Commission of the European Communities v Italian Republic.
Date: 2007-12-18
32. The first paragraph of Article 1(a) of the Directive defines waste as ‘any substance or object in the categories set out in Annex I [to the Directive] which the holder discards or intends ... to discard’. The annex referred to clarifies and illustrates that definition by providing a list of categories of substances and objects which may be classified as ‘waste’. That list is intended only as guidance, however, and the classification of a substance or object as waste is to be inferred primarily from the holder’s actions and the meaning of the term ‘discard’ (see, to that effect, Case C‑129/96 Inter-Environnement Wallonie  [1997] ECR I‑7411, paragraph 26; Case C‑1/03 Van de Walle and Others  [2004] ECR I‑7613, paragraph 42; and Case C‑252/05 Thames Water Utilities  [2007] ECR I‑3883, paragraph 24).
33. The term ‘discard’ must be interpreted in the light not only of the fundamental aim of the directive, which, according to the third recital in the preamble thereto, is ‘the protection of human health and the environment against harmful effects caused by the collection, transport, treatment, storage and tipping of waste’, but also of Article 174(2) EC. The latter provision states that ‘Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Community. It shall be based on the precautionary principle and on the principles that preventive action should be taken … ‘. It follows that the term ‘discard’ – and, accordingly, the concept of ‘waste’, within the meaning of Article 1(a) of the directive – cannot be interpreted restrictively (see, to that effect, inter alia, Joined Cases C‑418/97 and C‑419/97, ARCO Chemie Nederland and Others  [2000] ECR I‑4475, paragraphs 36 to 40, and Thames Water Utilities , paragraph 27).
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 the directive ( ARCO Chemie Nederland and Others , paragraph 83). That is the case in particular where a substance is a production or consumption residue, that is to say, a product which it was not, as such, sought to produce (see, to this effect, ARCO Chemie Nederland and Others , paragraph 84, and Niselli , paragraph 43).
35. Moreover, neither the method of treatment reserved for a substance nor the use to which that substance is put determines conclusively whether or not it is to be classified as waste (see ARCO Chemie Nederland and Others , paragraph 64, and Case C‑176/05 KVZ retec  [2007] ECR I‑1721, paragraph 52).
36. The Court has thus stated, first, that the fact that a substance or object undergoes one of the disposal or recovery operations listed, respectively, in Annexes II A and II B to the directive does not, by itself, mean that a substance or object involved in such an operation is to be classified as waste (see, to that effect, inter alia, Niselli , paragraphs 36 and 37); and, secondly, that the concept of waste does not exclude substances and objects which are capable of economic re-use (see, to that effect, inter alia, Joined Cases C‑304/94, C‑330/94, C‑342/94 and C‑224/95 Tombesi and Others  [1997] ECR I‑3561, paragraphs 47 and 48). The system of supervision and control established by the directive is intended to cover all objects and substances discarded by their owners, even if they have a commercial value and are collected on a commercial basis for recycling, recovery or re-use (see, inter alia, Case C‑9/00 Palin Granit and Vehmassalon kansanterveystyön kuntayhtymän hallitus  [2002] ECR I‑3533, ‘ Palin Granit’ , paragraph 29).
37. However, it is also clear from the case-law of the Court that, in certain situations, goods, materials or raw materials resulting from an extraction or manufacturing process, the primary aim of which is not their production, may be regarded not as residue, but as by‑products which their holder does not seek to ‘discard’, within the meaning of Article 1(a) of the directive, but which he intends to exploit or market on terms advantageous to himself in a subsequent process – including, as the case may be, in order to meet the needs of economic operators other than the producer of those substances – provided that such re-use is a certainty, does not require any further processing prior to re-use and forms an integral part of the process of production or use (see, to that effect, Palin Granit , paragraphs 34 to 36; Case C‑114/01, AvestaPolarit Chrome  [2003] ECR I‑8725, paragraphs 33 to 38; Niselli , paragraph 47; and also Case C‑416/02 Commission v Spain  [2005] ECR I‑7487, paragraphs 87 and 90, and Case C‑121/03 Commission v Spain  [2005] ECR I‑7569, paragraphs 58 and 61).
38. Accordingly, in addition to the criterion of whether a substance constitutes a production residue, a relevant criterion for determining whether or not that substance is waste within the meaning of the directive is the degree of likelihood that that substance will be re-used without any prior processing. If, beyond the mere possibility of re-using the substance, there is also a financial advantage for the holder in so doing, the likelihood of such re-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 (see Palin Granit , paragraph 37, and Niselli , paragraph 46).
39. However, if such re-use requires long-term storage operations which constitute a burden to the holder and are also potentially the cause of precisely the environmental pollution which the directive seeks to reduce, that re-use cannot be described as a certainty and is foreseeable only in the longer term, and accordingly the substance in question must, as a general rule, be regarded as waste (see, to that effect, Palin Granit , paragraph 38, and AvestaPolarit Chrome , paragraph 39).
40. Whether a substance is in fact ‘waste’ within the meaning of the directive must be determined in the light of all the circumstances, account being taken of the aim of the directive and the need to ensure that its effectiveness is not undermined (see ARCO Chemie Nederland and Others , paragraph 88; KVZ retec , paragraph 63; and the order in Case C‑235/02 Saetti and Frediani  [2004] ECR I‑1005, paragraph 40).
41. Since the directive does not provide any single decisive criterion for discerning whether the holder intends to discard a given substance or object, Member States are free, in the absence of Community provisions, to choose the modes of proof of the various matters defined in the directives which they are transposing, provided that the effectiveness of Community law is not thereby undermined (see ARCO Chemie Nederland and Others , paragraph 41, and Niselli , paragraph 34). Thus Member States may, for example, define different categories of waste, in particular to facilitate the organisation and control of their management of waste, provided that the obligations arising under the directive or other provisions of Community law relating to such waste are complied with and that the exclusion of any categories from the scope of legislation enacted in order to transpose obligations under the directive is in compliance with Article 2(1) of the directive (see, to that effect, Case C‑62/03 Commission  v United Kingdom , not published in the ECR, paragraph 12).
44. First, by defining the act of discarding a substance or object exclusively in terms of the carrying out of one of the disposal or recovery operations listed in Annexes B and C to Legislative Decree No 22/97, the interpretation imposed by paragraph 1 of the provision at issue makes the classification of a substance or object as ‘waste’ dependent upon an operation which cannot itself be classified as disposal or recovery unless it is applied to ‘waste’. Accordingly, in reality, that interpretation does nothing to clarify the concept of waste. Thus, if that interpretation were to be applied, any substance or object involved in one of the types of operation listed in Annexes II A and II B to the Directive must be classified as waste. In consequence, that interpretation would lead to substances and objects being classified as waste which are not ‘waste’ within the meaning of the Directive (see, to that effect, Niselli , paragraphs 36 and 37).
45. Second, the interpretation set out in paragraph 42 of this judgment means that a substance or object that is discarded by the holder in a manner not specified in Annexes II A and II B to the Directive does not constitute waste, which means that that interpretation also narrows the meaning of the concept of waste as defined in Article 1(a) of the Directive. Thus, on that construction, a substance or object which is not subject to an elimination or recovery requirement, whose holder discards it by simple abandonment – without making it undergo such an operation – would not be classified as waste even though it would constitute ‘waste’ within the meaning of the Directive (see, to that effect, Niselli , paragraph 38).
51. Lastly, as regards the observations made by the Italian Republic at the hearing regarding the fact that persons described as acting ‘on the fringes of the law’ operate in the waste management sector, it is sufficient to point out that that fact – even were it assumed to be established – cannot justify the failure by that Member State to respect its obligations under the Directive.