JUDGMENT OF THE COURT (Eighth Chamber)
11 November 2021 (*)
(Reference for a preliminary ruling – Environment – Regulation (EC) No 1013/2006 – Shipments of waste – Article 3(5) and Article 11(1)(i) – Directive 2008/98/EC – Waste management – Article 16 – Principles of self-sufficiency and proximity – Decision 2000/532/EC – European Waste Catalogue (EWC) – Mixed municipal waste subject to mechanical treatment which does not alter its nature)
In Case C‑315/20,
REQUEST for a preliminary ruling under Article 267 TFEU from the Consiglio di Stato (Council of State, Italy), made by decision of 10 October 2019, received at the Court on 13 July 2020, in the proceedings
Regione Veneto
v
Plan Eco Srl,
intervening parties:
Futura Srl,
THE COURT (Eighth Chamber),
composed of J. Passer (Rapporteur), President of the Seventh Chamber, acting as President of the Eighth Chamber, L.S. Rossi and N. Wahl, Judges,
Advocate General: A. Rantos,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
–        the Italian Government, by G. Palmieri, acting as Agent, and by G. Palatiello, avvocato dello Stato,
–        the European Commission, by L. Haasbeek, G. Gattinara and F. Thiran, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 17 June 2021,
gives the following
Judgment
1        This request for a preliminary ruling concerns the interpretation of Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste (OJ 2006 L 190, p. 1), and 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        The request has been made in proceedings between the Regione Veneto (Veneto Region, Italy) and Plan Eco Srl concerning a shipment of waste between Member States.
Legal context
European Union law
Regulation No 1013/2006
3        Article 2 of Regulation No 1013/2006, entitled ‘Definitions’, provides:
‘For the purposes of this Regulation:
…
19.      “competent authority of dispatch” means the competent authority for the area from which the shipment is planned to be initiated or is initiated;
20.      “competent authority of destination” means the competent authority for the area to which the shipment is planned or takes place, or in which waste is loaded prior to recovery or disposal in an area not under the national jurisdiction of any country;
…’
4        Article 3(5) of that regulation provides:
‘Shipments of mixed municipal waste (waste entry 20 03 01) collected from private households, including where such collection also covers such waste from other producers, to recovery or disposal facilities shall, in accordance with this Regulation, be subject to the same provisions as shipments of waste destined for disposal.’
5        Under Article 11 of that regulation, entitled ‘Objections to shipments of waste destined for disposal’:
‘1.      Where a notification is submitted regarding a planned shipment of waste destined for disposal, the competent authorities of destination and dispatch may, within 30 days following the date of transmission of the acknowledgement of the competent authority of destination in accordance with Article 8, raise reasoned objections based on one or more of the following grounds and in accordance with the Treaty:
(a)      that the planned shipment or disposal would not be in accordance with measures taken to implement the principles of proximity, priority for recovery and self-sufficiency at Community and national levels in accordance with Directive 2006/12/EC [of the European Parliament and of the Council of 5 April 2006 on waste (OJ 2006 L 114, p. 9)], to prohibit generally or partially or to object systematically to shipments of waste; or
…
(i)      that the waste is mixed municipal waste collected from private households (waste entry 20 03 01); …
…
6.      Measures taken by Member States in accordance with paragraph 1(a), to prohibit generally or partially or to object systematically to shipments of waste destined for disposal … shall immediately be notified to the Commission which shall inform the other Member States.’
6        Article 12 of that regulation, entitled ‘Objections to shipments of waste destined for recovery’, provides:
‘1.      Where a notification is submitted regarding a planned shipment of waste destined for recovery, the competent authorities of destination and dispatch may, within 30 days following the date of transmission of the acknowledgement of the competent authority of destination in accordance with Article 8, raise reasoned objections based on one or more of the following grounds and in accordance with the Treaty:
…
(b)      that the planned shipment or recovery would not be in accordance with national legislation relating to environmental protection, public order, public safety or health protection concerning actions taking place in the objecting country; or
…
(g)      that the ratio of the recoverable and non-recoverable waste, the estimated value of the materials to be finally recovered or the cost of the recovery and the cost of the disposal of the non-recoverable fraction do not justify the recovery, having regard to economic and/or environmental considerations; …
…’
Directive 2008/98
7        Directive 2008/98 repealed Directive 2006/12 with effect from 12 December 2010 and provides, in Article 41 thereof, that references to Directive 2006/12 are to be construed as references to Directive 2008/98.
8        Recital 33 of Directive 2008/98 is worded as follows:
‘For the purposes of applying Regulation (EC) No 1013/2006 …, mixed municipal waste as referred to in Article 3(5) of that Regulation remains mixed municipal waste even when it has been subject to a waste treatment operation that has not substantially altered its properties.’
9        Under Article 16 of Directive 2008/98, entitled ‘Principles of self-sufficiency and proximity’:
‘1.      Member States shall take appropriate measures, in cooperation with other Member States where this is necessary or advisable, to establish an integrated and adequate network of waste disposal installations and of installations for the recovery of mixed municipal waste collected from private households, including where such collection also covers such waste from other producers, taking into account best available techniques.
By way of derogation from Regulation (EC) No 1013/2006, Member States may, in order to protect their network, limit incoming shipments of waste destined to incinerators that are classified as recovery, where it has been established that such shipments would result in national waste having to be disposed of or waste having to be treated in a way that is not consistent with their waste management plans. Member States shall notify the Commission of any such decision. Member States may also limit outgoing shipments of waste on environmental grounds as set out in Regulation (EC) No 1013/2006.
2.      The network shall be designed to enable the Community as a whole to become self-sufficient in waste disposal as well as in the recovery of waste referred to in paragraph 1, and to enable Member States to move towards that aim individually, taking into account geographical circumstances or the need for specialised installations for certain types of waste.
3.      The network shall enable waste to be disposed of or waste referred to in paragraph 1 to be recovered in one of the nearest appropriate installations, by means of the most appropriate methods and technologies, in order to ensure a high level of protection for the environment and public health.
4.      The principles of proximity and self-sufficiency shall not mean that each Member State has to possess the full range of final recovery facilities within that Member State.’
Decision 2000/532/EC
10      Commission Decision 2000/532/EC of 3 May 2000 replacing Decision 94/3/EC establishing a list of wastes pursuant to Article 1(a) of Council Directive 75/442/EEC on waste and Council Decision 94/904/EC establishing a list of hazardous waste pursuant to Article 1(4) of Council Directive 91/689/EEC on hazardous waste (OJ 2000 L 226, p. 3), as amended by Commission Decision 2014/955/EU of 18 December 2014 (OJ 2014 L 370, p. 44), contains an annex setting out the list of waste referred to in Article 7 of Directive 2008/98, known as the ‘European Waste Catalogue’ (‘the EWC’).
11      In Chapter 19 of the EWC, entitled ‘Wastes from waste management facilities …’, under Section 19 12, entitled ‘wastes from the mechanical treatment of waste (for example sorting, crushing, compacting, pelletising) not otherwise specified’, the following waste entries are listed:
19 12 11*
other wastes (including mixtures of materials) from mechanical treatment of waste containing hazardous substances
19 12 12
other wastes (including mixtures of materials) from mechanical treatment of wastes other than those mentioned in 19 12 11
12      In Chapter 20 of the EWC, entitled ‘Municipal wastes (household waste and similar commercial, industrial and institutional wastes) including separately collected fractions’, under Section 20 03, entitled ‘other municipal wastes’, appears waste entry 20 03 01: ‘mixed municipal waste’.
Italian law
13      Article 182-bis of decreto legislativo n. 152 – Norme in materia ambientale (Legislative Decree No 152 laying down rules on environmental matters) of 3 April 2006 (ordinary supplement to GURI No 88 of 14 April 2006; ‘Legislative Decree No 152/2006’) provides in paragraph 1 thereof:
‘The disposal of waste and the recovery of mixed municipal waste shall be carried out by means of an integrated and adequate network of installations, employing the best available technology and taking into account the overall cost/benefit ratio, in order to:
(a)      achieve self-sufficiency in the disposal of non-hazardous municipal waste and waste resulting from the treatment thereof in the optimum geographical areas;
(b)      enable the disposal of waste and the recovery of mixed municipal waste in one of the nearest appropriate installations to the place of its production or collection, in order to reduce the movement of waste, taking into account the geographical circumstances or the need for specialised installations for certain types of waste;
…’
The dispute in the main proceedings and the questions referred for a preliminary ruling
14      The transport company Plan Eco submitted to the Veneto Region a request for prior consent to the shipment of 2 000 tonnes of mixed municipal waste produced in Italy by Futura Srl to a cement factory in Slovenia. That waste was treated mechanically by Futura, with a view to its use in co-combustion, and classified by Futura, after that treatment, under code 19 12 12 of the EWC.
15      By decision of 22 April 2016, the Veneto Region objected to the shipment on the basis of EU law, in particular Article 12(1)(b) and (g) of Regulation No 1013/2006, and of national law. First, it considered that the waste in question retained, following the preliminary treatment operations carried out by Futura, its original nature, namely that of mixed municipal waste, to which code 20 03 01 of the EWC corresponds, and that neither its classification by Futura in Section 19 12 of the EWC, entitled ‘wastes from the mechanical treatment of waste (for example sorting, crushing, compacting, pelletising) not otherwise specified’, nor the assignment of code 19 12 12 of the EWC was decisive in that regard. Secondly, it considered that paragraph 1(b) of Article 182-bis of Legislative Decree No 152/2006 – introduced in the context of the transposition of Directive 2008/98 and of the principles of self-sufficiency and proximity enshrined in Article 16 thereof – required mixed municipal waste to be recovered in one of the nearest appropriate installations to the place of its production or collection. Thirdly and lastly, it considered that there was an installation network in its territory capable of meeting the needs of Plan Eco and that, in the present case, an installation in the Veneto Region had stated that it was in a position to receive the 2 000 tonnes of waste at issue in the shipment notification.
16      Plan Eco brought an action against that decision before the Tribunale amministrativo regionale per il Veneto (Regional Administrative Court for the Veneto Region, Italy), which, by judgment of 15 November 2016, annulled that decision on the ground that, inter alia, the cross-border shipment concerned special waste which fell to be classified under code 19 12 12 of the EWC and, therefore, the principles of self-sufficiency, proximity and territorial restriction laid down for the treatment of municipal waste did not apply.
17      The Veneto Region brought an appeal against that judgment before the Consiglio di Stato (Council of State, Italy), which, after having ascertained that, inter alia, the waste in question had undergone treatment which had not substantially altered its original properties as municipal waste, decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘In a case where mixed municipal waste which does not contain hazardous waste has been mechanically treated at a facility for the purpose of energy recovery (operation R1/R12 under Annex C to [Legislative Decree No 152/2006]) and, following the treatment operation, it appears, in theory, that the treatment has not substantially altered the original properties of the mixed municipal waste, to which is assigned the [EWC code] 19 12 12, which the parties do not contest;
for the purpose of the judgment as to the legitimacy of the objections to the request for prior consent for shipment of the treated waste to a production facility in a Member State of the European Union for use in co-combustion or other means of generating energy, raised by the competent authority in the country of origin on the basis of the principles of [Directive 2008/98], and specifically objections such as those, in this case, based: on the principle of protection of human health and the environment (Article 13); on the principle of self-sufficiency and proximity laid down in Article 16(1) …; on the principle, also laid down in the final sentence of the second subparagraph of Article 16(1) …; on recital 33 …[:]
1.      does the [EWC] and its classifications (in the present case, [code] 19 12 12 [of that catalogue], designating waste produced by mechanical treatment facilities for recovery operations R1/R12), interfere – and, if so, in what terms and to what extent – with the rules [of EU law] on the shipment of waste which, prior to mechanical treatment, was mixed municipal waste;
2.      and, in particular, with regard to shipments of waste resulting from the treatment of mixed municipal waste, do the provisions of Article 16 of [Directive 2008/98] and recital 33 thereof, specifically concerning the shipment of waste, take precedence over the classification based on the [EWC];
3.      specifying, if the Court of Justice deems it appropriate and useful, whether that catalogue is regulatory in nature or whether it is simply a technical certification intended for the uniform traceability of all waste?’
Consideration of the questions referred
18      By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether a competent authority of dispatch may, on the basis of Regulation No 1013/2006 and Directive 2008/98, object to a shipment of mixed municipal waste destined for recovery which, following mechanical treatment for the purpose of energy recovery which has not however substantially altered its original properties, has been classified under code 19 12 12 of the EWC.
19      In the first place, it should be noted that Regulation No 1013/2006 and Directive 2008/98, the objective of which is to minimise the negative effects of the generation and management of waste on human health and the environment, pay particular attention to mixed municipal waste.
20      Thus, Article 3(5) of Regulation No 1013/2006 provides that shipments of ‘mixed municipal waste (waste entry 20 03 01) collected from private households, including where such collection also covers such waste from other producers, to recovery or disposal facilities’ are, in accordance with that regulation, subject to the same provisions as shipments of waste destined for disposal.
21      Consequently, Article 11 of Regulation No 1013/2006 applies even in a situation where a shipment of mixed municipal waste destined for recovery is notified, although that provision applies, in principle, in accordance with its heading and wording, only to waste destined for disposal (see, to that effect, judgment of 12 December 2013, Ragn-Sells, C‑292/12, EU:C:2013:820, paragraphs 53 and 54).
22      Furthermore, the competent authorities of destination or dispatch may, in accordance with Article 11(1)(i) of that regulation, object to such a shipment on the sole ground that the waste is ‘mixed municipal waste collected from private households (waste entry 20 03 01)’.
23      In that regard, it is clear from the preparatory documents for Regulation No 1013/2006 that the objective pursued by the EU legislature in those provisions was to limit shipments of waste collected from private households only to what is strictly necessary, as well as to provide that Member States should take responsibility for that inhomogeneous waste and be encouraged to solve their household waste problems self-sufficiently, while not excluding cooperation with neighbouring countries.
24      In the same vein, Article 16 of Directive 2008/98 requires Member States to establish an integrated and adequate network of installations for the treatment of waste destined for disposal and ‘mixed municipal waste collected from private households, including where such collection also concerns such waste from other producers’, taking into account best available techniques. That article also provides that the Member States must design that network in such a way that, inter alia, they move towards self-sufficiency individually for the treatment of that waste and that such treatment may take place in one of the nearest appropriate installations to the place of production of that waste.
25      The Court has held in that regard that, for the establishment of such an integrated network, the Member States have some discretion as to the choice of territorial basis they deem appropriate for achieving national self-sufficiency for the treatment of waste. However, the Court has stated that, in that context, in particular as regards appropriate measures to encourage rationalisation of the collection, sorting and treatment of waste, one of the most important measures that Member States must adopt, inter alia through local authorities having the relevant powers in the matter, is to seek to have the waste treated in the facility which is situated as close as possible to the place where the waste is produced, especially in the case of mixed municipal waste, in order to limit as far as possible the transportation of waste (see judgment of 12 December 2013, Ragn-Sells, C‑292/12, EU:C:2013:820, paragraphs 60 and 61 and the case-law cited).
26      It follows that, in accordance with Article 3(5) and Article 11(1)(i) of Regulation No 1013/2006, and in order to ensure compliance with the principles of self-sufficiency and proximity enshrined in Article 16 of Directive 2008/98 and implemented by the abovementioned provisions of Regulation No 1013/2006, which are relied on by the competent authority of dispatch in the main proceedings, that authority may object to a shipment of mixed municipal waste collected from private households and destined for recovery or disposal.
27      In the second place, it must be noted that according to recital 33 of Directive 2008/98, for the purposes of applying Regulation No 1013/2006, mixed municipal waste as referred to in Article 3(5) of that regulation remains mixed municipal waste even when it has been subject to a waste treatment operation that has not substantially altered its properties.
28      According to settled case-law, while the recitals of an EU act have no binding legal force and cannot be relied upon in order to derogate from the actual provisions of the act in question or to interpret those provisions in a manner contrary to their wording, they may however explain the content of the provisions of that act and provide elements of interpretation which are likely to shed light on the intention of the author of that act (see, to that effect, judgment of 25 March 2021, Balgarska Narodna Banka, C‑501/18, EU:C:2021:249, paragraph 90 and the case-law cited).
29      In the present case, Article 3(5) and Article 11(1)(i) of Regulation No 1013/2006, interpreted in the light of recital 33 of Directive 2008/98, mean that mixed municipal waste that has been classified under code 19 12 12 of the EWC following mechanical treatment for the purpose of energy recovery which has, however, not substantially altered the original properties of that waste must be regarded as falling within the mixed municipal waste collected from private households covered by those provisions, regardless of the fact that they refer to code 20 03 01 of the EWC.
30      As the Advocate General stated in point 56 of his Opinion, the legal rules applicable to shipments of waste depend on the substantial nature of those shipments, and not on their formal classification in accordance with the EWC.
31      Furthermore, any other interpretation would make it possible to exclude from the application of Article 3(5) and Article 11(1)(i) of Regulation No 1013/2006 and ultimately of the principles of self-sufficiency and proximity – compliance with which those provisions are intended to ensure, as has been pointed out in paragraph 23 of the present judgment – mixed municipal waste which, following a treatment operation, has been classified under an EWC code other than that reserved for mixed municipal waste, without that operation having however changed its substantial nature.
32      In the main proceedings, it is common ground that the mechanical treatment applied to the waste at issue did not substantially alter its original properties and, consequently, its nature.
33      Accordingly, for the purposes of applying Regulation No 1013/2006, mixed municipal waste intended for recovery which, following mechanical treatment for the purpose of energy recovery which has not however substantially altered its original properties, has been classified under code 19 12 12 of the EWC must be regarded as falling within mixed municipal waste collected from private households.
34      It follows from all the foregoing considerations that the answer to the questions referred is that Article 3(5) and Article 11 of Regulation No 1013/2006 must be interpreted as meaning that, in the light of the principles of self-sufficiency and proximity, the competent authority of dispatch may, on the basis, inter alia, of the ground set out in Article 11(1)(i) of that regulation, object to a shipment of mixed municipal waste which, following mechanical treatment for the purpose of energy recovery which has not however substantially altered its original properties, has been classified under code 19 12 12 of the EWC.
Costs
35      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Eighth Chamber) hereby rules:
Article 3(5) and Article 11 of Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste must be interpreted as meaning that, in the light of the principles of self-sufficiency and proximity, the competent authority of dispatch may, on the basis, inter alia, of the ground set out in Article 11(1)(i) of that regulation, object to a shipment of mixed municipal waste which, following mechanical treatment for the purpose of its energy recovery which has not however substantially altered its original properties, has been classified under code 19 12 12 of the list of wastes laid down in the Annex to Commission Decision 2000/532/EC of 3 May 2000 replacing Decision 94/3/EC establishing a list of wastes pursuant to Article 1(a) of Council Directive 75/442/EEC on waste and Council Decision 94/904/EC establishing a list of hazardous waste pursuant to Article 1(4) of Council Directive 91/689/EEC on hazardous waste, as amended by Commission Decision 2014/955/EU of 18 December 2014.
[Signatures]
*      Language of the case: Italian.