62002CC0053_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1. The Conseil d’État (Council of State), Belgium, has asked the Court to interpret Council Directive 75/442/EEC of 15 July 1975 on waste,(2) as amended by Council Directive 91/156/EEC of 18 March 1991 (3) (hereinafter ‘the Directive’), more specifically Article 7 thereof which concerns the Member States’ obligation to draw up management plans. (4)
I – Relevant legislation
A – Community legislation
2. For the purposes of the Directive, ‘disposal’ of waste means, among other operations, tipping above or underground (e.g. landfill), land treatment, deep injection or surface impoundment. (5)
3. Article 3(1) of the Directive provides as follows:
‘Member States shall take appropriate measures to encourage:
(a) firstly, the prevention or reduction of waste production and its harmfulness, in particular by:
– the development of clean technologies more sparing in their use of natural resources,
– the technical development and marketing of products designed so as to make no contribution or to make the smallest possible contribution, by the nature of their manufacture, use or final disposal, to increasing the amount or harmfulness of waste and pollution hazards,
– the development of appropriate techniques for the final disposal of dangerous substances contained in waste destined for recovery;
’
4. Article 4 of the Directive provides:
‘Member States shall take the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment, and in particular:
– without risk to water, air, soil and plants and animals,
– without causing a nuisance through noise or odours,
– without adversely affecting the countryside or places of special interest.
Member States shall also take the necessary measures to prohibit the abandonment, dumping or uncontrolled disposal of waste.’
5. Article 5 of the Directive provides:
‘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 disposal installations, taking account of the best available technology not involving excessive costs. The network must enable the Community as a whole to become self-sufficient in waste disposal and the Member States to move towards that aim individually, taking into account geographical circumstances or the need for specialised installations for certain types of waste.
The network must also enable waste to be disposed of 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.’
6. Article 7 of the Directive states:
‘1. In order to attain the objectives referred to in Article[s] 3, 4 and 5, the competent authority or authorities referred to in Article 6 shall be required to draw up as soon as possible one or more waste management plans. Such plans shall relate in particular to:
– the type, quantity and origin of waste to be recovered or disposed of,
– general technical requirements,
– any special arrangements for particular wastes,
– suitable disposal sites or installations.
Such plans may, for example, cover:
– the natural or legal persons empowered to carry out the management of waste,
– the estimated costs of the recovery and disposal operations,
– appropriate measures to encourage rationalisation of the collection, sorting and treatment of waste.
2. Member States shall collaborate as appropriate with the other Member States concerned and the Commission to draw up such plans. They shall notify the Commission thereof.
3. Member States may take the measures necessary to prevent movements of waste which are not in accordance with their waste management plans. They shall inform the Commission and the Member States of any such measures.’
7. Article 9 of the Directive provides:
‘1. For the purposes of implementing Articles 4, 5 and 7, any establishment or undertaking which carries out the operations specified in Annex IIA must obtain a permit from the competent authority referred to in Article 6.
Such permit shall cover:
– the types and quantities of waste,
– the technical requirements,
– the security precautions to be taken,
– the disposal site,
– the treatment method.
2. Permits may be granted for a specified period, they may be renewable, they may be subject to conditions and obligations, or, notably, if the intended method of disposal is unacceptable from the point of view of environmental protection, they may be refused.’
8. In Directive 91/156, which inserted into Directive 75/442 all the provisions which I have cited directly above, Article 2(1) provides: ‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than 1 April 1993. They shall forthwith inform the Commission thereof.’
9. Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste, (6) which entered into force on 16 July 1999, provides in Article 8:
‘Member States shall take measures in order that:
(a) the competent authority does not issue a landfill permit unless it is satisfied that:
(i) without prejudice to Article 3(4) and (5), the landfill project complies with all the relevant requirements of this Directive, including the Annexes;
(b) the landfill project is in line with the relevant waste management plan or plans referred to in Article 7 of Directive 75/442/EEC;
’
10. Annex I to Directive 1999/31, which is entitled ‘General requirements for all classes of landfills’, provides:
‘1. Location
1.1. The location of a landfill must take into consideration requirements relating to:
(a) the distances from the boundary of the site to residential and recreation areas, waterways, water bodies and other agricultural or urban sites;
(b) the existence of groundwater, coastal water or nature protection zones in the area;
(c) the geological and hydrogeological conditions in the area;
(d) the risk of flooding, subsidence, landslides or avalanches on the site;
(e) the protection of the nature or cultural patrimony in the area.
1.2. The landfill can be authorised only if the characteristics of the site with respect to the abovementioned requirements, or the corrective measures to be taken, indicate that the landfill does not pose a serious environmental risk.
’
B – National legislation
11. Article 24 of the Decree of 27 June 1996 on waste ( Moniteur belge
of 2 August 1996) states:
‘1. The Government shall draw up a waste management plan in accordance with Articles 11 to 16 of the Decree of 21 April 1994 on environmental planning with a view to sustainable development. That plan shall be a sectoral programme for the purposes of the Decree. It may comprise planning by type of waste or by sectoral activity.
The plan shall include in particular:
(1) a description of the type, quantity and origin of the waste, of the methods employed in the management of the waste produced and transported each year, and of the installations currently in operation and the occupied sites;
(2) an inventory of the legislative and general measures in force which affect the management of waste;
(3) a description of likely trends in the sector and the objectives to be met as regards waste management;
(4) projects and initiatives to be developed as regards prevention, recovery and disposal, recommended technical methods of waste management and the natural or legal persons authorised to undertake the management of waste.
The plan shall be accompanied by information on its budgetary implications for the public authorities, its foreseeable general economic effects in the short, medium and long term and its expected effects on the environment.
2. The Government shall establish, following the procedure laid down in Articles 25 and 26, a plan for landfills which includes sites likely to be allocated for setting up and operating landfills, with the exception of those landfills reserved for the exclusive use of the producer of the waste.
No landfills other than one intended for the exclusive use of the producer of waste may be authorised aside from those provided for in the plan referred to in this paragraph.’
12. In its implementation of Article 24(1) and (2) of the Decree of 27 June 1996, the Wallonia Government adopted, first, on 15 January 1998, the Wallonia waste plan ‘Horizon 2010’ ( Moniteur belge of 21 April 1998, p. 11806; hereinafter ‘Horizon 2010’) and, secondly, on 1 April 1999, a plan for landfill sites (centres d’enfouissement technique) ( Moniteur belge
of 13 July 1999, p. 26747; hereinafter ‘the CET’), the latter plan entering into force on 13 July 1999. Both plans were notified to the Commission in the course of transposition of Article 7 of the Directive.
13. The first paragraph of Article 70 of the Decree of 27 June 1996 provides:
‘Until such time as the landfill plan referred to in Article 24(2) has entered into force, applications for permits within the meaning of Article 11 in order to set up and operate landfills and applications for building permits as provided for in Article 41(1) of the Wallonia Town and Country Planning and Heritage Code which were held to be admissible before this Decree was adopted by Parliament may result in a permit being granted in industrial, agricultural and extraction zones as defined in Articles 172, 176 and 182 of that code.’
II – The main proceedings
A – Case C-53/02
14. By decision of 21 May 1999, the Wallonia Government granted BIFFA Waste Services SA ( hereinafter ‘BIFFA’) an individual permit to extend and operate a landfill at Braine-le-Château. The decision concerns the extension of the ‘Cour-au-Bois Nord’ waste disposal site to the neighbouring site of ‘Cour-au-Bois Sud’. The site extension was likewise to be used for waste disposal purposes, that is to say, for the landfill of inert waste.
15. The commune of Braine-le-Château (hereinafter ‘Braine-le-Château’) brought an action for annulment of the decision in question before the Conseil d’État. In support of its application, Braine-le-Château pleads, inter alia, breach of Articles 4, 5, 7 and 9 of the Directive. It takes the view that, in spite of Article 7 of the Directive, which provides for the drawing up of waste management plans, and in spite of Article 24(2) of the Decree of 27 June 1996 on waste, under which the Wallonia Government is required to undertake spatial planning of sites likely to be used for the setting up and operation of a landfill and which states that no landfill site other than those provided for by the plan may be authorised, no plan had been adopted by the Wallonia Government at the time when the contested permit was issued. First of all, Horizon 2010, it maintains, does not amount to such planning and, secondly, the CET was not in force when the contested measure was adopted. As a final point it notes that the site at issue is not included in the CET and, accordingly, that the contested permit was issued in respect of a site which is not identified in any planning of waste disposal sites.
16. The Wallonia Government contends that Horizon 2010 contains spatial planning as prescribed by Article 7(1) of the Directive and includes the site at issue. BIFFA, an intervener in the action, submits that it is in no way established that Article 7 of the Directive necessarily requires such planning of landfills as is undertaken in the CET.
B – Case C-217/02
17. By Ministerial Order of 16 December 1998, Propreté, Assainissement, Gestion de l’environnement SA (hereinafter ‘PAGE’) was authorised to continue operating a landfill at ‘Les trois burettes’ in Mont-Saint-Guibert (Belgium). That order lays down the aftercare conditions and sets up a support committee and a scientific committee for the landfill.
18. Actions were brought before the Conseil d’État for the annulment of the contested decision by (i) Michel Tillieut and the Association des habitants de Louvain-la-Neuve ASBL (Association of the inhabitants of Louvain-la-Neuve) and (ii) Willy Grégoire and the association l’Épine blanche ASBL. Since the causes of action were connected, the two cases were joined for the purpose of the decision on the merits. The association l’Épine blanche ASBL has since withdrawn from the proceedings.
19. The plaintiffs in the main proceedings maintain in particular that the contested authorisation was granted for a site not identified in a plan for waste disposal sites, contrary, first, to Articles 7(1) and 9 of the Directive and, secondly, to Article 24(2) of the Decree of 27 June 1996. In essence they submit that Article 7 of the Directive requires that disposal sites be subject to spatial planning, that the period prescribed for transposition has expired, that Horizon 2010 does not amount to the spatial planning required by the Directive and that the CET was only in draft at the time when the contested measure was adopted. They add that Article 70 of the Decree of 27 June 1996 does not meet the planning requirement laid down in the Directive, the implementation of which presupposes the ‘determination of suitable sites’ and the assessment of the proposed site in the light of the other requirements of the Directive, namely the protection of human health and the environment.
20. The Région wallonne (the Walloon Region) contends that Articles 7 and 9 of the Directive do not have direct effect. Furthermore, management plans have no binding effect and the Directive leaves it to the Member States to decide whether a plan must identify sites or must simply set out the criteria establishing the suitability of sites. It also submits that Horizon 2010 includes various provisions concerning spatial planning which are satisfied by the site which is the subject of the contested measure. The Région wallonne also refers to the draft CET, provisionally adopted by order of 30 April 1998, which takes account of the landfill at Mont-Saint-Guibert. Finally, the Région wallonne considers that Article 70 of the Decree of 27 June 1996 adequately transposes Article 7 of the Directive by designating in sectoral plans the zones which can be used provisionally for landfill.
21. PAGE, the intervener in the main proceedings, considers that Article 7 of the Directive does not involve spatial planning of waste management installations; on the contrary, it in fact concerns planning of a technical rather than of a geographical nature. PAGE maintains that the Directive does not define the legal effect of waste management plans and thus concludes, first, that such plans do not necessarily have a regulatory effect and, secondly, that the issue of a permit need not necessarily be made subject to compliance with any spatial planning. It also maintains that the Decree of 27 June 1996 meets the requirement for spatial planning laid down in Article 7 of the Directive and that the same is true as regards Horizon 2010. Lastly, PAGE dwells on the fact that there is no time-limit for transposing Article 7 of the Directive and that the Commission has not taken steps against the Belgian State in the form of infringement proceedings.
III – Questions referred for a preliminary ruling
22. The Conseil d’État decided to stay the proceedings in the two cases, referring the following questions to the Court for a preliminary ruling in Case C-53/02:
‘(1) Does the obligation imposed on Member States by Article 7 of Directive 75/442/EEC of 15 July 1975 on waste, as amended by Directive 91/156/EEC of 18 March 1991, to draw up one or more waste management plans relating in particular to “suitable disposal sites or installations” mean that the States to which the Directive is addressed are required to mark on a geographical map the precise locations of the planned waste disposal sites or to determine location criteria which are sufficiently precise to enable the competent authority responsible for issuing a permit under Article 9 of the Directive to ascertain whether the site or installation falls within the management framework prescribed by the plan?
(2) Do Articles 4, 5 and 7 of Directive 75/442/EEC of 15 July 1975 on waste, as amended by Directive 91/156/EEC of 18 March 1991, whether or not read in conjunction with Article 9 of Directive 75/442, preclude a Member State which has not adopted within the period prescribed one or more waste management plans relating to “suitable disposal sites or installations” from issuing individual permits to operate waste disposal installations, such as landfills?’
23. In Case C-217/02 the Conseil d’État referred three questions to the Court, the first two of which are the same, in essence, as those referred in the earlier case. The third question reads as follows:
‘Does Article 7(1) of Directive 75/442, as amended by Directive 91/156, mean that the plan or plans relating inter alia to “suitable disposal sites or installations” must be drawn up not later than 1 April 1993, or does it mean that they must be drawn up within a reasonable period, which may exceed the period prescribed for transposing the Directive into national law?’
IV – Analysis
A – The first question referred for a preliminary ruling in Cases C-53/02 and C-217/02
1. Views of the parties submitting observations
24. Braine-le-Château
considers that Member States are required under Article 7 of the Directive to lay down, in waste management plans, the locations where waste disposal sites may in future be set up or location criteria for such sites so that the competent authority responsible for issuing a permit within the meaning of Article 9 of the Directive can ascertain whether a site or installation falls within the management framework prescribed by the plan.
25. That view is shared by Mr Tillieut, the Association des habitants de Louvain-la-Neuve ASBL
and Mr Grégoire, plaintiffs in the main proceedings (Case C-217/02), as well as by Philippe Feron
and Philippe De Codt, interveners in the main proceedings (Case C-53/02) (hereinafter ‘Mr Tillieut, Mr Feron and Others’). It is their view that the Directive leaves to the Member States the decision whether the plan must identify suitable prospective sites and installations or whether it must simply set out the criteria establishing the suitability of those sites and installations. If the latter alternative is applied, the criteria must none the less be sufficiently precise to enable the authority responsible for issuing a permit under Article 9 of the Directive to ascertain whether the site or installation concerned falls within the management framework prescribed by the plans. As regards location criteria, these parties refer to criteria such as geological and hydrogeological conditions, proximity to residential areas, winds and distance between sites and installations.
26. In this specific case, the abovementioned interveners consider that, until the CET was adopted, there had been no location planning of waste disposal sites for the purposes of Article 7 of the Directive in the Walloon Region. They argue that Horizon 2010 covered only temporal planning.
27. The Région wallonne
does not share that view. It contends that Horizon 2010 provides a recapitulation of the locations of existing sites in the various communes of the Walloon Region, even though it does not specify the registered plots. Those plots have to be marked on a plan drawn to a scale of 1:2 500 that is submitted when applying for town planning consent. In its view, such detail need not necessarily be given in drawing up the waste management plan referred to in Article 7 of the Directive provided that it is given in the process for obtaining the permit referred to in Article 9 of the Directive.
28. As to the correct interpretation of Article 7 of the Directive, the Région wallonne considers that the obligation imposed on Member States by that provision to draw up one or more waste management plans relating in particular to suitable disposal sites or installations does not mean that Member States are required to indicate on a geographical map the precise locations of the planned waste disposal sites. It means that Member States are required to determine location criteria which are sufficiently precise to enable the competent authority responsible for issuing a permit under Article 9 of the Directive to ascertain whether the site or installation falls within the management framework prescribed by the plan.
29. BIFFA
and PAGE
essentially take the same view as the Région wallonne.
30. According to the Republic of Austria, it cannot be inferred from Article 7 of the Directive that Member States are required to specify in their national waste management plans the precise locations (on a geographical map) of the various possible waste disposal sites and of other installations. Since the Directive does not contain any indication to the contrary or any more detail on this matter, it must be regarded as sufficient to lay down general, abstract criteria such as the prohibition on setting up waste disposal installations in certain sensitive areas (for example, in water protection zones, flooding zones, zones subject to frequent atmospheric inversion, alpine regions, nature protection zones and so forth), geological and hydrogeological conditions, prohibitions imposed with a view to creating residential or vacation areas, the situation with regard to nuisances, infrastructure and, in particular, possible integration with transport networks and prohibitions imposed because of historic monuments or sites of nature interest.
31. According to the Kingdom of the Netherlands, under Article 7 of the Directive Member States are supposed to draw up, by means of management plans, a general policy framework for adopting more detailed decisions. That framework must be comprehensive and constitute an organised system. Therefore, the precise location of waste disposal sites and installations in such plans is not a requirement and would even lead to those plans lacking flexibility and adaptability to the extent that they could no longer be used as a policy framework.
32. The Netherlands Government therefore takes the view that Article 7 of the Directive does not require Member States to include in a waste management plan any geographical or other marking to show the precise location of waste disposal sites or installations or to determine precise location criteria. Member States may simply establish general criteria governing the location of waste disposal sites and installations.
33. The position adopted by the United Kingdom of Great Britain and Northern Ireland
is that management plans must contain information on current waste disposal installations and current waste arisings and any available assessments of future waste arisings.
34. The United Kingdom Government considers it appropriate to indicate the location of a planned disposal installation when plans have reached a sufficiently advanced stage for it to be said with confidence that the installation in question will be able to receive waste on a reasonably specific date in the future. It is at this stage that planned installations can be said to comprise potential elements of the integrated network of disposal installations which waste management plans are designed to facilitate. Until then, Member States retain discretion as regards the extent to which plans indicate the possible locations of any waste disposal installations which might be commissioned in future as part of the integrated network in question. In other words, the obligation to include in a plan a specific location for a planned installation arises only when it has been established with some certainty that waste disposal will take place at that site at a future date which can be forecast with a reasonable degree of confidence, that is to say, when a permit under Article 9 of the Directive has been obtained for the installation concerned.
35. The United Kingdom Government therefore considers that waste management plans adopted pursuant to Article 7 of the Directive should list all ‘suitable disposal sites or installations’ which have been granted a permit under Article 9 of the Directive and should set out sufficiently detailed locational criteria to enable the competent authority responsible for issuing permits to ensure that the objectives of the Directive are met when permitting future sites.
36. According to the French Government, a requirement that Member States identify sites geographically is not apparent from Article 7 of the Directive. A management plan is a programme giving guidance. However, in accordance with Article 7 it has to have a geographical dimension, which necessarily entails the setting of criteria by means of which it is possible to ascertain whether a permit is consistent with the management plan. In setting those criteria, account must be taken of waste disposal needs and capacity and of the envisaged location areas.
37. The Commission
considers that waste management plans must identify sites sufficiently precisely to implement the objectives set out in Articles 4 and 5 of the Directive and ensure that the requirements of Article 9 of the Directive are met. Furthermore, it is essential that the location of sites that are considered ‘suitable’ by the authority which draws up the plan can be determined precisely so that the authorities responsible for issuing permits can ascertain whether an intended site is indeed a site covered by the existing waste management plan.
38. The Commission considers there to be three methods of satisfying the requirement to identify existing or intended sites or installations in a management plan:
– marking the sites and installations concerned on a geographical map;
– drawing up a list identifying precisely the sites and installations intended to be used for waste disposal purposes; or
– establishing a series of factors and criteria, including location criteria, which make it possible to identify specific sites.
39. In the Commission’s view, the last method listed can be regarded as the easiest for determining future sites already envisaged in the plan.
2. Assessment
40. All the parties submitting observations agree that a management plan must, in one way or another, have a geographical dimension, and I fully endorse that view.
41. Indeed, Article 7(1) of the Directive refers explicitly to that dimension in providing that management plans ‘ shall relate in particular to
suitable disposal sites
or installations ’. (7)
42. All the parties likewise agree that Article 7 of the Directive does not require a management plan to contain precise maps or any other precise description of the location of existing and future disposal sites.
43. Although the United Kingdom Government is right to point out that Member States may
undertake such precise identification if they so wish and if it is possible to do so in the particular circumstances, Article 7 does not contain any obligation
to that effect.
44. As the Région wallonne, PAGE and the French Government rightly observe, if there were such an obligation, Article 9 of the Directive, which provides that the permit ‘ shall cover
the disposal site ’, would be almost redundant. It is, in fact, at the permit stage that the precise location of the relevant site should be determined.
45. Moreover, as the United Kingdom Government points out, the final decision to build and operate a waste disposal installation in a particular location may be subject to a consultation and decision-making process which requires account to be taken of an environmental impact assessment under Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, (8) as most recently amended by Council Directive 97/11/EC of 3 March 1997. (9) A similar observation was made by the French Government in connection with Council Directive 96/61/EC of 24 Septem ber 1996 concerning integrated pollution prevention and control. (10) Hence it is not always possible to establish as early as at the waste management plan stage the exact location of a future waste disposal site.
46. Similarly, the Netherlands Government is right to note that management plans which are too precise lack flexibility and adaptability. They have to be capable of adapting to scientific and technical progress and to changes in circumstances, for example, as PAGE observes, the creation of new waste disposal processes which were unknown when the management plan was adopted.
47. A management plan under Article 7 of the Directive is therefore, as the Netherlands Government rightly observes, a ‘policy framework’ or, as the Court described it at paragraph 75 of its judgment in Commission
v Greece, (11) a ‘comprehensive programme’ which need not necessarily describe in minute detail all aspects of current and future waste disposal management, including sites.
48. Against that background, how should the requirement that management plans have a geographical dimension be construed?
49. The answer to that question is suggested by the Conseil d’État itself and by some of the parties submitting observations. A management plan must lay down a series of criteria or, as the Commission suggests, factors enabling the authority dealing with an application for a permit under Article 9 of the Directive subsequently to pinpoint the most suitable location for a waste disposal site.
50. In this way, a management plan, first, does in fact display a geographical dimension as required by Article 7 of the Directive and, second, most effectively fulfils its function as a policy framework. On the other hand, it does not itself need to specify the exact location of each future site.
51. The factors are, of course, to be defined in such a way as to contribute to the attainment of the objectives referred to in Articles 3, 4 and 5 of the Directive. (12)
52. Accordingly, as Mr Tillieut, Mr Feron and Others maintain, the factors must, first, make it possible to locate waste disposal sites in compliance with environmental and public health requirements. As the Court held in paragraph 44 of its judgment in Commission
v France, (13) ‘ [c]hief among [the] objectives [set out in Articles 3, 4 and 5 of the Directive] is the protection of public health and the environment, which is the essence of Community legislation relating to waste’.
53. Secondly, as the Commission rightly pointed out at the hearing, those factors must also satisfy the other objectives of the Directive, including ‘[establishing] an integrated and adequate network of disposal installations, taking account of the best available technology not involving excessive costs’. (14) They must therefore also take account of the nature and quantity of the types of waste likely to be produced in the different parts of a country and of the need to avoid transporting it over excessively long distances.
54. Braine-le-Château, Mr Tillieut, Mr Feron and Others and the Austrian Government have provided some examples of geographical factors which may be included in a management plan, such as geological and hydrogeological conditions, the proximity of residential areas, winds, environmentally sensitive areas, the distance between sites and so forth.
55. Determination of the factors that will be included in a management plan in a specific case will, of course, depend on the situation prevailing in the region covered by that plan. However, I agree with the Commission that the factors must have a degree of precision in that they must constitute an appropriate and effective reference framework for the competent authorities which are in due course required to determine the precise location of a waste disposal site.
56. As the Commission correctly points out, it follows from the Court’s case-law that waste management plans are an important tool for attaining the objectives mentioned in Articles 3, 4 and 5 of the Directive. The Court accordingly observed, at paragraph 44 of the Commission v France
judgment, cited above, that ‘ according to case-law, a failure to fulfil the obligation to draw up waste management plans must be regarded as serious, even if the failure relates to only a very small part of a Member State’s territory, such as a single department (see, to that effect, Commission
v Greece, cited above, paragraph 94 or 95), or a single area within a valley (see, to that effect, Case C-365/97 Commission
v Italy
[1999] ECR I-7773, paragraph 69)’.
57. It follows from the foregoing considerations that PAGE’s argument, raised at the hearing, that Article 7 of the Directive does not require precise locations to be marked on a map or even a series of location criteria to be laid down enabling the competent authority subsequently to determine the appropriate location for a waste disposal site, cannot be accepted. In support of its argument, it relied on the ASA
judgment (15) in which the Court held at paragraph 60 that ‘[i]t must
be concluded that the intention of Annexes IIA and IIB to the Directive is to list the most common disposal and recovery operations and not precisely and exhaustively to specify all the disposal and recovery operations covered by the Directive’. In PAGE’s view, that excerpt confirms that it is impossible to be alive to all waste disposal and recovery operations when a waste plan is drawn up and that there is therefore no point in requiring that the management plan determine the waste disposal sites or location criteria.
58. However, the excerpt from the ASA
judgment does not support PAGE’s interpretation of Article 7 of the Directive.
59. First, rejecting both the map-based approach and the approach of laying down a series of criteria enabling the subsequent location of sites is tantamount to refusing, in practice, to attribute any geographical dimension to a management plan and, therefore, to rendering Article 7 of the Directive meaningless inasmuch as it provides that management plans are to relate in particular to waste disposal sites.
60. Secondly, the fact that it is impossible to be aware of all waste disposal or recovery operations when a waste plan is drawn up may affect not only the sites but also all other aspects covered in a management plan. PAGE’s line of argument therefore puts in issue the purpose of the entire management plan and not just its geographical dimension. It cannot be argued that a management plan is pointless merely because it cannot take account of all the new developments which are still unknown on its adoption.
61. Finally, BIFFA refers to Article 8(a)(i) of Directive 1999/31, (16) read in conjunction with Section 1 of Annex I thereto. (17) It considers that the intention of Annex I must be to lay down criteria supplementing and defining more precisely the arrangements in the general plans adopted on the basis of Article 7 of Directive 75/442, as amended by Directive 91/156, in particular with regard to assessing whether a landfill should be allowed on a particular site, an assessment which is to be carried out within the procedure for the grant of a permit and not in the context of waste management planning.
62. However, I am not persuaded by that argument.
63. It is not apparent from Directive 1999/31 that the requirements laid down in Section 1 of Annex I thereto for determining the location of a landfill constitute, as BIFFA claims, ‘criteria supplementing and defining more precisely the arrangements in the general plans adopted on the basis of Article 7 of Directive 75/442, as amended by Directive 91/156’. Directive 1999/31 merely provides, in Article 8(a)(i) thereof, read in conjunction with Section 1 of Annex I thereto, that a permit cannot be granted unless the requirements laid down in that annex are met. On the other hand, it by no means precludes transposition of those requirements into national law in the management plans which Member States are supposed to adopt under Article 7 of Directive 75/442, as amended by Directive 91/156.
64. It follows from all the foregoing considerations that both of the possibilities referred to by the Conseil d’État are compatible with Article 7 of the Directive. I therefore propose that the answer to the first question should be that the obligation imposed on Member States by Article 7 of the Directive to draw up one or more waste management plans relating in particular to suitable disposal sites or installations means that Member States are required either to mark on a geographical map the precise locations of the planned waste disposal sites or to determine location criteria which are sufficiently precise to enable the competent authority responsible for issuing a permit under Article 9 of the Directive to ascertain whether the site or installation falls within the management framework prescribed by the plan.
B – The second question referred for a preliminary ruling in Cases C-53/02 and C-217/02
65. By its second question, the Conseil d’État is asking whether Articles 4, 5 and 7 of the Directive, whether or not read in conjunction with Article 9 thereof, preclude a Member State which has not adopted within the period prescribed one or more waste management plans relating to suitable disposal sites or installations from issuing individual permits to operate waste disposal installations, such as landfills.
66. Braine-le-Château and Mr Tillieut, Mr Feron and Others observe that Article 9(1) of the Directive establishes a direct connection between the arrangements for obtaining permits for installations, laid down in that provision, and the planning defined in Article 7. That connection would have no effect if the operating permit issued did not have to observe the waste planning requirements. In the view of those parties, the argument that permits may be issued in the absence of a waste management plan relating to suitable disposal sites and installations cannot consequently be accepted. They accordingly propose that the second question referred should be answered in the affirmative.
67. By contrast, all the other parties submitting observations propose that the question should be answered in the negative, a proposal which I endorse.
68. As the Netherlands and Austrian Governments point out, it cannot be inferred from either the wording or the purpose of Article 9 of the Directive that issuing an individual permit where there is no management plan would be prohibited.
69. Admittedly, Article 9 of the Directive does refer to Article 7 with the words ‘[f]or the purposes of implementing [Article]
7 ’. However, as the Région wallonne and the Commission correctly point out, although those words require that permits be granted for the purpose of implementing management plans, this does not mean that granting a permit in the absence of a management plan would be prohibited.
70. That interpretation is, in my view, reinforced by various arguments raised by parties which have intervened.
71. First of all, as both the Commission and the Région wallonne point out, Member States were not required to transpose Articles 7 and 9 into national law within the same period: Article 9 and Articles 4 and 5 had to be transposed no later than 1 April 1993 while the management plans laid down in Article 7 had to be drawn up ‘as soon as possible’. It is clear from paragraph 41 of the judgment in Commission
v France, cited above, (18) that the latter period for transposition extends beyond the former. To require that the plan be drawn up before individual permits meeting the requirements of the Directive can be granted would mean deferring the actual entry into force of Article 9 in conjunction with Articles 4 and 5 to an unspecified date, as is provided for exclusively in relation to the transposition of Article 7. Such an outcome would be contrary to the Directive’s aim of ensuring the protection of human health and the environment.
72. Secondly, PAGE is right to question how a State could rely on its own failure to act in order to produce legal effects consisting, in this case, in the refusal of permits. Community law after all prohibits States from invoking the direct effect of an untransposed directive against individuals or undertakings, irrespective of whether the legal effects sought are positive (grant of a permit) or negative (refusal of a permit).
73. Thirdly, as the United Kingdom Government observes, if expiring permits could not be renewed, and no new permits could be issued merely on account of a competent authority’s failure to adopt a waste management plan, waste disposal sites might become legally inoperable, and no alternative waste disposal sites might be available. Alternatively, the inability of national authorities to issue permits might have the effect of invalidating national rules requiring undertakings to possess permits, which would lead to deregulation of the operation of waste disposal sites in the Member State concerned.
74. Those are situations which are indisputably contrary to the main objective of the Directive, namely the protection of public health and the environment.
75. Finally, the fact that permits may be granted in the absence of a management plan by no means detracts from the importance of such a plan. The Netherlands Government is right to point out, invoking the Commission
v France
judgment cited above, that a Member State’s non-compliance with the obligation to draw up one or more management plans must be regarded as a serious infringement which may be penalised in an action under Article 226 EC.
76. The Commission, while proposing that the second question referred should be answered in the negative, adds that the situation would be otherwise if Directive 1999/31 applied. However, that is not the case, as the Commission itself acknowledges, since the period prescribed for transposing that directive expired after the date of adoption of the measure at issue in the main proceedings. Therefore, I see no reason to take a view on how the second question would be answered if Directive 1999/31 applied.
77. I therefore propose that the answer to this question should be that Articles 4, 5 and 7 of the Directive, whether or not read in conjunction with Article 9 thereof, do not preclude a Member State which has not adopted within the period prescribed one or more waste management plans relating to suitable disposal sites or installations from issuing individual permits to operate waste disposal installations, such as landfills.
C – The third question referred for a preliminary ruling in Case C‑217/02
78. By the third question referred, the Conseil d’État is asking whether Article 7(1) of the Directive means that the plan or plans relating inter alia to ‘suitable disposal sites or installations’ must be drawn up not later than 1 April 1993, or whether it means that they must be drawn up within a reasonable period, which may exceed the period prescribed for transposing the Directive into national law.
79. In this regard it is sufficient to note, as all the intervening parties have indeed done, that the Court has in the meantime resolved this issue in its aforementioned judgment in Commission
v France . At paragraph 41 of that judgment it held that the words ‘as soon as possible’ contained in Article 7(1) of the Directive are to be interpreted as stipulating, in principle, a reasonable period, ‘that period being unconnected with the period laid down for transposition of the Directive’.
80. Mr Tillieut, Mr Feron and Others further maintain that the Région wallonne has failed to adopt its management plan within a reasonable period for the purposes of Article 7(1) of the Directive. However, that matter falls outside the scope of this reference for a preliminary ruling.
81. I therefore propose that the answer to the third question referred should be that Article 7(1) of the Directive means that the plan or plans relating inter alia to ‘suitable disposal sites or installations’ must be drawn up within a reasonable period, which may exceed the period prescribed for transposing the Directive into national law.
V – Conclusion
82. In the light of the foregoing considerations, I propose that the questions referred for a preliminary ruling by the Conseil d’État should be answered as follows:
(1) The obligation imposed on Member States by Article 7 of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991, to draw up one or more waste management plans relating in particular to suitable disposal sites or installations means that Member States are required either to mark on a geographical map the precise locations of the planned waste disposal sites or to determine location criteria which are sufficiently precise to enable the competent authority responsible for issuing a permit under Article 9 of the Directive to ascertain whether the site or installation falls within the management framework prescribed by the plan.
(2) Articles 4, 5 and 7 of Directive 75/442, as amended by Directive 91/156, whether or not read in conjunction with Article 9 thereof, do not preclude a Member State which has not adopted within the period prescribed one or more waste management plans relating to suitable disposal sites or installations from issuing individual permits to operate waste disposal installations, such as landfills.
(3) Article 7(1) of Directive 75/442, as amended by Directive 91/156, means that the plan or plans relating inter alia to ‘suitable disposal sites or installations’ must be drawn up within a reasonable period, which may exceed the period prescribed for transposing the Directive into national law.
(1) .
(2)
–	OJ 1975 L 194, p. 39.
(3)
–	OJ 1991 L 78, p. 32.
(4)
–	From a practical perspective, I should point out that almost all the provisions of Directive 75/442 have been replaced by Directive 91/156 and that reference should therefore be made to the latter directive if an overview of the legislation is to be obtained.
(5)
–	See Article 1(e) and Annex IIA.
(6)
–	OJ 1999 L 182, p. 1.
(7)
–	Emphasis added.
(8)
–	OJ 1985 L 175, p. 40.
(9)
–	OJ 1997 L 73, p. 5.
(10)
–	OJ 1996 L 257, p. 26.
(11)
–	Case C-387/97 [2000] ECR I-5047.
(12)
–	See Article 7(1) of the Directive: ‘ In order to attain the objectives referred to in Article[s] 3, 4 and 5, the competent authority or authorities referred to in Article 6 shall be required to draw up as soon as possible one or more waste management plans’ (emphasis added).
(13)
–	Case C-292/99 [2002] ECR I-4097.
(14)
–	Article 5(1) of the Directive.
(15)
–	Case C-6/00 [2002] ECR I-1961.
(16)
–	Cited in point 9 above.
(17)
–	Cited in point 10 above.
(18)
–	‘In this connection, it should be observed that the inclusion of the words “as soon as possible” in Article 7(1) is an indication that the period laid down in the first subparagraph of Article 2(1) of Directive 91/156 for the transposition of that directive does not relate to the obligation to draw up waste management plans. If that were the case, the words would be meaningless. It thus follows that the words “as soon as possible” are to be interpreted as stipulating, in principle, a reasonable period for compliance by the competent authorities of each Member State with that particular obligation, that period being unconnected with the period laid down for transposition of the Directive.’