Opinion of Mr Advocate General Darmon delivered on 17 November 1993. - Comitato di Coordinamento per la Difesa della Cava and others v Regione Lombardia and others. - Reference for a preliminary ruling: Tribunale amministrativo regionale per la Lombardia - Italy. - Disposal of solid urban waste - Directive 75/442/EEC. - Case C-236/92.



European Court reports 1994 Page I-00483



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1. By order of 1 April 1992, the President of the Tribunale Amministrativo Regionale per la Lombardia (Regional Administrative Court, Lombardy) referred to the Court of Justice for a preliminary ruling five questions (1) concerning the interpretation of Council Directive 75/442/EEC of 15 July 1975 on waste ("the directive"), (2) which were raised in proceedings in which a group of several individuals contest the decision of the Lombardy Region to site tips for solid urban waste within its territory. (3)

2. It is apparent from the order for reference that the national court wonders whether the national implementing legislation is compatible with Community law, in so far as no measure intended to encourage the recycling of waste has been adopted, so that it will be now necessary to use tips for waste disposal. On the other hand, says the national court, if Italy had taken the measures necessary to encourage waste disposal by recycling as soon as the directive came into force, there would not now be any need to establish further tips. (4) The national court appointed an independent expert, disregarding the national provisions requiring it to appoint the administration for that purpose since it regarded them as incompatible with Community law. However, the expert' s terms of reference are not set out in the order from the national court.

3. Taking the view that the factual and legal context has not been clearly set out by the national court, the Agent for the Commission criticized the incomplete account of the facts, in line with the view expressed by the United Kingdom Government, which entertained doubts as to the admissibility of the questions submitted.

4. The Court has always declined to give a ruling on abstract legal questions, having emphasized in that connection that:

"... the need to provide an interpretation of Community law which will be of use to the national court makes it essential to define the legal context in which the interpretation requested should be placed ... in that respect, it may be convenient, in certain circumstances, for the facts in the case to be established and for questions of purely national law to be settled at the time the reference is made to the Court, so as to enable the latter to take cognizance of all the features of fact and of law which may be relevant to the interpretation of Community law which it is called upon to give". (5)

5. Although the order is rather concise in certain respects, it seems to me that the issues in the case can be sufficiently apprehended and it is therefore possible to answer the questions submitted.

6. It is true that the Court is tending to be more exigent regarding the conditions under which the duty of cooperation should be discharged, having recently stated:

"... it is essential for the national court to state the reasons for its view that the answer to its question is necessary for the solution of the case before it". (6)

7. Furthermore, in the Telemarsicabruzzo case, (7) the Court held that it was inappropriate to give a ruling where

"... the need to arrive at an interpretation of Community law which is helpful to the national court makes it necessary for that court to define the factual and legislative background to the questions which it submits or at least explain the factual hypotheses on which the questions are based". (8)

8. The present case differs from the last-mentioned one in that, firstly, the question cannot be regarded as arising in an area

"... characterized by complex factual and legal situations", (9)

and secondly - and more importantly - it is entirely possible to identify the context in which the Court' s ruling is to be given.

9. It should be borne in mind that the dispute concerns the siting of waste tips within the territory of Lombardy (10) and the allegation that the Italian regulations, providing only for the disposal of waste by tipping, are inimical to the directive, which requires measures to be adopted to encourage recycling. (11)

10. The first question concerns the direct effect of Article 4 of the directive, which provides that:

"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."

11. Two preliminary observations are called for.

12. In the first place, the entitlement of an individual to invoke a directive before a national court presupposes a "contexte juridique pathologique", (12) namely the non-implementation of the directive by a Member State within the prescribed period or else incomplete or incorrect implementation.

13. The Court has consistently held that:

"... wherever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may be relied upon by an individual against the State where the State fails to implement the directive in national law by the end of the period prescribed or where it fails to implement the directive correctly". (13)

14. It is apparent from the order for reference that the Italian Republic adopted an implementing decree. (14)

15. Secondly, the Court refused to recognize that directives have horizontal direct effect in its judgment in Marshall, (15) where it stated:

"... the binding nature of a directive, which constitutes the basis for the possibility of relying on the directive before a national court, exists only in relation to 'each Member State to which it is addressed' ". (16)

16. It will therefore be for the national court to make certain - and to do so will not be difficult as it is the Lombardy region that is involved in this case - that the person against whom the directive is relied upon is in fact "the State", in the widest sense of the term, which includes all its agencies, even those that are decentralized. (17)

17. Let us now examine the directive, and more particularly Article 4 thereof, in order to establish whether, being "unconditional" and "sufficiently precise", it can be relied on by any individual.

18. It need only be recalled in that connection that a Community provision is unconditional where it is not

"subject, in its implementation or effects, to the taking of any measure either by the institutions of the Community or by the Member States", (18)

and is precise where the obligation which it imposes is set out

"in unequivocal terms". (19)

19. No party or intervener has pleaded in this Court that that provision has direct effect, and I am of the same opinion.

20. It will be recalled that the directive has been the subject of numerous proceedings before this Court, both Treaty-infringement actions and preliminary-ruling proceedings, with the result that, although it has not been asked any question relating directly to the contested provision, it has, on the other hand, already given judgments concerning its purpose.

21. As is apparent from its preamble, the directive pursues two objectives: first, to ensure the requisite harmonization of national legislation on the disposal of waste so as to preclude obstruction of intra-Community trade and any adverse effect on conditions of competition, (20) and, secondly, to protect "human health and the environment against harmful effects caused by the collection, transport, treatment, storage and tipping of waste". (21)

22. Moreover, the Court came to the same conclusion in its judgment in Treaty-infringement proceedings brought by the Commission against Italy (22) for failure to implement Directives 75/442/EEC and 78/319/EEC. (23)

23. The Court went on to say,

"For the purpose of realizing those objectives, the directives require the Member States to adopt a number of measures", (24)

which are laid down in Article 5 et seq.:

- designation of authorities responsible, in particular, for planning, authorization and supervision of waste disposal operations (Article 5);

- the drawing up of plans relating in particular to "suitable disposal sites" (Article 6);

- delivery of waste to a disposal undertaking (Article 7);

- authorization of all undertakings engaged in the treatment of waste (Article 8);

- periodical inspections of the undertakings thus approved (Article 9);

- supervision of undertakings engaged in the collection of waste (Article 10);

- the "polluter pays" principle (Article 11).

24. As correctly pointed out by the United Kingdom in its observations, the sole purpose of Article 4, which merely reiterates the third recital, is to define the objectives of the more specific measures contained in Articles 5 to 11, but it cannot, in isolation, constitute a measure of that kind.

25. That is the view taken by the Court in its judgment in Traen, (25) in which, when called on to define the extent of the State' s discretionary power under Article 10 of the directive, stated:

"That provision does not therefore lay down any particular requirement restricting the freedom of the Member States regarding the way in which they organize the supervision of the activities referred to therein. That freedom must, however, be exercised having due regard to the objectives mentioned in the third recital in the preamble to the directive and Article 4 thereof, namely the protection of human health and of the environment." (26)

26. I therefore consider that, being neither precise nor unconditional, the provisions of Article 4 cannot directly confer rights for the benefit of individuals enabling them to rely on it as against the public authorities.

27. That analysis must, however, be taken further since the Court' s case-law has nevertheless expounded the principle that national law should, as far as possible, be interpreted so as to conform with the requirements of Community law:

"the Member States' obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. It follows that, in applying the national law ..., national courts are required to interpret their national law in the light of the wording and the purpose of the directive in order to achieve the result referred to in the third paragraph of Article 189", (27)

even if the period prescribed for transposition has not yet expired. (28)

28. In the present case - and contrary to the position where a directive has direct effect - the possibility of relying on it is not limited merely to actions brought against the State or agencies thereof since the national court applies its domestic law, which is thus interpreted in a manner such as to make it conform with the requirements of Community law - which has prompted certain legal authors to take the view that, in such cases, "indirect horizontal effect" is recognized. (29)

29. Accordingly, where a Member State has not correctly transposed a directive, a court applying its national law must, so far as is possible, interpret it in the manner required by the directive.

30. An enunciation of this principle in the abstract will not suffice to enable the national court to resolve the problem of interpretation with which it is confronted. This Court must, in pursuance of the cooperation sought by Article 177, provide it with the information needed to enable it to give its decision.

31. The question submitted must, essentially, be construed as follows: must Article 4 be interpreted as meaning that, in the absence of measures adopted by the Member State in order to encourage the treatment of waste by recycling, individuals may oppose the establishment of a tip?

32. That question, in my view, should be answered in the negative - the date of adoption of the directive and the terms used militate in favour of a flexible interpretation, as the Commission in fact acknowledged at the hearing.

33. Adopted in 1975, the directive represents the first joint action by the Member States, as industrialized countries, in response to the pollution caused by poor management of waste or, in some cases, no management at all.

34. It was for that reason that it was decided to establish a procedure for the inspection, by the public authorities or their appointees, of waste disposal operations. The legislation is concerned with plans for disposal rather than the imposition of one method of treatment rather than another.

35. That is also confirmed by Article 1 which, in using the term "disposal", covers both tipping and recycling, even though, pursuant to Article 3(1),

"Member States shall 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".

36. That provision confines itself to encouraging recourse to that method, and no obligation in that regard can be inferred from it.

37. On the other hand, as far as the location of tips is concerned, Article 6 requires the competent authorities to draw up plans for "suitable disposal sites". After the sites are decided upon, the authorities must make certain that waste is disposed of without endangering human health and without harming the environment, for which purposes the objectives laid down in Article 4 must be observed. Those are the limits to which the freedom of action of those authorities is subject, although any measure for the disposal of waste is inherently liable to produce pollution, whatever the method adopted.

38. As Article 4 does not require the Member States to dispose of waste by recycling it, it does not appear that, in the absence of a domestic provision imposing such an obligation, the national court can properly rely on the principle of harmonious interpretation in order to give preference to disposal by that method.

39. Let us move on to the second question referred by the national court, concerning the legality of a system which, it is submitted, does not adequately protect the rights of individuals under Community law, since, because those rights are assimilated to "interessi leggitimi" (protected interests), the court is required, if it considers that an expert' s report is necessary in order to give judgment, to appoint an agent of the administration, even though the latter is itself a party to the dispute.

40. My views on this point, as on the following questions, will be set out in the alternative since, in my opinion, Article 4 must be interpreted as not placing the Member States under any obligation to give preference to the treatment of waste by recycling and accordingly individuals cannot claim that a right vested in them has been infringed.

41. The national court asks this Court for a ruling in an area which is customarily referred to as the procedural autonomy of the Member States.

42. The Court stated in its judgment in Salgoil (30)

"it is for the legal system of each Member State to decide which court has jurisdiction to give protection and, for this purpose, to decide how the individual position thus protected is to be classified". (31)

43. However, in its judgment in Ferwerda, (32) the Court stated that

"it is for the courts of the Member States to provide, in pursuance of the requirements of cooperation embodied in Article 5 of the Treaty, the legal protection made available as a result of the direct effect of the Community provisions both when such provisions create obligations for the subject and when they confer rights on him. It is, however, for the national legal system of each Member State to determine the courts having jurisdiction and to fix the procedures for applications to the courts intended to protect the rights which the subject obtains through the direct effect of Community law but such procedures may not be less favourable than similar procedures concerning internal matters and may in no case be laid down in such a way as to render impossible in practice the exercise of the rights which the national courts must protect". (33)

44. The distinction between "diritti leggittimi" and "diritti soggettivi" is well known to this Court since the same national court, dealing with the substantive issues on that occasion, previously submitted a question on that point in the Enichem case. (34)

45. Admittedly, the question submitted on that occasion related to the need for the administration to pay compensation to individuals because of an alleged encroachment upon rights protected by Community law, even though the domestic legislation gave no entitlement to compensation.

46. Since Community law conferred no right on individuals, the Court did not have to give an answer, but Advocate General Jacobs, for the sake of completeness, expressed the following view on that point:

"... where Community law confers rights on individuals, national courts must provide an appropriate and effective remedy in respect of infringement by the national authorities of those rights". (35)

47. Similarly, I consider that where the Community provision confers rights, genuine protection for them necessarily implies that experts appointed by the court must be independent so that the inquiries can be undertaken with rigorous impartiality and neutrality.

48. It will be remembered that in its judgment in Bozzetti, (36) the Court stated, repeating - and amplifying - the dictum in Salgoil:

"it is for the legal system of each Member State to decide which court has jurisdiction to hear disputes involving individual rights derived from Community law, but at the same time the Member States are responsible for ensuring that those rights are effectively protected". (37)

49. How can this principle of effective protection be reconciled with the lack of any guarantee of neutrality on the part of the expert, whose role is to provide clarification for the court with absolute impartiality, when the expert is employed by the administration and the latter is a party to the proceedings?

50. The principle of effective protection is thereby compromised since, principally in technical matters where the administration is the other party, an ordinary individual has no standing to challenge what the administration says. The expert must thus reflect the independence of the judge, the need for which has been recognized by this Court. (38)

51. I therefore consider that Community law, where it confers a right on individuals, precludes a national provision which requires the national courts, in proceedings to which the public authorities are a party, to appoint one of its servants as an expert.

52. The third preliminary question asks the Court to rule on the scope of the second paragraph of Article 174 of the EEC Treaty. The national court asks, essentially, whether it has jurisdiction, in the event of infringement of a Community provision, not to disapply the national provision but rather to keep it in force, in the public interest, in order to avoid any disruption of the internal legal order.

53. According to the well-known dictum in the Court' s judgment in Simmenthal: (39)

"a national court which is called upon, within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provision by legislative or other constitutional means". (40)

54. The Court also stated in its judgment in Denkavit Italiana (41) that:

"The interpretation which, in the exercise of the jurisdiction conferred upon it by Article 177, the Court of Justice gives to a rule of Community law clarifies and defines where necessary the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its coming into force. It follows that the rule thus interpreted may, and must, be applied by the courts even to legal relationships arising and established before the judgment ruling on the request for interpretation ...", (42)

without the Court' s thereby being prevented from

"restrict[ing] for any person concerned the opportunity of relying upon the provision as thus interpreted with a view to calling in question those legal relationships"; (43)

and it concluded:

"Such a restriction may, however, be allowed only in the actual judgment ruling upon the interpretation sought. The fundamental need for a general and uniform application of Community law implies that it is for the Court of Justice alone to decide upon the temporal restrictions to be placed on the interpretation which it lays down", (44)

restrictions which may be imposed only exceptionally.

55. In the more specific context of the question submitted, namely the possibility of leaving intact the application of national rules that are incompatible with Community law, it need only be stated that a national court could not be allowed to take such a course without compromising both the primacy and the uniform application of Community law.

56. It should be noted, however, that nothing in the circumstances in which the dispute arose indicates that any right protected by Community law has been encroached upon, since Article 4 does not in itself confer any rights on individuals and that provision, read in conjunction with Article 6, cannot be interpreted as preventing Member States from having recourse to tipping for the disposal of waste or limiting their power to do so - quite the contrary.

57. Let us now consider the fourth question, in which the national court asks whether, where it considers that a law is contrary to Community law, it must guarantee the rights of defence of the national or regional legislature, so that the latter must, for that purpose, come before it.

58. This, as the observations submitted to the Court make clear, is a question which falls entirely within the scope of Italian national law and, therefore, is not within the jurisdiction of this Court under Article 177.

59. It is therefore unnecessary to answer that question, or indeed the fifth question, which was asked only in the event of an affirmative answer to the fourth question.

60. I therefore propose that the Court rule as follows:

(1) Article 4 of Council Directive 75/442/EEC of 15 July 1975 must be interpreted as not conferring on individuals any right which they could enforce before the national courts in order to obtain the annulment of a decision of a national authority adopted within the scope of that provision on the ground that the internal rules did not provide for the measures needed to encourage recycling as a method of disposing of waste.

(2) In the alternative,

(a) Community law precludes national rules which limit the protection of rights duly granted to individuals by a Community provision by requiring the appointment, as expert, of an employee of the administration, the latter being a party to the dispute;

(b) where, in order to ensure the full effectiveness of a Community provision which vests rights in individuals, a national court is prompted, on its own initiative, to disapply a conflicting provision of national law, it cannot restrict the effects of its decision, any such restriction, in so far as it is based on the second paragraph of Article 174 of the EEC Treaty, being a matter within the exclusive jurisdiction of the Court of Justice of the European Communities.

(*) Original language: French.

(1) - The wording of the questions appears in the Report for the Hearing, at I.5.

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

(3) - Order for reference, paragraph A.1.

(4) - Ibid., paragraphs 6.1. to 6.3.

(5) - Judgment in Case C-83/91 Meilicke v ADV/ORGA A.G. [1992] ECR I-4871, paragraph 26.

(6) - Judgment in Case C-343/90 Lourenço Dias [1992] ECR I-4673, paragraph 19. See also the judgments in Case 244/80 Foglia v Novello [1981] ECR 3045 and Joined Cases 98, 162 and 258/85 Bertini [1986] ECR 1885.

(7) - Judgment in Joined Cases C-320/90, C-321/90 and C-322/90 [1993] ECR I-393.

(8) - Paragraph 6.

(9) - Ibid., paragraph 7.

(10) - Paragraph A.1. of the order for reference.

(11) - Ibid., paragraphs 6.1 to 6.3.

(12) - G. Isaac: Droit Communautaire Général' , Third Edition, Masson, p. 163.

(13) - Case 80/86 Kolpinghuis Nijmegen [1987] ECR 3969, paragraph 7.

(14) - Decree No 915 of the President of the Italian Republic of 10 September 1982 (Gazzetta Ufficiale della Repubblica Italiana No 343 of 15 December 1982, p. 9071).

(15) - Case 152/84 [1986] ECR 723.

(16) - Paragraph 48.

(17) - See in that regard the judgments in Case 152/84, cited above, and Case C-188/89 Foster [1990] ECR I-3313.

(18) - Case 28/67 Molkerei-Zentrale Westfalen v Hauptzollamt Paderborn [1968] ECR 143.

(19) - Judgment in Case 152/84, cited above, paragraph 52.

(20) - Sixth recital.

(21) - Third recital.

(22) - Case 33/90 [1991] ECR I-5987, paragraph 2.

(23) - Council Directive of 20 March 1978 on toxic and dangerous waste (OJ 1978 L 84, p. 43).

(24) - Paragraph 3.

(25) - Joined Cases 372 to 374/85 [1987] ECR 2141.

(26) - Paragraph 21.

(27) - Judgment in Case 14/83 Von Colson and Kamann [1984] ECR 1891, paragraph 26; see also the judgments in Case 157/86 Murphy [1988] ECR 673, Case 80/86, cited above, and Case C-106/89 Marleasing [1990] ECR I-4135.

(28) - Judgment in Case 80/86, cited above, paragraph 15.

(29) - Emmert and Pereira De Azevedo, L' effet horizontal des directives - La jurisprudence de la Cour de Justice des Communautés européennes: un bateau ivre? , RTDE, 1993, No 3, p. 503.

(30) - Case 13/68 [1968] ECR 453.

(31) - At p. 463.

(32) - Case 265/78 [1980] ECR 617.

(33) - Paragraph 10, emphasis added.

(34) - Case 380/87 [1989] ECR 2491.

(35) - Paragraph 19, at p. 2509.

(36) - Case 179/84 [1985] ECR 2301.

(37) - Paragraph 17, emphasis added.

(38) - See, most recently, the judgment in Case C-24/92 Corbiau [1993] ECR 0000.

(39) - Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal [1978] ECR 629.

(40) - Paragraph 24.

(41) - Case 61/79 Amministrazione delle Finanze dello Stato v Denkavit Italiana [1980] ECR 1205.

(42) - Paragraph 16, emphasis added.

(43) - Paragraph 17.

(44) - Paragraph 18, emphasis added.