JOINED OPINION OF MR ADVOCATE GENERAL JACOBS DELIVERED ON 13 DECEMBER 1989. - CRIMINAL PROCEEDINGS AGAINST GIOVANNI VESSOSO ET GIORGIO ZANETTI. - REFERENCE FOR A PRELIMINARY RULING: PRETURA DI ASTI - ITALY. - JOINED CASES 206/88 AND 207/88. - CRIMINAL PROCEEDINGS AGAINST ENRICO ZANETTI AND OTHERS. - REFERENCE FOR A PRELIMINARY RULING: PRETURA DI SAN VITO AL TAGLIAMENTO - ITALY. - CASE 359/88. - APPROXIMATION OF LAWS - WASTE - CONCEPT - AUTHORISATION AND INSPECTION OF THE DISPOSAL OF WASTE.



European Court reports 1990 Page I-01461



Opinion of the Advocate-General

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My Lords,

1 . These cases come before the Court by way of references for preliminary rulings by, in Joined Cases C-206/88 and C-207/88, the Pretura di Asti, and, in Case C-359/88, the Pretura di San Vito al Tagliamento . They each concern the interpretation of Directives 75/442/EEC on waste ( Official Journal 1975, L 194, p . 39 ) and 78/319/EEC on toxic and dangerous waste ( Official Journal 1978, L 84, p . 43 ) and the effect of these directives in criminal proceedings before national courts . In view of the similarity between the issues raised, I can consider all three cases in one Opinion .

The facts

2 . In Cases C-206/88 and C-207/88, the defendants are charged with contravening Article 25 of Presidential Decree No 915 of 10 September 1982 (" the decree ") by carrying out the disposal of urban and special waste by collecting, transporting and storing it without prior authorization . The defendants argue in their defence that they were not collecting and storing waste but various materials which had been salvaged and were capable of economic reutilization .

3 . Apparently, the referring court has dealt with a number of similar cases in the past, in each of which it found the defendants guilty . Other courts, however, had taken the view that salvaged material which was capable of reuse did not constitute waste for the purposes of the decree . The referring court states that, in 1987, the Court of Cassation delivered a ruling ( judgment of 14 April 1987 Perino ) upholding the approach of that court . In spite of this, however, the referring court considers it desirable to seek the guidance of this Court, as the decree was adopted to give effect to three EEC directives, including the two mentioned above . The question referred is the same in both cases and asks :

"whether Article 1 of Council Directive 75/442/EEC of 15 July 1975 on waste and Article 1 of Council Directive 78/319/EEC of 20 March 1978 on toxic and dangerous waste must be interpreted as meaning that the legal concept of waste must also cover things which the holder has disposed of which are capable of economic reutilization and whether the said articles must be interpreted as meaning that the term 'waste' presupposes the establishment of animus dereliquendi on the part of the holder of the substance or object ".

4 . Case C-359/88 arises out of the stripping of metal surfaces by galvanizers . This involves the chemical removal of the oxidized parts so that the surfaces can be plated with zinc and is done by dipping the metal in concentrated solutions of hydrochloric acid . After a while, the acid can no longer be used for this purpose and is discarded . This is more expensive than purchasing the acid in the first place . The discarded acid can, however, be used by undertakings engaged in the production of ferric chloride . The acid is highly dangerous and is transported to such undertakings in sealed containers .

5 . The defendants, who are all based in the region of Friuli Venezia-Giulia, undertake the transportation of spent acid from that region to other regions of Italy . They are being prosecuted, again under the decree, for having done so without the authorization of the Friuli Venezia-Giulia regional administration .

6 . In the course of the proceedings before the national court, it transpired that one of the defendants was in possession of a permit issued by the Lucca provincial administration and that the Friuli Venezia-Giulia regional administration took the view that no authorization was needed in these circumstances . The national court was also in doubt as to whether the acid solutions could be regarded as waste within the meaning of the decree .

7 . The following questions were therefore referred to the Court :

"Has the Italian legislature adopted in Article 2(1 ) of Presidential Decree No 915 of 1982 a definition of waste which is in conformity with Directives 75/442 and 78/319?

Has the Italian legislature complied with Article 10 of Directive 75/442 in imposing the requirement of authorization solely for the disposal of toxic and harmful waste, whereas ( Article 16 of Presidential Decree No 915 of 1982 ) it does not provide for the issue of individual authorizations in respect of similar operations involving special waste?

Has the Italian legislature, in providing for the issue of individual regional authorizations for the transportation of waste, complied with the terms of Article 5 of Directive 75/442 in the sense that the competent authorities would appear to be limited to those responsible for a 'given zone' ?"

8 . Thus, it will be seen that the first question is in substance the same as that raised in Cases C-206/88 and C-207/88 but that the second and third questions raise different issues . These questions as framed cannot, in proceedings under Article 177 of the Treaty, be answered directly, as they call for an assessment of the compatibility of the relevant provisions of Italian law with the two directives at issue . This is a matter within the exclusive jurisdiction of the referring court . However, this Court is free to extract from the questions referred the elements concerning the interpretation of Community law in order to permit the referring court to resolve the problems with which it is confronted .

The national legislation

9 . Article 2(1 ) of the decree defines waste as "any substance or object produced by human activity or natural processes which is, or is intended to be, abandoned ". I note in passing that Article 1 of the decree, which is concerned with "General Principles", refers to the reuse and recycling of waste within the meaning of Article 2, thus implying that a substance does not cease to be waste for the purposes of the decree simply because it can be dealt with in this way .

10 . Under Article 2(2 ) of the decree, waste is divided into three categories :

( a ) urban waste, i.e . basically bulky waste and waste discarded in public places;

( b ) special waste, i.e . industrial residues and agricultural and commercial waste;

( c)toxic and dangerous waste, i.e . waste containing substances listed in an annex to the decree .

It is common ground in Case C-359/88 that if the spent hydrochloric acid in question constitutes waste at all, then it is special waste for the purposes of the decree .

11 . Article 16 of the decree provides that each stage in the disposal of toxic and dangerous waste must be authorized and refers expressly to collecting and transporting such waste as two of the stages for which authorization is required . The defendants in Case C-359/88 argue that since there is no precisely corresponding provision dealing with special waste, the transportation of such waste does not need to be authorized .

12 . The opposing view is that the disposal ( and therefore transportation ) of special waste is, as a result of Articles 6(d ) and 25 of the decree, always subject to authorization in the case of waste produced by third parties . Article 25 of the decree provides for the imposition of criminal penalties on those who are responsible for the disposal of urban and special waste produced by third parties without having obtained authorization in accordance with Article 6(d ). This provision gives to the regions responsibility for authorizing undertakings to carry out the disposal of urban and special waste produced by third parties .

The directives

13 . As is apparent from their preambles, the essential aims of Directives 75/442 and 78/319 are twofold . First, they are designed to harmonize national provisions on waste in order to prevent disparities between those provisions from distorting competition and creating obstacles to trade between Member States . Secondly, they are intended to help protect human health and the environment against harmful effects caused by the collection, transport, treatment, storage and tipping of waste . These aims were to be achieved by means including the establishment of a system of permits for waste disposal undertakings and the supervision by public authorities of operations involving the production and disposal of waste .

14 . Article 1(a ) of both directives provides that "' waste' means any substance or object which the holder disposes of or is required to dispose of pursuant to the provisions of national law in force ". Article 1(b ) of Directive 78/319 goes on to say that "toxic and dangerous waste" means waste containing or contaminated by substances listed in the annex to the directive to such an extent as to constitute a risk to health or the environment .

15 . Article 5 of Directive 75/442 provides that "Member States shall establish or designate the competent authority or authorities to be responsible, in a given zone, for the planning, organisation, authorization and supervision of waste disposal operations ".

16 . Article 8 of Directive 75/442 provides that "... any installation or undertaking treating, storing or tipping waste on behalf of third parties must obtain a permit from the competent authority referred to in Article 5, relating in particular to :

( i ) the type and quantity of waste to be treated,

( ii ) general technical requirements,

( iii ) precautions to be taken,

( iv ) the information to be made available at the request of the competent authority concerning the origin, destination and treatment of waste and the type and quantity of such waste ".

17 . Article 10 of Directive 75/442 provides : "Undertakings transporting, collecting, storing, tipping or treating their own waste and those which collect or transport waste on behalf of third parties shall be subject to supervision by the competent authority referred to in Article 5 ."

The Court' s case-law

18 . This is not the first time the Court has had to consider Community legislation on waste . In Joined Cases 372 to 374/85 Ministère public v Traen and Others (( 1987 )) ECR 2141, the Court observed that Directive 75/442 was, as a result of the definition of waste given in Article 1, broad in scope . However, it acknowledged that the directive drew a distinction between authorization and supervision, pointing out that the obligation to obtain a permit laid down in Article 8 applied only to undertakings disposing of waste on behalf of third parties . Undertakings which disposed of their own waste were, in accordance with Article 10, only "subject to supervision by the competent authority referred to in Article 5 ".

19 . As far as Article 5 was concerned, the Court observed that no restrictive criteria as to the competent authorities to be established or designated by the Member States were laid down . Member States therefore remained free in their choice of authority . Similarly, the discretion enjoyed by Member States in organizing the supervision required by Article 10 was limited only by the requirement that the objectives of the directive, namely the protection of human health and the environment, be respected .

20 . Directive 75/442 was also at issue, along with three other directives, in Joined Cases 227 to 230/85 Commission v Belgium (( 1988 )) ECR 1 . There the Commission had instituted proceedings under Article 171 of the Treaty against Belgium for failure to comply with earlier judgments of the Court in which the Court had declared that, by failing to implement a number of directives within the prescribed periods, Belgium was in breach of its obligations under the Treaty . One of the arguments put forward by Belgium in its defence was that the delay in giving effect to the Court' s earlier rulings resulted from difficulties arising from the transfer of a substantial number of powers to new regional institutions . The Court observed :

"As the Court stated in its judgments of 25 May 1982 ( Cases 96/81 and 97/81 Commission v Netherlands (( 1982 )) ECR 1791 and 1819 respectively ), each Member State is free to delegate powers to its domestic authorities as it considers fit and to implement directives by means of measures adopted by regional or local authorities . That division of powers does not however release it from the obligation to ensure that the provisions of the directives are properly implemented in national law" ( paragraph 9 ).

The questions

21 . Observations have been submitted in each of the present cases by the Italian Government and the Commission and there is a large measure of agreement between them . On the interpretation of "waste" for the purposes of the directives, I agree with them : the response to the questions referred in Cases C-206/88 and C-207/88 and to the first question referred in Case C-359/88 must in my view be that "waste" does cover things which are capable of reutilization and that the intention of the holder is not relevant .

22 . As the Court emphasised in Traen, the definition of waste laid down in Directive 75/442 is broad in scope and the same is necessarily true of the equivalent definition contained in Directive 78/319 . Neither definition contains any suggestion that the intention of the holder is relevant . For them to do so would, in my view, be inconsistent with the purpose of the directives, for the question whether a substance or object poses a threat to human health or the environment is an objective, not a subjective, one . It has nothing to do with the intention of the person disposing of the substance . Nor is the possibility of such a threat affected by whether or not the product can be recycled or reused . No one denies that the spent acid solution at issue in Case C-359/88 is highly dangerous, notwithstanding the fact that there are certain undertakings which can make use of it . Indeed, in view of the objectives of the directives, the Council had every reason to require that such a substance be subjected to the control procedures laid down in them . It is clear, in any event, from Articles 1(b ) and 3(1 ) and ( 2 ) of Directive 75/442 and Articles 1(c ) and 4 of Directive 78/319, all of which refer in various terms to the reuse or recycling of "waste", that the fact that a substance or object can be dealt with in this way does not affect the question whether it constitutes "waste" for the purposes of the directives in the first place .

23 . Accordingly in my view a substance or object may constitute waste within the meaning of the directives even if it is capable of being reused and regardless of the holder' s intention or purpose in disposing of it . But I think it is necessary in this case to add a qualification to the answer which I have reached to the question of interpretation .

24 . It appears to have been assumed, in the reference by the national court and in the observations which have been submitted to this Court, that the Italian decree must be interpreted consistently with the directives, the more so since the decree expressly refers to them . In other circumstances, that assumption would certainly be correct . The Court has stated that, in applying national law, and in particular the provisions of a national law specifically introduced in order to implement a directive, national courts are required to interpret their national law in the light of the wording and purpose of the directive : see Case 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen (( 1984 )) ECR 1891 . That rule of interpretation may thus have the result that obligations may arise and be enforceable in civil proceedings between private parties which would not result from an interpretation of the national legislation taken in isolation .

25 . But that rule must, in my view, be qualified in criminal proceedings where the effect of interpreting national legislation in that way would be to impose criminal liability in circumstances where such liability would not arise under the national legislation taken alone . The reason for that qualification is that an extensive interpretation of penal legislation runs counter to the fundamental principle of legality ( nullum crimen, nulla poena sine lege ).

26 . It is established that, in the absence of implementing legislation, a directive cannot, of itself, have the effect of determining or aggravating the liability in criminal law of persons who act in contravention of the directive : see Case 14/86 Pretore di Salò v Persons Unknown (( 1987 )) ECR 2545 and Case 80/86 Kolpinghuis Nijmegen (( 1987 )) ECR 3969 . In my view, similar principles apply where a Member State has introduced legislation to give effect to a directive but that legislation, although creating criminal liability, does not specify clearly and unambiguously all the circumstances in which that liability arises . I do not consider that national courts are required, as a matter of Community law, to interpret domestic legislation in the light of the wording and purpose of directives where the result would be to impose criminal liability which would not otherwise arise . It is for the referring courts to consider whether the national legislation at issue here can be interpreted consistently with the relevant directives, without resorting to an extensive interpretation which would be contrary to the principle of legality .

27 . As far as the second question referred in Case C-359/88 is concerned, the Court recognized in Traen that Directive 75/442 drew a distinction between operations requiring prior authorization and those which were merely subject to supervision . The Court acknowledged, however, that in giving effect to the directive, Member States were free to insist on permits in cases which the directive only requires to be subject to supervision .

28 . The transport of waste within the meaning of Article 1 of the directive is not referred to in Article 8 as one of the operations for which undertakings must be required to obtain prior authorization . Article 10 of the directive requires the transport of waste on behalf of third parties to be subject to supervision, but does not require prior authorization . There is no reason in my view why these provisions should not be taken at face value . However, I do not consider that Member States are prevented by the directive from requiring permits to be obtained for the transport of certain categories of waste if they consider this desirable .

29 . The third question referred by the Pretore in Case C-359/88 asks for guidance on the obligations imposed on Member States by Article 5 of Directive 75/442 . The Pretore takes the view that the terms of that provision suggest that the validity of permits issued by the competent authority is to be limited to the zone for which that authority is responsible . The result would be that, where waste was being transported from one zone to another, a separate permit would be needed for each zone crossed . Because of the practical difficulties this would entail, the Pretore considers that the directive might, on its proper construction, require responsibility for issuing such permits to be granted to authorities with national jurisdiction .

30 . It is possible in the light of what I have said so far that it will not be necessary to answer the third question referred by the Pretore in Case C-359/88 . If a response is required, however, I believe the Court should follow the approach taken in Commission v Belgium and Traen on this point . I would add, however, as the Commission suggests,that excessive division of responsibility for carrying out the duties listed in Article 5 of the directive may jeopardize the achievement of the directive' s aims and is not therefore permissible .

31 . I am therefore of the view that the questions referred in Joined Cases C-206/88 and C-207/88 and the first question referred in Case C-359/88 should be answered as follows :

"Article 1(a ) of Directive 75/442 of the Council of 15 July 1975 and Article 1(a ) of Directive 78/319 of the Council of 20 March 1978 must be interpreted as meaning that a substance or object may constitute waste for the purposes of those provisions even if it is capable of being reused and regardless of the holder' s intention or purpose in disposing of it .

A court of a Member State is not required to interpret its national legislation in the light of the wording and purpose of a directive where the result would be to impose criminal liability in circumstances where such liability would not otherwise arise ."

32 . The second question referred in Case C-359/88 should be answered as follows :

"Article 10 of Directive 75/442 must be interpreted as meaning that Member States are not required to subject the transport on behalf of third parties of waste within the meaning of Article 1(a ) to prior authorization by the competent authority referred to in Article 5 . Member States are not, however, precluded by the directive from requiring prior authorization in such cases ."

33 . The third question referred in Case C-359/88 should, if necessary, be answered as follows :

"In establishing or designating the competent authority or authorities for the purposes of Article 5 of Directive 75/442, Member States are constrained only by the need to ensure respect for the aims of the directive, namely the protection of human health and the environment . Member States must not therefore divide responsibility for carrying out the duties listed in Article 5 to such an extent that the achievement of those aims is jeopardized ."

(*) Original language : English .