Commission of the European Communities v Kingdom of Spain.
Date: 2005-09-08
57. It must be recalled that the scope of the term ‘waste’, for the purposes of Directive 75/442, turns on the meaning of the term ‘discard’ in the first subparagraph of Article 1(a) of that directive (see Case C-129/96 Inter‑Environnement Wallonie  [1997] ECR I‑7411, paragraph 26).
58. In certain situations, goods, materials or raw materials resulting from an extraction or manufacturing process, the primary aim of which is not the production of that item, may be regarded not as a residue but as a by-product which the undertaking does not seek to ‘discard’, within the meaning of the first subparagraph 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 any further processing prior to reuse. There is, in such a case, no reason to hold that the provisions of that directive, 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 any form of processing and which, as such, are subject to the legislation applicable to those products, provided that such reuse is not a mere possibility but a certainty, without any further processing prior to reuse, and as part of the continuing process of production (see Case C‑9/00 Palin Granit and Vehmassalon kansanterveystyön kuntayhtymän hallitus  [2002] ECR I‑3533, paragraphs 34 to 36).
59. The Court has thus held that leftover rock and sand residue from ore‑dressing operations in the working of a mine are not classified as waste for the purposes of Directive 75/442 where their holder uses them lawfully for the necessary filling‑in of the galleries of that mine and provides sufficient guarantees as to the identification and actual use of those substances (see, to that effect, AvestaPolarit Chrome , paragraph 43). The Court has also ruled 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 that directive (order in Case C‑235/02 Saetti and Frediani  [2004] ECR I‑1005, paragraph 47).
60. As the Spanish Government correctly maintains, livestock effluent may, on the same terms, fall outside classification as waste, if it is used as soil fertiliser as part of a lawful practice of spreading on clearly identified parcels and if its storage is limited to the needs of those spreading operations.
61. Contrary to the Commission’s submission, it is not appropriate to limit that analysis to livestock effluent used as fertiliser on land forming part of the same agricultural holding as that which generated the effluent. As the Court has already held, it is possible for a substance not to be regarded as waste within the meaning of Directive 75/442 if it is certain to be used to meet the needs of economic operators other than that which produced it (see, to that effect, Saetti and Frediani , cited above, paragraph 47).
66. The fact that in the European Waste Catalogue ‘waste from agricultural primary production’ includes ‘animal faeces, urine and manure (including spoiled straw), effluent, collected separately and treated off‑site’ is not such as to bring that conclusion into question. That general mention of the effluents from stock‑rearing does not take into account the conditions in which the effluent is used and which are decisive for the purposes of assessing the meaning of ‘waste’. In addition, the preliminary note in the annex to the European Waste Catalogue states that this list of waste is ‘non‑exhaustive’, that ‘the inclusion of a material in the EWC does not mean that the material is a waste in all circumstances’ and that ‘the entry is only relevant when the definition of waste has been satisfied’.
69. The Court has already held that the term ‘other legislation’ can refer to both Community legislation and national legislation covering a category of waste mentioned in Article 2(1)(b) of Directive 75/442 provided that such legislation, Community or national, relates to the management of that waste as such and that it results in a level of protection of the environment at least equivalent to that aimed at by that directive (see AvestaPolarit Chrome , paragraph 61).
82. It must be recalled that the Commission is bound, in any application lodged under Article 226 EC, to state the precise complaints on which the Court of Justice is to adjudicate and also, at least briefly, the elements of law and of fact on which those complaints are based (see, in particular, Case C‑375/95 Commission v Greece  [1997] ECR I‑5981, paragraph 35, and Case C‑202/99 Commission  v Italy  [2001] ECR I‑9319, paragraph 20).
87. While the second subparagraph of Article 4(2) of Directive 85/337, in its original version, conferred on the Member States a discretion to specify whether the classes of projects listed in Annex II to that directive should be made subject to an assessment and to set criteria and/or thresholds, that discretion was limited by the obligation, set out in Article 2(1) of that directive, to subject to an impact assessment projects likely to have significant effects on the environment, particularly by virtue of their nature, size or location (see, to that effect, Case C‑72/95 Kraaijeveld and Others  [1996] ECR I‑5403, paragraph 50; Case C‑392/96 Commission  v Ireland  [1999] ECR I‑5901, paragraph 64; and Commission  v Spain , cited above, paragraphs 30 and 31). As the Court has held, the Member States could not, in particular, exclude globally and definitively one or more classes of the projects mentioned in the said Annex II from the assessment requirement (see, to that effect, Case C‑133/94 Commission  v Belgium  [1996] ECR I‑2323, paragraphs 41 to 43).
88. Here, the characteristics of the farms concerned required that they be subjected to an impact assessment. The size of many of those farms, their geographical location in a zone declared vulnerable in 1998 by the Spanish authorities under Directive 91/676, their relatively high number in the same zone and the particular difficulties connected to that type of livestock farm necessitated that such assessments be undertaken.
108. As the Court has held, Article 7(6) of Directive 80/778 does not establish a mere duty of due diligence but an obligation to achieve a particular result (Case C‑316/00 Commission  v Ireland  [2002] ECR I‑10527, paragraph 37).