Opinion of Mr Advocate General Fennelly delivered on 8 February 1996. - Criminal proceedings against Sandro Gallotti, Roberto Censi, Giuseppe Salmaggi, Salvatore Pasquire, Massimo Zappone, Francesco Segna and others, Cesare Cervetti, Mario Gasbarri, Isidoro Narducci and Fulvio Smaldone. - Reference for a preliminary ruling: Pretura circondariale di Roma - Italy. - Approximation of laws - Waste - Directive 91/156/EEC. - Joined cases C-58/95, C-75/95, C-112/95, C-119/95, C-123/95, C-135/95, C-140/95, C-141/95, C-154/95 and C-157/95.



European Court reports 1996 Page I-04345



Opinion of the Advocate-General

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I - Introduction

1 The present reference raises questions both of a procedural character, on the approach the Court should adopt to questions submitted by a national court based on a misinterpretation of the relevant provisions of Community law, and of a substantive nature, concerning the obligations of the Member States under certain provisions of Council Directive 91/156/EEC of 18 March 1991 amending Directive 75/442/EEC on waste (hereinafter `the 1991 Waste Directive' or `the Directive', depending on the context). (1)

II - Facts and procedure in the main proceedings

2 These requests for preliminary rulings arise from criminal proceedings brought in Italy at various dates against a number of defendants for breaches of national legal provisions in the area of the management, treatment and disposal of waste. In no case, however, is the Court informed of the substance, nature or date of the commission of any alleged offences, except in so far as these may be deduced from the reference to certain provisions of Italian legislation on waste which impose penal sanctions.

3 In Case C-58/95 Gallotti, the Pretura Circondariale, Rome (Rome District Magistrates' Court), Tivoli Division, referred two questions to the Court phrased in the following terms:

`A. The Court of Justice of the European Union is requested to give a preliminary ruling on the legal effect of the Italian Republic's failure to bring into force the necessary measures to implement Council Directive 91/156/EEC within the prescribed time-limit.

B. In particular, this court seeks to ascertain whether the existence of criminal penalties, and in particular those provided for in Article 25 et seq. of Presidential Decree No 915/82 for failure to observe the Italian rules, may be considered to conflict with Community legislation intended to ensure uniform treatment for operators in the Single Market including as regards penalties.'

4 Identically worded questions were referred to the Court by the same court in Cases C-75/95 Censi, C-112/95 Salmaggi, C-123/95 Zappone, C-135/95 Segna and Others, C-140/95 Cervetti, C-141/95 Gasbarri, C-154/95 Narducci, and C-157/95 Smaldone, and by the Pretura Circondariale, Rome, Castelnuovo di Porto Division, in Case C-119/95 Pasquire. These cases were joined by order of the President of the Court of 19 June 1995. (2)

III - The national provisions

5 Decree No 915 of the President of the Italian Republic of 10 September 1982 (hereinafter `DPR 915/82') (3) seeks to implement, inter alia, Council Directive 75/442/EEC of 15 July 1975 on waste (hereinafter `the 1975 Waste Directive') (4) and Council Directive 78/319/EEC of 20 March 1978 on toxic and dangerous waste (hereinafter `the 1978 Toxic Waste Directive'). (5) Article 1 of DPR 915/82 lays down a number of general principles, while Article 2 provides a classification of types of waste, distinguishing between urban waste, special waste and toxic and dangerous waste. In accordance with Article 6(d), a permit is required for certain activities connected with waste disposal, and the setting up and management of tips and plants to render harmless and dispose of special waste. Article 25, first paragraph, prescribes imprisonment of from three months to one year and a fine, of from LIT 1 000 000 to LIT 5 000 000, for the carrying out, without such a permit, of the following activities:

- the disposal of `urban and special waste' produced by third parties,

- the setting up of plants to render harmless and dispose of `special waste',

- the management of such plants.

6 Law No 475 of 9 November 1988 (6) (hereinafter `Law 475/88') establishes certain urgent provisions concerning the disposal of industrial waste. Article 3(3) of Law 475/88 requires those who produce certain types of waste, or who own plants for the disposal of such waste, to give notice to the Region or Province of the quantity and quality of waste disposed of in a given year. Article 3(5) extends the obligation to keep loading and discharge registers to producers of special waste derived from industrial processing and the activities of artisans. Article 9 octies (3) provides for imprisonment not exceeding six months and a fine not exceeding LIT 10 000 000 for breaches of the obligation to give notice under Article 3(3) or the obligation to keep the loading and discharge registers under Article 3(5).

IV - The relevant Community provisions

7 Three Council directives concerning waste are potentially relevant in the present proceedings: the 1975 Waste Directive and the 1978 Toxic Waste Directive, cited in paragraph 5 above, and, particularly, the 1991 Waste Directive. The referring court has, however, not asked any question concerning the 1978 Toxic Waste Directive, (7) and I do not therefore propose to deal with it.

(a) The 1975 Waste Directive

8 This Directive is based on Articles 100 and 235 of the EEC Treaty. The third recital in the preamble notes that `the essential objective of all provisions relating to waste disposal must be the protection of human health and the environment against harmful effects caused by the collection, transport, treatment, storage and tipping of waste'. Its central provision, Article 4, reads as follows:

`Member States shall take the necessary measures to ensure that waste is disposed of without endangering human health and without harming 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.'

9 Article 1 of the 1975 Directive defines the terms `waste' and `disposal'. Article 2(1) allows Member States to adopt specific rules for particular categories of waste, while Article 2(2) excludes listed types of waste from the scope of the Directive. Member States are obliged to `take appropriate steps to encourage the prevention, recycling and processing of waste, the extraction of raw materials and possibly of energy therefrom and any other process for the re-use of waste' (Article 3). As regards the management of waste, the Member States are to `establish or designate the competent authority or authorities to be responsible, in a given zone, for the planning, organization, authorization and supervision of waste disposal operations' (Article 5); these authorities must then draw up waste disposal plans (Article 6).

10 Articles 7 to 11 concern the measures the Member States must take with regard to those who hold or handle waste. In particular, holders of waste must either dispose of such waste without harm to man or the environment or have it handled by a waste collector or disposal undertaking (Article 7).

11 Installations or undertakings which treat, store or tip waste on behalf of third parties must be duly authorized, and are subject to periodic inspections (Articles 8 and 9). Undertakings which transport, collect, store, tip or treat their own waste, and those which collect or transport waste on behalf of third parties, though they do not require a permit, are `subject to supervision by the competent authority' (Article 10). Finally, `[in] accordance with the "polluter pays" principle, the cost of disposing of waste, less any proceeds derived from treating the waste' must be borne by the holder or producer of such waste (Article 11).

(b) The 1991 Waste Directive

12 Article 1 of the 1991 Waste Directive replaced Articles 1 to 12 of the 1975 Directive. (8) Article 1 (as amended) provides definitions of a number of important terms, such as `producer', `holder of waste', and `management' (of waste), and refers to Annexes to the Directive for the determination of the scope of `waste', `disposal' and `recovery'. Apart from gaseous effluents, other categories of waste are to be excluded only `where they are already covered by other legislation'; specific rules for particular categories of waste, which the 1975 Directive left to the discretion of the Member States, are to be laid down by means of individual directives and hence would have a Community character (Article 2). Member States are obliged to give priority to `the prevention or reduction of waste production and its harmfulness' by encouraging the development of clean technologies and less polluting production practices, the harmless disposal of dangerous substances in waste for recovery, and the responsible removal and recovery of waste (Article 3).

13 The basic obligation in Article 4 is slightly reworded. Whereas the equivalent provision of the 1975 Directive is restricted to waste disposal, Article 4 now obliges the Member States to ensure that waste is either recovered or disposed of. It also completes the picture by imposing a further obligation to ensure that `the abandonment, dumping or uncontrolled disposal of waste' is prohibited. The 1991 version of this provision is clearly no less broad in its intended effect than the 1975 version.

14 Article 5 requires the Member States, in cooperation with each other, `to establish an integrated and adequate network of disposal installations ... [which] must enable the Community as a whole to become self-sufficient in waste disposal and the Member States to move towards that aim individually ...'. The Member States must establish or designate the authority responsible for implementing the Directive, in particular the drawing up of a waste management plan or plans (Articles 6 and 7). Furthermore, the authority so designated is responsible - a matter of particular relevance in this case - for granting permits to establishments or undertakings carrying out activities governed by the Directive.

15 Article 8 requires the Member States to `take the necessary measures to ensure that any holder of waste:

- has it handled by a private or public waste collector or by an undertaking which carries out the operations listed in Annex II A or B, or

- recovers or disposes of it himself in accordance with the provisions of this Directive'.

The scope of the Member States' obligations under this article extends to all waste produced, whether the holder passes the waste on to a collector, sends it directly to an undertaking which recovers or disposes of it, or recovers or disposes of it himself.

16 Articles 9 to 14, at least in their amended form, are central to the approach of the national court, particularly as regards the first question. Articles 9 to 11 concern permit requirements, and are examined in detail below. (9) Article 12 governs the stages of waste treatment prior to disposal or recovery, and certain ancillary activities. It provides that `[establishments] or undertakings which collect or transport waste on a professional basis or which arrange for the disposal or recovery of waste on behalf of others (dealers or brokers), where not subject to authorization, shall be registered with the competent authorities'. In accordance with Article 13, all establishments or undertakings which collect, transport, dispose of or recover waste, including dealers and brokers, are subject to periodic inspections. Those who carry out disposal or recovery operations must also keep certain records of the waste they treat, and make these available to the competent authorities; producers of waste may also be required to comply with these obligations, at the option of the Member States (Article 14). In application of the `polluter pays' principle, Article 15 provides that the cost of disposing of waste must be borne by the holder and/or previous holders or the producer of the product from which the waste came.

V - Examination of the questions submitted by the national court

17 Written observations have been submitted only by the French Government and the Commission, but not by either the Italian Government or any of the numerous defendants in the main proceedings. In accordance with Article 104(4) of its Rules of Procedure, the Court decided not to hold an oral hearing.

18 Both the French Government and the Commission have laid emphasis on the lack of information, in the orders for reference, on the factual background to the main proceedings. The former considers some such details to be essential for a proper understanding of the exact nature of the legal problem referred to the Court, but it deduces from the orders for reference that the national court is seeking a ruling on the possible incompatibility of the Italian legislation with the 1991 Waste Directive. The Commission assumes from the Italian legal provisions cited that most of the alleged offences concern the failure to obtain a permit for the disposal and transfer of waste, or the breach of the obligation to maintain registers, both of which attract criminal sanctions under the relevant provisions of DPR 915/82 and Law 475/88. (10) It proposes that, in order to provide the national judge with a useful interpretation of the Community provisions, the Court should establish whether the 1991 Waste Directive has substantially modified the regime of the 1975 Waste Directive by no longer obliging the Member States to require a permit for the discharge, disposal and recovery of waste, and hence to apply sanctions where such permit has not been obtained. I agree that this matter is central to the approach of the national court.

19 Since the orders for reference have provided little information concerning the national provisions in question and none on the factual background, it is appropriate at the outset to interpret the questions in the light of the context in which they were referred. In accordance with its consistent case-law, the Court is, in principle, bound to provide a ruling `where the questions put by the national court concern the interpretation of a provision of Community law'. (11) The Court is, however, entitled to examine the conditions in which a request for a preliminary ruling has been referred to it, especially in order to decide whether, and to what extent, it has jurisdiction to answer the questions submitted to it. (12) In particular, the Court has no jurisdiction under Article 177 of the Treaty to provide consultative opinions on general or hypothetical questions, or which would not assist the national court in resolving the case before it. (13) By the same token, the Court must take note of any inherent assumptions regarding the interpretation of Community law which are apparent from the orders for reference.

20 The orders for reference in the present proceedings make a number of assumptions concerning the interpretation of the 1991 Waste Directive; these in turn qualify the meaning which should be attributed to the questions put to the Court, and the answers the Court can give which would most assist the referring court in applying national provisions giving effect to Community law. I therefore propose to examine the assumptions underlying each of the questions before making a recommendation as to the answers which should be given.

21 This approach corresponds with that followed by the Court in its judgment in Delavant. (14) There the question referred by the national court proceeded from a particular assumption concerning the interpretation of the relevant provisions of Council Regulation (EEC) No 1408/71 regarding the choice of national social security legislation which was applicable to the facts; rather than answering the question as submitted, the Court examined the correctness of the national court's interpretation of Regulation No 1408/71, and answered accordingly. (15)

(a) The first question

22 The orders for reference proceed from the key assumption that, in accordance with the 1991 Waste Directive, a Member State is not allowed to require a permit for the carrying out of recovery or disposal operations. From this it concludes that, as the relevant national rules do impose a permit requirement, Italy has failed to transpose the Directive. It is in the light of this conclusion that the Court is requested to provide `a preliminary ruling on the legal effect of the Italian Republic's failure to bring into force the necessary measures to implement Council Directive 91/156/EEC within the prescribed time-limit'.

23 The interpretation of the 1991 Waste Directive thus adopted by the national court fails to take account of the wording of the Directive, and particularly of Articles 9 to 11. Article 9(1) of the Directive provides that:

`For the purposes of implementing Articles 4, 5 and 7, 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 ...' (emphasis added).

Similarly, Article 10 reads as follows:

`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' (emphasis added).

24 The national court clearly considers that these provisions do not apply to `the preliminary stages such as collection, storage, temporary tipping and transport of waste'. It further states:

`It [the 1991 Waste Directive] renders the system of authorization regarding recovery less rigorous in content than that regarding disposal, making it possible for anyone involved in recovery or a producer disposing of his own waste to do so without a permit.'

25 This assumption seems to be based on the fact that Articles 9 and 10 require that permits be obtained for the operations described respectively in Annexes II A and II B, i.e. `disposal operations' and `operations which may lead to recovery'.

26 This approach ignores a number of key factors of the 1991 Waste Directive, but above all ignores its character as a directive, which leaves to the Member States a certain liberty of choice as to the form and methods of implementation, in accordance with Article 189 of the Treaty. Furthermore, the Directive itself contains several indications of the intention that Member States should ensure control of all forms of activity in the handling of waste. In particular, the twelfth recital in the preamble states the Council's view that:

`In order that waste can be monitored from its production to its final disposal ... undertakings [other than those exempted from the permit requirement] involved with waste, such as waste collectors, carriers and brokers should also be subject to authorization or registration and appropriate inspection'.

None of the general obligations found in Articles 3, 4 or 7 prevent Member States from requiring permits for activities other than those specifically listed in Annexes II A and II B, while Article 12 specifically refers to the possibility that Member States impose permit requirements for the collection or transport of waste on a professional basis, or for dealing or brokering in waste for a third party.

27 Most revealingly, Article 11 allows Member States to provide for an exemption from the permit requirement for establishments or undertakings carrying out their own waste disposal at the place of production (Article 11(1)(a)), and for establishments or undertakings which carry out waste recovery (Article 11(1)(b)). This is, however, merely an option for the Member States, which is, furthermore, subject to the three conditions laid down by Article 11(1):

- any exemption granted shall be `without prejudice' to the 1978 Toxic Waste Directive;

- `the competent authorities [of the Member State concerned must] have adopted general rules for each type of activity laying down the types and quantities of waste and the conditions under which the activity in question may be exempted from the permit requirements'; and

- `the types or quantities of waste and methods of disposal or recovery are such that the conditions imposed in Article 4 are complied with'.

28 This article, read together with the twelfth recital in the preamble, shows that the obligation to obtain a permit is not restricted under the Directive in the manner assumed by the national court. In any event, no provision prohibits the Member States imposing such a requirement.

29 The national court has not supplied any information on whether the conditions for the granting by the relevant authorities in Italy of permit exemptions were fulfilled. It must be emphasized in this regard that, under the terms of the Directive, the Member States enjoy a discretion as to whether or not to avail themselves of the permit exemption facility; no question of a breach of a given Member State's obligations would arise, should it not grant such an exemption. One could even go so far as to say that, if the granting of permit exemptions in a particular Member State would undermine the level of the protection of human health and of the environment which Article 4 of the Directive seeks to achieve, that Member State would not be entitled to resort to the facility offered by Article 11; clearly this issue need not be considered further here. Given the conditional nature of the permit exemption, and the discretion the Member States enjoy in this regard, the possibility of Article 11(1) having direct effect does not arise, nor, indeed, has any such possibility been expressly adverted to by the national judge.

30 The answer to the first question should therefore, in my view, be that the 1991 Waste Directive obliges the Member States to ensure that establishments and undertakings which carry out recovery operations or which carry out their own waste disposal at the place of production obtain a permit to do so, and that these activities may only be carried out without a permit where the Member State has opted to grant an exemption from the permit requirement, in accordance with the conditions fixed by Article 11(1) of the 1991 Waste Directive. Nothing in the Directive would preclude a Member State from also requiring a permit for the carrying out of other activities in connection with the recovery and disposal of waste which are covered by the Directive.

31 Should the Court decline to follow the analysis of the first question proposed above, it would be necessary to examine whether the orders for reference have, in relation to this question, complied with the basic requirements of Article 177 regarding the definition by the national court of `the factual and legislative context of the questions it is asking or, at the very least ... the factual premisses on which those questions are based'. (16) Clearly, the provision of such information is not an end in itself, but `serves [both] to enable the Court to give helpful answers [and] to enable the Governments of the Member States and other interested parties to submit observations in accordance with Article 20 of the Protocol on the Statute of the Court (EEC)'. (17) If no conclusions may usefully be drawn from the fact that only one Government - and not the one most directly concerned - and the Commission submitted observations in the proceedings before this Court, it is, in my view, significant that the French Government has proposed an answer phrased in the most general terms, while the Commission has suggested that the Court should not answer the first question referred by the national court.

32 The orders for reference contain no information at all regarding the activities alleged against the defendants in the main proceedings, other than a recital that, in each case, they are charged with an offence contrary to specified provisions of DPR 915/82 and/or Law 475/88. Nor do the orders for reference indicate the date at which the facts giving rise to the main proceedings occurred, which could be important, for example, for the question of the legal consequences of any failure by Italy properly to implement the provisions of the Directive. They do not even indicate which provisions of the Directive are germane to the proceedings before it; clearly, the `legal effect' of any such alleged failure depends on the wording and context of the particular provision or provisions of the Directive.

33 The Court has indicated that the requirement for the national court to define the factual and legal context `is less pressing where the questions relate to specific technical points and enable the Court to give a useful reply even where the national court has not given an exhaustive description of the legal and factual situation'. (18) The very general question posed regarding the `legal effect' of the provisions of the 1991 Waste Directive does not appear to me to be either specific or technical; on the contrary, the Court's treatment of this question cannot, in my view, be completely disassociated from that of any possible liability under Community law of the Member States for their failure to implement environmental measures, and, more generally, the issue of the effectiveness of environmental law.

34 The French Government, notwithstanding what it regards as the very general character of the first question, has interpreted this as seeking confirmation of the Court's case-law to the effect that provisions of a directive which has not been transposed into national law may be relied upon as a justification for not applying a national provision which is incompatible with it, and has proposed an answer along these lines. For the reasons adumbrated above, I am not convinced that an answer in those terms would be in any way useful to the national judge in the circumstances of the present case, where the allegation that Italy has failed to respect its obligations under the Directive is based on a misinterpretation of its provisions.

35 In these circumstances, should the Court not answer the first question by providing an interpretation of Articles 9 to 11 of the Directive, I would recommend that the question be declared inadmissible.

(b) The second question

36 The second question submitted by the national court, which seeks essentially a ruling on whether Italy is entitled to maintain criminal sanctions for breaches of its legislation on waste, is in my view similarly based on a questionable interpretation of the 1991 Waste Directive. The orders for reference describe the Directive as `Community legislation intended to ensure uniform treatment for operators in the Single Market, including as regards penalties'. The referring court takes the view that the system of penalties imposed by the Italian legislation `has needlessly been made harsher as a result of favouring the use of the criminal law, thus treating Italian operators differently by comparison with European operators'. It further relies upon what it calls the `correlation between the requirement to set up a uniform set of rules in matters of waste disposal among the Member States and the need to ensure the proper functioning of the internal market', and infers that the intention of the Directive was `to bring waste within the administrative system as the one best suited to ensuring that it is effectively regulated, leaving control by means of criminal penalties for extreme cases since it is inappropriate for ... [ensuring] the optimum level of environmental protection and the proper functioning of the market'.

37 The second question is based on the express premiss that the 1991 Waste Directive is intended to ensure uniform treatment of operators in the internal market as regards penalties for breaches of national implementing provisions on waste. Upon this hypothesis, it asks whether the criminal sanctions provided for by the relevant national provisions are compatible with the Directive. In my opinion, the view of the national court on this point is misconceived.

38 There is nothing in the text of the Directive which suggests that it seeks `the elimination of disparities in the treatment of operators in the Single Market' in the matter of sanctions for breaches of national implementing legislation, as the national court has asserted. That would be inconsistent with the discretion allowed to Member States by the Directive in choosing implementing measures. Furthermore, the Directive was based on Article 130s of the Treaty, (19) which at the material time (20) constituted the correct legal basis for `[action] by the Community relating to the environment ... to preserve, protect, and improve the quality of the environment[,] to contribute towards protecting human health [and] to ensure a prudent and rational utilization of natural resources'. As the Directive was based on Article 130s, the Member States were entitled, in accordance with Article 130t of the Treaty, to maintain in force or introduce `more stringent protective measures [than those provided for by the Directive] compatible with [the] Treaty', which would allow both existing and new disparities between operators in the various Member States. It is open to doubt whether this provision could furnish an appropriate legal basis for a measure which in fact sought to attain the internal market objectives attributed to it by the national court, though the question does not arise in the present proceedings.

39 The absence from the Directive of any significant internal market intention is confirmed by a perusal of the recitals in its preamble. Only the fifth recital makes any reference to the internal market; after the previous recitals had stressed the necessity `to improve the efficiency of waste management in the Community' and `to achieve a high level of environmental protection', this is limited to noting that `moreover, any disparity between Member States' laws on waste disposal and recovery can affect the quality of the environment and interfere [with] the functioning of the internal market'. The recital in question merely observes that such disparities can have effects on the achievement of both of these Community objectives; it does not, however, indicate that the Directive was intended to safeguard the internal market from such effects, particularly as regards sanctions. I agree with the following analysis of this provision suggested by Advocate General Tesauro in his Opinion in the `Waste Directive' case:

`The fifth recital therefore simply makes it clear that the provision of a Community system of waste management may have positive effects on the functioning of the market, but this is not tantamount to indicating that specific reasons amounting to competition and trade constituted one of the grounds which prompted the institutions to adopt the rules in question.' (21)

40 On the other hand, the tenth recital in the preamble demonstrates that the inclusion in the Directive of permit and recording requirements (22) was not designed primarily to ensure equality of treatment amongst economic operators in the field of waste recovery and disposal; this provides in effect that `to ensure a high level of [environmental] protection and effective control, it is necessary to provide for authorization and inspection of undertakings which carry out waste disposal and recovery'.

41 This view of the Directive is confirmed by the material content of its provisions. At no point does the Directive even mention the question of the sanctions the Member States must impose in order to ensure the enforcement of the implementing measures they adopt. The matter is regulated by Article 2 of the Directive, (23) which merely requires the Member States to `bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than 1 April 1993'.

42 The argument that the Directive sought in general to ensure that the burdens on economic operators should henceforth be equivalent, upon which the referring court's second question is based, has, furthermore, already been rejected by the Court in its judgment in the `Waste Directive' case. There the Court found that, while certain provisions of the Directive, `in particular the definitions set out in Article 1, affect the functioning of the internal market ... [t]he harmonization provided for in Article 1 of the Directive has as its main objective to ensure, with a view to protecting the environment, the effective management of waste in the Community, regardless of its origin, and has only ancillary effects on the conditions of competition and trade'. (24)

43 In the light of the foregoing, I consider that the answer to the second question should be that the 1991 Waste Directive does not seek to ensure the equal treatment of operators in the internal market as regards the sanctions which may be imposed for breaches of national implementing law on waste. In these circumstances, the question as formulated by the national court does not, in my view, fall to be answered at all, having been based on a misunderstanding of the 1991 Waste Directive.

44 Should the Court decline to accept the analysis of the second question presented above, it would be necessary to examine the issue of whether a useful answer can be given to the national court. The paucity of information on the factual and legislative background in the orders for reference would be less of an obstacle to the admissibility of this question than to that of the first question, given its more specific character. The question would, however, have to be interpreted as seeking a ruling on whether the imposition of criminal sanctions, as distinct from other forms of sanction, for breaches of national rules in the area of waste management is contrary to the 1991 Waste Directive. (25)

45 As noted above, the Directive does not contain any provisions on the matter of sanctions, which it therefore falls to the Member States, under Article 5 of the Treaty, to regulate; these latter may `choose the measures which they consider appropriate, including sanctions which [are] criminal in nature'. (26) In Carciati, the Court held that `[provided] that provisions such as those contained in the national legislation in question ... are found to be compatible with the rules of the Community legal order, there is no argument capable of calling into question the power of a Member State to impose criminal penalties for contravening the national rules'. (27) It has not been alleged in the present case that the national provisions in question were incompatible with any provision or principle of Community law other than the 1991 Waste Directive.

VI - Conclusion

46 In view of the foregoing, I propose that the questions submitted by the Pretura Circondariale, Rome (Rome District Magistrates' Court), Tivoli and Castelnuovo di Porto Divisions, be answered as follows:

(1) Council Directive 91/156/EEC of 18 March 1991 amending Directive 75/442/EEC on waste obliges Member States to ensure that establishments and undertakings which carry out recovery operations or which carry out their own waste disposal at the place of production obtain a permit to do so; these activities may only be carried out without a permit where the Member State has opted to grant an exemption from the permit requirement, and only in accordance with the conditions laid down by Article 11(1) of the Directive. Nothing in the Directive would preclude a Member State from requiring a permit for the carrying out of other activities in connection with the recovery and disposal of waste which are covered by the Directive.

(2) Council Directive 91/156/EEC does not seek to ensure the equal treatment of operators in the internal market as regards the sanctions which may be imposed for breaches of national implementing law on waste.

(1) - OJ 1991 L 78, p. 32.

(2) - A number of further identically-worded references has been received by the Court; consideration of these has been suspended, pending the outcome of the present proceedings.

(3) - Gazzetta Ufficiale della Repubblica Italiana No 343 of 15 December 1982, p. 9071.

(4) - OJ 1975 L 194, p. 39.

(5) - OJ 1978 L 84, p. 43.

(6) - Gazzetta Ufficiale della Repubblica Italiana No 264 of 10 November 1988, p. 3.

(7) - The 1978 Toxic Waste Directive was replaced by Council Directive 91/689/EEC of 12 December 1991 on hazardous waste (OJ 1991 L 377, p. 20), with effect from 27 June 1995 (Council Directive 94/31/EC, OJ 1994 L 168, p. 28).

(8) - For convenience, references to articles of the 1991 Directive in the remainder of this Opinion should be taken in each case as referring to the amended article of the 1975 Directive, except where the contrary is indicated.

(9) - See paragraphs 23 and 27 of the present Opinion.

(10) - See paragraphs 5 and 6 of the present Opinion.

(11) - Case C-412/93 Leclerc-Siplec v TF1 Publicité and M6 Publicité [1995] ECR I-179, paragraph 11 of the judgment.

(12) - Joined Cases C-422/93 to C-424/93 Zabala Erasun and Others [1995] ECR I-1567, paragraphs 16 and 17 of the judgment.

(13) - Case C-343/90 Lourenço Dias [1992] ECR I-4673, paragraph 17 of the judgment; Case C-83/91 Meilicke [1992] ECR I-4871, paragraph 25 of the judgment; Case C-412/93 Leclerc-Siplec, cited in footnote 11 above, paragraph 12 of the judgment.

(14) - Case C-451/93 [1995] ECR I-1545.

(15) - Paragraphs 12 to 19 of the judgment.

(16) - Order in Case C-167/94 Grau Gomis and Others [1995] ECR I-1023, paragraph 8; see also order in Case C-307/95 Max Mara Fashion Group [1995] ECR I-0000, paragraphs 6 to 9, and order in Case C-257/95 Bresle [1996] ECR I-0000, paragraph 16.

(17) - Joined Cases 141/81 to 143/81 Holdijk [1982] ECR 1299, paragraph 6 of the judgment.

(18) - Case C-316/93 Vaneetveld [1994] ECR I-763, paragraph 13 of the judgment.

(19) - The English version of the Directive refers to `Article 103s', one of a number of typographical errors in the text of the Directive published in the Official Journal.

(20) - This article has subsequently been amended to provide for a Community `policy', rather than `action', and specifically to allow the Community to promote measures at the international level.

(21) - Case C-155/91 Commission v Council [1993] ECR I-939, paragraph 7 of the Opinion.

(22) - Certain of the national legal provisions cited in the orders for reference concern such requirements.

(23) - Here referring to the second Article of the 1991 Directive, not `Article 2 of the 1975 Directive, as amended'.

(24) - Case C-155/91, cited in footnote 21 above, paragraphs 18 and 20 of the judgment.

(25) - The French Government has suggested that this question could also be interpreted as referring to the imposition of criminal sanctions either for obligations which are incompatible with the Directive or for breaches of a directive which has not yet been transposed. Neither interpretation is borne out by the orders for reference.

(26) - Case 50/76 Amsterdam Bulb v Produktschap voor Siergewassen [1977] ECR 137, paragraphs 31 and 32 of the judgment.

(27) - Case 823/79 Carciati [1980] ECR 2773, paragraph 11 of the judgment.