Case C-283/07: Action brought on 12 June 2007 — Commission of the European Communities v Italian Republic
Date: 2007-08-25
Institutions: Court of Justice
Subjects: Italy, action for failure to fulfil an obligation, environmental law, metal waste, waste disposal, waste management, waste recycling

C 199/22

EN

Official Journal of the European Union

25.8.2007

Question referred

Do Article 105(iii)(b) and Article 107(2)(ix) of the Royal Decree
implementing the Income Tax Code 1992 adopted pursuant to
Article 266 of the Income Tax Code 1992, read in conjunction
with Article 23 of
the Belgo-Luxembourg Double Taxation
Treaty, infringe Article 73 (now Article 56) of the Treaty estab-
lishing the European Community, providing for free movement
of capital,
in that, by limiting the waiver in respect of with-
holding tax provided for in Article 107(2)(ix) exclusively to
interest allocated to resident companies, they have, in particular,
first,
from
the effect of discouraging resident companies
from companies established in another
borrowing capital
Member State and, second, they constitute for companies estab-
lished in another Member State an obstacle to investing capital,
by way of loans, in companies having their seat in Belgium?

Action brought on 12 June 2007 — Commission of the
European Communities v Italian Republic

(Case C-283/07)

(2007/C 199/34)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (repre-
sented by: C. Zadra and J.-B. Laignelot, acting as Agents)

Defendant: Italian Republic

Form of order sought

— declare 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, and

— Article 1(29)(b) of Law No 308 of 15 December 2004
and Articles 183(1)(s) and 229 of Legislative Decree
No 152 of 3 April 2006,

in accordance with which scrap intended for use in iron and
steel and metallurgical activities and high-quality refuse
derived fuel (RDF-Q) respectively are immediately removed
from the scope of the Italian legislation on waste trans-
posing Council Directive 75/442/EEC of 15 July 1975 on

waste (1), as amended by Council Directive 91/156/EEC of
18 March 1991, (2) the Italian Republic has failed to fulfil its
obligations under Article 1(a) of that directive;

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

in the light of the case-law of the
The Commission pleads,
Court, that the provisions laid down in Article 1(25) to (27)
and (29) of Law No 308 and Articles 183(1)(s) and 229 of
Legislative Decree No 152,
in accordance with which scrap
intended for use in iron and steel activities and high-quality
refuse derived fuel (RDF-Q) are systematically and without more
excluded from the definition of waste, have the effect of unduly
restricting the definition of waste provided for in Directive
75/442 and consequently the scope of that directive, necessarily
detrimental to its practical effect. Such provisions are therefore
from which a provision of
contrary to the directive itself,
national law cannot derogate, and which does not provide for
any exclusion from its scope for those objects and substances.

The exclusion from the definition of waste of scrap intended for
use in iron and steel activities and of RDF-Q is laid down by the
Italian legislature though the unrebuttable presumption that
such objects and substances, as defined in the provisions in
question, must always be categorised as raw materials. Such
provision unavoidably restricts the dynamic and functional defi-
nition provided for by the directive. It precludes the existence of
‘waste’ within the meaning of Directive 75/442 from being
‘determined in the light of all of the circumstances’ which ought, case
by case, to establish whether there is waste within the meaning
of the directive.

introduced by it

The systematic exclusion of such residual materials from the
scope of the directive is not only detrimental to the practical
effect of the directive and, in particular, of the system for moni-
toring waste management
the
environment, but results in precluding those residual materials
from the application of all the environmental
legislation the
scope of which is specifically defined by reference to the defini-
tion of waste laid down in the directive. The potential detri-
mental effects to the environment of such an exclusion therefore
go well beyond those deriving from the non-application of the
directive alone.

to protect

(1) OJ L 194 of 25.7.1975, p. 47.
(2) OJ L 78 of 26.3.1991, p. 32.