as fuel. Prato Nevoso brought an action before the referring court, challenging that decision to reject its application. The referring court subsequently made a request for a preliminary ruling, seeking to ascertain whether such national legislation is compatible with the provisions of the abovementioned directives. Relying, in particular, on the Tallinna Vesi judgment (3) of 28 March 2019, the Court held that Directive 2008/98 on waste does not, in principle, preclude a Member State from making the use of a bioliquid derived from waste as fuel subject to the legislation on energy recovery from waste on the grounds that it does not fall within any of the categories in the national list of fuels authorised in a plant producing atmospheric emissions. According to the Court, that finding is not invalidated by the provisions on national authorisation procedures laid down in Directive 2009/28 on the promotion of the use of energy from renewable sources, since those provisions do not cover regulatory procedures for the adoption of end-of-waste status criteria. However, the Court noted that in such a case, it must be examined whether the national authorities could conclude, without making a manifest error of assessment, that the bioliquid in question should be regarded as waste. Referring to the objectives of Directive 2008/98 and its power to provide the national court with all indications which may assist it in resolving the dispute before it, the Court noted that Article 6(1) of Directive 2008/98 provides that certain waste ceases to be waste when it has undergone a recovery or recycling operation and meets specific criteria to be defined by the Member States in accordance with several conditions, including the absence of ‘overall adverse environmental or human health impacts’. In the light of the arguments put forward by the Italian Government, the Court noted that the existence of a certain degree of scientific uncertainty regarding the environmental risks associated with a substance — such as the bioliquid in question — ceasing to be classified as waste, may lead a Member State to decide not to include that substance on the list of fuels authorised in a plant producing atmospheric emissions. In accordance with the precautionary principle laid down in Article 191(2) TFEU, if, after examining the best available scientific information, there remains uncertainty as to whether the use, in specific circumstances, of a substance derived from the recovery of waste is devoid of any possible harmful effect on the environment and human health, the Member State must refrain from providing for criteria whereby that substance can cease to be classified as waste or the possibility of adopting an individual decision finding that that substance has ceased to be classified as waste. 1 Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives (OJ 2008 L 312, p. 3). 2 Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC (OJ 2009 L 140, p. 16), as amended by Directive (EU) 2015/1513 of the European Parliament and of the Council of 9 September 2015 (OJ 2015 L 239, p. 1). 3 Judgment of 28 March 2019, Tallina Vesi (C-60/18, EU:C:2019:264).