OPINION OF ADVOCATE GENERAL

RANTOS

delivered on 17 June 2021 ( 1 )

Case C‑315/20

Regione Veneto

v

Plan Eco Srl,

other parties

Futura Srl

(Request for a preliminary ruling from the Consiglio di Stato (Council of State, Italy))

(Reference for a preliminary ruling – Environment – Directive 2008/98/EC – Waste management – Article 16 – Principles of self-sufficiency and proximity – Regulation (EC) No 1013/2006 – Shipments of waste – Article 3(5) and Article 11 – Mixed municipal waste subject to mechanical treatment which does not alter the properties of the waste – European Waste Catalogue (EWC) – Classification under the EWC code for special waste)

I. Introduction

1. The request for a preliminary ruling was made in the context of a dispute between Regione Veneto (Veneto Region, Italy; ‘the Region’) and Plan Eco Srl concerning the Region’s objection to the shipment of waste to another Member State.

2. That request concerns, in essence, the interpretation of Regulation No 1013/2006, ( 2 ) read in conjunction with Directive 2008/98/EC, ( 3 ) and relates, above all, to the question whether or not the classification, in one Member State, of mixed municipal waste in accordance with the European Waste Catalogue (EWC), following mechanical treatment which has not substantially altered the original properties of that waste, interferes with the application of the EU legislation on the shipment of that waste to another Member State.

II. Legal framework

A. European Union law

1. Directive 2008/98

3. In accordance with Article 41 of Directive 2008/98, that directive repealed and replaced, with effect from 12 December 2010, Directive 2006/12/EC, ( 4 ) and references to the second directive are to be construed as references to the first.

4. Recital 33 of Directive 2008/98 is worded as follows: ‘For the purposes of applying [Regulation No 1013/2006], mixed municipal waste as referred to in Article 3(5) of that Regulation remains mixed municipal waste even when it has been subject to a waste treatment operation that has not substantially altered its properties.’

5. Article 1 of that directive, entitled ‘Subject matter and scope’, provides: ‘This Directive lays down measures to protect the environment and human health by preventing or reducing the adverse impacts of the generation and management of waste and by reducing overall impacts of resource use and improving the efficiency of such use.’

6. Article 3 of that directive, entitled ‘Definitions’, provides, for the purposes of that directive, the following definitions: ‘… 9. “waste management” means the collection, transport, recovery and disposal of waste …; … 14. “treatment” means recovery or disposal operations, including preparation prior to recovery or disposal; 15. “recovery” means any operation the principal result of which is waste serving a useful purpose by replacing other materials which would otherwise have been used to fulfil a particular function, or waste being prepared to fulfil that function, in the plant or in the wider economy. …; … 19. “disposal” means any operation which is not recovery even where the operation has as a secondary consequence the reclamation of substances or energy. …; …’

7. Article 7 of that directive, entitled ‘List of waste’, provides in paragraph 1: ‘… The list of waste shall include hazardous waste and shall take into account the origin and composition of the waste and, where necessary, the limit values of concentration of hazardous substances. The list of waste shall be binding as regards determination of the waste which is to be considered as hazardous waste. The inclusion of a substance or object in the list shall not mean that it is waste in all circumstances. A substance or object shall be considered to be waste only where the definition in point (1) of Article 3 is met.’

8. Article 13 of Directive 2008/98, entitled ‘Protection of human health and the environment’, is worded as follows: ‘Member States shall take the necessary measures to ensure that waste management is carried out without endangering human health, without harming the environment and, in particular: (a) without risk to water, air, soil, plants or animals; (b) without causing a nuisance through noise or odours; and (c) without adversely affecting the countryside or places of special interest.’

9. Chapter III of that directive, which comprises Articles 15 to 22 thereof, is entitled ‘Waste management’. Under Article 16, entitled ‘Principles of self-sufficiency and proximity’: ‘1. Member States shall take appropriate measures, in cooperation with other Member States where this is necessary or advisable, to establish an integrated and adequate network of waste disposal installations and of installations for the recovery of mixed municipal waste collected from private households, including where such collection also covers such waste from other producers, taking into account best available techniques. By way of derogation from [Regulation No 1013/2006], Member States may, in order to protect their network, limit incoming shipments of waste destined to incinerators that are classified as recovery, where it has been established that such shipments would result in national waste having to be disposed of or waste having to be treated in a way that is not consistent with their waste management plans. Member States shall notify the Commission of any such decision. Member States may also limit outgoing shipments of waste on environmental grounds as set out in [Regulation No 1013/2006]. 2. The network shall be designed to enable the [European Union] as a whole to become self-sufficient in waste disposal as well as in the recovery of waste referred to in paragraph 1, and to enable Member States to move towards that aim individually, taking into account geographical circumstances or the need for specialised installations for certain types of waste. 3. The network shall enable waste to be disposed of or waste referred to in paragraph 1 to be recovered in one of the nearest appropriate installations, by means of the most appropriate methods and technologies, in order to ensure a high level of protection for the environment and public health. …’

10. Annex II to that directive, entitled ‘Recovery operations’, includes, in paragraph R 1, the following definition: ‘Use principally as a fuel or other means to generate energy’. ( 5 )

2. Regulation No 1013/2006

11. Recitals 7 and 20 of Regulation No 1013/2006 state: ‘(7) It is important to organise and regulate the supervision and control of shipments of waste in a way which takes account of the need to preserve, protect and improve the quality of the environment and human health and which promotes a more uniform application of the Regulation throughout the [European Union]. … (20) In the case of shipments of waste for disposal, Member States should take into account the principles of proximity, priority for recovery and self-sufficiency at [European Union] and national levels, in accordance with [Directive 2006/12], by taking measures in accordance with the Treaty to prohibit generally or partially or to object systematically to such shipments. Account should also be taken of the requirement laid down in [Directive 2006/12], whereby Member States are to establish an integrated and adequate network of waste disposal installations, in order to enable the [European Union] as a whole to become self-sufficient in waste disposal and the Member States to move towards that aim individually, taking into account geographical circumstances or the need for specialised installations for certain types of waste. …’

12. Under Article 1 of that regulation, entitled ‘Scope’: ‘1. This Regulation establishes procedures and control regimes for the shipment of waste, depending on the origin, destination and route of the shipment, the type of waste shipped and the type of treatment to be applied to the waste at its destination. 2. This Regulation shall apply to shipments of waste: (a) between Member States, within [the European Union] or with transit through third countries; …’

13. Title II of that regulation, entitled ‘Shipments within the [European Union] with or without transit through third countries’, comprises, inter alia, Articles 3 to 32. Article 3 of that regulation, entitled ‘Overall procedural framework’, provides as follows in paragraph 5: ‘Shipments of mixed municipal waste (waste entry 20 03 01) collected from private households, including where such collection also covers such waste from other producers, to recovery or disposal facilities shall, in accordance with this Regulation, be subject to the same provisions as shipments of waste destined for disposal.’

14. Article 4 of Regulation No 1013/2006, entitled ‘Prior written notification and consent’, provides as follows in the first paragraph thereof: ‘Where the notifier intends to ship waste as referred to in Article 3(1)(a) or (b), he/she shall submit a prior written notification to and through the competent authority of dispatch and, if submitting a general notification, comply with Article 13.’

15. Article 11 of that regulation, entitled ‘Objections to shipments of waste destined for disposal’, provides in paragraph 1: ‘Where a notification is submitted regarding a planned shipment of waste destined for disposal, the competent authorities of destination and dispatch may, within 30 days following the date of transmission of the acknowledgement of the competent authority of destination in accordance with Article 8, raise reasoned objections based on one or more of the following grounds and in accordance with the Treaty: (a) that the planned shipment or disposal would not be in accordance with measures taken to implement the principles of proximity, priority for recovery and self-sufficiency at [European Union] and national levels in accordance with Directive 2006/12 … to prohibit generally or partially or to object systematically to shipments of waste; or … (i) that the waste is mixed municipal waste collected from private households (waste entry 20 03 01); or …’

16. Article 12 of that regulation, entitled ‘Objections to shipments of waste destined for recovery’, provides in paragraph 1: ‘Where a notification is submitted regarding a planned shipment of waste destined for recovery, the competent authorities of destination and dispatch may, within 30 days following the date of transmission of the acknowledgement of the competent authority of destination in accordance with Article 8, raise reasoned objections based on one or more of the following grounds and in accordance with the Treaty: … (b) that the planned shipment or recovery would not be in accordance with national legislation relating to environmental protection, public order, public safety or health protection concerning actions taking place in the objecting country; or … (g) that the ratio of the recoverable and non-recoverable waste, the estimated value of the materials to be finally recovered or the cost of the recovery and the cost of the disposal of the non-recoverable fraction do not justify the recovery, having regard to economic and/or environmental considerations; … …’

3. The list of wastes and the European Waste Catalogue

17. Decision 94/3/EC ( 6 ) established a list of wastes pursuant to Article 1(a), second subparagraph, of Directive 75/442/EEC. ( 7 ) That list is annexed to that decision.

18. Paragraph 2 of the Annex to Decision 94/3 provides that the list of wastes is commonly referred to as ‘the European Waste Catalogue (EWC)’.

19. Paragraph 3 of that annex states that ‘the [European Waste Catalogue] is an harmonised, non-exhaustive list of wastes, that is to say, a list which will be periodically reviewed …’.

20. Decision 94/3 was replaced by Decision 2000/532/EC, ( 8 ) which amended the EWC.

21. In Chapter 19 of the list of wastes annexed to that decision, entitled ‘Wastes from waste management facilities …’ under section 19 12, entitled ‘wastes from the mechanical treatment of waste (for example sorting, crushing, compacting, pelletising) not otherwise specified’ is code 19 12 12: ‘other wastes (including mixtures of materials) from mechanical treatment of wastes other than those mentioned in 19 12 11 [ ( 9 )]’.

22. In Chapter 20 of that list, entitled ‘Municipal wastes (household waste and similar commercial, industrial and institutional wastes) including separately collected fractions’, under section 20 03 ‘other municipal wastes’, is code 20 03 01: ‘mixed municipal waste’.

B. Italian law

23. Paragraph 1 of Article 182-bis of Decreto Legislativo No 152 – Norme in materia ambientale (Legislative Decree No 152 laying down rules on environmental matters) of 3 April 2006, ( 10 ) provides: ‘The disposal of waste and the recovery of mixed municipal waste shall be carried out by means of an integrated and adequate network of installations, employing the best available technology and taking into account the overall cost/benefit ratio, in order to: (a) achieve self-sufficiency in the disposal of non-hazardous municipal waste and waste resulting from the treatment thereof in the optimum geographical areas; (b) enable the disposal of waste and the recovery of mixed municipal waste in one of the nearest appropriate installations to the place of its production or collection, in order to reduce the movement of waste, taking into account the geographical circumstances or the need for specialised installations for certain types of waste; …’

24. Annex D to legislative decree No 152/2006 sets out the codes to be assigned to the different types of waste as established by the EWC.

III. The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court of Justice

25. The transport company Plan Eco submitted to the Region a request for prior consent concerning the export to a cement factory in Slovenia of 2000 tonnes of mixed municipal waste for use in co-combustion. The company Futura had mechanically treated that waste and then classified it, after that treatment, under code 19 12 12 of the EWC (‘the waste at issue’).

26. By decision of 22 April 2016, the Region objected to the planned shipment, on the basis, inter alia, of Article 12(1)(b) and (g) of Regulation No 1013/2016, on the ground, first, that the waste at issue was originally mixed municipal waste and that the treatment operations carried out by Futura had not changed its nature, since the assignment of code 19 12 12 of the EWC is not decisive in that regard; secondly, that Legislative Decree No 152/2006 required that such mixed municipal waste be recovered in one of the appropriate installations nearest to the place where it was produced or collected; [and,] thirdly, that there was a network of installations in its territory capable of meeting the needs of Plan Eco and that, in the present case, one of the Region’s installations had stated that it was in a position to accept that mixed municipal waste.

27. Plan Eco brought an action against that decision before the Tribunale Amministrativo Regionale per il Veneto (Regional Administrative Court for the Veneto Region, Italy), which, by judgment of 15 November 2016, annulled the decision on the ground, inter alia, that the cross-border shipment concerned special waste classified under code 19 12 12 of the EWC and that, therefore, the principles of self-sufficiency, proximity and territorial restriction laid down for the treatment of municipal waste did not apply.

28. The Region brought an appeal against that judgment before the Consiglio di Stato (Council of State, Italy) which, after having ascertained, inter alia, that the waste at issue had been subject to a treatment which had not substantially altered its original properties as municipal waste, decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘In a case where mixed municipal waste which does not contain hazardous waste has been mechanically treated at a facility for the purpose of energy recovery (operation R1/R12 under Annex C to [Legislative Decree No 152/2006]) and, following the treatment operation, it appears, in theory, that the treatment has not substantially altered the original properties of the mixed municipal waste, to which is assigned the [EWC code] 19 12 12, which the parties do not contest; for the purpose of the judgment as to the legitimacy of the objections to the request for prior consent for shipment of the treated waste to a production facility in a Member State of the European Union for use in co-combustion or other means of generating energy, raised by the competent authority in the country of origin on the basis of the principles of [Directive 2008/98], and specifically objections such as those, in this case, based: – on the principle of protection of human health and the environment (Article 13); – on the principle of self-sufficiency and proximity laid down in Article 16(1)…; – on the principle, also laid down in the final sentence of the second subparagraph of Article 16(1) …; – on recital 33 …; does the [EWC] and its classifications (in the present case, EWC 19 12 12, designating waste produced by mechanical treatment facilities for recovery operations R1/R12), interfere – and, if so, in what terms and to what extent – with the rules [of EU law] on the shipment of waste which, prior to mechanical treatment, was mixed municipal waste; and, in particular, with regard to shipments of waste resulting from the treatment of mixed municipal waste, do the provisions of Article 16 of [Directive 2008/98] and recital 33 thereof, specifically concerning the shipment of waste, take precedence over the classification based on the [EWC]; specifying, if the Court of Justice deems it appropriate and useful, whether that catalogue is regulatory in nature or whether it is simply a technical certification intended for the uniform traceability of all waste?’

29. Written observations have been submitted by the Italian Government and the Commission.

IV. Analysis

A. Preliminary considerations

30. The question referred for a preliminary ruling by the national court consists, in essence, of two questions, which I shall examine below: – the first concerns whether recital 33 and Article 16 of Directive 2008/98 must be interpreted as allowing the competent authority of dispatch to object to the shipment of mixed municipal waste to another Member State, for use in co-combustion, even though it has been classified under code 19 12 12 of the EWC following mechanical treatment which has not, however, substantially altered the original properties of that waste; – the second, which is ancillary, concerns whether the EWC is regulatory in nature or whether, on the contrary, it is ‘simply a technical certification intended for the uniform traceability of all waste’.

31. During the proceedings before the referring court, the Region submitted, in essence, that the waste at issue, which remains municipal waste although it has been treated mechanically, is subject to the principles of self-sufficiency and proximity set out in paragraph 1 of Article 182-bis of Legislative Decree No 152/2006 and that the EWC is a technical certification, but does not constitute a regulatory provision.

32. Plan Eco, on the other hand, contends, in essence, that the waste at issue is ‘special’ waste, namely waste which has been subject to a mechanical treatment resulting in the assignment of code 19 12 12 of the EWC.

33. Before the Court, the Italian Government maintains that, despite the treatment which it has undergone, and although its classification under code 19 12 12 of the European Waste Catalogue following that treatment is correct, the waste at issue remains non-hazardous mixed municipal waste for the purposes of recital 33 of Directive 2008/98. Therefore, under Article 3(5) of Regulation No 1013/2006, that waste is to be subject to the same provisions as shipments of waste destined for disposal and, in particular, to Article 12(1)(b) of that regulation and to the principle of proximity referred to in Article 16(1) of that directive.

34. For its part, the Commission considers that, under Article 3(5) of Regulation No 1013/2006, the shipment of the waste at issue, which remains mixed municipal waste although it is destined for a recovery operation and not for disposal, is subject to the same provisions as shipments of waste destined for disposal and, consequently, subject to Article 11(1)(a) of that regulation, which allows the competent authorities to raise reasoned objections to the shipment, based in particular on the principles of proximity and self-sufficiency. That conclusion is not called into question by the reference in Article 3(5) of that regulation to code 20 of the EWC, since the latter provision applies to municipal waste including waste of a different nature. The same conclusion is confirmed by recital 33 of Directive 2008/98, which reaffirms that mixed municipal waste remains mixed municipal waste even when it has been subject to a waste treatment operation which has not substantially altered its properties, and by Article 7(1) of that directive, according to which the list of waste is to be binding only as regards determination of the waste which is to be considered as hazardous waste. Ultimately, what is decisive in determining the nature of the waste at issue is not the assignment of the EWC code but the fact that that waste remains mixed municipal waste despite the treatment operation.

35. In the light of the technical nature of the questions asked, it seems appropriate, before beginning my analysis, to present an overview of the regulatory framework relating to shipments of waste and the classification of the waste at issue.

1. The regulatory framework relating to shipments of waste

36. First of all, I note that, in accordance with Article 1 of Directive 2008/98, that directive lays down measures to protect the environment and human health, first by preventing or reducing the adverse impacts of the generation and management of waste, secondly by reducing overall impacts of resource use and improving the efficiency of such use.

37. Under Article 16 of that directive, Member States are required to take appropriate measures to establish an integrated and adequate network of installations for the treatment of waste destined for disposal and of collected mixed municipal waste, taking into account the best available techniques and designing that network in such a way as to enable them to move individually towards the aim of becoming self-sufficient in waste treatment and to enable waste to be treated in one of the appropriate installations nearest to the place where it is produced. The same article provides, inter alia, that Member States may limit outgoing shipments of waste on environmental grounds as set out in Regulation No 1013/2006.

38. Secondly, I observe that, in accordance with Article 1(1) of Regulation No 1013/2006, that regulation establishes procedures and control regimes for the shipment of waste, depending on the origin, destination and route of the shipment, the type of waste shipped and the type of treatment to be applied to the waste at its destination, and that, in accordance with Article 1(2) of that regulation, it applies to shipments of waste taking place, inter alia, between Member States, with the exception of shipments of waste falling within the special cases or special rules referred to in paragraph 3 of that article, which are not applicable to the case in the main proceedings.

39. Under Article 3 of that regulation, shipments of waste between Member States are to be subject either to the procedure of prior written notification and consent governed by Articles 4 to 17 of that regulation, which are applicable to waste destined for disposal and to hazardous waste destined for recovery, or to the general information requirements laid down in Article 18 thereof, which concerns, in principle, only non-hazardous waste destined for recovery. ( 11 )

40. Furthermore, it follows from Articles 11, 12 and 18 of Regulation No 1013/2006 that the Member States have different prerogatives or obligations as regards, on the one hand, shipments between Member States of waste destined for disposal and, on the other hand, shipments of waste destined for recovery. Moreover, under Article 3(5) of that regulation, shipments of mixed municipal waste collected from private households and other producers to recovery or disposal facilities are subject to the same provisions as shipments of waste destined for disposal. ( 12 )

41. More specifically, as regards waste destined for disposal and mixed municipal waste, it follows from Article 11(1)(a) of that regulation, read in the light of recital 20 thereof, and Article 16 of Directive 2008/98, that the Member States may adopt measures of general application restricting shipments of that waste between Member States, in the form of general or partial prohibitions of shipments, by way of implementation of the principles of proximity, priority for recovery and self-sufficiency under that directive. ( 13 )

2. Classification of the waste at issue

42. In the present case, first of all, I would point out that the waste at issue, which was the subject of a request for prior consent for shipment, was originally mixed municipal waste which did not contain hazardous waste.

43. Secondly, it is common ground that the waste at issue was treated mechanically for the purpose of energy recovery and that that treatment led to a change in its classification according to the EWC. That waste was therefore classified under code 19 12 12 of that catalogue, covering ‘other wastes (including mixtures of materials) from mechanical treatment of wastes other than those mentioned in 19 12 11’, while ‘mixed municipal waste’ per se is classified under code 20 03 01 of that catalogue. The referring court, however, ascertained that that treatment did not substantially alter the original properties of that waste, which remained mixed municipal waste.

44. Lastly, it is also common ground that the planned shipment concerned waste destined for ‘recovery’, that is to say, waste intended for use as a means of generating energy ( 14 ) and that there was, in the regional territory, a network of installations capable of hosting that waste.

B. The first question referred for a preliminary ruling

45. By its first question, the referring court asks, in essence, about the applicability, in the present case, of recital 33 and Article 16 of Directive 2008/98, and about the effects that the classification of the waste at issue according to the EWC has on the applicability of those provisions.

46. In that regard, I consider it important to note at the outset that a shipment of waste such as that at issue in the main proceedings falls within the scope of Regulation No 1013/2006 which, as is clear from the title of that regulation, applies specifically to shipments of waste. ( 15 ) In particular, Article 3(5) of that regulation specifically concerns shipments of mixed municipal waste and provides that those shipments are to be subject to the same provisions as shipments of waste destined for disposal, and therefore, as regards the objections to the shipment of that waste, subject to Article 11 of that regulation. Furthermore, recital 33 and Article 16 of Directive 2008/98, which are mentioned by the national court, also refer to that regulation.

47. I therefore consider that, in order to give a useful answer to the referring court, the first question referred for a preliminary ruling must be understood as referring not only to Directive 2008/98 but also, principally, to the relevant provisions of Regulation No 1013/2006.

48. Therefore, the question arises as to whether shipment of the waste at issue is subject to the legal rules laid down in Article 11 of Regulation No 1013/2006, by virtue of the reference made in Article 3(5) of that regulation, even though the latter provision refers to code 20 03 01 of the EWC, ( 16 ) whereas the waste at issue has been classified differently, namely under code 19 12 12 ( 17 ) of that catalogue.

49. I consider that that question should be answered in the affirmative, since it seems to me that, in the circumstances of the present case, the classification of the waste at issue according to the EWC cannot interfere with the application of the rules on the shipment of waste between Member States.

50. Below, I shall set out that position by examining, first, the legal effects of the classification according to the EWC and, secondly, the reference made by Article 3(5) of Regulation No 1013/2006 to code 20 03 01 of that catalogue.

51. In the first place, as regards the legal effects of the classification of waste, I note that, according to settled case-law, the list of waste included in that catalogue is intended only as guidance. ( 18 ) Moreover, Article 7(1) of Directive 2008/98 provides that the list of waste is to be binding as regards determination of the waste which is to be considered as hazardous waste, ( 19 ) which is not the case here. ( 20 )

52. Moreover, it is apparent in particular from paragraph 3 of the introductory note to the list of wastes in the annex to Decision 94/3 that the EWC, introduced by that decision, is a harmonised and non-exhaustive list of wastes and that the inclusion of a material in the list does not mean that that material is a waste in all circumstances. The entry is only relevant where the definition of waste has been met. Paragraph 5 of that introductory note states, inter alia, that that catalogue ‘is to be a reference nomenclature providing a common terminology throughout the [European Union] with the purpose to improve the efficiency of waste management activities’.

53. Therefore, it seems to me that the classification of the waste at issue in accordance with the EWC is not binding as regards the rules applicable to the shipment at issue in the main proceedings.

54. In the second place, as regards the fact that Article 3(5) of Regulation No 1013/2006 expressly mentions code 20 03 01, it seems to me that that reference is made only for illustrative purposes.

55. It should be borne in mind that, in accordance with recital 7 of Regulation No 1013/2006, the supervision and control of shipments of waste are to be organised and regulated in a way which takes account, inter alia, of the need to preserve, protect and improve the quality of the environment and human health, and that, as the Court has confirmed, the aim of that regulation is to provide a harmonised set of procedures whereby movements of waste can be limited in order to secure protection of the environment. ( 21 ) To that end, that regulation establishes different sets of rules for, on the one hand, shipment between Member States of waste destined for disposal and mixed municipal waste and, on the other hand, shipments of waste destined for recovery. ( 22 ) As regards more specifically mixed municipal waste, it is clear from the preparatory documents for the adoption of that regulation that the EU legislature intended to pursue the objective of limiting shipments of waste from private households, which makes up mixed municipal waste, only to what is strictly necessary, and of encouraging Member States, which should take responsibility for that inhomogeneous waste, to solve their household waste problems self-sufficiently, thus making it possible for them to object to shipments of household waste, in accordance with the provisions on waste destined for disposal, and without excluding cooperation with neighbouring countries. ( 23 )

56. In the light of the above considerations, I draw the conclusion that the legal rules applicable to shipments of waste depend on the substantial nature of those shipments, and not on their formal classification in accordance with the EWC.

57. In addition, recital 33 of Directive 2008/98 states clearly and unequivocally that mixed municipal waste covered by that provision remains mixed municipal waste even when it has been subject to a waste treatment operation, if that operation has not ‘substantially altered’ its properties. While recitals of EU legal acts do not have any independent legal or prescriptive value, they can serve as interpretive aids allowing the EU legislature’s intention to be inferred. ( 24 ) In the present case, although that recital is not part of Regulation No 1013/2006, it refers expressly to Article 3(5) of that regulation and therefore constitutes an aid for the interpretation of that provision, confirming, implicitly, that the reference to code 20 03 01 is made only for illustrative purposes, since Article 3(5) of that regulation is applicable by virtue of the fact that the nature of the waste, in this case, is unaltered.

58. In those circumstances, I consider that the shipment of the waste at issue, irrespective of its classification in accordance with the EWC, falls within the scope of Article 3(5) of Regulation No 1013/2006 and is therefore subject to the provisions of Article 11 of that regulation, which allows the competent authorities of dispatch to object to the shipment of that waste on the basis, inter alia, of the principles of proximity and self-sufficiency, in accordance with Directive 2008/98. ( 25 )

59. As regards Article 16 of that directive, relied on by the Region and the Italian Government, it should be noted that the last sentence of the second subparagraph of paragraph 1 of that article allows Member States to limit exports of waste ‘on environmental grounds as set out in Regulation No 1013/2006’ and therefore that, as far as the present case is concerned, that provision itself refers to that regulation. That provision is nevertheless a tool for the interpretation of Article 11(1)(a) of that regulation, in that it sets out the principles of self-sufficiency and proximity to which the latter provision refers. ( 26 )

60. Furthermore, it seems to me to be helpful to point out that, by virtue of the express reference made in Article 3(5) of Regulation No 1013/2006, it is Article 11 of that regulation, concerning shipments of waste destined for disposal, which applies in the present case, and not Article 12 of that regulation, referred to by the Italian Government, which concerns shipments of waste destined for recovery. It is therefore irrelevant that the waste at issue was destined for use as a means of generating energy, and therefore, destined for ‘recovery’. ( 27 )

61. Moreover, Article 13 of Directive 2008/98, cited without further explanation by the referring court, is not relevant in the present case, since it merely establishes, in a general manner, that the Member States are to take the necessary measures to ensure that waste management is carried out without endangering human health and without harming the environment.

62. Therefore, it seems to me that the shipment of the waste at issue is to be subject, for the purposes of Article 3(5) of Regulation No 1013/2006, to the provisions relating to shipments of waste destined for disposal, namely Article 11(1) of that regulation, ( 28 ) read in the light of Article 16 of Directive 2008/98, despite the fact that that waste has been subject to a treatment which, without substantially altering its original properties, entailed changing its code in the EWC. In that regard, I consider that that catalogue and its classifications do not interfere with the EU legislation on shipments of waste applicable in the present case.

C. The second question referred for a preliminary ruling

63. By its second question, the referring court asks whether the European Waste Catalogue is regulatory in nature or whether it is simply a technical certification intended for the uniform traceability of all waste.

64. The answer to that question is apparent from the foregoing analysis, and in particular from points 51 to 53 of this Opinion.

65. It must therefore be concluded that the list of wastes in the EWC is neither regulatory in nature nor binding, but, as stated in paragraph 5 of the introductory note thereto, the list of wastes was intended as a reference nomenclature providing a common terminology throughout the European Union with a view to improving the efficiency of waste management activities. ( 29 )

V. Conclusion

66. In the light of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Consiglio di Stato (Council of State, Italy) as follows: The European Waste Catalogue (EWC) and its classifications, as referred to in Commission Decision 2000/532/EC of 3 May 2000 replacing Decision 94/3/EC establishing a list of wastes pursuant to Article 1(a) of Council Directive 75/442/EEC on waste and Council Decision 94/904/EC establishing a list of hazardous waste pursuant to Article 1(4) of Council Directive 91/689/EEC on hazardous waste, must be interpreted as meaning that they do not interfere with Article 3(5) or Article 11 of Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste, read in the light of Article 16 of Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain directives, applicable to the shipment of mixed municipal waste which has been subject to mechanical treatment that has not substantially altered the original properties of that waste, irrespective of the classification of that waste in accordance with the EWC. The classification in accordance with the EWC has no binding effect in that regard.

( 1 ) Original language: French.

( 2 ) Regulation of the European Parliament and of the Council of 14 June 2006 on shipments of waste (OJ 2006 L 190, p. 1).

( 3 ) Directive of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives (OJ 2008 L 312, p. 3).

( 4 ) Directive of the European Parliament and of the Council of 5 April 2006 on waste (OJ 2006 L 114, p. 9).

( 5 ) The footnote states that the recovery operation includes incineration facilities dedicated to the processing of municipal solid waste only where their energy efficiency is equal to or above a certain level calculated according to an energy efficiency formula.

( 6 ) Commission Decision of 20 December 1993 establishing a list of wastes pursuant to Article 1a of Council Directive 75/442/EEC on waste (OJ 1994 L 5, p. 15).

( 7 ) Council Directive of 15 July 1975 on waste (OJ 1975 L 194, p. 39).

( 8 ) Commission Decision of 3 May 2000 replacing Decision [94/3] and Council Decision 94/904/EC establishing a list of hazardous waste pursuant to Article 1(4) of Council Directive 91/689/EEC on hazardous waste (OJ 2000 L 226, p. 3). That decision was last amended by Commission Decision 2014/955/EU of 18 December 2014 amending Decision 2000/532 (OJ 2014 L 370, p. 44).

( 9 ) Code 19 12 11 covers ‘other wastes (including mixtures of materials) from mechanical treatment of waste containing hazardous substances’.

( 10 ) Ordinary supplement to GURI No 88 of 14 April 2006; ‘Legislative Decree No 152/2006’. Article 182-bis was added by Article 9 of Decreto legislativo no 205 – Disposizioni di attuazione della direttiva 2008/98 (Legislative Decree No 205, provisions for the implementation of Directive 2008/98) of 3 December 2010 (Ordinary supplement to GURI No 288 of 10 December 2010).

( 11 ) See judgment of 12 December 2013, Ragn-Sells (C‑292/12, EU:C:2013:820, paragraph 52).

( 12 ) See judgment of 12 December 2013, Ragn-Sells (C‑292/12, EU:C:2013:820, paragraph 53).

( 13 ) See judgment of 12 December 2013, Ragn-Sells (C‑292/12, EU:C:2013:820, paragraph 56).

( 14 ) For the definition of ‘recovery’, see points 6 and 10 of this Opinion.

( 15 ) See point 38 of this Opinion. It should be recalled that Article 1 of Regulation No 1013/2006 ‘establishes procedures and control regimes for the shipment of waste, depending on the origin, destination and route of the shipment, the type of waste shipped and the type of treatment to be applied to the waste at its destination’. Title II of that regulation concerns shipments of waste within the European Union. Unlike that regulation, Directive 2008/98 has a wider scope since, according to Article 1 thereof, the directive ‘lays down measures to protect the environment and human health by preventing or reducing the generation of waste, the adverse impacts of the generation and management of waste and by reducing overall impacts of resource use and improving the efficiency of such use’.

( 16 ) It should be recalled that Article 3(5) of Regulation No 1013/2006 is worded as follows: ‘Shipments of mixed municipal waste (waste entry 20 03 01) collected from private households, including where such collection also covers such waste from other producers, to recovery or disposal facilities shall, in accordance with this Regulation, be subject to the same provisions as shipments of waste destined for disposal’ (emphasis added). Code 20 03 01 covers ‘mixed municipal waste’.

( 17 ) It should be recalled that that code covers the following: ‘other wastes (including mixtures of materials) from mechanical treatment of wastes other than those mentioned in 19 12 11’.

( 18 ) See, to that effect, judgment of 3 October 2013, Brady (C‑113/12, EU:C:2013:627, paragraph 36 and the case-law cited).

( 19 ) Furthermore, even as regards waste which is classified as ‘hazardous’, Article 7(1) of Directive 2008/98 states that the inclusion of a substance or object in the list does not mean that it is waste in all circumstances, as a substance or object is to be considered to be waste only where the definition in Article 3(1) is met (namely where it is a substance or object which the holder discards or intends or is required to discard) and paragraphs 2 and 3 of that article allow Member States, taking into account the properties listed in Annex III of that directive, to consider waste as hazardous waste where it does not appear as such on the list of waste, or to reclassify hazardous waste as non-hazardous waste.

( 20 ) See point 42 of this Opinion.

( 21 ) See, to that effect, judgment of 12 December 2013, Ragn-Sells (C‑292/12, EU:C:2013:820, paragraph 49).

( 22 ) See point 40 of this Opinion.

( 23 ) See, for example, European Parliament Recommendation A6-0287/2005 of 10 October 2005 on the Council common position for adopting a regulation of the European Parliament and of the Council on shipments of waste, in particular the justification for amendments 28 and 33.

( 24 ) See, to that effect, the Opinions of Advocate General Szpunar in X and Visser (C‑360/15 and C‑31/16, EU:C:2017:397, point 132), and of Advocate General Pikamäe in Airhelp (C‑28/20, EU:C:2021:203, point 38). See also, to that effect, judgment of 4 March 2020, Marine Harvest v Commission (C‑10/18 P, EU:C:2020:149, paragraphs 43 and 44 and the case-law cited).

( 25 ) I note, moreover, that if, under Article 11(1)(a) of Regulation No 1013/2006, the competent authorities may raise objections to the shipment of waste in application, inter alia, of the principles of proximity and self-sufficiency, referred to by the Region in the present case (see point 26 of this Opinion), Article 11(1)(i) of that regulation also allows those authorities to object, simply, to the shipment of ‘mixed municipal waste collected from private households (waste entry 20 03 01)’.

( 26 ) More specifically, by a mutual referral between the two rules, on the one hand, Article 11(1)(a) of Regulation No 1013/2006 allows the competent authorities to raise reasoned objections to shipments of waste destined for disposal (and, by virtue of the reference made in Article 3(5) of that regulation, mixed municipal waste), in order ‘to implement the principles of proximity, priority for recovery and self-sufficiency at [European Union] and national levels in accordance with Directive [2008/98]’, and, on the other hand, Article 16 of that directive, which sets out the principles of self-sufficiency and proximity, allows the Member States to limit outgoing shipments of waste ‘on environmental grounds as set out in [Regulation No 1013/2006]’ (emphasis added).

( 27 ) As regards the concept of ‘recovery’, see points 6 and 10 of this Opinion.

( 28 ) The competent authority may object to the shipment in any of the cases provided for in that provision.

( 29 ) See point 51 of this Opinion.