61998CC0175_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1 By the orders of 20 April 1998, le Giudice per le Indagini Preliminari (Investigating Judge) of the Pretura Circondariale (District Magistrates Court), Udine (Italy) has asked for an interpretation of certain provisions of Council Directive 91/156/EEC of 18 March 1991, (1) amending Directive 75/442/EEC on waste (2) (hereinafter `Directive 91/156' or the `waste directive'), and Council Directive 91/689/EEC of 12 December 1991 on hazardous waste (3) (hereinafter `Directive 91/689' or `hazardous-waste directive'). What he is seeking, essentially, is to determine the meaning of `temporary storage' and what is the legal regime applicable to that concept.
The legislative background
The relevant Community legislation on non-hazardous waste
2 Directive 91/156, based on article 130s of the EC treaty (now, after amendment, Article 175 EC), aims to achieve a high level of protection of the environment. (4) To that end, the Member States must ensure `the responsible removal and recovery of waste ... [the limitation of] the production of waste', (5) recycling and reuse of waste, (6) a reduction in movements of waste (7) and `provide for authorisation and inspection of undertakings which carry out waste disposal and recovery'. (8)
3 Article 1 of Directive 91/156 defines certain concepts. Thus, it specifies that `waste' is to mean any substance or object in the categories set out in Annex I which the holder discards or intends or is required to discard [Article 1(a)].
4 Pursuant to Article 1(a) of Directive 91/156, a harmonised and non-exhaustive list of waste, commonly known as the `European Waste Catalogue', belonging to the categories listed in Annex I, has been established by the Commission by Decision 94/3/EC of 20 December 1993. (9)
5 Article 1(b) of Directive 91/156 states that `producer' is to mean anyone whose activities produce waste (`original producer') and/or anyone who carries out pre-processing, mixing or other operations resulting in a change in the nature or composition of that waste.
6 Article 1(c) of the abovementioned directive provides that `holder' is to mean the producer of the waste or the natural or legal person who is in possession of it.
7 In accordance with Article 1(d), `management' is to mean the collection, transport, recovery and disposal of waste, including the supervision of such operations and after-care of disposal sites.
8 In accordance with Article 1(g), `collection' is to mean the gathering, sorting and/or mixing of waste for the purpose of transport.
9 The `disposal' and `recovery' of waste are to mean the operations specified in Annexes IIA and IIB [Article 1(e) and (f)], respectively.
10 Commission Decision 96/350/EC of 24 May 1996 (10) adapted Annexes IIA and IIB of Directive 75/442.
11 Directive 91/156 grants a wide discretion to the Member States in determining both the content and the system of the instruments needed for the achievement of its aims.
12 Thus, Article 4 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.'
13 Likewise, Article 6 states that Member States are to establish or designate the competent authority or authorities to be responsible for the implementation of the directive.
14 However, Directive 91/156 obliges the Member States to comply with certain requirements and, in particular, to draw up waste management plans (Article 7), to subject certain activities to the granting of a temporary permit (Articles 9 and 10), to certain inspections and to keeping a record (Articles 13 and 14).
15 For the purposes of implementing Articles 4 and 7 in particular, Article 9 provides that any establishment or undertaking which carries out the operations specified in Annex II A must obtain a permit from the competent authority referred to in Article 6.
16 Decision 96/350 provides that the disposal operations listed in Annex II A, Item D 15, include `[S]torage pending any of the operations numbered D 1 to D 14 (excluding temporary storage, pending collection, on the site where it is produced)'.
17 Article 10 of Directive 91/156 provides that, for the purposes of implementing Article 4, any establishment or undertaking which carries out the operations referred to in Annex II B must obtain a permit.
18 Decision 96/350 states that these operations include, in Item R 13, `Storage of wastes pending any of the operations numbered R 1 to R 12 (excluding temporary storage, pending collection, on the site where it is produced)'.
19 Decision 96/350, adopted by the Commission, on 24 May 1996, in order to comply with Article 17 of Directive 91/156, has replaced the term `storage of materials' which previously appeared at point R 13, by `storage of waste'. (11) By this amendment, the Community legislature intended to make it clear that what was meant by `materials_' - a wholly imprecise concept, not to be found in the `waste' and `hazardous waste' directives - was `waste' as specifically defined by Article 1(a) of Directive 91/156 and by various judgments of the Court. (12) From an analysis of Directives 91/156 and 91/689 it is apparent not only that the concept `materials' is not defined therein but also that it does not appear anywhere other than at point R 13 of Annex II B to Directive 91/156. By this amendment, the Community legislature has resolved some of the definition problems and corrected the inaccuracies and imprecisions of the previous legislation.
20 According to Directive 91/156, some activities can be carried out without any permit being necessary.
21 Article 11 of Directive 91/156 thus provides that, without prejudice to the specific provisions for hazardous waste (Directive 91/689), establishments or undertakings carrying out their own waste disposal at the place of production [Article 11(a)] and establishments or undertakings that carry out waste recovery [Article 11(b)] may be exempted from the permit requirement imposed in Article 9.
22 Likewise, according to Article 13 of Directive 91/156, establishments or undertakings which carry out the operations referred to in Articles 9 to 12 need not obtain a permit to carry out their activities, but are to be subject to appropriate periodic inspections by the competent authorities.
23 Those inspections are to consist, in particular, according to Article 14, as regards the competent authorities within the meaning of Article 6, in obtaining from any establishment or undertaking referred to in Articles 9 and 10 production of the record, which must mention the quantity, nature, origin, and, where relevant, the destination, frequency of collection, mode of transport and treatment method in respect of the waste referred to in Annex I and the operations referred to in Annex II A or B.
The relevant Community legislation on hazardous waste
24 Directive 91/689, which entered into force on 27 June 1995, (13) aims to approximate the laws of the Member States on the controlled management of hazardous wastes (Article 1(1)).
25 Article 1(2) and (3), provides that, `subject to this directive', Directive 91/156 is to apply to hazardous waste, in particular with regard to the definition of `waste' and of the other terms used in Directive 91/689.
26 Article 1(4), first indent, of Directive 91/689 defines hazardous waste. (14)
27 Article 4(1) and (2) of Directive 91/689 provides that Articles 13 and 14 of Directive 91/156 on inspections and keeping records are to apply to producers of hazardous waste. Article 4(2) of Directive 91/689 adds that undertakings transporting hazardous waste must be subject to the obligations of Article 14 of Directive 91/156.
28 Specifically in relation to the general provisions on waste, Article 5 of Directive 91/689 provides that the Member States are to take the necessary measures to ensure that, in the course of collection, transport and temporary storage, waste is properly packaged and labelled in accordance with the international and Community standards in force (paragraph 1). Moreover, in the case of hazardous waste, inspections concerning collection and transport operations made on the basis of Article 13 of Directive 91/156, are to cover more particularly the origin and destination of such waste (paragraph 2).
29 Directive 91/689 provides that the competent authorities are to draw up, in accordance with Article 7 of Directive 91/156, either separately or in the framework of their general waste management plans, plans for the management of hazardous waste and are to make these plans public (Article 6(1) of Directive 91/689). Moreover, it obliges the Commission to compare these plans, and in particular the methods of disposal and recovery, and to make this information available to the competent authorities of the Member States which ask for it (Article 6(2) of Directive 91/689).
The relevant national legislation
30 On 5 February 1997, the Italian legislature transposed Directives 91/156, 91/689 and also Directive 94/62/EC of 20 December 1994 of the European Parliament and of the Council, on packaging and packaging waste, (15) by Decree-Law [DL] No 22/97, implementing the directives, (16) as amended by Decree-Law No 389 of 8 November 1997. (17)
31 Article 6(1) of DL No 22/97, as amended, provides that storage (`stoccaggio') means `disposal comprising storage pending of waste provided for in point D 15 of Annex B and recovery operations comprising the storage of materials as provided for in point R 13 of Annex C.'
32 Points D 15 of Annex B and R 13 of Annex C reproduce Annexes II A and II B of Directive 91/156, respectively, with their wording prior to the revision by Decision 96/350. (18)
33 Article 6(m) of DL No 22/97, as amended, defines `temporary storage' as follows:
`the accumulation of waste, pending collection, on the site where it is produced, subject to the following conditions:
1. The waste stored may not contain polychlorinated dibenzo-p-dioxin, polychlorinated dibenzo-furan, polychlorinated dibenzophenol in quantities in excess of 2.5 ppm, or polychlorinated biphenyls or polychlorinated terphenyls in quantities in excess of 25 ppm.
2. Hazardous waste must be collected and taken for recovery or disposal at least every two months, irrespective of the quantity stored or, alternatively, whenever the volume of hazardous waste stored reaches ten cubic metres.
The maximum period of temporary storage is one year if the volume of waste stored does not exceed 10 cubic metres per year or if, irrespective of quantity, the temporary storage is carried out in establishments located in the smaller islands ("isole minori")
3. Non-hazardous waste must be collected and taken for recovery or disposal at least every quarter, irrespective of the quantity stored or, alternatively, whenever the volume of non-hazardous waste reaches 20 cubic metres.
The maximum period of temporary storage is one year if the volume of waste stored does not exceed 20 cubic metres per year or if, irrespective of quantity, the temporary storage is carried out in establishments located in the smaller islands ("isole minori");
4. Temporary storage must be carried out in respect of homogenous types of waste and in conformity with the relevant technical rules and, in regard to hazardous waste, in conformity with the rules governing the storage of the hazardous substances contained in them;
5. The rules governing packaging and labelling of hazardous wastes must be observed.'
34 Article 28 of DL No 22/97, as amended, inserted in Chapter VI, on authorisations and registrations, provides, in particular, that `authorisation for the disposal and recovery of waste is granted by the competent region at territorial level within the 90 days following submission of the application by the person concerned.'
35 The authorisation system referred to in Article 28 does not, however, apply to `temporary storage'. Article 28(5) of the Decree-Law provides:
`[S]ave for the obligations, laid down in Article 12, for operators to keep records of loading and unloading and the prohibition on mixing, the provisions of this article shall not apply to temporary storage carried out under the conditions laid down in Article 6(1)(m).'
36 36.
Failure to comply with the provisions of Article 28 attracts the criminal penalties specifically listed in Article 51 of DL No 22/97, as amended.
Facts and procedure
37 Mr Lirussi and Mrs Bizzaro are managers, respectively, of a workshop and a laundry in the Udine region (Italy). They obtained permits from the Assessore Regionale all'Ambiente (Regional Counsellor responsible for environmental issues) for the provisional storage of toxic and hazardous waste resulting from the activities of their undertakings and comprising, in the first case, lead batteries and, in the second case, sludge, produced by distillation, from a dry-cleaning machine.
38 The authorisation granted to Mr Lirussi was for a period of five years from 1 April 1992, in respect of a maximum of 0.1 tonnes of waste. With a view to leasing the business, Mr Lirussi gave notice of the imminent termination of the storage and requested withdrawal of the permit on 1 April 1997.
As a result of inspections carried out at his workshop on 8 April and 21 May 1997, it became apparent that 160 kg of used lead batteries had been stored on the premises of the business after the date on which the permit had expired.
39 The permit issued to Mrs Bizzaro on 9 August 1994 was for a quantity of 50 kg of waste. During similar inspections carried out in her laundry, it was established, on the one hand, that the provisional storage had commenced on 6 June 1994, that is to say approximately two months before the permit had been obtained and, on the other hand, that the amount of waste stored by Mrs Bizzaro had exceeded the authorised limit.
40 In the criminal proceedings which followed, the Public Prosecutor pointed out that these unauthorised storage operations could be considered, in both cases, as `temporary storage' within the meaning of the Italian legislation, since the
time-limits and quantities prescribed for this type of storage were not exceeded. The Public Prosecutor considered that, in accordance with Italian law, those operations were not subject to the obligation to obtain a permit or punishable as criminal offences. However, entertaining doubts as to the compatibility of the Italian legislation with the provisions of Community law - and hence wishing to verify that the Community and national concepts on `temporary storage' were the same - he requested the Giudice per le Indagini Preliminari (Investigating Judge) to refer the matter to this Court under Article 177 of the EC Treaty (now Article 234 EC). The Investigating Judge has thus referred to the Court the following questions for a preliminary ruling:
`1.
What is the difference (if any) between "temporary storage" and storage of waste pending further operations (or storage of materials) within the producer's premises, and what are the criteria for determining in a given case which of those forms of storage is involved?
2. Is temporary storage excluded from waste management in the sense contemplated in Article 1(d) of Directive 91/156/EEC and from all the obligations in relation thereto, including the notification of temporary storage to the supervisory authorities?
3. Is temporary storage subject to supervision and, if so, to what type of measures; in that regard do the principles contained in Article 4 of Directive 91/156/EEC apply and to what extent?'
41 In Case C-175/98, the fourth question is worded as follows:
`4. Does the activity carried on by the person under investigation, namely the storage of 160 kg of lead batteries for more than one moth, without any notification to the supervisory authorities, constitute temporary storage under the terms of the directive?'
42 In Case C-177/98, the fourth question is worded as follows:
`4. Does the activity carried on by the person under investigation, namely the storage of 87.5 kg of sludge containing halogenated solvents for more than two months, constitute temporary storage under the terms of the directive?'
Answers to the questions before the Court
43 By his first question and part of his second question, the national judge is asking for a definition of the concept of `temporary storage'. The Court is, in particular, consulted with respect to the criteria for distinguishing between the concepts of `storage pending further operations' and `temporary storage'. It is also asked to say whether the concept at issue falls within `waste management'
within the meaning of Article 1(d) of Directive 91/156.
Moreover, in his second and third questions, the national judge questions the Court on the regime applicable to temporary storage. Finally, by his fourth questions, raised in Cases C-175/98 and C-177/98, the national judge wishes to know if the provisions of the directives in respect of which an interpretation is sought are applicable to the particular cases before him.
The first question and part of the second question
44 All the participants in the present proceedings consider that, although Directive 91/156 is not sufficiently clear, precise and unconditional as to what is meant by `temporary storage', it contains elements which are of help in defining that concept.
45 A certain amount of information can, in fact, be derived from an analysis of Annexes II A and II B (points D 15 and R 13) in the versions resulting from the revision by Decision 96/350, a relevant measure in this case. Annexes II A and II B list specific waste disposal and recovery operations and, in particular, provide as follows:
`NB: This Annex is intended to list disposal operations [Annex II A] or recovery operations [Annex II B] such as they occur in practice.
...
D 15 Storage pending any of the operations numbered D 1 to D 14 (excluding temporary storage, pending collection, on the site where it is produced) [Annex II A]
R 13 Storage of wastes pending any of the operations numbered R 1 to R 12 (excluding temporary storage, pending collection, on the site where it is produced) [Annex II B]'.
46 By stating that the waste recovery or disposal operations include storage pending further operations, but exclude temporary storage, point D 15 of Annex II A and point
R 13 of Annex II B make it clear that temporary storage is differentiated from storage pending further operations and that the latter is a recovery or disposal operation, unlike temporary storage, which is expressly excluded.
47 Annexes II A and II B also state that the temporary storage operation takes place pending collection which, according to Article 1(d) of Directive 91/156, is the first operation in waste management.
48 From the foregoing information it is to be concluded that temporary storage precedes waste management and, in particular, collection and operations prior to one of the recovery or disposal operations listed in D 1 to D 15 and R 1 to R 12.
49 Finally, point D15 of Annex II A, and point R 13 of Annex II B, expressly state that temporary storage is carried out `pending collection, on the site where it is produced' (19), which constitutes information enabling that concept to be situated in time and space.
50 By choosing the adjective `temporary', the Community legislature sought to make it clear that temporary storage must be considered as a waste storage operation carried out over a given period of time. Moreover, by choosing the adverb `pending', the term of this operation is defined. The `collection' of waste, that is to say, let us remember, the operation of gathering, sorting and/or mixing the waste for the purpose of transport for disposal or recovery [Article 1(g)], thus marks the end of the temporary storage operation.
51 The combination of temporal and spatial elements - on the site of production - not only makes it possible to define the beginning and end of the storage operation, but also to determine the nature of that waste and to identify the persons entitled to carry out temporary storage.
52 Point D 15 of Annex II A, and point R 13 of Annex II B, specify that the temporary storage is carried out on the site of production of the waste or on a site which produces waste. The concept of `production' is not defined in Directive 91/156. It can only be understood by comparing it with the concept of `producer', as defined in Article 1(b), which, let me recall, states that producer shall mean `anyone whose activities produce waste ("original producer") and/or anyone who carries out pre-processing, mixing or other operations resulting in a change in the nature or composition of this waste'. (20) It must therefore be concluded that the temporary storage of waste is linked to the activity of a producer within the meaning of Article 1(b) of Directive 91/156.
53 It follows from the above, on the one hand, that the waste involved in temporary storage is waste resulting from the initial activity of the producer or from pre-processing, mixing or other operations leading to a change in the nature or composition of the waste, and, on the other hand, that temporary storage is an operation consecutive to the production of the waste, which begins just after the production of the waste and terminates, as we have seen, with its collection.
Finally, the holder of the right to store waste temporarily is either the original producer or the person who carries out the waste recovery or disposal operations.
54 That analysis finds specific confirmation in the fact that temporary storage must precede waste management. (21) Only waste which results directly and immediately from production - therefore `raw' in the sense that it is, above all, waiting to be sorted, gathered and mixed - is capable of complying with that requirement.
55 In conclusion, temporary storage must be defined as the operation, preparatory to waste management within the meaning of Article 1(d) of Directive 91/156 and distinct from it, which:
- precedes storage pending further operations, and collection;
- immediately follows the waste production phase; and
- is carried out on the site where the waste is produced. Moreover, temporary storage only relates to waste resulting from the initial activity of a producer or from the pre-processing, mixing or other operations leading to a change in the nature or composition of the waste. It can only benefit original waste producers or producers who carry out disposal or recovery operations.
The second and third questions
56 By these questions, which it is appropriate to examine together, the national judge is questioning the Court about the regime applicable to temporary storage. Specifically, he wishes to know if the defendants in the main proceedings, before carrying out the temporary storage operations for waste resulting from their activities, must comply with particular obligations or principles. Thus, he asks the Court whether the competent national authorities are required, on the one hand, to inspect and supervise this type of operation and, on the other hand, to ensure that the principles laid down in Article 4 of Directive 91/156 are observed.
57 From an analysis of the Directives 91/156 and 91/689, it may be that the regime applicable to waste differs according to the activity carried out by the persons storing it and on the nature of the waste.
(a)
The obligations laid down by Directives 91/156 and 91/689.
58 Directive 91/156 sets out various obligations according to whether the persons storing the waste are producers of waste, (22) undertakings or establishments which carry out the waste disposal or recovery operations listed in Annexes II A and II B of Directive 91/156 (23) or undertakings and establishments which as part of their business collect or transport waste or which ensure the disposal or recovery of waste on behalf of third parties (dealers and brokers). (24)
59 In the light of the facts set out by the national judge, it seems that the defendants in the main proceedings are waste producers who neither recover nor dispose of, on the site of production, the waste resulting from the activity which they carry out. As regards these persons, Directive 91/156 does not impose any particular obligation. However, under the terms of Article 14(1), second indent, the Member States may, optionally, require those persons to keep the records provided for in Article 14(1), first indent, and oblige them to produce the information contained in those records to the competent authorities within the meaning of Article 6 of Directive 91/156.
60 In any event, it is for the national judge to assess the facts, to determine the type of activity carried out by the defendants in the main proceedings, and to verify whether the obligations laid down in the Community legislation have been complied with. If it appears that those persons are, in fact, producers of non-hazardous waste, who neither recover or dispose of, on the site of production, the waste resulting from the activities they carry out, the answer to the national judge's question will be that it is only on an optional basis and following a decision of the Member State that those producers may be made subject to the obligation to keep the record provided for in Article 14 of Directive 91/156 and to submit it to the authorities competent for that purpose.
61 However, if the waste is hazardous, the Community legislature requires compliance with an alternative, more rigorous, regime.
62 Under Directive 91/689, `hazardous waste' means waste included on the list established in accordance with Article 18 of the `waste' directive and on the basis of Annexes I and II to the `hazardous waste' directive. Annexes I A and I B make up Annex I. Annex I B relates to `[W]astes which contain any of the constituents listed in Annex II and having any of the properties listed in Annex III and consisting of: 19) animal or vegetable soaps, fats, waxes ... 37) batteries and other electrical cells.' Annex II contains the `constituents of the wastes in Annex I.B. which render them hazardous when they have the properties described in Annex III'. This list contains, under point C18: lead, lead compounds; C29: chlorates; C40: halogenated solvents, and C41: organic solvents, excluding halogenated solvents.
That same provision specifies that hazardous waste must show one or several of the characteristics listed in Annex III (for example, be irritant, harmful, toxic, carcinogenic, corrosive, infectious, teratogenic, mutagenic, etc.). That list, which is not exhaustive, takes account of the origin and composition of the waste and, where appropriate, the limit-values of concentration. It is regularly re-examined and, if necessary, revised according to the same procedure.
Under Article 1(4), second indent, of Directive 91/689, any other waste which a Member State considers possesses one of the characteristics listed in Annex III must also be regarded as hazardous. These cases are notified to the Commission and re-examined in accordance with the procedure provided for in Article 18 of the `waste' directive with a view to adapting the aforementioned list.
63 On the basis of the facts submitted by the national judge, it seems that the defendants in the main proceedings are producing hazardous waste. He indicates that the waste produced by Mr Lirussi and Mrs Bizzaro is, specifically, toxic and hazardous waste made up of lead batteries and sludge produced by distillation from dry cleaning. (25) In any case, it is for the national judge to determine the hazardous nature of the waste produced, taking account of the criteria supplied by the Community provisions specially enacted for this purpose.
64 If the national judge finds that the defendants in the main proceedings are producers of hazardous waste, who do not, themselves, carry out the disposal or recovery of the waste resulting from their activities, he must ensure that the obligations imposed by the `hazardous waste' directive have indeed been complied with.
65 First, in accordance with Article 4(1) and (2) of Directive 91/689, producers of hazardous waste must be made subject to the obligations laid down in Articles 13 and 14 of Directive 91/156, in particular, the obligation concerning regular inspections and supervision and the obligation to keep a record containing adequate information and to submit the information contained in that record to the competent authorities.
66 Second, the Member States must take the measures necessary to ensure that, in the course of collection, transport and temporary storage, waste is properly packaged and labelled in accordance with the international and Community standards in force (Article 5 of Directive 91/689).
(b) The principles laid down in Directive 91/156
67 Finally, the national judge has asked the Court to say whether, in the context of the activities carried out by the defendants in the main proceeding and in particular at the time of temporary storage of the waste produced, they are subject to the principles contained in Article 4 of Directive 91/156.
68 Article 4(1) of Directive 91/156 gives expression to the prevention principle which is to be found in Article 130 r(2), first subparagraph, second sentence, of the EC Treaty (now, after amendment, Article 174(2) EC, first subparagraph, second sentence). By this principle, the Community and the Member States are recommended to prevent, from the outset, the creation of pollution or nuisance by adopting measures to eradicate a known risk. (26) The action of the national or Community legislature consists, therefore, in planning and guiding technical progress in order to respond to environmental concerns and improve the quality of life. These preventive measures more often than not comprise risk recovery instruments, (27) supervision of ecological environments, drawing up and updating technical standards, controling and sanctioning polluting activities, information and education measures.
69 Let us bear in mind that Article 4(1) of Directive 91/156 obliges Member States to take the necessary measures to ensure the recovery and disposal of waste in a safe and healthy way for the environment, that is to say, in such a way as to avoid pollution.
70 The Member States are, in particular, recommended to ensure that, in the course of the various waste-processing operations for disposal or recovery, no damage is caused to water, air, the ground, people, animals, plants, the countryside and sites of particular interest. Thus, to satisfy the obligations, it would not be sufficient for hazardous waste which is toxic and harmful to water and the air to be put in tanks which do not allow contact with the ground. It would still have to be verified that emissions which are toxic and harmful to the ozone layer are avoided. Likewise, authorising non-hazardous waste to be deposited in large amounts and unaesthetically (for example, waste placed in a large refuse skip whose gaudy colour attracts attention, pending sorting and gathering, or waste stored in heaps, close to a site of particular interest - such as a cathedral, castle, etc.), will not comply with the requirements of the directive.
71 The Community legislature was careful to specify that damage includes not only damage to human health, but also to the countryside, sites of particular interest and nuisance caused by noise or odours.
72 The concern is therefore to introduce preventive measures to enable pollution, in its widest sense, to be avoided, that is to say, to prescribe measures which prevent the creation of damage, not only to human health, but also to the quality of life.
73 It seems to go without saying that, even if stored temporarily, hazardous waste can cause significant, indeed irreparable, damage to the environment. Such would be the case if the premises of a garage owner who `produces' waste comprised of lead batteries, were situated near a river or a children's play area and did not contain any prevention equipment or if no precautions were taken to prevent lead from discharging into the soil or water. It must therefore be concluded that the prevention principle also applies to temporary storage.
74 Article 4(2), and Article 8 of Directive 91/156 specify, moreover, the aims which must be achieved by the Member States in order to conform to the prevention principle. These involve, respectively, prohibiting the abandonment, dumping or uncontrolled disposal of waste (adopting measures to prevent the accumulation of waste discharged at random) and checking that those who hold waste - in particular the producer (28) - send it to a private or public collector or to an undertaking which carries out the operations referred to in Annexes II A or II B or themselves carry out recovery or disposal, in accordance with the provisions of the directive and, in particular, Article 4 thereof. The methods for achieving these aims have not been defined. It is therefore, for the Member States to prescribe them.
75 The control and supervision of waste-producing sites and of the various pre-processing and waste management operations on those sites are the most commonly used and most efficient instruments. For the operations to be carried out properly, it is must be verified that temporary storage does not last for longer than necessary and that the waste stored temporarily does not cause damage to the environment. Moreover, these instruments of control and supervision have the advantage of satisfying the principle of proportionality to which both the common environmental policy and the environmental policies of the Member States (29) are subject.
76 In other words, I consider that Article 4 of Directive 91/156 places an obligation on the Member States to observe the prevention principle by adopting the necessary measures to ensure the recovery or disposal of waste. I therefore think that this obligation is, as such, unconditional and sufficiently precise. On the other hand, that provision does not state the content of those measures. As a result, it is for the Member States to define it. (30) I maintain that my reasoning is not contradicted by the judgment in Comitato di Coordinamento per la Difesa della Cava and Others. (31) That judgment, in my view, is confined to replying to the question whether Article 4 contains obligations which are sufficiently clear, precise and unconditional with regard to the content of the measures that the Member States must adopt in order to ensure compliance with the prevention principle. Like the Court, I believe that the answer to that question must be in the negative.
77 It follows, from the foregoing that the prevention principle laid down in Article 4 of Directive 91/156 also applies to the concept of temporary storage and that the Member States, which have the best knowledge of the places to be protected, are required to prescribe, by such means as they see fit, the measures necessary to secure compliance with that principle.
78 From all these considerations it follows that the regime applicable to waste does not depend on the nature of the storage, but, on the one hand, on the activity in which the persons managing it are engaged and, on the other hand, on the nature of the waste in question. It is for the national judge to categorise the activity carried out by the defendants in the main proceedings and the nature of the waste that their activities generate. If it appears that those persons are producers of hazardous waste, it is for the national judge to verify, in accordance with Articles 4 and 5 of Directive 91/689, on the one hand, that those activities are subject to the obligations, laid down in Articles 13 and 14 of Directive 91/156, for periodic inspection and supervision, to the keeping of a record containing the prescribed information and to submission of that information to the competent authorities referred to in Article 6 and, on the other hand, that, in the course of collection, transport and temporary storage, the hazardous waste is suitably packaged and labelled in accordance with the international and Community standards in force. In any case, all the operations listed in Directive 91/156 [temporary storage pending collection, management operations under Article 1(d) of Directive 91/156] are subject to compliance with the prevention principle formulated in Article 4 of Directive 91/156 and to the aims stated in that provision and also in Article 8 of Directive 91/156. It is for the Member States to define the appropriate measures for putting into effect that principle laid down in Article 4(1) of Directive 91/156 and to achieve the aims set out in Articles 4(2) and 8 of the directive.
The fourth questions in Cases C-175/98 and C-177/98
79 The national judge asks the Court to say whether the matters with which the defendants in the main proceedings are charged constitute temporary storage within the meaning of the `waste' directive. By these questions the Court is specifically being asked to say whether the Community provisions whose interpretation has been requested are applicable to the facts of the cases before the national court.
80 The Court has consistently held that, based on a clear separation of functions between national courts (32) and itself, Article 177 of the Treaty does not enable it either to take cognisance of the facts of the case, or to criticise the reasons for the request for interpretation, or to apply the Community rules which it has interpreted to national measures or situations, since these questions are matters exclusively for the national court. (33)
81 As a result, I propose that the Court declare these questions inadmissible.
Conclusion
82 In the light of the foregoing considerations, I propose that the Court give the following answers to the questions put by Pretura Circondariale, Udine (Ufficio del Giudice per le Indagini Preliminari):
(1) Temporary storage operation must be defined as the operation prior to and distinct from a waste management operation, within the meaning of Article 1(d) of Directive 91/156 of 18 March 1991, amending Directive 75/442/EEC on waste, which:
- precedes operations of storage pending collection and of collection;
- immediately follows the waste-production phase;
- is carried out on the site where the waste is produced;
- relates only to waste resulting from the initial activity of a producer or resulting from the pre-processing, mixing or other operations leading to a change in the nature or composition of the waste, and
- can benefit only the original producers of waste or those who carry out disposal or recovery operations.
(2) The regime applicable to waste within the meaning of Directive 91/156 does not depend on the nature of the storage of the waste, but, on the one hand, on the activity in which the persons holding it are engaged and, on the other hand, on the nature of the waste in question. It is for the national judge to categorise the activity engaged in by the defendants in the main proceedings and the nature of the waste that their activities generate. If it appears that those persons must be considered as producers of hazardous waste, it is for the national judge to verify, in accordance with Articles 4 and 5 of Council Directive 91/689/EEC of 12 December 1991 on hazardous waste, that;
- the activities in which those producers are engaged are subject, in accordance with Articles 13 and 14 of Directive 91/156:
- to the obligations of periodic inspection and supervision by the competent authorities within the meaning of Article 6 of that directive;
- to the requirement to keep a record and to submit the information that it contains to the competent authorities referred to in Article 6 of the directive;
- in the course of collection, transport and temporary storage, the hazardous waste is suitably packaged and labelled in accordance with the international and Community standards in force.
In any case, all the operations listed in Directive 91/156 [temporary storage and storage pending collection, management operations within the meaning of Article 1(d) of Directive 91/156] are subject to compliance with the prevention principle laid down in Articles 4(1) of the said directive and with the aims defined in Articles 4(2) and 8 thereof. It is for the Member States to define the appropriate measures for giving effect to that principle and those aims.
(1) - OJ 1991 L 78, p 32.
(2) - Council Directive of 15 July 1975 (OJ L 1975 194, p 39).
(3) - OJ 1991 L 377, p 20.
(4) - First and fourth recitals.
(5) - Fourth recital.
(6) - Sixth recital.
(7) - Eighth recital.
(8) - Tenth recital.
(9) - Decision establishing a list of waste, pursuant to Article 1(a) of Directive 75/442 (OJ 1994, L 5, p. 15).
(10) - OJ 1996 L 135, p 32.
(11) - The emphasis is mine.
(12) - Judgments in Joined Cases C-304/94, C-330/94, C-342/94 and C-224/95 Tombesi and Others, [1997] ECR I-3561, and Case C-129/96 P Inter-Environnement Wallonie [1997] ECR I-7411.
(13) - See Council Directive 94/31/EC of 27 June 1994, amending Directive 91/689 (OJ 1994 L 168, p 28).
(14) - See point 62 of this Opinion.
(15) - OJ 1994 L 365, p 10.
(16) - GURI, ordinary supplement No 37 of 15 February 1997, hereinafter `DL No 22/97'.
(17) - GURI No 261 of 8 November 1997; see consolidated text in GURI, ordinary supplement No 278 of 28 November 1997.
(18) - See point 19 of this Opinion.
(19) - My emphasis.
(20) - Ibidem.
(21) - See points 45 to 47 of this Opinion.
(22) - Articles 11(1) and (2), 13 and 14, second indent, of Directive 91/156.
(23) - Articles 9(1), 10, 14(1), first and second indents, and 13 of Directive 91/156.
(24) - Articles 12 and 13 of Directive 91/156.
(25) - See also the wording of the four questions put by the national judge which refer to `halogenated solvents' and `lead batteries', which, under the terms of Article 1 of Directive 91/689, constitute hazardous waste.
(26) - See, in particular, the definition of this principle given in the first plan of action (declaration of the Council of the European Communities and representatives of the Governments of the Member States gathered within the Council, on 22 November 1973, with regard to a plan of action for the European Communities with regard to the environment, OJ 1973 C 112, p1).
(27) - See, for example, Council Directive 85/337/EEC of 27 June 1985, on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p 40), and, in particular, the judgments in Case C-81/96 Gedeputeerde Staten van Noord-Holland [1998] ECR I-3923, paragraph 27, and Case C-293/97 Standley and Others [1999] ECR I-2603 paragraph 35).
(28) - Article 1(c) of Directive 91/156.
(29) - See, in particular, the judgments in Case C-284/95 Safety Hi-Tech [1998] ECR I-4301, paragraph 57 in Case C-341/95, Bettati [1998] ECR I-4355, paragraph 55, and in Case C-389/96 Aher-Waggon [1998] ECR I-4473, paragraph 20.
(30) - Similarly, see the reasoning adopted by the Court in its judgment in Case C-131/97 Carbonari and Others [1999] ECR I-1103, paragaphs 44 to 47.
(31) - Case C-236/92 [1994] ECR I-483.
(32) - Since the judgment in Case 13/61 De Geus [1962] ECR 45.
(33) - See also judgments in Case 13/68 Salgoil [1968] ECR 453; Case 51/74 Van der Hulst [1975] ECR 79, paragraph 12; Case 35/76 Simmenthal [1976] ECR 1871, paragraphs 7 and 8; Case 5/77 Tedeschi [1977] ECR 1555, paragraph 17; Case 222/78 ICAP [1979] ECR 1163, paragraph 10; Case 36/79 Denkavit [1979] ECR 3439, paragraph 12; and, for a more recent example, judgment Case C-235/95 Dumon and Froment [1998] ECR I-4531, paragraph 25.