Judgment of the Court (Eighth Chamber) of 22 December 2008 – Commission v Italy

(Case C‑283/07)

Failure of a Member State to fulfil obligations – Directive 75/442/EEC – Article 1 – Concept of ‘waste’ – Scrap intended for use in iron and steel activities – High-quality refuse-derived fuel – Incorrect transposition

1. Actions for failure to fulfil obligations – Subject-matter of the dispute – Determination during the procedure prior to the action – Alteration of the objections after the issue of the reasoned opinion, on account of an amendment to the national legislation – Whether permissible (Art. 226 EC) (see paras 21-24)

2. Actions for failure to fulfil obligations – Right of the Commission to bring judicial proceedings – Time-limit – None – Exception – Excessive duration of the pre-litigation procedure prejudicial to the rights of the defence – Burden of proof (Art. 226 EC) (see paras 26-27)

3. Member States – Obligations – Supervisory tasks assigned to the Commission – Duty of the Member States – Cooperation in inquiries into whether a Member State has failed to fulfil its Treaty obligations (Arts 10 EC and 226 EC) (see paras 28-29)

4. Acts of the institutions – Directives – Implementation by Member States – Transposition of a directive without legislative action – Conditions (Art. 249, third para., EC) (see paras 32-33)

5. Environment – Waste – Directive 75/442 – Concept of waste – Substance which is discarded – Criteria for assessment (Art. 174(2), EC; Council Directive 75/442, as amended by Directive 91/156, Art. 1(a), and Annex I) (see paras 40-48)

6. Environment – Waste – Directive 75/442 – Scope – Member States’ option to define different categories of waste – Limits (Art. 174 EC; Council Directive 75/442, as amended by Directive 91/156, Arts 1(a), and 2(1)) (see paras 49-53, 59-67)

Re:

Failure of a Member State to fulfil obligations – Infringement of Article 1(a) of Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 47), as amended by Council Directive 91/156/EEC of 18 March 1991 (OJ 1991 L 78, p. 32) – Refuse derived fuel (RDF) and scrap intended for use in iron and steel and metallurgical activities – Exclusion from the scope of the national implementing law.

Operative part

The Court:

1. Declares that, by adopting and maintaining in force provisions such as:

– Article 1(25) to (27) and (29)(a) of Law No 308 of 15 December 2004 delegating power to the government to reform, coordinate and supplement legislation in environmental matters and direct implementation measures, and

– Article 1(29)(b) of Law No 308 of 15 December 2004 and Articles 183(1)(s) and 229(2) of Legislative Decree No 152 of 3 April 2006 laying down rules in environmental matters,

under which certain scrap intended for use in iron and steel and metallurgical activities and high-quality refuse-derived fuel (RDF-Q) respectively are excluded a priori from the scope of the Italian legislation on waste transposing Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991, the Italian Republic has failed to fulfil its obligations under Article 1(a) of that directive;

2. Orders the Italian Republic to pay the costs.