Case C-34/02: 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)
Date: 2002-04-06
Institutions: Court of Justice
Subjects: interpretation of the law, self-employment, social legislation, social security, wage earner

C 84/52

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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,

6.4.2002

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Official Journal of the European Communities

C 84/53

Terza Sezione (Rome District Court, Third Employment
Chamber) of 24 January 2002, received at the Court Registry
on 8 February 2002, for a preliminary ruling in the case of
Sante Pasquini against INPS (Istituto Nazionale della Previdenza
Sociale [National Social Welfare Institution]) on the following
questions:

Is a provision of national law, which provides, without any
time-limit and thus, in breach of the principle of legal certainty,
for the recovery of an undue payment arising from the
application of Community legislation, compatible with the
objectives of Council Regulations No 1408/71 (1) and
574/72 (2)?

Are the Community provisions cited in (1) to be interpreted as
precluding the application of a provision of national law which
does not lay down time-limits for the recovery of undue
payments arising from the belated or improper application of
the relevant Community provisions?

Is it possible, given that the transitional rules for the application
of the social security regulations provide for a time-limit of
two years in which to claim, with retrospective effect, the
rights conferred by those regulations, to apply a contrario the
same time-limit of two years from notification of recovery of
undue payment in cases of reduction of rights previously
conferred, except where more favourable time-limits are laid
down by national law, and provided that the person concerned
is not guilty of improper conduct?

(1) OJ, English Special Edition 1971 (II), p. 416.
(2) OJ, English Special Edition 1972 (I), p. 159.

The applicant claims that the Court should:

— Declare that, by not adopting the laws, regulations
and administrative provisions necessary to comply with
Commission Directive 1999/48/EC(1) of 21 May 1999
adapting for the second time to technical progress
Council Directive 96/49/EC (2) on the approximation of
the laws of the Member States with regard to the transport
of dangerous goods by rail or in any event by not
notifying the same to the Commission, the Italian Repub-
lic has failed to fulfil its obligations under that directive;

— Order the Italian Republic to pay the costs.

Pleas in law and main arguments

Article 189 of the EC Treaty (now Article 249 EC), which
provides that a directive is to be binding as to the result to be
achieved on each Member State to which it is addressed,
implies an obligation that the Member States comply with the
time-limits for transposition prescribed by directives. In the
present case the prescribed period expired on 1 July 1999
without the Italian Republic having adopted the provisions
necessary to comply with the directive referred to in the
Commission’s claim.

(1) OJ 1999 L 169, p. 58.
(2) OJ 1996 L 235, p. 25.

Action brought on 19 February 2002 by the Commission
of the European Communities against the Italian Republic

(2002/C 84/94)

Removal from the register of Case C-18/99 (1)

(Case C-50/02)

(2002/C 84/93)

By order of 6 November 2001 the President of the Fourth
Chamber of the Court of Justice of the European Communities
ordered the removal
from the register of Case C-18/99:
Commission of the European Communities v Aiolika Parka
Siteias AE.

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 19 February
2002 by the Commission of the European Communities,
represented by M. Wolfcarius and R. Amorosi, acting as
Agents.

(1) OJ C 86 of 27.3.1999.