Case C-478/08: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale della Sicilia (Italy) lodged on 6 November 2008 — Buzzi Unichem SpA and Others v Ministero dello Sviluppo Economico and Others
Date: 2008-11-06
Institutions: Court of Justice
Subjects: Italy, Sicily, approximation of laws, environmental impact, environmental protection, interpretation of the law, polluter pays principle, pollution

C 19/14

EN

Official Journal of the European Union

24.1.2009

It is submitted that the Court of First Instance committed a
breach of procedure by refusing to recognise an evident discre-
pancy between the award criteria as set out in section 5.2 of the
EvCo Report and those mentioned in section 5.4 of the same
Report and by misinterpreting the relevant procedural rules on
the burden of proof. More specifically,
the Court of First
Instance does not refer to any evidence in support of its qualifi-
cation as ‘typographical error’ of an obvious discrepancy, and
no such evidence can by any means be deduced from the
content of the Evaluation Report itself.

Further, the judgment fails to observe the consequences of the
Commission's infringement of its duty of diligence and of the
principle of good administration. Since the Court of First
Instance, despite observing that the Commission infringed the
rule of law, did not proceed into annulling the Commission's
Decision on this ground, the Court of First Instance undoubt-
edly failed in applying the relevant provisions.

It is submitted that the Court of First Instance also failed to
apply the relevant provisions on the duty of the contracting
authority to provide reasons, which would lead it to annul the
award decision; only scores and some general comments from
the Evaluation Report have been submitted to the Appellant by
the letter of 10 December 2004. In this sense the Court of First
Instance distorted the evidence adduced before it, and for this
reason its judgment should be annulled.

Reference for a preliminary ruling from the Tribunale
lodged on
Amministrativo Regionale della Sicilia (Italy)
6 November 2008 — Buzzi Unichem SpA and Others v
Ministero dello Sviluppo Economico and Others

(Case C-478/08)

(2009/C 19/24)

Language of the case: Italian

Referring court

Tribunale Amministrativo Regionale della Sicilia

Parties to the main proceedings

Applicants: Buzzi Unichem SpA and Others

Defendants: Ministero dello Sviluppo Economico and Others

Questions referred

1. May the ‘polluter pays’ principle laid down in Article 174(2)
EC be interpreted as meaning that, even if only by way of
exception,
safety
measures, decontamination and environmental reinstatement
of a contaminated site (and/or the costs relating thereto) may

the obligations

emergency

regarding

be imposed on a person having no connection with the
release into the environment of the substances which led to
the ecological impairment of that site, or, in the event of a
negative answer, does that principle preclude national legisla-
tion and/or an administrative approach which imposes obli-
gations regarding emergency safety measures, decontamina-
tion and environmental reinstatement of a contaminated site
(and/or the costs relating thereto) upon a person who claims
to have no connection with the release into the environment
of the substances which led to the ecological impairment of
that site, without any prior ascertainment of any individual
responsibility by virtue of a causal link, or merely because
that person happens to operate in or has property rights in a
contaminated area, in breach or disregard of the principle of
proportionality?

2. Does the ‘polluter pays’ principle preclude national legisla-
tion, and in particular Article 2050 of the [Italian] Civil
Code, which allows the Public Authority, where a number of
industrial operators operate within the contaminated site, to
impose on them the burdens of the decontamination of that
site, without prior ascertainment on an individual basis of
their respective responsibility for the pollution, or in any
event merely because they are deemed accountable by virtue
of their ownership of the means of production and are there-
fore subject to strict liability for the damage they cause to
the environment or may they in any event be required to
reinstate the area around the widespread pollution identified
there even where no material causation has been established
for the pollution and there is no proportional basis for it?

3. Does the Community directive on compensation for environ-
mental damage (Directive 2004/35/EC (1) of 21 April 2004
and in particular Article 7 thereof and Annex II thereto, to
which that article refers) preclude national legislation which
‘as reasonable
allows the Public Administration to require,
options for remedying environmental damage’, that action be
taken concerning environmental matrices (comprising in this
case the ‘physical confines’ of the groundwater along the
entire sea front) which are different from and go further
than those chosen on completion of an appropriate investi-
gation carried out on a consultative basis, which have
already been approved and put into effect and are being
implemented, without in any event having assessed the site-
specific conditions, the costs of implementation in relation
to the reasonably foreseeable benefits, the possible or prob-
able collateral damage and adverse effects on public health
and safety, and the necessary time scales for implementation?

for

damage

4. Given the specificity of the situation prevailing in the Priolo
Site of National Interest, does the Community directive on
compensation
(Directive
environmental
2004/35/CE of 21 April 2004 and in particular Article 7
and Annex II thereto, to which that article refers) preclude
national legislation which allows the Public Administration
to impose such requirements as conditions for an authorisa-
tion for the lawful use of the areas not directly affected by
the decontamination in so far as they have already been
decontaminated or were not in any event polluted, included
within the limits of the Priolo Site of National Interest?

(1) OJ L 143, p. 56.