CELEX: 62002CO0235
Language: en
Date: 2004-01-15 00:00:00
Title: Order of the Court (Third Chamber) of 15 January 2004. # Criminal proceedings against Marco Antonio Saetti and Andrea Frediani. # Reference for a preliminary ruling: Tribunale di Gela - Italy. # Article 104(3) of the Rules of Procedure - Directives 75/442/EEC and 91/156/EEC - Waste management - Definition of waste - Petroleum coke. # Case C-235/02.

Case C-235/02 Criminal proceedingsagainstMarco Antonio Saetti and Andrea Frediani(Reference for a preliminary ruling from the Giudice per le indagini preliminari du Tribunale di Gela)
         
            «(Article 104(3) of the Rules of Procedure – Directives 75/442/EEC and 91/156/EEC – Waste management – Definition of waste – Petroleum coke)»
            
               
                  Order of the Court (Third Chamber), 15 January 2004  
                     
                
               
            
                   
               
               
            
            Summary of the Order
         
         
                  1..
                  Preliminary rulings – Reference to the Court – National court or tribunal for the purposes of Article 234 EC – Judge investigating a criminal matter – Investigating magistrate  (Art. 234 EC) 
         
                  2..
                  Preliminary rulings – Jurisdiction of the Court – Limits – Interpretation of a directive in the course of criminal proceedings for infringement of the national legislation transposing
                     it – Determination of the consequences of the subsequent decriminalisation of the offences – Excluded  
                  (Art. 234 EC) 
         
                  3..
                  Preliminary rulings – Jurisdiction of the Court – Limits – Obviously irrelevant questions and hypothetical questions in a context which precludes any useful answer – Questions not related to the subject-matter of the main proceedings  (Art. 234 EC) 
         
                  4..
                  Environment – Waste – Directive 75/442, as amended by Directive 91/156 – Definition – Substance which has been discarded – Criteria of assessment  (Council Directive 75/442, as amended by Directive 91/156, Art. 1(a)) 
         
                  5..
                  Environment – Waste – Directive 75/442, as amended by Directive 91/156 – Definition – Substance which has been discarded – Exception – Petroleum coke produced in an oil refinery – Effective use of that substance to meet the energy needs of the refinery  (Council Directive 75/442, as amended by Directive 91/156) 
         
         1.
          The judge investigating a criminal matter or the investigating magistrate constitute a court or tribunal within the meaning
         of Article 234 EC, appointed to give a ruling, independently and in accordance with law, in cases coming within the jurisdiction
         conferred on them by law in proceedings intended to culminate in decisions of a judicial nature. see para. 23
         
         2.
          A directive may not of itself either impose obligations on a private individual and therefore be relied on as such against
         such a person, or have the effect, independently of a national law adopted by a Member State for its implementation, of determining
         or aggravating the liability in criminal law of persons who act in contravention of the provisions of that directive. It is
         not for the Court, on a reference for a preliminary ruling on the interpretation of a directive, to interpret or apply national
         law in order to establish the effects of national legislation which no longer considers to be infringements the acts which
         gave rise to the criminal proceedings before the national court, although it is common ground that, at the time when those
         acts were established, they could, where relevant, constitute offences punishable under national criminal law. see paras 25-26
         
         3.
          In the context of the cooperation between the Court of Justice and the national courts established by Article 234 EC, it is
         solely for the national court, before which the dispute has been brought and which must assume responsibility for the subsequent
         judicial decision to determine, in the light of the particular circumstances of the case, both the need for a preliminary
         ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently,
         wherethe questions submitted concern the interpretation of Community law, the Court of Justice is, in principle, bound to
         give a ruling. However, in exceptional circumstances, it falls to the Court to examine the conditions in which the case was
         referred to it by the national court, in order to decide whether it has jurisdiction. It may refuse to rule on a question
         referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of Community
         law that is sought bears no relation to the facts of the main action or its purpose, where the problem is hypothetical, or
         where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted
         to it. see paras 28-29
         
         4.
          The scope of the concept of waste depends on the meaning of the term  
         discard used in Article 1(a) of Directive 75/442 on waste. The use of an operation listed in Annex II A or Annex II B to that directive
         does not of itself allow a substance or object to be classified as waste and, conversely, the concept of waste does not exclude
         substances and objects which are capable of further economic use. The system of supervision and management established by
         that directive is intended to cover all objects and substances discarded by their owner, even if they have a commercial value
         and are collected on a commercial basis for recycling, reclamation or further use. Certain circumstances may constitute evidence that the holder has discarded a substance or object or intends or is required
         to discard it within the meaning of Article 1(a) of Directive 75/442. That will be the case, in particular, where the substance
         used is a production residue, that is to say a product not intended as such. However, a substance reuse of which is a certainty,
         without any prior processing, and as an integral part of the production process cannot be described as waste. Other evidence
         of the existence of waste within the meaning of that provision may lie in the fact that the treatment method for the substance
         in question is a standard waste treatment method or that the undertaking perceives the substance as waste and from the fact
         that, in the case of a production residue, it can be used only in a way that involves its disappearance or that its use must
         involve special measures to protect the environment. Those elements are not necessarily conclusive, and whether something
         is in fact waste must be determined in the light of all the circumstances, regard being had to the aim of the directive and
         the need to ensure that its effectiveness is not undermined. see paras 33-34, 36, 39-40
         
         5.
          Petroleum coke which is produced intentionally or in the course of producing other petroleum fuels in an oil refinery and
         is certain to be used as fuel to meet the energy needs of the refinery and those of other industries does not constitute waste
         within the meaning of Directive 75/442 on waste, as amended by Directive 91/156. see para. 47, operative part
      

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            ORDER OF THE COURT (Third Chamber)15 January 2004  (1)
            
            
         
         
            
         
            ((Article 104(3) of the Rules of Procedure – Directives 75/442/EEC and 91/156/EEC – Waste management – Definition of waste – Petroleum coke))
            
          In Case C-235/02, 
          REFERENCE to the Court under Article 234 EC by the Giudice per le indagini preliminari of the Tribunale di Gela (Italy) for
         a preliminary ruling in the criminal proceedings before that court against
         
         
         
         Marco Antonio Saetti andAndrea Frediani
         
         
         
         
         
         
          on the interpretation of Articles 1(a) and (f), 2(1)(b) and 4 of Council Directive 75/442/EEC of 15 July 1975 on waste (OJ
         1975 L 194, p. 39), as amended by Council Directive 91/156/EEC of 18 March 1991 (OJ 1991 L 78, p. 32),
         
         
         
         
         THE COURT (Third Chamber),
         
          composed of: C. Gulmann, acting as President of the Third Chamber, J.-P. Puissochet (Rapporteur) and F. Macken, Judges, 
         
          Advocate General: J. Kokott, Registrar: R. Grass, having informed the court of referral that the Court proposes to give its decision by a reasoned order
         in accordance with Article 104(3) of the Rules of Procedure, having invited the persons referred to in Article 23 of the Statute
         of the Court of Justice to submit any observations which they might wish to make in that regard, 
         
         after hearing the Advocate General, makes the following 
         
         
         Order
         1
            
          By order of 19 June 2002, received at the Court on 26 June 2002, the Giudice per le indagini preliminari (judge responsible
         for preliminary inquiries) of the Tribunale di Gela (District Court, Gela) referred to the Court of Justice for a preliminary
         ruling under Article 234 EC four questions on the interpretation of Articles 1(a) and (f), 2(1)(b) and 4 of Council Directive
         75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39), as amended by Council Directive 91/156/EEC of 18 March 1991 (OJ
         1991 L 78, p. 32) (hereinafter  
         Directive 75/442). 
         
         
         2
            
          Those questions were raised in the course of criminal proceedings against Mr Saetti and Mr Frediani, the director and former
         director respectively of the Gela oil refinery operated by AGIP Petroli SpA, who are accused inter alia of having failed to
         comply with Italian legislation on waste.  
         
            
               Legal framework
             Community legislation
         
         
         3
            
          The first subparagraph of Article 1(a) of Directive 75/442 defines waste as  
         any substance or object in the categories set out in Annex I which the holder discards or intends or is required to discard. 
         
         
         4
            
          Annex I to Directive 75/422, headed  
         Categories of waste, includes, under category Q8,  
         residues of industrial processes (e.g. slags, still bottoms, etc.) and, under category Q16,  
         any materials, substances or products which are not contained in the above categories.  
         
         
         5
            
          The second subparagraph of Article 1(a) of Directive 75/442 provides that the Commission of the European Communities is to
         draw up  
         a list of wastes belonging to the categories listed in Annex I. That is the purpose of Commission Decision 2000/532/EC of 3 May 2000 replacing Decision 94/3/EC establishing a list of wastes
         pursuant to Article 1(a) of Council Directive 75/442/EEC on waste and Council Decision 94/904/EC establishing a list of hazardous
         waste pursuant to Article 1(4) of Council Directive 91/689/EEC on hazardous waste (OJ 1991 L 226, p. 3). That list was amended
         by Commission Decisions 2001/118/EC and 2001/119/EC and Council Decision 2001/573/EC, of 16 and 22 January and 23 July 2001
         respectively (OJ 2001 L 47, p. 1 and p. 32, and L 203, p. 18) and came into force on 1 January 2002. Chapter 05, section 01
         thereof lists  
         wastes from petroleum refining. That section sets out various types of waste and includes category 05 01 99,  
         wastes not otherwise specified. The note introducing the list explains that it is a harmonised list which will be periodically reviewed but that  
         the inclusion of a material in the list does not mean that the material is a waste in all circumstances. Materials are considered
         to be waste only where the definition of waste in Article 1(a) of Directive 75/442/EEC is met. 
         
         
         6
            
          Article 1(c) of Directive 75/442 defines  
         holder as the  
         producer of the waste or the natural or legal person who is in possession of it. 
         
         
         7
            
          Article 1(d) defines the  
         management of waste as  
         the collection, transport, recovery and disposal of waste, including the supervision of such operations and aftercare of disposal
         sites. 
         
         
         8
            
          Article 1(e) and (f) defines the disposal and recovery of waste as any of the operations provided for in Annexes II A and
         II B thereto respectively. Those annexes were adapted to scientific and technical progress by Commission Decision 96/350/EC
         of 24 May 1996 (OJ 1996 L 135, p. 32). One of the recovery operations listed in Annex II B is R1,  
         use principally as a fuel or other means to generate energy. 
         
         
         9
            
          Article 2 provides: 1. The following shall be excluded from the scope of this directive:
         
         (a)
          gaseous effluents emitted into the atmosphere; 
         
         
         (b)
          where they are already covered by other legislation: 
         ...
         
         (ii)
          waste resulting from prospecting, extraction, treatment and storage of mineral resources and the working of quarries; 
         ...
         
         2.
          Specific rules for particular instances or supplementing those of this directive on the management of particular categories
         of waste may be laid down by means of individual directives.
         
         
         
         10
            
          Article 3(1) of Directive 75/442 provides, inter alia, that Member States are to take appropriate steps to encourage the recovery
         of waste by means of recycling, re-use or reclamation or any other process with a view to extracting secondary raw materials.
         Article 4 of the Directive provides that Member States are to take the necessary measures to ensure that waste is recovered
         or disposed of without endangering human health and without using processes or methods which could harm the environment, and
         in particular without risk to water, air, soil and plants and animals and without adversely affecting the countryside. 
         
         
         11
            
          Articles 9 and 10 of Directive 75/442 state that any establishment or undertaking which carries out waste disposal operations
         or operations which may lead to recovery must obtain a permit from the competent authority. 
         
         
         12
            
          Nevertheless, Article 11 of Directive 75/442 provides for exemption from the permit requirement under certain conditions.
         
          National legislation
         
         
         13
            
          Directive 75/442 was transposed into Italian law by Decreto legislativo 5 febbraio 1997, No 22, attuazione delle direttive
         91/156/CEE sui rifiuti, 91/689/EEC sui rifiuti pericolosi e 94/62/CE sugli imballaggi e sui rifiuti di imballagio (Legislative
         Decree No 22, of 5 February 1997, implementing Directives 91/156/EEC on waste, 91/689/EEC on hazardous waste and 94/62/EC
         on packaging and packaging waste) (GURI of 15 February 1997, suppl. ord. No 38), subsequently amended by Decreto legislativo
         8 novembre 1997, No 389 (GURI No 261, of 8 November 1997) (hereinafter  
         Legislative Decree No 22/97). 
         
         
         14
            
          Legislative Decree No 22/97 reproduces the definition of waste laid down in Directive 75/442. It requires an administrative
         permit for the management of certain types of waste. In those cases, the absence of a permit is subject to criminal penalties.
         
         
         
         15
            
          After the prosecution which forms the subject-matter of the main proceedings had commenced, Decreto legge 7 marzo 2002, No
         22, recante disposizioni urgenti per l'individuazione della disciplina relativa all'utilizzazione del coke de petrolio (pet-coke)
         negli impianti de combustione (Decree-Law No 22, of 7 March 2002, laying down urgent provisions for regulation of the use
         of petroleum coke (pet-coke) in combustion plants) (GURI No 57, of 8 March 2002) was adopted. That legislation removed petroleum
         coke used as industrial fuel from the scope of Legislative Decree No 22/97 and regulated its use in combustion plants in the
         following manner: 
         
         1.
          Petroleum coke with a sulphur content not exceeding 3% of mass may be used in combustion plants with a rated thermal input
         capacity equal to or greater than 50 MW per firing unit. 
         
         
         2.
          Petroleum coke may be used at the production site ... 
          (even if its sulphur content exceeds 3%). 
         
         3.
          Petroleum coke with a sulphur content not exceeding 6% of mass may be used in plants where at least 60% of sulphur compounds
         are fixed or combined with the production product.  
         
         
         4.
          The use of petroleum coke in kilns producing lime for the food industry is strictly prohibited.
         
         
         
         16
            
          Decree-Law No 22 of 7 March 2002 was in turn amended by Legge 6 maggio 2002, No 82, conversione in legge, con modificazioni,
         del decreto legge 7 marzo 2002, No 22, recante disposizioni urgenti per l'individuazione delle disciplina relativa all'utilizzazione
         del coke de petrolio (pet-coke) negli impianti de combustione (Law of 6 May 2002, No 82, implementing, following amendment,
         Decree-Law No 22 of 7 March 2002 concerning urgent provisions for regulation of the use of petroleum coke (pet-coke) in combustion
         plants) (GURI No 105 of 7 May 2002). It stated that petroleum coke used as fuel for production purposes was excluded from
         the scope of Legislative Decree No 22/97. Article 2(2) of that decree-law, cited in the preceding paragraph of this order,
         went on as follows: Petroleum coke may also be used at production sites in combustion processes intended to generate electrical or thermal energy
         for purposes not directly related to refining processes, provided that emissions do not exceed the limits fixed by the relevant
         provisions.
         Main proceedings and the questions referred for a preliminary ruling
         
         17
            
          As a result of complaints concerning petroleum refinery activities at Gela, the Public Prosecutor of the Tribunale di Gela
         had a technical survey carried out in the installation. That survey determined that the refinery was using petroleum coke,
         resulting from the refining of crude oil, as fuel for its combined steam and electricity power station; most of the energy
         produced there is used by the refinery itself, but surplus electricity is sold to other industries or to the electricity company
         ENEL SpA.  
         
         
         18
            
          The Public Prosecutor took the view that the petroleum coke constituted waste subject to Legislative Decree No 22/97 and,
         since it was being stored and used without the administrative permit required by that legislation, charged Mr Saetti and Mr
         Frediani with having failed to comply with that permitting requirement. In addition, at the request of the Public Prosecutor,
         the Giudice per le indagini preliminari sequestrated the two petroleum coke depots which supplied the refinery's combined
         heat and power station. 
         
         
         19
            
          After the entry into force of Legislative Decree No 22/97 of 7 March 2002, referred to in paragraph 15 of this order, the
         public prosecutor ended the sequestration, since the new Italian legislation authorised the use of petroleum coke under certain
         conditions. 
         
         
         20
            
          As regards the action to be taken in the proceedings following the entry into force of the Decree-Law of 6 May 2002, referred
         to in paragraph 16 of this order, the Giudice per le indagini preliminari essentially asks whether the Italian authorities
         are able to exclude petroleum coke used as fuel for industrial purposes and refinery operations from the scope of Legislative
         Decree No 22/97, in the light of Directive 75/442. In particular, he is inclined to take the view that petroleum coke constitutes
         waste within the meaning of Article 1(a) of Directive 75/442 and that, in the absence of Community legislation on petroleum
         coke, as provided for in Article 2(1)(b) of that directive, the national authorities could not exclude it from the scope of
         Legislative Decree No 22/97, which was adopted for the purpose of implementing that directive. 
         
         
         21
            
          In those circumstances, the Giudice per le indagini preliminari decided to stay the proceedings and to refer the following
         questions to the Court for a preliminary ruling: 
         
         1.
          Does petroleum coke fall within the meaning of  
         waste as provided in Article 1 of Directive 75/442/EEC? 
         
         
         2.
          Does the use of petroleum coke as a fuel constitute a recovery operation within the meaning of Article 1 of Directive 75/442/EEC?
         
         
         
         3.
          Does petroleum coke used as a fuel for production purposes fall within the categories of waste which a Member State may exclude
         from the scope of Community legislation on waste, following the adoption of specific legislation in accordance with Article 2
         of Directive 75/442/EEC? 
         
         
         4.
          Does also allowing the use of petroleum coke at the production site for combustion processes intended to produce electrical
         or thermal energy for purposes not related to refinery processes, provided that emissions fall within the limits laid down
         in the relevant provisions, even where its sulphur content exceeds 3% of mass, constitute a necessary and sufficient measure
         to ensure that such waste is recovered without endangering human health and without using processes or methods which could
         harm the environment, in accordance with Article 4 of Directive 75/442/EEC?
         
         Admissibility
         
         22
            
          First, Mr Saetti and Mr Frediani contend that the proceedings in the context of which the Giudice per le indagini preliminari
         acted are not of a judicial nature which allows referral for a preliminary ruling to be made to the Court on the basis of
         Article 234 EC. They maintain that criminal proceedings take on that character only once they have been referred back to the
         court hearing the case, except in particular cases which are not relevant here. 
         
         
         23
            
          That argument must be rejected. It is settled case-law that the judge investigating a criminal matter or the investigating
         magistrate constitutes a court or tribunal within the meaning of Article 234 EC, appointed to give a ruling, independently
         and in accordance with the law, in cases coming within the jurisdiction conferred on it by law in proceedings intended to
         culminate in decisions of a judicial nature (see, inter alia, Case 65/79  
         Chatain [1980] ECR 1345, and Case 14/86  
         Pretore di Salò v  
         X [1987] ECR 2545, paragraph 7). 
         
         
         24
            
          Secondly, Mr Saetti and Mr Frediani contend that the interpretation of Community law requested of the Court serves no purpose,
         inasmuch as following the adoption of Decree-Law No 22 of 7 March 2002 and the Law of 6 May 2002, they could no longer be
         found guilty under national law for the actions which gave rise to the main proceedings. However it is construed, Directive
         75/442 is as such not enforceable against individuals and cannot itself directly serve as a basis for criminal proceedings.
         The latter must therefore be abandoned in any event, and the interpretation of the Directive has no bearing on it. For that
         reason as well, referral to the Court is inadmissible. 
         
         
         25
            
          That argument must also be rejected. It is true that a directive may not of itself impose obligations on a private individual
         and may not therefore be relied on as such against such a person (see, inter alia, Case C-343/98  
         Collino and Chiappero [2000] ECR I-6659, paragraph 20). Similarly, a directive cannot, of itself and independently of a national law adopted by
         a Member State for its implementation, have the effect of determining or aggravating the liability in criminal law of persons
         who act in contravention of the provisions of that directive (see, inter alia, Case 80/86  
         Kolpinghuis Nijmegen [1987] ECR 3969, paragraph 13, and Case C-168/95  
         Arcaro [1996] ECR I-4705, paragraph 37). 
         
         
         26
            
          In the present case, however, it is common ground that, at the time when the acts which gave rise to the criminal proceedings
         against Mr Saetti and Mr Frediani were established, those acts could, where relevant, constitute offenses punishable under
         criminal law. It is not for the Court to interpret or apply national law in order to establish the effects of the most recent
         national legislation, which no longer considers such acts to be infringements (see to that effect Joined Cases C-304/94, C-330/94,
         C-342/94 and C-224/95  
         Tombesi and Others [1997] ECR I-3561, paragraphs 42 and 43). 
         
         
         27
            
          In addition, it is clear from the order for reference that the proceedings in question could, on the basis of the Court's
         interpretation of Directive 75/442, result in that connection in a referral to the Corte costituzionale (Italy) for the purpose
         of deciding the legality of the national legislation. 
         
         
         28
            
          It must be remembered that it is solely for the national court before which the dispute has been brought and which must assume
         responsibility for the subsequent judicial decision to determine, in the light of the particular circumstances of the case,
         both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which
         it submits to the Court. Consequently, where the questions submitted concern the interpretation of Community law, the Court
         of Justice is, in principle, bound to give a ruling (see Case C-415/93  
         Bosman [1995] ECR I-4921, paragraph 59). 
         
         
         29
            
          While the Court has also held that, in exceptional circumstances, it can examine the conditions in which the case was referred
         to it by the national court, in order to decide whether it has jurisdiction, it pointed out that it may refuse to rule on
         a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of
         Community law that is sought bears no relation to the facts of the main action or its purpose, where the problem is hypothetical,
         or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions
         submitted to it (Case C-379/98  
         PreussenElektra [2001] ECR I-2099, paragraph 39). 
         
         
         30
            
          The questions referred for a preliminary ruling are accordingly admissible. 
         Questions referred for a preliminary ruling
         
         31
            
          Taking the view that the answer to the questions put to it may be deduced clearly from existing case-law, the Court, in accordance
         with Article 104(3) of the Rules of Procedure, informed the national court that it intended to give judgment by reasoned order
         and invited the interested parties referred to in Article 23 of the Statute of the Court of Justice to submit any observations
         which they might wish to make in that regard. Mr Saetti and Mr Frediani, the Italian and the Swedish Governments and the Commission
         stated that they had no objection to the use of that procedure.  
          First question
         
         
         32
            
          By this question, the national court asks whether petroleum coke constitutes waste within the meaning of Article 1(a) of Directive
         75/442. 
         
         
         33
            
          The scope of the concept of waste depends on the meaning of the term  
         discard used in Article 1(a) of Directive 75/442. The Court has held that the use of an operation listed in Annex II A or Annex II
         B to Directive 75/442 does not of itself allow a substance or object to be classified as waste and, conversely, that the concept
         of waste does not exclude substances and objects which are capable of further economic use. The system of supervision and
         management established by Directive 75/442 is intended to cover all objects and substances discarded by their owner, even
         if they have a commercial value and are collected on a commercial basis for recycling, reclamation or further use (Case C-9/00
          
         Palin Granit and Vehmassalon kansanterveystyön kuntayhtymän hallitus [2002] ECR I-3533, hereinafter  
         Palin Granit, paragraphs 22, 27 and 29). 
         
         
         34
            
          Certain circumstances may constitute evidence that the holder has discarded a substance or object or intends or is required
         to discard it within the meaning of Article 1(a) of Directive 75/442. That will be the case, in particular, where the substance
         used is a production residue, that is to say a product not intended as such (Joined Cases C-418/97 and C-419/97  
         ARCO Chemie Nederland and Others [2000] ECR I-4475, paragraph 84). The Court explained to that effect that waste-rock from granite quarrying, which is not
         the product primarily sought by the operator, in principle constitutes waste (
         Palin Granit, paragraphs 32 and 33). 
         
         
         35
            
          However, one possible analysis which could be accepted is that goods, materials or raw materials resulting from a manufacturing
         or extraction process which is not primarily intended to produce that item may be regarded not as a residue but as a by-product
         which the undertaking does not wish to  
         discard, within the meaning of the first paragraph of Article 1(a) of Directive 75/442, but intends to exploit or market on terms
         which are advantageous to it, in a subsequent process, without prior processing. Such an interpretation is not incompatible
         with the aims of Directive 75/442, for there is no reason to hold that the provisions of Directive 75/442, which are intended
         to regulate the disposal or recovery of waste, apply to goods, materials or raw materials which have an economic value as
         products, regardless of processing, and which as such are subject to the legislation applicable to those products (
         Palin Granit, paragraphs 34 and 35). 
         
         
         36
            
          However, having regard to the obligation to interpret the concept of waste widely in order to limit its inherent risks and
         pollution, recourse to the reasoning applicable to by-products should be confined to situations in which the further use of
         goods, materials or raw materials is not a mere possibility but a certainty, without any prior processing, and as an integral
         part of the production process (
         Palin Granit, paragraph 36). 
         
         
         37
            
          In addition to the criterion of whether a substance constitutes a production residue, a second relevant criterion for determining
         whether or not that substance is waste for the purposes of Directive 75/442 is thus the likelihood that that substance will
         be further used without any prior processing. If, in addition to the mere possibility of further use of the substance, there
         is also a financial advantage to the holder in so doing, the likelihood of such further use is high. In such circumstances,
         the substance in question must no longer be regarded as a burden which its holder seeks to  
         discard, but as a genuine product (
         Palin Granit, paragraph 37). 
         
         
         38
            
          The Court therefore held that stone debris produced as mining residues which are lawfully used in the production process,
         without prior processing, in order to ensure the necessary filling in of underground galleries cannot be considered to be
         substances which the holder discards or intends to discard since, on the contrary, he needs them for his principal activity,
         subject, however, to the condition that he provides sufficient guarantees as to the identification and actual use of the substances
         (Case C-114/01  
         AvestaPolarit Chrome  [2003] ECR I-8725, paragraphs 36 to 39 and 43). 
         
         
         39
            
          Other evidence of the existence of waste within the meaning of Article 1(a) of Directive 75/442 may lie in the fact that the
         treatment method for the substance in question is a standard waste treatment method or that the undertaking perceives the
         substance as waste and from the fact that, in the case of a production residue, it can be used only in a way that involves
         its disappearance or that its use must involve special measures to protect the environment (
         ARCO Chemie Nederland and Others, cited above, paragraphs 69 to 72, 86 and 87). 
         
         
         40
            
          However, those elements are not necessarily conclusive, and whether something is in fact waste must be determined in the light
         of all the circumstances, regard being had to the aim of the directive and the need to ensure that its effectiveness is not
         undermined (
         ARCO Chemie Nederland, paragraph 88). 
         
         
         41
            
          As regards petroleum coke produced and used in an oil refinery, it is necessary to take into account the information set out
         in the document published by the Commission in accordance with Article 16(2) of Council Directive 96/61/EC of 24 September
         1996 concerning integrated pollution prevention and control (OJ 1996 L 257, p. 26), which concerns the exchange of information
         between Member States and the industries concerned on best available techniques in order to achieve a high level of protection
         for the environment as a whole, associated monitoring and developments and their progress in the field of oil and gas refining,
         a document commonly known as a BREF (BAT reference document), as well as the general conditions in the refinery concerned,
         which, where relevant, must be determined by the court to which a dispute is referred. 
         
         
         42
            
          Petroleum coke, composed of solid carbon and variable amounts of impurities, which is one of the numerous substances resulting
         from the refining of petroleum, is, according to the observations submitted by Mr Saetti and Mr Frediani, intentionally produced
         at the Gela refinery, given the characteristics of the crude oil which is treated there. For its part, the BREF states, inter
         alia, that petroleum coke  
         is widely used as fuel in the cement and steel industry. It can also be used as a fuel for power plants if the sulphur content
         is low enough. Coke also has non-fuel applications as a raw material for many carbon and graphite products. 
         
         
         43
            
          Moreover, the file indicates that petroleum coke is used in Gela as the main component in the fuel used to power the integrated
         combined heat and power station which supplies the refinery's steam and electricity needs. Since the electricity generated
         is greater than the refinery's consumption, given the volume of vapour produced at the same time, the surplus is sold to other
         industries or to an electricity company. 
         
         
         44
            
          If these conditions of production and use are established, the classification as waste within the meaning of Article 1(a)
         of Directive 75/442 can be excluded.  
         
         
         45
            
          First, in those circumstances, petroleum coke cannot be classified as a production residue within the meaning of paragraph
         34 of this order as the production of coke is the result of a technical choice (since petroleum coke is not necessarily produced
         during refinery operations), specifically intended for use as fuel, whose production costs are probably lower than the cost
         of other fuels which could be used to generate the steam and electricity which meet the needs of the refinery. Even if, as
         maintained by an adverse party in the main proceedings against Mr Saetti and Mr Frediani, the petroleum coke at issue automatically
         results from a technique which at the same time generates other petroleum substances which are the main results sought by
         the refinery's management, it is clear that, if it is certain that the coke production in its entirety will be used, mainly
         for the same purposes as the other substances, that petroleum coke is also a petroleum product, manufactured as such, and
         not a production residue. The file in the main proceedings sent to the Court appears to indicate that it is common ground
         that the petroleum coke is certain to be fully used as fuel in the production process and that all the resulting surplus electricity
         is sold. 
         
         
         46
            
          Secondly, as regards the information referred to in paragraph 39 of this order, the fact that petroleum coke is used as a
         fuel for energy production, a use which is a standard waste recovery method, is not relevant, since the purpose of a refinery
         is precisely to produce different types of fuel from crude oil. Moreover, possible evidence concerning, first, the absence
         of any use other than one which leads to the disappearance of the substance at issue (not established here, since petroleum
         coke may be used as a raw material to manufacture carbon- and graphite-based products) and, secondly, the fact that its use
         must involve special measures to protect the environment (here established) are also irrelevant, since those factors apply
         to production residues and the petroleum coke produced and used in the circumstances referred to above does not fit that classification,
         as follows from the preceding paragraph of this order. The evidence concerning the fact that the company considers petroleum
         coke to be waste, even if it is confirmed, is not sufficient to justify the inference that the petroleum coke at issue is
         waste, given the other circumstances previously mentioned. It could only be different if the refinery's management gave up
         the use of petroleum coke as the result of public opinion or was required to do so by a legal decision. In that case, it would
         be necessary to find that the holder of the petroleum coke is discarding it or intends to or is required to discard it. 
         
         
         47
            
          The answer to the first question must therefore be that petroleum coke which is produced intentionally or in the course of
         producing other petroleum fuels in an oil refinery and is certain to be used as fuel to meet the energy needs of the refinery
         and those of other industries does not constitute waste within the meaning of Directive 75/442. 
          Second, third and fourth questions
          48 Answers to these questions would be of use to the national court only if the petroleum coke at issue in the main proceedings
         had to be considered to be waste within the meaning of Directive 75/442. However, in the light of the information given in
         the order for reference and the observations submitted to the Court, which led to the answer to the first question, such does
         not appear to be the case. There is therefore no need to answer the second, third and fourth questions. 
         Costs 49 The costs incurred by the Italian, Austrian and Swedish Governments and by the Commission, which have submitted observations
         to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings
         pending before the national court, the decision on costs is a matter for that court. 
         On those grounds, 
         
         
         
            
            THE COURT (Third Chamber),
         
         
          in answer to the questions referred to it by the Giudice per le indagini preliminari of the Tribunale di Gela by order of
         19 June 2002, hereby rules:
         Petroleum coke which is produced intentionally or in the course of producing other petroleum fuels in an oil refinery and
            is certain to be used as fuel to meet the energy needs of the refinery and those of other industries does not constitute waste
            within the meaning of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of
            18 March 1991. Luxembourg, 15 January 2004. 
         
         
         
                  R. Grass 
               
               
                  V. Skouris  
               
            
         
         
         
                  Registrar
               
               
                  President
               
            
      
      
          1 –
            
             Language of the case: Italian.