OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 20 November 2014 ( 1 )

Case C‑534/13

Fipa Group and Others

(Request for a preliminary ruling from the Consiglio di Stato (Italy))

‛Article 191(2) TFEU — Directive 2004/35/EC — Environmental liability with regard to the prevention and remedying of environmental damage — ‘Polluter-pays’ principle — Responsibility of the owner who did not cause the environmental damage’

I – Introduction

1. The Italian city of Carrara is well known for its marble. However, other industrial activities have also been undertaken in the surrounding area in the past. These have left behind considerable pollution, at least in the vicinity of the neighbouring town of Massa Carrara, which is why an ‘area of national interest’ was established there. Since the affected sites have changed owners in the meantime, the current owners, who did not cause the pollution, are in dispute with Italian authorities regarding the extent to which they can be held liable for remedying the damage.

2. According to information from the Italian Council of State (Consiglio di Stato), Italian law stipulates only that the costs of remedial work can be imposed on such owners up to the value of the sites. Conversely, they are not required under that law to take remedial measures themselves or to bear higher costs for such measures. Therefore, the Council of State is asking the Court of Justice whether the principles laid down in Article 191(2) TFEU — namely the ‘polluter-pays’ principle, the precautionary principle and the principles that preventive action should be taken and that environmental damage should be rectified at source as a matter of priority — and in the Environmental Liability Directive ( 2 ) require that greater demands are imposed on these owners.

II – Legal framework

A – Union law

3. The environmental principles of the Union, in particular the ‘polluter-pays’ principle, are laid down in Article 191(2) TFEU: ‘Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay. …’

4. As is emphasised in Article 1 of the Environmental Liability Directive, this is attained particularly by means of the ‘polluter-pays’ principle: ‘The purpose of this Directive is to establish a framework of environmental liability based on the “polluter-pays” principle, to prevent and remedy environmental damage.’

5. However, recital 13 in the preamble to the Environmental Liability Directive demonstrates the limits of the ‘polluter-pays’ principle: ‘Not all forms of environmental damage can be remedied by means of the liability mechanism. For the latter to be effective, there need to be one or more identifiable polluters, the damage should be concrete and quantifiable, and a causal link should be established between the damage and the identified polluter(s). Liability is therefore not a suitable instrument for dealing with pollution of a widespread, diffuse character, where it is impossible to link the negative environmental effects with acts or failure to act of certain individual actors.’

6. Article 8(3) of the Environmental Liability Directive restricts operators’ responsibility for costs in certain cases: ‘An operator shall not be required to bear the cost of preventive or remedial actions taken pursuant to this Directive when he can prove that the environmental damage or imminent threat of such damage: (a) was caused by a third party and occurred despite the fact that appropriate safety measures were in place; or (b) resulted from compliance with a compulsory order or instruction emanating from a public authority other than an order or instruction consequent upon an emission or incident caused by the operator’s own activities. In such cases Member States shall take the appropriate measures to enable the operator to recover the costs incurred.’

7. Article 16(1) of the Environmental Liability Directive allows Member States to adopt certain further-reaching provisions: ‘This Directive shall not prevent Member States from maintaining or adopting more stringent provisions in relation to the prevention and remedying of environmental damage, including the identification of additional activities to be subject to the prevention and remediation requirements of this Directive and the identification of additional responsible parties.’

8. Finally, the request for a preliminary ruling refers to recital 24 in the preamble, which concerns implementation and enforcement of the Environmental Liability Directive: ‘It is necessary to ensure that effective means of implementation and enforcement are available, while ensuring that the legitimate interests of the relevant operators and other interested parties are adequately safeguarded. Competent authorities should be in charge of specific tasks entailing appropriate administrative discretion, namely the duty to assess the significance of the damage and to determine which remedial measures should be taken.’

B – Italian law

9. Article 3ter of Decreto legislativo (Legislative Decree) No 152 of 3 April 2006 (Legislation Decree No 152) refers expressly to the earlier version of Article 191(2) TFEU, namely Article 174(2) of the Treaty on European Union; this presumably means the Treaty establishing the European Community. This provision requires everyone, authorities as well as private bodies and individuals, to protect the environment by means of appropriate measures based on the precautionary principle and on the principles that preventive action should be taken and that environmental damage should be rectified at source as a matter of priority, and on the ‘polluter-pays’ principle.

10. Article 244(1) and (2) of Legislative Decree No 152 provides that, after detection of pollution of an area, the competent authorities are to put the polluter on notice. Under paragraph (3) the owner of the area is also to be notified of such a decision. Under paragraph (4) the competent authorities are to take the necessary measures to safeguard and rehabilitate the area if the party responsible for the pollution cannot be identified and if neither the owner of the area nor other interested parties take action.

11. Article 245(1) of Legislative Decree No 152 allows the owner and other interested parties to take the necessary measures to safeguard and restore the area. Under paragraph (2), irrespective of the polluter’s obligations, the owner or the administrator of the area must notify the competent authorities and take certain preventive measures if they learn that there is a risk of the pollution thresholds being exceeded.

12. Under Article 250 of Legislative Decree No 152, the competent authorities are to take the necessary measures if the polluter does not take action or cannot be identified and the owner or other interested parties fail to take action.

13. According to Article 253(1) of Legislative Decree No 152, the measures under this title of the Decree are charges in rem (‘oneri reali’) on the land. Paragraph (2) provides that a special preferential right in rem (‘privilegio speciale immobiliare’) in the land is to be established for the costs of these measures. Under paragraph (3), if a claim for the costs is made against the owner of the land, who did not cause the pollution, it is necessary to give reasons, in particular, as to why the polluter cannot be identified or why a claim for costs cannot be made against him. Under paragraph (4), these costs can be imposed on the owner up to a maximum of the value of the site once the decontamination has been carried out.

III – National proceedings and the request for a preliminary ruling

14. Fipa Group Srl., TWS Automation Srl. and Ivan Srl. acquired a number of sites which had previously belonged to the Montedison Group. The sites were located in the ‘Massa Carrara’ area of national interest and suffered from substantial pollution, which had not been caused by the first three companies mentioned — on that there is no dispute. Rather, it is apparently the consequence of contaminants for which the Montedison Group was still responsible and which had already been the subject of remedial measures at the end of the last century.

15. According to information from the parties to the proceedings, the competent public authorities issued a decree of 7 November 2011 requiring the aforementioned companies, as owners of the sites concerned, to implement certain emergency safety measures and requesting submission of an amendment to the remediation plan (from 1995). In addition, Montedison Srl. (now Edison SpA) was indicated as the polluter in that decision, and it was charged with carrying out the same measures.

16. In response to complaints by the first three companies mentioned, the Administrative Court for the Region of Tuscany repealed those measures at first instance. Now, the plenary session of the Consiglio di Stato (Council of State) is to decide on the appeal of the Ministero dell’Ambiente e della Tutela del Territorio e del Mare (Italian Ministry of the Environment) against these three judgments.

17. In these proceedings the Council of State has referred the following question to the Court of Justice: ‘Do the European Union principles relating to the environment, laid down in Article 191(2) TFEU and in the Environmental Liability Directive (Articles 1 and 8(3) and recitals 13 and 24 in the preamble) — specifically, the “polluter-pays” principle, the precautionary principle and the principles that preventive action should be taken and that environmental damage should be rectified at source as a matter of priority — preclude national legislation, such as the rules set out in Articles 244, 245 and 253 of Legislative Decree No 152 of 3 April 2006, which, in circumstances in which it is established that a site is contaminated and in which it is impossible to identify the polluter or to have that person adopt the restoration measures, do not permit the administrative authority to require the owner (who is not responsible for the pollution) to implement the emergency safety and decontamination measures, merely attributing to that person financial liability limited to the value of the site once the decontamination measures have been carried out?’

18. During the written procedure, the Italian Council of State informed the Court that Versalis SpA (‘Versalis’) had intervened in the case. Ivan Srl (‘Ivan’), Edison SpA (‘Edison’) and Versalis have intervened in writing as parties to the main proceedings, and the Republic of Poland, the Italian Republic and the European Commission have made representations as interested third parties. Ivan, Edison, Versalis, Italy and the Commission took part in the oral procedure on 5 November 2014.

IV – Legal assessment

19. The Italian Council of State would like to know whether Article 191(2) TFEU and the Environmental Liability Directive preclude provisions of national law which, in circumstances in which it is established that a site is contaminated and in which it is impossible to identify the polluter or to have that person adopt the restoration measures, do not permit the administrative authority to require the owner (who is not responsible for the pollution) to implement the emergency safety and decontamination measures, merely attributing to that person financial liability limited to the value of the site once the decontamination measures have been carried out.

20. Consequently, it is necessary to examine whether Union law requires Member States to order the owners of a polluted site to carry out certain safety and decontamination measures on that site, although they did not cause the pollution.

21. To this end, it is first of all necessary to discuss the Environmental Liability Directive as a lex specialis and then to examine the principles laid down in Article 191(2) TFEU. Finally, I shall briefly touch on Union law on waste, although this is not the subject of the question here.

22. I should like to anticipate the result of this examination. Although it cannot be ruled out that the Union will implement the principles of Article 191(2) TFEU in the form of a corresponding obligation, ( 3 ) such implementation is not included in the Environmental Liability Directive cited by the Council of State. In addition, the question whether other rules, such as waste legislation, go further should not be examined by the Court in the context of these proceedings, so as to avoid any unexpected, inadequately discussed findings.

A – The Environmental Liability Directive

1. The admissibility of the question regarding the Environmental Liability Directive

23. There are two possible reasons for doubting the admissibility of the question, in so far as it relates to the Environmental Liability Directive. Both concern its relevance.

24. First, according to the request for a preliminary ruling, it is doubtful whether the Italian provisions can be interpreted as meaning that they impose the further-reaching responsibility of site owners referred to in the question. However, a directive can impose obligations on individuals only by means of the consistent interpretation of national law. ( 4 ) Therefore, it is possible that the interpretation of the Environmental Liability Directive by the Court would not affect the decision in the main action.

25. However, it is not for the Court, in the context of a reference for a preliminary ruling, to give a ruling on the interpretation of provisions of national law. ( 5 ) It is consequently necessary to abide by the presumption that the questions referred by national courts for a preliminary ruling are relevant for the decision in the main action. ( 6 )

26. The same also applies ultimately with regard to the second possible reason for doubts regarding relevance. This concerns the temporal applicability of the Environmental Liability Directive to the main action.

27. Under Article 17, the Environmental Liability Directive is applicable to damage caused by an emission, event or incident which took place subsequent to 30 April 2007, where the damage derives from activities which took place subsequent to the date in question or from activities which took place but did not finish before that date. ( 7 )

28. Therefore, the information from Edison stating that the polluting activities had ceased in 1988 and the areas were supposed to have been decontaminated in 1995 — possibly not completely successfully — is a reason for not applying the Environmental Liability Directive in the main action. It would be irrelevant as regards the application of the directive whether the undertakings concerned are legal successors of an undertaking which was responsible for damage before 30 April 2007. ( 8 )

29. It is therefore for the referring court to ascertain, on the basis of the facts, which it alone is in a position to assess, whether, in the main proceedings, the damage in respect of which environmental remedial measures were imposed by the competent national authorities falls within one of the situations referred to in Article 17 of the Environmental Liability Directive. To provide for the case that the national court reaches the conclusion that the directive is applicable ratione temporis in the main proceedings, it should be addressed. ( 9 )

2. The requirements of the Environmental Liability Directive

30. The question whether the principles of the Environmental Liability Directive require Member States to impose on the owner of a polluted site safety and decontamination measures regarding that site, although that person was not responsible for the pollution is surprising, since causation of environmental damage is a prerequisite for the duties laid down in the directive in respect of natural or legal persons.

31. According to Article 1 of the Environmental Liability Directive, its purpose is to establish a framework of environmental liability based on the ‘polluter-pays’ principle, to prevent and remedy environmental damage. Accordingly, under Article 3(1), it is to apply to environmental damage caused by occupational activity and to any imminent threat of such damage occurring by reason of such activity. Pursuant to Articles 5 to 7, the operator responsible for such activity must implement the necessary preventive and remedial measures and, pursuant to Articles 8 to 10 and recital 18 in the preamble, must bear the costs for them.

32. Recital 2 in the preamble to the Environmental Liability Directive makes it clear that operators should be induced by this liability to adopt measures and develop practices to minimise the risks of environmental damage. For the liability mechanisms to produce (the desired) effects, recital 13 in the preamble makes it clear that there need to be one or more identifiable polluters, concrete and quantifiable damage and a causal link between the damage and the identified polluter(s).

33. The particular importance of causation is also emphasised by recital 20 in the preamble to and Article 8(3) of the Environmental Liability Directive. According to these, an operator should not be required to bear the costs of preventive or remedial actions taken pursuant to that directive in situations where the damage in question or imminent threat thereof is the result of certain events beyond the operator’s control. This defence is possible, therefore, despite the fact that the operator’s occupational activity causes damage. To benefit from this defence, an operator must prove that the environmental damage or imminent threat thereof was caused by a third party and occurred despite the fact that appropriate safety measures were in place. This exemption applies, therefore, in the case, for example, of sabotage or external interventions.

34. On the other hand, contrary to one of the hypotheses set out by the Council of State, Article 8(3) of the Environmental Liability Directive should not be interpreted as meaning that it could be automatically assumed, until there is proof of a different cause, that an operator using a polluted site caused that pollution. Rather, this provision exonerates the operator in spite of the proof that the damage was caused by his occupational activity.

35. Nevertheless, irrespective of Article 8(3), the Court of Justice has already interpreted the Environmental Liability Directive as meaning that a corresponding presumption against the operator is possible. Member States have a broad discretion particularly when establishing the causes of pollution of a widespread, diffuse character. ( 10 ) Therefore, the presumption of causation is also permissible if there is plausible evidence, such as the fact that the operator’s installation is located close to the pollution found and that there is a correlation between the pollutants identified and the substances used by the operator in connection with his activities. ( 11 )

36. However, it is not a consequence of the ‘polluter-pays’ principle that operators must take on the burden of remedying pollution to which they have not contributed. ( 12 ) The Court of Justice has held, therefore, that in accordance with Article 11(4) of the Environmental Liability Directive operators have available to them legal remedies to challenge remedial measures adopted on the basis of the directive and the existence of any causal link between their activities and the pollution found. ( 13 ) In particular, they may rebut the presumption that they had caused any damage. ( 14 )

37. Mere owners of damaged sites, who are not responsible for the damage, play no part in the system of the Environmental Liability Directive as outlined above. The directive does not apply to them at all. ( 15 )

38. The precautionary principle and the principles that preventive action should be taken and that environmental damage should be rectified at source as a matter of priority do not alter this conclusion. Although they also have to be taken into account when interpreting the Environmental Liability Directive, it is not evident how they might lead to a different interpretation of the abovementioned provisions.

39. In addition, the requirement regarding effective implementation of the Environmental Liability Directive, as referred to in recital 24 in the preamble thereto, cannot provide grounds for obligations going beyond the directive for the owners of sites who are not responsible for the damage.

3. The liability of site owners according to the second judgment in ERG and Others

a) Certain translations of the judgment

40. A number of the translations of the second judgment in ERG and Others appear, however, to prove the opposite of the conclusion reached so far. In that judgment, the Court of Justice refers in three language versions to the owners, ( 16 ) the users ( 17 ) and the concessionaries ( 18 ) of sites bordering on a coastal complex, which is the subject of remedial measures. It finds that, in exceptional circumstances, the Environmental Liability Directive must be interpreted as allowing the competent authority to require such persons to implement remedial measures themselves. ( 19 )

41. It must, nevertheless, be assumed that the Court was not making an observation regarding the duties of owners, users or concessionaries of sites as such, but was referring to operators within the meaning of the Environmental Liability Directive who were carrying out professional activities on the sites concerned. This is because all other language versions of that judgment, in particular the French original, which was the only one discussed by all judges involved, and the binding Italian version use the term ‘operator’, ( 20 ) as it is used in the directive.

b) Operators’ liability for risks presented by their sites

42. However, even taking into account possible translation problems, according to the second judgment in ERG and Others the Environmental Liability Directive must apparently be interpreted, in exceptional circumstances, as allowing the competent authority to require site owners to implement remedial measures themselves, if they pursue activities within the meaning of the directive on the sites. ( 21 ) There is no indication there that a causal contribution is required.

43. Such operator liability would be in line with Italy’s opinion. According to that view, the ‘polluter-pays’ principle establishes the objective liability of undertakings, which are owners of sites used for industrial purposes, for pollution of those sites. They extracted the economic benefits from the site and are, therefore, responsible for all risks presented by the site. Therefore, it is not necessary to prove whether they caused the pollution.

44. However, even this interpretation of the Court’s ruling is not persuasive, since the Court bases its findings thereafter on the obligations which the Environmental Liability Directive imposes on operators who have caused environmental damage. ( 22 )

45. In addition, the interpretation of the second judgment in ERG and Others set out in point 42 would contradict the other findings which were made on the same day in the first judgment in ERG and Others regarding the dependence of operator liability on the causation of the damage, and which in their turn take up existing case-law. ( 23 ) Thus, in accordance with the ‘polluter-pays’ principle, the obligation to take remedial measures is imposed on operators only because of their contribution to the creation of pollution or the risk of pollution. ( 24 ) In addition, the ‘polluter-pays’ principle does not require operators to take on the burden of remedying pollution to which they have not contributed. ( 25 )

46. Therefore, the aforementioned finding by the Court in the second judgment in ERG and Others can relate only to operators who have caused damage, even if, as has already been explained, ( 26 ) such causation is only presumed.

4. More stringent rules by Member States

47. However, owners who did not cause such damage could be made liable for environmental damage to sites by means of measures imposed by Member States. Pursuant to Article 16, the Environmental Liability Directive does not prevent Member States from maintaining or adopting more stringent provisions in relation to the prevention and remedying of environment damage. The identification of additional responsible parties is expressly mentioned in that article.

48. This power is restricted by the objectives of the Environmental Liability Directive, which Member States may not undermine. ( 27 ) Thus, they would be prohibited from identifying additional responsible parties to replace the polluter who was liable under the directive. However, since the liability of mere owners as found in Italy requires, under Article 253(3) of Legislative Decree No 152, that the polluter cannot be identified or that the costs cannot be claimed from him, the rule does not affect this objective.

49. For the request for a preliminary ruling, however, the sole point of interest is whether the possibility of adopting more stringent provisions, as provided by Article 16 of the Environmental Liability Directive, may allow for the imposition of an obligation to hold owners who did not cause the damage more strictly liable than previously provided for.

50. An objection to this is that exercise of such competence provides a margin of discretion for Member States. Such discretion can, however, be restricted, for example here — as already touched on — with regard to inconsistencies with the objectives of the Environmental Liability Directive. In addition, in exceptional circumstances it is possible to reduce discretion so far as to create an obligation to exercise competence.

51. For example, a superficial reading of Article 4(2) of the EIA Directive ( 28 ) could lead to the conclusion that it is at the discretion of Member States whether the environmental impacts of projects listed in Annex II have to be assessed. However, it is clear from the case-law that, because of the objectives of that directive, such an assessment must be carried out if such a project is likely to have significant effects on the environment. ( 29 )

52. In contrast to this, there is no explicit evidence from either Article 16 or any other provisions of the Environmental Liability Directive for reducing regulatory discretion in the sense that site owners have to be called on to remedy environmental damage where they did not cause the damage. The directive contains, at most, an unspoken requirement that Member States oblige such persons to allow the necessary measures on their sites and, where necessary, to cooperate in their implementation. Thus, Article 12(4) makes provision for their views to be heard.

53. Further limits on Member States’ discretion under Article 16 of the Environmental Liability Directive may follow from the environmental law principles set out in Article 191(2) TFEU, referred to in the reference for a preliminary ruling, ( 30 ) since Article 16 was also adopted pursuant to Article 192(1) TFEU for the purpose of attaining those objectives. It should, therefore, be assumed that Article 16 of the Environmental Liability Directive is aimed at a high level of protection, taking into account the different conditions in the individual regions of the Union, and is based on the precautionary principle and the principles that preventive action should be taken and that environmental damage should be rectified at source as a matter of priority, as well as on the ‘polluter-pays’ principle.

54. The scope of the ‘polluter-pays’ principle coincides essentially with the restrictions which the objectives of the Environmental Liability Directive impose on the application of Article 16. Member States may not undermine the ‘polluter-pays’ principle by identifying additional responsible parties as well as or instead of the polluters. Thus, additional responsible parties may have only secondary liability.

55. Furthermore, this is in line with the principle of preventive action. If polluters know that they are liable in full for damage, they will take the necessary preventive measures so that damage does not occur in the first place. In general, the polluters are the parties who are able to take the most effective measures.

56. In addition, the principle of preventive action, just like the principle that environmental damage should be rectified at source as a matter of priority, nevertheless requires that, irrespective of any contributions by the owners to the causes, measures can be taken on polluted sites to prevent further spread of the damage. In certain circumstances, it may also be necessary for the owner to support these measures using his better knowledge of the site. Otherwise, it would clearly be more difficult, if not impossible, to prevent such spread. On the other hand, in general neither of these principles requires that these owners should themselves be called on to carry out the remedial work.

57. Moreover, the principle of preventive action suggests that owners of sites should be required, in certain cases, to take preventive measures against risks for which third parties are essentially responsible. It would be conceivable, for example, to require the owner of a site subject to repeated dumping of illegal waste to fence in that site in order to prevent further offences. In addition, the obligations on owners highlighted by Italy in Article 245(2) of Legislative Decree No 152, to notify pollution and to take certain protective measures, are underpinned by such considerations. However, the request for a preliminary ruling contains no evidence that that aspect of prevention arises in the present case. It is not therefore necessary to go further into such considerations which may support owners’ liability.

58. In addition, it is not apparent how the precautionary principle should affect the interpretation of Article 16 of the Environmental Liability Directive in the present case with regard to the liability of site owners, who have not caused any damage, to take remedial measures. According to this principle, where there is uncertainty as to the existence or extent of risks to human health, protective measures may be taken without any need to wait until the reality and seriousness of those risks become fully apparent. ( 31 ) However, if it is found that a person has not caused the damage, this principle cannot be applied.

59. On the other hand, if it is not clear whether a site owner is responsible for damage, this may lead to the presumption of causation outlined above. ( 32 ) In that case, however, there is no further scope for the application of Article 16 of the Environmental Liability Directive.

60. Therefore, there just remains the objective of a high level of protection. A comprehensive secondary liability of site owners for environmental damage on their sites would certainly be in line with this objective, since it would allow scarce public resources to be concentrated on damage for which no responsible party at all can be identified.

61. However, in my opinion it is impossible to use this objective to interpret the authorisation to identify additional responsible parties, contained in Article 16 of the directive, as an obligation. Rather, this authorisation transfers to the Member States the power to balance the objective of a high level of protection with other objectives, for example the fundamental rights of the site owner. Otherwise, every authorisation in secondary legislation to adopt more stringent environmental protection measures would require Member States to provide for the highest conceivable level of protection, over and above the regulations in the secondary legislation.

5. Interim conclusion

62. Consequently, the European Union principles relating to the environment laid down in the Environmental Liability Directive (Articles 1, 8(3) and 16 and recitals 13 and 24 in the preamble) and in Article 191(2) TFEU — specifically, the ‘polluter-pays’ principle, the precautionary principle and the principles that preventive action should be taken and that environmental damage should be rectified at source as a matter of priority — do not preclude national legislation which, in circumstances in which it is established that a site is contaminated and in which it is impossible to identify the polluter or to have that person adopt the restoration measures, does not permit the administrative authority to require the owner (who is not responsible for the pollution) to implement emergency safety and decontamination measures, merely attributing to that person financial liability limited to the value of the site once the decontamination measures have been carried out.

B – Article 191(2) TFEU

63. The request for a preliminary ruling also seeks, nevertheless, to deal with the principles laid down in Article 191(2) TFEU in isolation. In view of the doubts concerning the relevance of statements regarding the Environmental Liability Directive, ( 33 ) this should be discussed from the perspective of both Union law and national law.

1. The effects of Article 191(2) TFEU under Union law

64. Article 191(2) TFEU establishes the principles relating to European Union policy on the environment. This policy is implemented by the Union legislature pursuant to Article 192. ( 34 ) On the other hand, obligations on Member States cannot be based directly on that provision. ( 35 )

65. Similarly, Union law does not require Member States to take these principles directly into account when interpreting national legislation, which they adopt irrespective of Union law and outside its scope.

66. Consequently, according to Union law the principles laid down in Article 191(2) TFEU are to be taken into account primarily in the interpretation of the relevant secondary legislation of the Union, ( 36 ) as happened in the interpretation of the Environmental Liability Directive in the present case.

2. The effects of Article 191(2) TFEU under Italian law

67. However, Versalis emphasises Article 3ter of Legislative Decree No 152. This provision relates expressly to the earlier version of Article 191(2) TFEU. It requires everyone, authorities as well as private bodies and individuals, to protect the environment by means of appropriate measures based on the precautionary principle and the principles that preventive action should be taken and that environmental damage should be rectified at source as a matter of priority, and on the ‘polluter-pays’ principle.

68. This provision of Italian law could mean that all Italian legislation on the environment, or at least the rules of Legislative Decree No 152, has to be interpreted, if possible, in accordance with the stated principles of Article 191(2) TFEU. In that case, how these principles should be interpreted, irrespective of Union secondary legislation, would be important for the decision in the main proceedings. They would then be assigned ‘supererogatory effect’ under national law, ( 37 ) such as the Court has already recognised for directives ( 38 ) or for the fundamental freedoms in connection with national bans on discrimination against nationals. ( 39 )

69. Nevertheless, the Court is not competent to decide whether in Italian law such effect should be assigned to Article 3ter of Legislative Decree No 152. This is a matter for the Italian courts ( 40 ) and ideally, therefore, should have been included in the request for a preliminary ruling. ( 41 )

70. In the present case, apparently, Article 3ter of Legislative Decree No 152 is implicitly the basis for the request for a preliminary ruling. Otherwise, it would be difficult to understand why a court such as the Italian Council of State would discuss the principles laid down in Article 191(2) TFEU in depth and barely put it into context with legal provisions of Union secondary legislation, while there are still serious doubts concerning the applicability ratione temporis of those provisions, namely the Environmental Liability Directive.

71. In the end, however, it is not necessary to determine whether the effect of Article 3ter of Legislative Decree No 152 was adequately explained in the request for a preliminary ruling. Even if it is assumed that, on the basis of this provision, Italian environmental law is shaped by the principles laid down in Article 191(2) TFEU, irrespective of Union secondary legislation, it is not evident that this would lead to different conclusions than those adopted in connection with the interpretation of Article 16 of the Environmental Liability Directive.

C – Waste legislation

72. In my Opinion in ERG and Others, I briefly noted that Union waste legislation may establish wider liability on the part of site owners for rehabilitation of polluted areas than the Environmental Liability Directive, but nevertheless requires claims to be made against the polluter as a matter of priority. ( 42 ) Accordingly, it does not appear to be impossible to make subordinate claims against otherwise uninvolved owners of polluted sites as holders of waste (Articles 14 and 15 of the Waste Directive). ( 43 )

73. Since the Council of State and the interested parties have looked very closely at the Opinion mentioned above, but nevertheless have failed to examine Union waste legislation, I recommend that, likewise, the Court should not comment on those provisions.

74. In fact, a decision on liability for contaminated soil under waste legislation would raise difficult and, in part, delicate questions, while the possible significance for the main proceedings is unclear.

75. The Court has already found that hydrocarbons accidentally spilled on land, into groundwater or at sea, which are no longer fit for proper use, must be regarded as waste. ( 44 ) The same classification as ‘waste’ applies to soil contaminated as a result of an accidental spill of these substances. ( 45 ) However, when reforming the Waste Directive, the legislature did at least revise the statements regarding the waste properties of polluted soils, ( 46 ) when, pursuant to Article 2(1)(b) of the Waste Directive, it excluded land (in situ) including unexcavated contaminated soil, from its scope in future.

76. However, it remains doubtful whether this rule actually excludes polluted soils from the application of waste legislation. If a polluting substance becomes waste as a result of the pollution, this property can hardly lapse just because it is mixed with the soil. ( 47 ) In practice, however, it should not make any difference whether the polluted soil as a whole is treated as waste or only the substances polluting it. Apart from this, (possibly delicate) questions arise regarding the relationship between the law on waste and the Environmental Liability Directive.

77. Above all, however, it is not clear whether statements regarding this sensitive question can be relevant for the decision in the main proceedings. On the one hand, the Court received hardly any information regarding the — in this respect — relevant provisions of Italian waste legislation with the request for a preliminary ruling. However, Union waste law can also impose obligations on individuals or undertakings only in so far as it has been implemented in the Member States or national law can at least be interpreted in conformity. ( 48 ) On the other hand, it is not clear whether the decisions at issue in the dispute can be based retrospectively on waste legislation.

78. If, in the light of the Court’s answer to the request for a preliminary ruling, the Council of State none the less comes to the conclusion that liability under waste law may be relevant for the decision in the main proceedings, it should then address a new request for a preliminary ruling to the Court.

V – Conclusion

79. I therefore propose that the Court should answer the question referred for a preliminary ruling as follows: The European Union principles relating to the environment, laid down in Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage (Articles 1, 8(3) and 16 and recitals 13 and 24 in the preamble) and Article 191(2) TFEU — specifically, the ‘polluter-pays’ principle, the precautionary principle and the principles that preventive action should be taken and that environmental damage should be rectified at source as a matter of priority — do not preclude national legislation which, in circumstances in which it is established that a site is contaminated and in which it is impossible to identify the polluter or to have that person adopt the restoration measures, does not permit the administrative authority to require the owner (who is not responsible for the pollution) to implement emergency safety and decontamination measures, merely attributing to that person financial liability limited to the value of the site once the decontamination measures have been carried out.

( 1 ) Original language: German.

( 2 ) Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (OJ 2004 L 143, p. 56); in all probability, the relevant version is that of Directive 2009/31/EC of the European Parliament and of the Council of 23 April 2009 on the geological storage of carbon dioxide (OJ 2009 L 140, p. 114). The subsequent amendments as a result of Directive 2013/30/EU of the European Parliament and of the Council of 12 June 2013 on safety of offshore oil and gas operations (OJ 2013 L 178, p. 66) do not have to be implemented until 2015.

( 3 ) See my Opinion in Cases C‑378/08 together with C‑379/08 and C‑380/08 (ERG and Others EU:C:2009:650, point 111 et seq.).

( 4 ) See my Opinion in Commune de Mesquer (C‑188/07, EU:C:2008:174, point 133 and the case-law cited).

( 5 ) See, inter alia, judgment in Angelidaki and Others (C‑378/07 to C‑380/07, EU:C:2009:250, paragraph 48).

( 6 ) See judgment in Pupino (C‑105/03, EU:C:2005:386, paragraph 30).

( 7 ) Judgment in ERG and Others (C‑378/08, EU:C:2010:126, paragraph 41, and C‑379/08 and C‑380/08, EU:C:2010:127, paragraph 34).

( 8 ) This may apply to Edison, which apparently emerged from the Montedison Group, which used the sites in question in the past and which, according to information from Ivan, is responsible for the pollution.

( 9 ) Judgment in ERG and Others (C‑378/08, EU:C:2010:126, paragraphs 43 and 47, and C‑379/08 and C‑380/08, EU:C:2010:127, paragraphs 36 and 40).

( 10 ) Judgment in ERG and Others (C‑378/08, EU:C:2010:126, paragraph 55).

( 11 ) Judgment in ERG and Others (C‑378/08, EU:C:2010:126, paragraph 57).

( 12 ) Judgments in Standley and Others (C‑293/97, EU:C:1999:215, paragraph 50) and ERG and Others (C‑378/08, EU:C:2010:126, paragraph 67).

( 13 ) Judgment in ERG and Others (C‑378/08, EU:C:2010:126, paragraph 67).

( 14 ) Judgment in ERG and Others (C‑378/08, EU:C:2010:126, paragraph 58).

( 15 ) See, to that effect, judgment in ERG and Others (C‑378/08, EU:C:2010:126, paragraph 58).

( 16 ) Lithuanian: ‘sklypų savininkams’.

( 17 ) German: ‘Nutzern der Grundstücke’.

( 18 ) Portuguese version: ‘concessionários dos terrenos’.

( 19 ) Judgment in ERG and Others (C‑379/08 and C‑380/08, EU:C:2010:127, paragraph 78, see also paragraph 82).

( 20 ) French: ‘exploitants’, Italian: ‘operatori’.

( 21 ) Judgment in ERG and Others (C‑379/08 and C‑380/08, EU:C:2010:127, paragraph 78, see also paragraph 82).

( 22 ) _ Judgment in ERG and Others (C‑379/08 and C‑380/08, EU:C:2010:127, paragraphs 87 to 90).

( 23 ) Judgment in ERG and Others (C‑378/08, EU:C:2010:126, paragraphs 52 to 59 and 64 to 67).

( 24 ) Judgment in ERG and Others (C‑378/08, EU:C:2010:126, paragraph 57), referring to Commune de Mesquer (C‑188/07, EU:C:2008:359, paragraph 77).

( 25 ) Judgment in ERG and Others (C‑378/08, EU:C:2010:126, paragraph 67), referring to Standley and Others (C‑293/97, EU:C:1999:215, paragraph 51).

( 26 ) See point 35 above.

( 27 ) Judgment in ERG and Others (C‑379/08 and C‑380/08, EU:C:2010:127, paragraphs 65 and 66). See also my Opinion in Case C‑378/08 together with Cases C‑379/08 and C‑380/08 (ERG and Others, EU:C:2009:650, points 96 to 115).

( 28 ) Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1).

( 29 ) Judgments in Kraaijeveld and Others (C‑72/95, EU:C:1996:404, paragraph 50); WWF and Others (C‑435/97, EU:C:1999:418, paragraph 36); and Salzburger Flughafen (C‑244/12, EU:C:2013:203, paragraph 29).

( 30 ) See judgments in Commune de Mesquer (C‑188/07, EU:C:2008:359, paragraph 38); Commission v United Kingdom (C‑301/10, EU:C:2012:633, paragraph 49); Shell Netherlands (C‑241/12 and C‑242/12, EU:C:2013:821, paragraph 38); and Commission v France (C‑237/12, EU:C:2014:2152, paragraph 30).

( 31 ) Judgments in National Farmers’ Union and Others (C‑157/96, EU:C:1998:191, paragraph 63); Agrarproduktion Staebelow (C‑504/04, EU:C:2006:30, paragraph 39); and Afton Chemical (C‑343/09, EU:C:2010:419, paragraphs 61 and 62).

( 32 ) See point 35 above.

( 33 ) See above, points 23 to 29.

( 34 ) See judgments in Peralta (C‑379/92, EU:C:1994:296, paragraph 57) and ERG and Others (C‑378/08, EU:C:2010:126, paragraph 45).

( 35 ) Judgments in Peralta (C‑379/92, EU:C:1994:296, paragraph 58) and ERG and Others (C‑378/08, EU:C:2010:126, paragraph 46).

( 36 ) See the case-law cited in footnote 30.

( 37 ) Judgments in Dzodzi (C‑297/88 and C‑197/89, EU:C:1990:360, paragraphs 35 to 39); Leur-Bloem (C‑28/95, EU:C:1997:369, paragraph 32); and Salahadin Abdulla and Others (C‑175/08, C‑176/08, C‑178/08 and C‑179/08, EU:C:2010:105, paragraph 48).

( 38 ) Judgments in Guimont C‑448/98, EU:C:2000:663, paragraph 23); Servizi Ausiliari Dottori Commercialisti (C‑451/03, EU:C:2006:208, paragraph 29); and Airport Shuttle Express (C‑162/12 and C‑163/12, EU:C:2014:74, paragraph 44).

( 39 ) See also the Order in De Bellis and Others, C‑246/14, EU:C:2014:2291, paragraphs 15 to 17.

( 40 ) Judgments in Dzodzi (C‑297/88 and C‑197/89, EU:C:1990:360, paragraphs 41 and 42) and Leur-Bloem (C‑28/95, EU:C:197:369, paragraph 33).

( 41 ) See order in De Bellis and Others (C‑246/14, EU:C:2014:2291, paragraph 20).

( 42 ) Opinion in Case C‑378/08 together with C‑379/08 and C‑380/08 (ERG and Others, EU:C:2009:650, points 130 to 138).

( 43 ) Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste (OJ 2008 L 312, p. 3). Corresponding rules had also been included in earlier waste directives that had been applicable since 1977.

( 44 ) Judgments in Van de Walle and Others (C‑1/03, EU:C:2004:490, paragraphs 47 to 50) and Commune de Mesquer (C‑188/07, EU:C:2008:359, paragraphs 57 to 59).

( 45 ) Judgment in Van de Walle and Others (C‑1-03, EU:C:2004:490, paragraph 52).

( 46 ) See, to that effect, Petersen, Entwicklungen des Kreislaufwirtschaftsrechts — Die neue Abfallrahmenrichtlinie — Auswirkungen auf das Kreislaufwirtschafts- und Abfallgesetz, Neue Zeitschrift für Verwaltungsrecht 2009, 1063 (1064).

( 47 ) See also my Opinion in Commission v Italy and Commission v Greece (C‑196/13 and C‑378/13, EU:C:2014:2162, point 99).

( 48 ) See my Opinion in Commune de Mesquer (C‑188/07, EU:C:2008:174, point 133 and the case-law cited).