Case C-263/05: Action brought on 23 June 2005 by the Commission of the European Communities against the Italian Republic
Date: 2005-09-03
Institutions: Court of Justice
Subjects: European Commission, Italy, action for failure to fulfil an obligation, waste disposal, waste management, waste recycling

3.9.2005

EN

Official Journal of the European Union

C 217/27

Action brought on 17 June 2005 by the Commission of
the Republic of
the European Communities against

Austria

(Case C-257/05)

(2005/C 217/53)

establishment is disproportionate for the guarantee of quality
of supervision with regard to the interests which it is supposed
to protect, since public safety and the protection of workers
and consumers may already be ensured by the system laid
down in the Kesselgesetz for the authorising and supervision of
inspection bodies, without the necessity of an establishment
within the Member State.

(Language of the case: German)

(1) BGBl. No 211/1992.

An action against the Republic of Austria was brought before
the Court of Justice of the European Communities on 17 June
2005 by the Commission of the European Communities, repre-
sented by Enrico Traversa and Wolfgang Bogensberger, acting
as Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

1. declare that, by requiring in Paragraph 21(4) of the Kessel-
gesetz (Law on boilers) (1) that only applicants having a
head office in Austria may be approved as a boiler inspec-
tion body, the Republic of Austria has failed to fulfil its obli-
gations under Article 49 EC;

2. order the Republic of Austria to pay the costs.

Pleas in law and main arguments

In accordance with Article 49 EC, limitations on the freedom
to provide services, within the Community, of Member State
nationals who are established in a different Member State from
that of the recipient of the services are prohibited.

Paragraph 21 of the Republic of Austria's Kesselgesetz governs
the requirements for the issue of a licence to operate as a boiler
inspection body. Under Paragraph 21(4), only those applicants
established in Austria may be licensed as boiler inspection
bodies. An inspection body for pressurised equipment estab-
lished in another Member State, wishing to offer its services in
Austria, is therefore faced with the necessity first to establish a
branch in Austria.

That
legislation constitutes a limitation on the freedom to
provide services within the meaning of Article 49 EC. It also
follows from the Court's case-law that a requirement of estab-
lishment runs directly contrary to the freedom to provide
services, since it makes the provision of services through under-
takings established in another Member State impossible.

The grounds stated by the Republic of Austria — such as, for
example, public safety or the protection of workers and consu-
mers — are not such as to justify that
limitation on the
freedom to provide services. A limitation on the freedom to
provide services may — according to the Court's case-law —
be justified only to the extent that public interest is not already
protected by laws to which the service provider is subject in
the Member State where it is established. The requirement of

Action brought on 23 June 2005 by the Commission of
the European Communities against the Italian Republic

(Case C-263/05)

(2005/C 217/54)

(Language of the case: Italian)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 23 June
2005 by the Commission of the European Communities, repre-
sented by M. Kontantinidis and L. Cimaglia, of its Legal Service,
acting as Agents.

The Commission claims that the Court should:

1. declare that, by having adopted and maintained in force a
provision (Article 14 of Decree-Law No 138 of 8 July 2002,
that
converted into Law No 178 of 8 August 2002)
provides for the exclusion from the ambit of Decree-Law
No 22/97, which transposed into Italian national
law
Council Directive 91/156/EEC (1) of 18 March 1991
amending Directive 75/442/EEC (2) on waste, substances or
objects intended for operations for the disposal or recovery
of waste not expressly listed in Annexes B or C to Legisla-
tive Decree No 22/97, and also goods, substances or resi-
dual production materials which the holder intends or is
required to discard, when they may be and are reused in a
production or consumption cycle, on condition that they
have undergone no prior treatment and that they do not
harm the environment or,
if when they have undergone
prior treatment, the latter is not one of the recovery opera-
tions listed in Annex C to Legislative Decree No 22/97, the
Italian Republic has failed to fulfil
its obligations under
Article 1(a) of Directive 75/442/EEC on waste, as amended
by Directive 91/156/EC;

C 217/28

EN

Official Journal of the European Union

3.9.2005

2. order the Italian Republic to pay the costs.

the provisions of the directive,
national law may not derogate.

from which a provision of

Pleas in law and main arguments

(1) OJ L 78 of 26/03/1991, p.32
(2) OJ L 194 of 25 July 1975, p. 39

The references made in Article 14(1)(a) and (b) of Law No
178/2002 to ‘disposal and recovery activities’ and to ‘disposal
and recovery operations’ respectively is followed in both cases
by the addition of ‘in accordance with Annexes B and C to
Legislative Decree No 22’.

Such an addition, which does not however appear in the text
of subparagraph (c) of that article, would seem to draw a
distinction between, on the one hand, disposal or recovery
operations in general and, on the other,
those specifically
referred to in Annexes B and C to Legislative Decree No 22/97.

Reference for a preliminary ruling from the Cour de cassa-
tion (France) by order of that court of 21 June 2005 in
José Perez Naranjo v Caisse régionale d'assurance maladie
(CRAM) Nord-Picardie

In the light of such a distinction, it is quite apparent from a
reading of Article 6(1)(a) of Legislative Decree No 22/97 in
conjunction with Article 14(a) and (b) of Law No 178/2002
that the effect of the latter provision is to circumscribe the
scope of the concept of waste, which might not include all the
materials, substances or goods falling within the categories in
Annex A that the holder sends for, or subjects to, any disposal
or recovery operation or intends to, but might rather include
only those in respect of which disposal or recovery operations
among those expressly listed in Annexes B and C to Legislative
Decree No 22/97 have been carried out or are contemplated.

In the system defined by the Italian legislature, in which the
concept of waste is made to depend incontrovertibly on those
conditions, all those materials, substances or goods referred to
in annex A that the holder sends for, or subjects to, or intends
to send for or subject to, disposal operations not listed in
Annex B to Legislative Decree No 22/97 or recovery operations
not listed in Annex C thereto are therefore excluded from clas-
sification as waste, and as a result from being subject to the
rules on the management of waste.

The Commission takes the view that that exclusion constitutes
an improper restriction of the concept of waste and therefore
of the ambit of the Italian legislation on the management of
waste. As a matter of fact, the effect of the interpretation put
forward by the Italian legislature is to limit the application of
the provisions of the directive to those cases alone which are
identified in the Italian legislation, excluding from its ambit
other cases, not deductively foreseeable, which could on the
contrary be subject to it and in relation to which a broad inter-
pretation of the concept of waste, such as that affirmed in para-
graph 36 of the judgment in Palin Granit, is essential. The adop-
tion of such a position by the Italian legislature runs counter to

(Case C-265/05)

(2005/C 217/55)

(Language of the case: French)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Cour de cassation (France)
of 21 June 2005, received at the Court Registry on 27 June
2005, for a preliminary ruling in the proceedings between José
Perez Naranjo and Caisse
régionale d'assurance maladie
(CRAM) Nord-Picardie on the following question:

Is Community law to be interpreted as meaning that
the
supplementary allowance at issue, listed in Annex IIa to Regu-
lation 1408/71, is of a special and non-contributory character,
thereby excluding, pursuant to Articles 10a and 95b of Regu-
lation 1408/71 (1),
its award to a non-resident who did not
satisfy the age condition on 1 June 1992, or as meaning that it
constitutes a social
therefore,
pursuant to Article 19(1) of that regulation, be provided to the
person concerned who satisfies the conditions for its award,
irrespective of the Member State in which that person is resi-
dent?

security benefit and must

(1) Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on
the application of social security schemes to employed persons and
their families moving within the Community (OJ 1974 L 149, p. 2)