OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 10 June 2004 ( )

Case C-457/02

Antonio Niselli

(Directive 75/442/EEC – Definition of waste – Scrap metal – National definition excluding consumption residue from the definition of waste where intended for a production purpose – Direct effect of directives in criminal proceedings – Principle of the retroactivity of the more lenient criminal law)

I – Introduction

1. In criminal proceedings pending before the Tribunale penale di Terni (Criminal Court, Terni, Italy), Antonio Niselli is accused of transporting scrap metal in a vehicle not authorised for transporting waste. By the present request for a preliminary ruling, the Tribunale asks the Court about the interpretation of Council Directive 75/442/EEC of 15 July 1975 on waste ( ) (hereinafter ‘Directive 75/442’ or ‘the Directive’), in order to determine whether the Italian implementing provisions, which define waste more precisely, are in conformity with the Directive.

2. The national court concluded that under the provisions of national law in force at the material time, the scrap metal was ‘waste’. However, certain provisions adopted subsequently excluded materials such as scrap metal from the definition of waste in cases where they were reutilised for the same production or consumption purposes. If this exception is incompatible with Directive 75/442, the question arises as to what consequences this has for the criminal proceedings.

II – Legal framework

A – Community law

3. In the first subparagraph of Article 1(a) of Directive 75/442, waste is defined as follows:

‘any substance or object in the categories set out in Annex I which the holder discards or intends or is required to discard.’

4. Annex I to the Directive specifies ‘Products for which the holder has no further use …’ (Q14). Annex I also includes two catch-all categories, namely Q1 which specifies ‘Production or consumption residues not otherwise specified below’ and Q16 which specifies ‘Any materials, substances or products which are not contained in the above categories’.

5. Articles 9 and 10 of Directive 75/442 provide that establishments or undertakings which carry out the waste disposal operations specified in Annex IIA to the Directive or the recovery operations under Annex IIB need a permit. Article 12 of the Directive imposes a registration requirement on installations or undertakings which collect or transport waste on a professional basis.

B – National law

6. Article 6(1)(a) of Decreto Legislativo No 22 of 5 February 1997 ( ) (hereinafter ‘Legislative Decree 22/97’) transposes into Italian law the definition of waste laid down in Directive 75/442. Annexes A, B and C to Legislative Decree 22/97 correspond to Annexes I, IIA and IIB to Directive 75/442.

7. Article 51 of Legislative Decree 22/97 makes it an offence to contravene the permit, application or notification requirements laid down in Articles 27 to 33.

8. By Article 14 of Decreto Legge No 138 of 8 July 2002 ( ) (hereinafter ‘Decree-Law 138/02’), converted into Law No 178 of 8 August 2002, ( ) the Italian legislature laid down an ‘authentic interpretation’ of the term ‘waste’. The provision states:

‘1. The words “discards”, “intends [to discard]” and “is required to discard” in Article 6(1)(a) of Legislative Decree [No 22/97] and subsequent amendments thereof … shall be interpreted as follows:

(a) “discards”: any conduct whereby, directly or indirectly, substances, materials or goods are disposed of or subjected to disposal or recovery, in accordance with Annexes B and C to Legislative Decree [No 22/97];

(b) “intends [to discard]”: the intention to subject substances, materials or goods to disposal or recovery, in accordance with Annexes B and C to Legislative Decree [No 22/97];

(c) “is required to discard”: the obligation to submit substances, materials or goods to recovery or disposal, required by a statutory provision, by a measure laid down by a public authority or by the nature of the substances, materials or goods themselves, or because they are included in the list of hazardous waste set forth in Annex D to Legislative Decree [No 22/97].

2. The provisions of paragraph 1(b) and (c) shall not apply to materials, goods or substances which are production or consumption residues where:

(a) they can be and are in fact and objectively reused in the same or a similar or different production or consumption cycle, without undergoing any prior treatment and without causing harm to the environment;

(b) they can be and are in fact and objectively reused in the same or a similar or different production or consumption cycle, after undergoing prior treatment, without requiring any of the recovery operations listed in Annex C to Legislative Decree [No 22/97].’

III – Facts and questions referred

9. In Terni on 18 July 2000, the carabinieri (police) seized an articulated vehicle belonging to ILFER SpA because of a failure to comply with certain formalities laid down by Legislative Decree 22/97. The person at ILFER SpA legally responsible for the transport operation was Antonio Niselli.

10. The lorry was carrying approximately 10 m3 of scrap iron, such as machine parts, sheets of metal, tubing/beams, partly painted sections, partly painted metal netting, oily and greasy cogs, small metal parts, cast iron pipes, parts of tubes with protective covers, empty containers, motor vehicle wheels, rolled sheet metal grids and steel rods. All of the material was the result of the dismantling of machinery or motor vehicles or the collection of waste material.

11. Criminal proceedings were brought against Mr Niselli before the Tribunale penale di Terni charging him with an offence under Article 51(4) and (1)(a), in conjunction with Article 28, of Legislative Decree 22/97. By order dated 18 December 2002, the Tribunale referred the following questions to the Court for a preliminary ruling:

‘(1) May the meaning of “waste” be governed by the following condition: that the words “discards”, “intends” and “is required to discard”, introduced into Italian law by Article 6(1)(a) of Legislative Decree [No 22/97], are to be interpreted as follows:

(a) “discards”: any conduct whereby, directly or indirectly, substances, materials or goods are disposed of or subjected to disposal or recovery, in accordance with Annexes B and C to Legislative Decree [No 22/97];

(b) “intends to discard”: the intention to subject substances, materials or goods to disposal or recovery, in accordance with Annexes B and C to Legislative Decree No [22/97];

(c) “is required to discard”: the obligation to submit substances, materials or goods to recovery or disposal, required by a statutory provision, by a measure laid down by a public authority or by the nature of the materials, substances or goods themselves, or because they are included in the list of hazardous waste set forth in Annex D to Legislative Decree No [22/97]?

(2) Is it possible to exclude definitively from the definition of “waste” goods, substances and materials which are production or consumption residues where:

(a) they can be and are in fact and objectively reused in the same or a similar or different production or consumption cycle, without undergoing any prior treatment and without causing harm to the environment;

(b) they can be and are in fact and objectively reused in the same or a similar or different production or consumption cycle, after undergoing prior treatment without requiring any of the recycling operations listed in Annex C to Legislative Decree No 22/97, in force in Italy (which reproduces the wording of Annex IIB to Directive 91/156/EEC)?’

12. The national court states that the legislature intended the disputed provision to remove scrap metal from the definition of waste. According to the decree’s preamble, the provision was a reaction to the too narrow interpretation of the term by various public prosecutors, whose actions had endangered the viability of the steel industry and other economic sectors.

13. If the definition of waste laid down by Decree-Law 138/02 applies to the scrap metal in question, the accused must be acquitted. However, the Tribunale doubts that the Italian legislature’s definition of waste in Article 14 of Decree-Law 138/02 is compatible with Directive 75/442. This doubt is based not least on the fact that the Commission has initiated infringement proceedings against the Italian Republic in respect of this provision.

14. In the proceedings before the Court, the accused, the Italian and Austrian Governments and the Commission made submissions. In so far as is necessary, the parties’ submissions are recounted in the following legal analysis.

IV – Legal analysis

A – Admissibility of the request for a preliminary ruling

15. The Italian Government submitted that the reference was inadmissible, on the ground that the questions referred were not relevant to the main proceedings. The Commission was of the view that the request was admissible. However, in its written observations it argued that the answer to the questions would not be of any use to the national court in making its decision.

16. In this connection, the Commission referred to the case-law of the Court, according to which ‘a directive cannot, of itself and independently of a national law adopted by a Member State for its implementation, have the effect of determining or aggravating the liability in criminal law of persons who act in contravention of the provisions of that directive’. ( )

17. According to the Commission, the disputed provision precluded criminal liability on the part of the accused. Even if the Court concluded that such a provision was incompatible with Directive 75/442, the national court would have to apply it. Otherwise, criminal liability would rest on the direct application of the Directive.

18. However, at the oral hearing the Commission took the opposite view, namely that the national court was obliged not to apply the subsequent provision of national law more lenient to the accused if that provision infringed Directive 75/442.

19. The Court has consistently held that it is solely for the national court which has to decide the dispute to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted by the national court concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling. ( )

20. Admittedly, the Court has also stated that, in exceptional circumstances, it can examine the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction; nevertheless, it has clearly stated that it may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. ( )

21. This case does not fit into any of these categories. The questions are related to the subject‑matter of the main action and are not directed to a hypothetical problem. It is by no means obvious what the consequences for the decision in the main action would be if Article 14 of Decree-Law 138/02 infringed Directive 75/442.

22. At the material time, Legislative Decree 22/97 was the applicable national provision. According to the national court, its effect was that the disputed scrap metal was to be classified as waste and, accordingly, Mr Niselli could have committed a punishable offence. The possibility that he was not criminally liable arose only because Article 14 of Decree-Law 138/02 narrowed the definition of waste after the material time.

23. This set of circumstances is not necessarily the same as the – prohibited – direct definition of a crime by a directive. In the present case, the sole effect of applying the Directive is the disapplication of an exculpatory provision, with the consequence that criminal liability is attributed once more by virtue of the general rules of national law.

24. In the second place, there is a prior question as to the limits on the applicability of a subsequent statute more lenient to the accused. In its case-law to date, the Court has categorised this as a question of national law to be determined by the national court. ( ) However, the principle of the retroactivity of a subsequently enacted statute more lenient to the accused is arguably a fundamental principle of Community law. ( ) In any event, the question arises as to whether this principle is to be applied without restriction where the more lenient criminal provision infringes Community law. ( )

25. Finally, it should also be pointed out that the Court has so far always regarded references in similar cases as admissible. Thus, in its order in Caterino, ( ) referred to by the Commission, the Court referred to its case-law to the effect that the direct application of the Directive cannot lead to criminal liability, without actually answering the question referred as to the interpretation of the Waste Directive. The Court decided the case by order under Article 104(3) of the Rules of Procedure, on the basis that the answer could be ascertained clearly from the case-law, and not because the reference was hypothetical and therefore inadmissible. ( ) In X ( ) the Court merely referred to the case-law cited above and then answered the questions referred.

26. The cases of Arcaro ( ) and Kolpinghuis Nijmegen ( ) were different. In those cases, specific questions as to the effect of directives in criminal proceedings were referred to the Court, and for that reason the question as to the admissibility of the references for preliminary rulings did not arise.

27. For the foregoing reasons, the present reference for a preliminary ruling is admissible. In order to provide the national court with a useful answer, it will be necessary to examine not only the interpretation of Directive 75/442, but also the question whether, and if so to what extent, it may be directly used in criminal proceedings in the circumstances of the main action.

B – The first question

28. By its first question, the national court asks whether Directive 75/442 is compatible with a provision of national law defining the concept of waste under which the holder of a substance or object discards or intends or is required to discard it only if the substance or object is subjected to a disposal or recovery operation as listed in Annexes IIA and IIB to the Directive and in the identically worded provisions of national law, or, as the case may be, where there is a corresponding intention or obligation.

29. Before answering this question, it should first be recalled that, according to the third recital in the preamble to Directive 75/442, the Directive is intended to protect human health and the environment against harmful effects caused by the collection, transport, treatment, storage and tipping of waste. Article 174(2) EC provides that Community policy on the environment is to aim at a high level of protection, based, in particular, on the precautionary principle and the principle that preventive action should be taken. From that, the Court has inferred that the concept of waste cannot be interpreted restrictively. ( )

30. In the first subparagraph of Article 1(a) of Directive 75/442, waste is defined as any substance or object in the categories set out in Annex I which the holder discards or intends or is required to discard. That annex and the European Waste Catalogue ( ) clarify and illustrate that definition, by providing lists of substances and objects which may be classified as waste. However, the Court considers those lists to be only in the nature of guidance. ( )

31. What is decisive is whether the holder discards or intends or is required to discard the object. In ARCO Chemie Nederlandand Others, the Court indicates that this must be determined in the light of all the circumstances. Regard must be had to the aim of Directive 75/442 and the need to ensure that its effectiveness is not undermined. ( )

32. Admittedly, there may be a need to define these very uncertain concepts more closely and thereby define the term ‘waste’ more clearly. However, this cannot be done in disregard of the intention of Directive 75/442 to approximate national laws relating to waste disposal ( ) and to base waste legislation on a Community-wide, common terminology. ( ) Accordingly, national laws must not, in any circumstances, define the term ‘discards’, which is central to the concept of waste, more precisely so that the national concept of waste diverges from the Community concept and thus the effectiveness of the Directive and of Article 175 EC is endangered. ( )

33. The disputed Italian provisions state that the terms ‘discards’, ‘intends to discard’ and ‘is required to discard’ apply only where, directly or indirectly, substances, materials or goods are disposed of or subjected to disposal or recovery, in accordance with Annexes B and C to Legislative Decree 22/97, which correspond to Annexes IIA and IIB to Directive 75/442, or, as the case may be, where there is a corresponding intention or obligation.

34. In contrast to this, the Court has held that the carrying-out of one of the operations set out in Annex IIA or IIB to Directive 75/442 does not in itself permit substances or objects to be classified as waste. ( ) The system of supervision and control established by Directive 75/442 is intended to cover all objects and substances discarded by their owners, even if they have a commercial value and are collected on a commercial basis for recycling, reclamation or reuse. ( )

35. In so far as the national definition classifies a substance as waste only where its holder intends it for one of those recovery or disposal operations, contrary to the case-law of the Court, it unlawfully restricts the concept of waste. Admittedly, the Italian Government is correct in pointing out that the disposal and recovery operations specified in the annexes to the Directive encompass many ways of treating waste. However, in the first place these lists are not exhaustive. In the second place they do not include cases in which waste is reutilised without first undergoing a recovery operation.

36. In another respect the national definition of ‘discarding’ is too wide, and in this way too deviates from the corresponding concept in Directive 75/442. Admittedly, the fact that a substance is subjected to one of the operations set out in Annexes IIA and IIB to Directive 75/442 can indicate that it is being discarded and that the substance is therefore waste. However, the fact that the annexes describe operations for disposing of and recovering waste does not necessarily mean that every substance treated in one of these ways is to be regarded as waste. ( ) Many of the operations set out in the annexes can be applied to substances that are not waste. Thus, almost any object or solid substance can be deposited into or onto land (point D1 of Annex IIA). The substances most frequently used as fuel (point R1 of Annex IIB) are coal, oil and natural gas, but this does not mean that these raw materials are waste.

37. If one proceeds on the basis that Article 176 EC permits the Member States to introduce or maintain a higher level of protection than that required by Directive 75/442, a correspondingly broader definition of waste in national law would be lawful. However, such an approach is incompatible with the fact that the Directive is also intended to prevent competition being distorted by the application of different standards of protection. ( )

38. In Fornasar and Others, ( ) to which the Italian Government referred, the Court did indeed hold it to be lawful for Member States, in certain circumstances, to introduce a higher level of protection than that provided for in Directive 91/689 in relation to hazardous waste. ( ) Thus they are entitled to classify substances as hazardous waste even though they do not appear in the relevant Community list. However, that case‑law cannot be applied by analogy to the present one, since Directive 91/689 contains an express enabling provision and a list of attributes that substances not appearing in the Community list must have before Member States can bring them within the Directive’s scope of application.

39. The national court and the parties also rely on ARCO Chemie Nederland and Others, in which the Court stated that ‘in the absence of Community provisions, Member States are free to choose the modes of proof of the various matters defined in the directives which they transpose, provided that the effectiveness of Community law is not thereby undermined … The effectiveness of Article 130r of the Treaty [now, after amendment, Article 174 EC] and [Directive 75/442] would be undermined if the national legislature were to use modes of proof, such as statutory presumptions, which had the effect of restricting the scope of the Directive and not covering materials, substances or products which correspond to the definition of waste within the meaning of the Directive’. ( )

40. The Austrian Government submitted that the definitions in Article 14(1) of Decree-Law 138/02 constituted rules of evidence that were accordingly permissible.

41. This view cannot be accepted. As the national court correctly emphasises, those provisions do not regulate the modes of proof of ‘discards’, ‘intends to discard’ or ‘is required to discard’. Instead, they contain more detailed definitions of the three terms. Even if the provisions were rules of evidence, as has already been established they would unlawfully restrict the scope of the corresponding Community law terms.

42. Accordingly, the answer to the first question is that Directive 75/442 precludes a provision of national law defining the concept of waste which provides that the holder of a substance or object discards or intends or is required to discard it (only) if the substance or object is subjected to one of the disposal or recovery operations listed in Annexes IIA and IIB to the Directive and the identically worded national provisions, or, as the case may be, where there is a corresponding intention or obligation.

C – The second question

43. By its second question, the national court asks whether Directive 75/442 precludes a provision of national law defining the concept of waste which provides that production or consumption residues are not waste if:

– they can be and are in fact and objectively reused in the same or a similar or different production or consumption cycle, without undergoing any prior treatment and without causing harm to the environment;

– they can be and are in fact and objectively reused in the same or a similar or different production or consumption cycle, after undergoing prior treatment without requiring any of the recovery operations listed in Annex IIB to the Directive and the identically worded national provisions.

44. As stated above, the classification of a substance as waste depends on whether its holder discards or intends or is required to discard it. This must be determined in the light of all the circumstances. In doing so, regard must be had to the aim of the Directive and the need to ensure that its effectiveness is not undermined. ( )

45. How the object or substance is treated or used is not decisive. ( ) Moreover, the fact that the material may be subjected to commercial reutilisation or that its recovery takes place without harming the environment does not affect whether it is waste. ( )

46. On the contrary, the Court has held that an important factor indicating a substance to be waste is that it is production residue, that is to say, it is not the end‑product which it was sought to produce. ( ) Substances generated during a production process can be regarded as by-products which are not waste only in certain narrow circumstances, namely, where their reuse is ‘a certainty, without any further processing prior to reuse and as an integral part of the production process’. ( ) The fact that following consumption or use an object or substance can no longer be used for its original purpose is likewise a strong indication that its holder intends to discard it.

47. The legislation in issue is diametrically opposed to these statements. It applies to production and consumption residue that must prima facie be regarded as waste. It does not leave any discretion for taking into account all the circumstances, instead placing the use of the materials in a production or consumption process, with or without prior processing, at the heart of the definition, notwithstanding that the case-law states that this does not provide any indication as to whether they should be classified as waste. Indeed, it even excludes production and consumption residue from the definition of waste if it has been ‘previously disposed of’ prior to being reutilised, provided such disposal does not constitute recovery.

48. As the Commission clearly explained, the legislation in issue would exclude from the definition numerous substances which the European Waste Catalogue ( ) undoubtedly requires to be classified as waste. By way of example, the Commission referred to metallic packaging (Code 15 01 04), metals from used motor vehicles (16 01 17 and 16 01 18), construction and demolition waste containing metal (17 09), paper packaging (15 01 01), paper and cardboard from mechanical treatment of waste (19 12 01) and paper collected separately as municipal waste (20 01 01). Even if, from the legal point of view, inclusion in the Waste Catalogue is not decisive for categorisation, it is an indicator.

49. In this connection reference must be made to the judgment of the Court in Mayer Parry Recycling. ( ) The question in that case was when metallic waste packaging ceased to be waste. The Court concluded that processing scrap metal by grinding it and sorting it did not affect its status as waste. Such waste becomes a new product only if it is melted down in a forge to produce steel blocks, sheets or rolls.

50. Article 14 of Decree-Law 138/02 would exclude from the definition of waste the material the Court held clearly to be waste in Mayer Parry Recycling. ( ) The used metal packaging was consumption residue which, following treatment (grinding and sorting), was used in a similar production process (melting it down in a forge). This example is enough to show that in practice too the disputed Italian provision leads to results that are not consonant with the Community law provisions relating to waste.

51. Accordingly, the answer to the second question is that Directive 75/442 precludes a provision of the national law of a Member State defining the concept of waste which provides that production or consumption residues are not waste where,

– they can be and are in fact and objectively reused in the same or a similar or different production or consumption cycle, without undergoing any prior treatment and without causing harm to the environment;

– they can be and are in fact and objectively reused in the same or a similar or different production or consumption cycle, after undergoing prior treatment without requiring any of the recovery operations listed in Annex IIB to the Directive and the identically worded national provisions.

D – The effects in the main criminal proceedings of an infringement by national law of Directive 75/442

52. In order to give the national court an answer which will be useful for it in deciding the main action, it is necessary to consider what effect the proposed interpretation of Directive 75/442 would have in criminal proceedings.

53. It is clear from the case-law that a directive cannot, of itself and independently of a rule of national law adopted by a Member State for its implementation, have the effect of determining or aggravating the liability in criminal law of persons who act in contravention of the provisions of that directive. ( )

54. In the first place, this follows from the principle that penalties must have a proper legal basis (nullum crimen, nulla poena sine lege), ( ) which is one of the general principles of law forming part of the constitutional traditions common to the Member States and which is also anchored in Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and in the first sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union. ( ), ( ) This principle, which also prohibits interpreting criminal provisions broadly where that is to the disadvantage of the persons concerned, sets strict limits on interpreting provisions in conformity with a directive in criminal proceedings. ( )

55. In the second place, the Court based the rule that directives cannot, of themselves, be used directly to determine or aggravate criminal liability on the principle that a directive cannot of itself impose obligations on individuals. ( )

56. In his recent Opinion in Pfeiffer and Others, Advocate General Ruiz-Jarabo Colomer analysed the principle that a directive cannot impose obligations on an individual in the context of the direct application of a directive as between two individuals. ( ) However, he pointed out that in criminal proceedings, where the individual is against the State, other considerations apply. ( ) Accordingly, the position remains that in criminal proceedings at any rate a directive cannot, by direct effect, impose obligations on an individual.

57. However, in the present case none of the considerations that led the Court to restrict the direct application of directives in criminal proceedings applies.

58. First, the principle that penalties must have a proper legal basis is not impinged upon, since the direct application of Directive 75/442 in the main action would not mean that the Directive, of itself and independently of rules of national law adopted for its implementation, determined criminal liability. ( ) If Decree-Law 138/02 were disapplied, having been enacted only after the material time, criminal liability would be determined by the national law in force at the material time, namely, by the general provision implementing Directive 75/442 (Article 6 of Legislative Decree 22/97), which would become once more applicable. The only effect of the Directive would be to disapply an exculpatory provision enacted after the facts.

59. In Tombesi and Others, ( ) which concerned a very similar national legal situation, the Court said the following:

‘Moreover, it is clear from the orders for reference that, at the material time, the facts of the cases before the national courts attracted penalties under national law, and the decree-laws which made the penalties deriving from DPR 915/82 inapplicable to them entered into force only subsequently. In those circumstances, it is inappropriate to enquire into such consequences as might derive, for the application of Regulation No 259/93, from the principle that penalties must have a proper legal basis.’

60. Second, the national provision can be interpreted so that it complies with the Directive without breaching the prohibition against interpreting provisions broadly where this is disadvantageous to the accused. If Decree-Law 138/02 were disapplied, criminal liability would depend entirely on Legislative Decree 22/97, which contains the same definition of waste as Directive 75/442 and accordingly would not need to be interpreted broadly in order to comply with the requirements of the Directive.

61. Finally, on the present facts, Directive 75/442 does not impose any obligations on the individual. The question as to what obligations are incumbent on the individual is to be decided according to the law in force at the material time, since obligations can be created in relation to future conduct only. Obligations cannot be imposed retroactively. When the scrap metal in question was being transported, the provisions to be complied with and the applicable definition were all to be found in Legislative Decree 22/97, there being no need to apply the Directive directly.

62. The situation might have to be appraised differently if the facts had arisen after the adoption of Decree-Law 138/02. Its provisions inter alia restricted the obligations applicable to dealing with production and consumption residue. If Decree-Law 138/02 had been disapplied in that time period, it would be easier to say that the obligations were imposed by virtue of the direct application of the Directive.

63. However, in the present case, direct application of the Directive may be incompatible with the principle that the more lenient criminal law must prevail in cases where such a provision has later replaced the provision in force at the material time.

64. The principle of the retroactivity of the more lenient criminal law, which is recognised in the legal systems of most of the Member States of the Community (although not, for example, in Ireland and the United Kingdom), also appears in the third sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union. It also forms part of secondary Community law relating to administrative penalties for irregularities which prejudice the Community’s financial interests. ( )

65. In Allain and Steel Trading France, ( ) the Court impliedly recognised this principle by holding that conduct which originally infringed Community law and was therefore criminal under national law could be reconsidered on the application of principles of national procedural law (in particular the principle of the retroactivity of the more lenient criminal law) where the factual and legal position had changed after the event.

66. From all the foregoing considerations, it follows that this principle is to be regarded not solely as a national principle but also as a general principle of Community law which the national court must take into account in interpreting the provisions of national law adopted for the implementation of Directive 75/442. ( )

67. Even if Decree-Law 138/02 is not itself a criminal law, it results in an interpretation of the term ‘waste’, and thus of the offences established by Legislative Decree 22/97 which presuppose ‘waste’, which is more lenient to the accused.

68. However, it may be that Decree-Law 138/02 cannot be applied retroactively to acts committed before it came into force (because it is the ‘more lenient criminal law’) to the extent that to do so would infringe Directive 75/442.

69. The reason for applying a more lenient criminal law retroactively is that an accused person ought not to be censured for conduct which, according to the (changed) view of the legislature at the time of the hearing, is no longer punishable. Accordingly, he ought to be given the benefit of the change in the legislature’s attitude. This ensures the coherency of the legal system. Applying the more lenient law retroactively also takes into account the fact that the general and specific deterrent purposes of punishment fall away once the conduct in question is no longer punishable.

70. This demonstrates that the principle is ultimately based on considerations of fairness which are not so high ranking as, for example, the reasons for the principle that penalties must have a proper legal basis (the principles of the rule of law and of legal certainty). For that reason, many legal systems allow exceptions to the principle, for example where criminal liability arose under a law which was enacted for a limited period of time.

71. In a case concerning Community law, account must be taken, however, of the fact that the national legislature’s reasons for adopting the subsequent, more lenient criminal law are not compatible with the values informing the Community legislature’s regulation of the area in question. In short, one might say that a subsequently enacted law is not a more lenient criminal law that is applicable.

72. There is therefore no reason for giving an individual the retroactive benefit of a change in the national legislature’s opinion which runs counter to the unchanged prescriptions of Community law. ( ) On the contrary, the coherency of the legal system requires that Community law should be observed, since it has priority of application. Moreover, the penal aims of general and specific deterrence do not fall away where Community law requires that conduct should remain criminal.

73. This view is not inconsistent with the Court’s decision in Allain and Steel Trading France. ( ) In contrast to the present case, in Allain and Steel Trading France the factual and the Community law position had subsequently changed to the benefit of the accused. That case is not analogous to one in which a more lenient national provision is subsequently adopted in breach of Community law.

74. For the same reason, the principle of the retroactivity of the more lenient criminal law no more precludes the direct application of Directive 75/442 in the main action than does the principle that penalties must have a proper legal basis. Applying the Directive does not result in the imposition of obligations: its disadvantageous effects for the accused are all indirect. These do not free the national court from its obligation under Article 249(3) EC and Article 10 EC to give effect to Directive 75/442. ( )

75. Accordingly, in conclusion it is to be held that the national court is obliged to give effect to Directive 75/442 by disapplying a more lenient criminal provision adopted after the material time where that provision is incompatible with the Directive.

V – Conclusion

76. On the basis of the foregoing considerations, I propose that the Court should answer the questions referred by the Tribunale penale di Terni as follows:

(1) Council Directive 75/442/EEC of 15 July 1975 on waste precludes a provision of national law which provides that for the purpose of the definition of ‘waste’, the requirements of ‘discards’, ‘intends to discard’ and ‘is required to discard’ are satisfied (only) if the substance, material or object is subjected to one of the disposal or recovery operations listed in Annexes IIA and IIB to the Directive and the identically worded national provisions, or as the case may be, where there is a corresponding intention or obligation.

(2) Directive 75/442 precludes a provision of national law defining the concept of waste which provides that production or consumption residues are not waste where,

– they can be and are in fact and objectively reused in the same or a similar or different production or consumption cycle, without undergoing any prior treatment and without causing harm to the environment;

– they can be and are in fact and objectively reused in the same or a similar or different production or consumption cycle, after undergoing prior treatment without requiring any of the recovery operations listed in Annex IIB to the Directive and the identically worded national provisions.

(3) A court of a Member State is obliged to give effect to Directive 75/442 by disapplying a more lenient criminal provision adopted after the material time where that provision is incompatible with the Directive.