Case C-33/02: Action brought on 6 February 2002 by the Commission of the European Communities against the Republic of Austria
Date: 2002-04-06
Institutions: Court of Justice
Subjects: Austria, European Commission, action for failure to fulfil an obligation, dangerous substance, waste disposal, waste incineration

6.4.2002

EN

Official Journal of the European Communities

C 84/51

Reference for a preliminary ruling by the Unabhängiger
Verwaltungssenat Salzburg by order of 16 January 2002
in the appeals concerning Dr Roman Moser, the Bürger-
meister der Landeshauptstadt Salzburg, and the land
transfer agent of the Land of Salzburg

(Case C-15/02)

(2002/C 84/89)

Reference has been made to the Court of Justice of the
European Communities by order of the Unabhängiger Verwal-
tungssenat Salzburg (Independent Administrative Chamber,
Salzburg) of 16 January 2002, received at the Court Registry
on 22 January 2002, for a preliminary ruling in the appeals
concerning Dr Roman Moser, the Bürgermeister der Lande-
shauptstadt Salzburg, and the land transfer agent of the Land
of Salzburg on the following question:

Are the provisions of Article 56 et seq. of the EC Treaty to be
interpreted as precluding the application of Paragraphs 12, 36
and 43 of the Salzburger Grundverkehrsgesetz (Salzburg Land
Transfer Law) of 1997 in the version published in LGBl.
No. 11/1999, whereby any person who wishes to acquire a
building plot in the federal Land of Salzburg must comply
with a notification or authorisation procedure in respect of the
acquisition of that plot, with the consequence that one of the
fundamental freedoms of the acquirer of title as guaranteed by
the laws of the European Union has been infringed in this
case?

Action brought on 5 February 2002 by the Commission
of the European Communities against the Italian Republic

(Case C-32/02)

(2002/C 84/90)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 5 February
2002 by the Commission of the European Communities,
represented by A. Aresu acting as Agent.

The applicant claims that the Court should:

— Declare that, by not adopting provisions in respect of
employers engaged in non-profit-making activities, the
Italian Republic has failed to fulfil its obligations under
Council Directive 98/59/EC of 20 July 1998 on the
approximation of the laws of the Member States relating
to collective redundancies (OJ 1998 L 225, p. 16);

— Order the Italian Republic to pay the costs.

Pleas in law and main arguments

The Commission claims that Directive 98/59 applies to
collective redundancies carried out by any ‘employer’, that is
by any natural or legal person who has created an employment
relationship, regardless of whether he is engaged in profit-
making activities. It follows, therefore, that the implementing
Italian regulations, and in particular Law No 223/91, which
restricts the application of the guarantees to employees of
‘undertakings’ alone, wrongfully exclude all employers engaged
in non-profit-making activities.

Action brought on 6 February 2002 by the Commission
of the European Communities against the Republic of
Austria

(Case C-33/02)

(2002/C 84/91)

the Republic of Austria was brought
An action against
before the Court of Justice of the European Communities
on 6 February 2002 by the Commission of the European
Communities, represented by Josef Christian Schieferer, of its
Legal Service, with an address for service in Luxembourg at
the office of Luis Escobar Guerrero, of its Legal Service, at
Centre Wagner C 254, Kirchberg.

The applicant claims that the Court should:

— declare that the Republic of Austria has failed to fulfil its
obligations under Article 3(3) and (4), Article 7(1) and
(2), Article 11(3), and Article 13(1)
in conjunction
with Article 2(3) of Council Directive 94/67/EC of
16 December 1994 on the incineration of hazardous
waste, by

1.

incorrectly transposing, in Paragraph 3 no. 3.2 and
no. 3.3 of the Verordnung des Bundesministers für
wirtschaftliche Angelegenheiten über die Verbren-
nung gefährlicher Abfälle in gewerblichen Betrieb-
sanlagen (Regulation of the Federal Minister for
Economic Affairs on the incineration of hazardous
waste in commercial plants)
(the ‘BMwA Regu-
lation’), the rule in Article 3(3) of the directive that
the heat release from coincineration may not exceed
in respect of ‘the total
40 % of the total heat,
heat released in the plant at each moment of its
operation’;

C 84/52

EN

Official Journal of the European Communities

6.4.2002

2.

3.

4.

5.

permitting non-binding emission guide values in
certain cases, under Paragraph 8(3) of the BMwA
Regulation, contrary to the requirement imposed
by Article 3(4) of
the directive concerning the
determination of binding emission limit values;

failing to set limit values for heavy metal, dioxin
and furan emissions in exhaust gases at cement
production plants under Paragraph 15(1) of the
BMwA Regulation, contrary to Article 7(1) and (2)
of the directive;

laying down criteria for compliance with emission
limit values in Paragraph 10(5) no. 2 of the BMwA
Regulation which contravene Article 11(3) of the
directive; and

laying down transitional provisions
in Para-
graph 19(1) of the Verordnung des Bundesministers
für Umwelt, Jugend und Familie über die Verbren-
nung von gefährlichen Abfällen (Regulation of the
Federal Minister for Environment, Youth and the
Family on the incineration of hazardous substances)
and Paragraph 16(2) of the BMwA Regulation which
exempt existing plants from the application of the
directive for the period from 31 December 1996 to
1 February 1999, contrary to Article 13(1)
in
conjunction with Article 2(3) of the directive.

— order the Republic of Austria to pay the costs.

Pleas in law and main arguments

The Commission has reached the conclusion that the pro-
visions in force in Austria do not fully comply with the
provisions of Directive 94/67 EC, namely, in that they:

— Infringe Article 3(3) of the directive (for coincineration,
maximum of 40 % of total heat released in the plant):

Contrary to Article 3(3), which lays down a total heat
release from a plant of a maximum of 40 % from the
incineration of hazardous wastes ‘at each moment of its
operation’, the provisions in force in Austria permit
plants to operate with a total heat release of more than
40 % , and in certain circumstances exclusively, from the
incineration of hazardous wastes, over lengthy operating
periods (e.g,
for a number of days or even weeks).
(Calculation on the basis of quarterly averages)

— Infringe the second paragraph of Article 3(4) of the
directive (determination of emission guide values):

Contrary to the second indent of Article 3(4) of the
directive which provides that the permit for a coinciner-
ation plant is only to be granted if it is demonstrated in
the application that, according to calculations laid down

in Annex II, the provisions of Article 7, which contains
the emission limit values for exhaust gases, have been
complied with, the Austrian rules provide that for certain
coincineration plants, the authorities are, in individual
cases, to lay down emission guide values for individual
pollutants.

— Infringe Article 7(1) and (2) of the directive (failure to lay
down limit values for heavy metal, dioxin and furan
emissions in exhaust gases at cement production plants):

Contrary to Article 7(1) and (2) of the directive, the
Republic of Austria has not laid down limit values for
heavy metal, dioxin and furan emissions in exhaust
gases at cement production plants in which waste is
coincinerated.

— Infringe the first paragraph of Article 11(3) of
directive (compliance criteria for limit values):

the

Contrary to the first
indent of Article 11(3) which
specifies the circumstances in which emission limit
values are deemed to be complied with, the Austrian
Government has laid down rules which provide that
emission limit values are only exceeded where more than
3 % of the half-hourly averages exceed the emission limit
value by more than 20 %. That threshold of 20 % is not,
however, contained in the directive.

— Infringe Article 13(1) in conjunction with Article 18(1)
of the directive (entry into force and transitional pro-
visions for existing plants):

Contrary to the directive, Austria treats plants which were
granted permits between 31 December 1996 and the
date of transposition of the directive (1 February 1999)
as ‘existing plants’. Consequently, under Austrian law,
incineration plants which were granted permits between
31 December 1996 and 1 February 1999 were covered
by the transitional period until 30 June 2000, whereas,
according to the directive, such plants should have fallen
fully within the scope of the directive from the time of
their authorisation.

Reference for a preliminary ruling by the Tribunale di
Roma, Terza Sezione Lavoro by order of 24 January 2002
in the case of Sante Pasquini against INPS (Istituto
Nazionale della Previdenza Sociale)

(Case C-34/02)

(2002/C 84/92)

Reference has been made to the Court of Justice of the
European Communities by order of the Tribunale di Roma,